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Monday, January 23, 2012

Supreme Court Sides with Texas in Redistricting Dispute

Last week, the Supreme Court issued a unanimous unsigned opinion (.pdf download) in the cases consolidated as Perry v. Perez, rejecting the interim electoral maps drawn by a three-judge district court panel in San Antonio for failing to defer adequately to the legislature’s choices. The decision is seen as a win for the Texas GOP.

2010 Census data revealed that a population explosion and demographic change in Texas had left the state’s electoral maps in violation of the Constitution’s one-person, one-vote mandate and in need of being redrawn. Under Section 5 of the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of past voting discrimination on the basis of race. Accordingly, Texas submitted its redrawn maps to a three-judge district court panel in DC, which has not yet ruled on preclearance.

Advocates suggest that the Republican-dominated Texas legislature redrew the maps in a way that dilutes African-American and Latino voting strength. Thus, voters and advocacy groups filed suit in federal court in San Antonio, alleging that the changes violate Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral procedures that undermine minority voting rights, as well as the Fourteenth Amendment. In view of the impending election season, the San Antonio court drew interim maps to be used until the preclearance issue could be resolved. Texas appealed to the Supreme Court, arguing that the district court had erred in drawing new maps and that the legislatively-drawn maps should be used as interim maps instead.

In its decision, the Supreme Court reiterated that a new electoral map cannot be used until it has been precleared, while also noting that the old electoral map in this case could not be used because it violated the one-person, one-vote constitutional mandate. As a result, the Supreme Court concluded that the district court in San Antonio was correct to create an interim electoral map for the 2012 election.

However, the Supreme Court found that the San Antonio court should have given greater deference to the legislature’s preferences rather than “substitut[ing] its own concept of ‘the collective public good’ for the Texas Legislature’s determination of which policies serve ‘the interests of the citizens of Texas.’” In essence, the district court should not have modified the legislature’s maps except where there are alleged legal problems with those maps that have a likelihood of success on the merits.

With regard to Section 5, the Supreme Court instructed the district court not to prejudge the preclearance proceedings on the merits, instead “taking guidance from a State’s policy judgment unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain § 5 preclearance.”  It remains to be seen how district courts will apply this opaque formulation. In the meantime, it seems likely that the maps the San Antonio court must design on remand for use in 2012 will bear much greater resemblance to the legislature’s maps, vote dilution and all.

Those concerned with voting rights should take note that Justice Thomas penned a concurrence in which he reiterated his belief – previously noted in his dissent in Northwest Austin Municipal Util. Dist. No. One v. Holder (2009) – that Section 5 of the Voting Rights Act is unconstitutional.

By rejecting the court-drawn maps and ordering greater deference to the legislature’s maps, the Court’s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.

Shortly after issuing its decision in this case, the Supreme Court issued a short order (.pdf download) staying the order of a three-judge district court panel in West Virginia pending appeal. The Charleston court had held that “zero variance” in population is required to satisfy the one-person, one-vote constitutional mandate. As a result of the Supreme Court’s stay, West Virginia can proceed with its elections using a legislatively-drawn map. 

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