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Texas Redistricting: Supreme Court Throws Out Judge-Drawn Electoral Maps

Texas Redistricting Supreme Court

First Posted: 01/20/2012 9:30 am Updated: 03/21/2012 5:12 am

WASHINGTON -- In a partial victory for Texas Republicans, the Supreme Court on Friday morning sent Texas' redistricting maps back to the drawing board.

The high court's unsigned, unanimous opinion in the linked cases of Perry v. Perez and Perry v. Davis threw out interim state and congressional district maps drawn up by a three-judge federal court in San Antonio, Texas. The lower court had drawn up the interim maps when civil rights groups challenged the original maps created by the Republican-controlled state legislature as unlawfully discriminating against minority voters.

The case itself has been a rushed, complicated affair involving two federal district courts taking on two different sections of the landmark Voting Rights Act of 1965 and driven by the looming shadow of Texas' fast-approaching primary elections.

Section 5 of the Voting Rights Act requires a number of states, including Texas, to submit any changes they make to their election procedures to the Department of Justice or a federal court in Washington, D.C., for preclearance. Texas chose to send its redistricting maps, redrawn in response to a massive population increase reported in the 2010 census, to the D.C. court.

Meanwhile, the San Antonio court determined that the maps violated Section 2 of the Voting Rights Act, which prohibits voting procedures that have a racially or ethnically discriminatory effect. Fearing that the D.C. court would not provide its own determination on the maps' overall validity in time for the Texas state legislature to draw up revised maps before the primary, which was then scheduled for March, the San Antonio court created interim maps in November.

Late last year, Texas Republicans asked the U.S. Supreme Court to step in to decide the validity of the San Antonio court's maps. The Court agreed, scheduling oral argument for its first day back from winter recess.

At oral argument on Jan. 9, the issue boiled down to whether the San Antonio court was allowed to ignore the state legislature's plans when it drafted the interim maps. Friday's opinion said no.

Although Section 5 "prevents a state plan from being implemented if it has not been precleared," the Court wrote, "that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an
interim plan."

"On the contrary," the Court continued, "the state plan serves as a starting point for the district court."

That does not mean, however, that the San Antonio court must now accept all of the judgments made by the Texas legislature in drawing up the original maps. "A district court making such use of a State's plan must, of course, take care not to incorporate into the interim plan any legal defects in the state plan," the Court wrote.

It is not entirely clear how the San Antonio court, now charged with redrawing its interim maps, will determine which parts of the state legislature's plans are legally proper -- and therefore must be maintained -- and which can be disregarded in advance of the still-pending final determination from the D.C. court.

"The need to avoid prejudging the merits of preclearance is satisfied by taking guidance from a State's policy judgments unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain [Section 5] preclearance," the Court held, reflecting a suggestion made by Justice Elena Kagan at oral argument. "And by 'reasonable probability' this Court means in this context that the [Section 5] challenge is not insubstantial."

"Not insubstantial" is hardly a well-defined standard. If the San Antonio court is lucky, the D.C. court, which held hearings this week on the Texas plans' legality, will make its final decision in time for the Texas legislature itself to redraw its maps before the state's primary, now scheduled for April.

Otherwise, this case could very well head back to the Supreme Court, forcing the primary to be delayed again. And that is to say nothing of the underlying problems that Texas and other states subject to preclearance have with the burden of Section 5.

Justice Clarence Thomas issued a concurring opinion reiterating his belief, originally articulated in a solo dissent from a 2009 case, that Section 5 is an unconstitutional infringement on state sovereignty. In the earlier case, the majority opinion, written by Chief Justice John Roberts, strongly suggested that the Court may find Congress' 25-year extension of the preclearance requirement unconstitutional if the requirement is not revised before the issue next reaches the justices. And with the U.S. Court of Appeals for the D.C. Circuit having heard an Alabama county's challenge to Section 5 on Thursday, the landmark law's reckoning could arrive as soon as next term.

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