Supreme Court Struggles for Answers in Texas Redistricting Dispute
By Kristen Friend, staff writer – January 11, 2012
The Supreme Court stepped into a partisan political battle on Monday that stems from three new Texas redistricting plans drawn up last summer. With the 2012 primary season heating up, the Court’s decision has the potential to affect local and national election outcomes.
Currently, voting districts for the Texas Legislature and those for the Texas delegation to the U.S. House of Representatives are in limbo. Two sets of maps have been drawn, one by the Texas Legislature and one by a federal court in San Antonio, but no decision has been made about the legality of either redistricting plan.
Texas wants to use the maps drawn by its state Legislature, while opposition groups claim those maps unfairly discriminate against minority groups. The new maps, critics claim, would cause minorities, and Hispanics in particular, to be underrepresented at the state and national level. The Supreme Court must decide which, if either, of the redistricting plans should be used in part or in its entirety.
Depending on the outcome of the dispute, Texas could add to its already significant conservative delegation or it could see an increase in Democratic representation in Washington.
On the surface, the question is narrow, involving the fairness of Texas voting districts and the fate of competing sets of redistricting maps. But lurking in the background are constitutional questions about the extent to which the federal government may play a role in the state election processes.
The controversy arises in part due to the interaction between Sections 2 and 5 of the 1965 Voting Rights Act. Section 2 prohibits electoral practices that discriminate against minority groups.  It applies to all states. Section 5 applies only to a handful of states and municipalities, mostly in the south, that have historically discriminated against minorities. It requires any changes to voting procedure, including redistricting, be approved before being legally implemented. This process, known as pre-clearance, can be accomplished through administrative review by the Justice Department or trial before the United States District Court for the District of Columbia. 
Texas is required to comply with Section 5. And redistricting maps, drawn as a result of the 2010 census, have pushed the state’s grievances into the national spotlight.
Between 2000 and 2010, Texas experienced the highest population growth of any state, at approximately 20 percent.  As a result, Texas received four additional seats in the U.S. House of Representatives. Texas needed to reapportion its voting districts for its state House, state Senate and the Texas delegation to the U.S. House of Representatives.
The Texas Legislature got to work redrawing districts in the summer of 2011. On July 19, Texas filed a request with the U.S. District Court for pre-clearance. Texas Attorney General Greg Abbott asked for summary judgment, or a ruling without a full trial.  The new maps would need to be approved before they could be used in the 2012 elections.
While the plans were under review for pre-clearance, six suits were filed in federal court contesting the legality of the new maps. The suits claim the new districts unfairly affect minorities, denying them the equal protection guaranteed by Section 2 of the Voting Rights Act. According to critics, the redistricting plans are a thinly veiled exercise in political gerrymandering designed to benefit conservatives in a state already run by majority Republican representation. A three judge panel was convened in San Antonio to hear arguments concerning the fairness of the new districts.
The San Antonio court faced an interesting dilemma; it was being asked to judge redistricting plans that were simultaneously under review for compliance with a different section of the Voting Rights Act by a different court. The judges refused to rule on the legality of the maps while they were under review, claiming they have no authority to do so.  Some of the suits have been tried and others postponed, but the court has not issued a final ruling in any of the cases.
In early November, with cases still pending in San Antonio, the D.C. federal court ruled that the Texas maps did not adequately protect minority voting rights. The court determined that the maps were “…adopted with discriminatory purpose,” and stated, “The Court finds and concludes that the State of Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice.” 
In response, the three judge panel in San Antonio drew new voter districts for interim use while the D.C. federal court holds a full trial on the issue.
Minority population increases accounted for almost 90 percent of Texas’s overall growth between 2000 and 2010. Hispanics led the way, adding approximately 2.8 million people to the state’s citizenry.  But the maps drawn by the Texas Legislature decreased the number of state House districts in which minorities had a likelihood of electing their preferred representative from 50 to 45. 
The San Antonio federal court made broad changes to the maps, redrawing the lines for 128 of the 150 state House seats and all 36 of the U.S. House Districts.  Critics of the interim maps complain that the court ignored the Texas Legislature’s plans and relied almost entirely on opposition complaints to form the new districts. Texas asked the court to place the interim maps on hold, and the court refused. Texas, believing the San Antonio court had overstepped its authority in drawing the new maps, appealed to the Supreme Court. The Court halted the implementation of the interim maps and agreed to hear the case on an expedited schedule.
Criticism of the competing maps fell along predictable partisan lines. Democratic State Representative Trey Martinez Fischer said that the maps drawn by the Legislature failed to take minorities into account. “We picked up four seats, and it’s important to look at the people who contributed to that,” he said. “It just seems very suspicious that the state of Texas is willing to accept that growth for political power in Congress but overlook those who brought them to the dance.”  Fischer belongs to a coalition challenging the Texas Legislature’s maps in court.
