The Supreme Court has decided to take up Texas’ redistricting plan on an expedited briefing and argument schedule. Even though it’s not directly a case involving preclearance under Section 5 of the Voting Rights Act, functionally the Court’s decision will likely have significant implications for Section 5. While it’s never easy to predict what the Court might do, as I explain below, I think that ultimately the Court will find a way to continue down its recent path of decisions limiting the procedural protections afforded to minority voters by Section 5.
Boiled down to the essentials, the facts of the Texas case are relatively simple. Texas is a jurisdiction covered by Section 5 of the Voting Rights Act. So in order to implement any redistricting plan, Texas needs to go through the process of securing preclearance (or pre-approval) from the federal government—either from the Department of Justice (DOJ) or from a three-judge panel of the D.C. District Court where DOJ serves as defendant. DOJ had some issues with the substance of Texas’ congressional and State House plans, alleging that the plans were discriminatory in effect and purpose in their treatment of Latino voters. Texas sought preclearance of its plans by moving for summary judgment, but the D.C. District Court decided that DOJ had created material issues of fact that necessitated a trial.
The inability to secure Section 5 preclearance created a problem for the State. Texas’ existing plan could not be used because it’s a violation of the Equal Protection principal of one person, one vote, and Texas’ proposed plan could not be used because it did not have the requisite Section 5 preclearance. Yet Texas desperately needs a new redistricting plan to hold next year’s congressional elections—initially scheduled to commence with a primary in March but now, based on an agreement between the political parties as a result of this case, currently scheduled for April. Redistricting disputes like these go to a three-judge district court, with a direct appeal allowed to the Supreme Court. Recognizing the need to remedy a constitutional one person, one vote violation before the next election, a three-judge panel in the Western District of Texas ordered into effect an interim plan for the 2012 elections.
The State of Texas was not enamored of the interim plan ordered by the judges in the Western District of Texas. The most basic reason for the lack of love for the court’s plan was political. Texas is totally controlled by Republicans and the court-ordered interim redistricting plan was not nearly as favorable to Republicans as the State’s proposed plan. Texas, then, asked for an emergency stay of the district court’s order and the Supreme Court granted the stay while simultaneously noting probable jurisdiction (meaning that the Court would hear the case on the merits).