The Supreme Court on Monday held 70 minutes of argument for three cases on the new state legislative and congressional districts Texas will use in 2012 and beyond. The three cases under review are Perry v. Perez (11-713) on redistricting the state house, Perry v. Davis (11-714) on redistricting the state senate, and Perry v. Perez (11-715) on redistricting the U.S. House. At issue is whether the San Antonio federal court had the authority to impose a new legislative district plan on Texas when the state legislature’s plan had not obtained the “preclearance” required under Section 5 of the 1965 Voting Rights Act. The cases focus on Section 5 issues, but have broader implications for the division of power between state legislatures and federal courts in redistricting.
Under Section 5, any change related to voting in a covered jurisdiction is legally unenforceable unless and until the jurisdiction obtains approval from the DC District Court or the Attorney General. Approval requires proof that the proposed voting change does not deny or abridge the right to vote based on race, color, or membership in a language minority group. If the jurisdiction cannot prove the absence of such discrimination, the District Court or the Attorney General denies the change and renders it legally unenforceable. This Section 5 issue arises because Texas has a prior history of race-based voting discrimination and is therefore required by that section to get official preclearance for any change it makes in voting practices or procedure. That includes new districting maps. Texas thus sought preclearance by the DC District Court to use its state legislature-approved plan.
But while Texas was seeking preclearance for the new maps, minority rights advocates filed eight separate lawsuits against them in the San Antonio District Court. These challenges were based upon Section 2 of the VRA and the U.S. Constitution. Section 2 contains a general prohibition, applying to all states, on voting practices or procedures that discriminate on the basis of race, color, or membership in certain minority language groups. The legal challenges contend that the state legislature’s map were the result of racial and partisan gerrymandering, and violate both Section 2 and constitutional guarantees of one-person, one-vote equality in redistricting.
The San Antonio court, however, has refused to rule on these challenges while Texas pursues preclearance in Washington – and barred Texas from implementing its maps. In November, the three-judge San Antonio court created its own “interim” maps for the Texas legislature and U.S. House. But in none of those court-approved plans did the San Antonio court rule that any part of the legislature’s maps was illegal; instead, it maintained that it had no authority to make such a judgment while preclearance is underway. Texas then asked the San Antonio court to put its interim maps on hold while the state pursued a challenge directly to the Supreme Court. The San Antonio court, by a 2-1 vote, refused. Unwilling to hold the 2012 elections under court-approved plans it considered legally illegitimate, Texas appealed to the Supreme Court.
In Monday’s oral arguments, the parties reiterated the positions outlined in their briefs and responded to new questions raised by the justices. The justices know they must make their decision quickly. After the Supreme Court placed the three cases on its docket, the San Antonio District Court accepted a compromise agreement between the major Texas political parties to postpone the March 6 primary to April 3. But that time line depends on having new redistricting maps in place by February 1.
Former U.S. Solicitor General Paul D. Clement spoke first (for 27 minutes) representing Texas as appellant. He argued that the San Antonio court did not have the authority to draw its own election maps since it failed to identify any statutory or constitutional problems with the Texas legislature’s plan. It was thus wrong for the court, Clement contended, to ignore the legislature-approved plan and fashion a new plan to remedy legal challenges raised by minority rights groups to the legislature-approved plan. As Justice Scalia reminded Mr. Clement, the San Antonio court assumed the validity of those challenges in drawing up their own plan. That too, Clement said, was a mistake. He made Texas’s position clear: let us use the redistricting maps the state legislature drew last year, unchanged. At the very least, Clement said, the Texas legislature’s plan should be the starting point for any further proceeding.
Principal Deputy U.S. Solicitor General Sri Srinivasan, arguing for the federal government as an amicus, disagreed. In a 10-minute argument, Srinivasan said the fundamental problem with Clement’s proposal was that it “directly inverts the burden established by the Voting Rights Act.” Instead of following Section 5 and retaining the burden on itself to show the proposed voting change is nondiscriminatory, Srinivasan claimed, Texas is asking the Court to let it use its un-cleared maps in 2012 because they have not yet been denied. Srinivasan also proposed a simple alternative: allow the interim maps drawn by the San Antonio court to be used in 2012, but ask the court to provide additional explanation. Chief Justice John Roberts seemed to dismiss that proposal as “very wasteful” given the time constraints, but other justices did not weigh in.
Jose Garza then took the lectern for 30 minutes representing the Mexican American Legislative Caucus as appellee. Garza argued that Section 5 prevents the San Antonio court from implementing the state-legislature’s plan without preclearance – and that the court took “exactly the right measure” in redrawing the districts. He went on to say that the Court should not start with the state’s plan. Garza and the justices then engaged in a lengthy back-and-forth over the timeline for implementing new maps in Texas, and the latest date by which the Court could act. Justice Kagan then suggested allowing Texas to use any part of its maps that have not been expressly challenged in court, and then require it to prove that the other parts were valid. Garza responded that this would be a much better outcome than accepting the state legislature’s plans unchanged, but the best outcome was to affirm the San Antonio court-approved maps.
Finally, Paul Clement returned for a 3-minute rebuttal on behalf of Texas. He joined Garza in saying Kagan’s proposal would be acceptable – but maintained that the ideal outcome would be to approve the state legislature’s plan as is. At the very least, Clement concluded, the courts should defer to the judgment of the legislature reflected in its plan despite its lack of preclearance.
Even after oral argumen
ts, it remained unclear whether a decision will emerge in time to implement maps by Feb. 1 – or what that decision will be. During the Srinivasan argument, Justice Antonin Scalia suggested he did not view the Section 5 preclearance requirement as an absolute rule, but rather as a non-absolute rule subject to reasonable exceptions (implying that this state legislature approved map could qualify as one of them). If a majority agreed, that would represent a significant change in the law. Yet none of the other justices responded to Justice Scalia’s comment.