But Republican Representative Pete Sessions of Dallas was equally critical of the court’s plan. Sessions accused the judges of trying to “…run up the score for Democrats.” 
Because of the manner in which the case reached the Supreme Court, there is some speculation over how broadly the Court will choose to rule. During a standard appeals process, the questions before the Court must be clearly outlined by petitioners and respondents. However, Texas’ case found its way to the Supreme Court as a stay application, which requires no specific statement of issues. Even if the Court chooses to rule narrowly on the question of which maps to uphold, constitutional questions about the validity of Section 5 will be looming in the background.
Section 5 was not intended to be a permanent measure, but it has been renewed consistently over the past several decades. Most recently, in 2006, Congress overwhelmingly extended Section 5 for another 25 years with a vote of 98-0 in the Senate and 390-33 in the House. 
In original filings, Texas was clear that it was not challenging the constitutionality of Section 5. Texas asked for relief from what it views to be invalid redistricting maps, “…under the assumption that Section 5 complies with the United States Constitution.” Texas argued the only real issue was whether its own redistricting maps should be put in place, as drawn, for use in the 2012 election. 
In a new brief filed last Tuesday, Texas’ position on Section 5 is less clear. While still avoiding a direct challenge to Section 5, the brief cites “grave” concerns over its constitutionality. The brief also makes several additional references to Northwest Austin Municipal Utility District No. 1 v. Holder, a 2009 case in which the Supreme Court expressed serious reservations about the continued relevance of Section 5. 
States covered by Section 5 are becoming more impatient about meeting the requirement, questioning whether the law is an unconstitutional violation of state sovereignty. Voters in Kingston, North Carolina have brought a suit challenging the constitutionality of Section 5 as has the state of Arizona. 
Arguments in another case involving a Section 5 challenge, Shelby County, Alabama v. Holder, are scheduled to be heard by the U.S. Court of Appeals for the District of Columbia on January 19.  In September of 2011, at the district level, Judge John D. Bates, unquestioningly upheld the validity of Section 5. Judge Bates found the state sovereignty concern invalid, stating, “Congress acts at the pinnacle of its enforcement authority when it legislates to protect a fundamental right, or when it legislates to prohibit discrimination against a suspect class.”  It was the first ruling concerning Section 5 since the Supreme Court’s decision in Northwest Austin.
Given the uptick in recent Section 5 litigation, it is possible the Court is using Texas’ problem to set itself up for a future ruling on the law’s constitutionality. A decision modifying or declaring Section 5 invalid would have effects beyond future voting districts. Currently covered changes also include voter eligibility requirements, like voter identification laws, modifications to polling locations, candidate eligibility requirements and a host of other practices with potential discriminatory effect.
During arguments, conservative-leaning justices indicated a preference for implementing new voting districts based largely on the designs of Texas’ Republican controlled state Legislature, but still grappled with questions over how to do so. Justices Antonin Scalia and Samuel Alito, Jr. both suggested the three judge panel should have given more weight to the work of the Texas Legislature. Justice Scalia left little question to his preference, saying, “I suggest in that situation there is nothing to do but use the Texas plan.”  Scalia also took a swipe at Section 5, saying it was not an absolute rule forbidding Texas from using their own maps as an interim solution.
But Justice Alito was less clear, suggesting that Texas might need to further delay its primary election in order to get the redistricting dispute resolved. Alito asked, “Well, if we have a binary choice, if it’s either the plan enacted by the Texas Legislature or the plan that’s already been drawn up by the court, yes, that could be presumably resolved rather quickly. But what if neither of those is fully acceptable? Then is it — is it practicable to have the primary on the date that’s been agreed on?” 
Chief Justice John Roberts also indicated there was no clear choice to be made, saying, “…you have two wrong choices. How do we end up?” 
Only Justice Scalia’s claims that Section 5 is not an absolute rule went so far as to openly suggest changes should be made to the current legal understanding of the law. However, Justice Kennedy, the perennial swing vote, did offer a critique. Kennedy said, “Isn’t it odd that this is a Section 2 suit but Section 5 seems to be driving it? Texas is at a tremendous disadvantage here!” 
A decision must be reached by February 1 in order for Texas primaries to be held on April 3 as scheduled, and all of the Justices seemed troubled by the tight schedule. Barring any other changes to Texas’ election schedule, the indecision of the justices on the primary question before them may prevent the Court from issuing a ruling that addresses Section 5 at all.
The case is a consolidation of three suits, Perry v. Perez, Perry v. Davis and Perry v. Perez, docket No. 11-713, 11-714, and 11-715.
 Brief for Rick Perry et al., online at http://sblog.s3.amazonaws.com/wp-content/uploads/2011/12/Texas-merits-brief-12-21-11.pdf
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