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Monday, January 23, 2012

The Court Chips Away at the Voting Rights Act

Guest post by Professor Bertrall Ross

The headline from the Texas redistricting cases is that the Texas Republican Party won.  But the true victors from the Supreme Court ruling in the consolidated cases are the jurisdictions covered under Section 5 of the Voting Rights Act – the jurisdictions required to obtain approval for districting changes.

The unanimous holding that the federal court in San Antonio had not given enough deference to the state legislative districting determinations was rather unremarkable and mostly expected.  The federal court had essentially constructed a new districting arrangement out of whole cloth based on considerations that the legislature is ordinarily deemed best suited to make.  It is also rather unremarkable that the Court imported a preliminary injunction standard that requires federal courts to consider the likelihood of success on the merits prior to making districting changes in response to alleged violations of Section 2 of the Voting Rights Act and the Constitution.  As with any attempt to enjoin preliminarily a government act, the burden should be on the parties to show that they will likely succeed on the claim before the court stops the government from acting.  Ultimately, on this matter, the victory of the Texas GOP may be rendered incomplete, as the San Antonio court will probably impose an interim plan that is less favorable to the Republican Party than the state’s plan would be, since the court has indicated that the latter likely contains violations of both Section 2 and the Constitution. 

What is remarkable about the consolidated cases is how the Supreme Court continues to transform, without invalidating, the Section 5 preclearance mechanism into one that is decreasingly burdensome on the states at the expense of minority voters.   The Court starts its discussion of the Section 5 issue presented in the cases by restating the long-standing rule that this provision prevents implementation of a state plan that has not been approved by the United States Attorney General or the District Court for the District of Columbia.  Ordinarily, a situation such as that presented by Texas is an open and shut case under Section 5.  Neither the Attorney General nor the District Court for the District of Columbia have approved the change to the electoral law, therefore the electoral law cannot be changed and the prior law must be kept in place for the upcoming election.  However, the Court acknowledged that redistricting changes present a unique problem.  Since the establishment of the one-person, one-vote requirement, states and local jurisdictions are constitutionally mandated to make changes to districting arrangements after every census to ensure equal population districts.  The usual option of no change to the electoral law is therefore no longer available.  Some districting plan has to be put in place before the first election after every census. 

For districting arrangements such as those in Texas, which have not yet been pre-cleared in the face of an impending election, the Court had essentially two options.  First, it could have allowed the un-precleared state plans to be adopted for this election cycle.  This approach would have severely undermined the pre-clearance mechanism, as covered states would be incentivized to engage in delay tactics when seeking pre-clearance, in hopes that a plan presumably harmful to minority voters be used during the first post-census elections.  The Court fortunately did not go this route. 

However, the Court had only one other option available to it under Section 5, an option only slightly more appealing from the perspective of minority voters.  Since only the District Court for the District of Columbia can adjudicate Section 5 preclearance questions under the Voting Rights Act, the Court instructed lower federal courts responsible for drawing up alternative plans to not “prejudge the merits of preclearance.”  Instead, they must accept the policy judgments reflected in the state plan unless particular aspects “stand a reasonable probability of failing to gain Section 5 preclearance.”  It is not exactly clear what a standard of “reasonable probability” means.  Depending on the court, the standard may result in a great deal of deference given to the state plan or very little to no deference at all.

But irrespective of how lower courts interpret the standard, the requirement that any new districting plan must be precleared before being employed has been loosened.  And ever so slightly, the incentives for covered jurisdictions to take the slowest route toward preclearance has increased based on the possibility, and in some cases the strong possibility, that an un-precleared plan could be employed in at least one election.  One election may not seem like such a big deal, but when one considers that the terms in the Texas state legislature can run up to four years in the election after the decennial reapportionment, the stakes grow.  The burden of delay when covered jurisdictions seek pre-clearance is now firmly on minority voters, as they face the possibility of having to endure an election under a plan that makes them worse off than they were under the prior plan.  The Texas redistricting decision therefore represents a subtle yet important win for the covered jurisdictions and a loss for minority voters.   


Bertrall Ross teaches Legislation, Election Law, and Constitutional Law at Berkeley Law. In the area of legislation, his current research seeks to address how courts should reconcile legislative supremacy with the vexing problem of interpreting statutes in contexts not foreseen by the enacting legislature. In election law, he is examining the constitutional dimensions and the structural sources of the marginalization of the poor in the American political process.

Prior to joining the Berkeley faculty, Bertrall was a Kellis Parker Academic Fellow at Columbia Law School. He clerked for the Honorable Dorothy Nelson of the Ninth Circuit Court of Appeals and the Honorable Myron Thompson of the Middle District of Alabama. He received his J.D. from Yale Law School and has an M.Sc in the Politics of the World Economy from the London School of Economics, a Masters in Public Affairs from Princeton University Woodrow Wilson School of Public and International Affairs, and a B.A. in International Affairs and History from the University of Colorado, Boulder.

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