The Supreme Court is considering the role of federal courts in creating interim plans while a state redistricting plan awaits a preclearance decision under Section 5 of the Voting Rights Act. The dispute arises out of Texas’ current redistricting process. The Court heard oral arguments Monday on an expedited hearing schedule, so a decision is anticipated shortly.
Every 10 years, following a census, the federal government reviews population distribution across the country and, based upon a division of total population between total congressional seats, re‑allocates the appropriate number of congressional seats to each state. Any state may gain, lose or keep the same number of congressional seats in this process, depending on population growth or loss. Then, every state must redraw district lines for congressional and state legislative seats to satisfy the constitutional principle of “one-person, one-vote” in response to new population information. In 37 of 50 states, including Texas, the responsibility of drawing these lines falls to the legislature. Following the 2010 Census, Texas was allocated four additional congressional seats due to an increase of more than 4 million new residents, the overwhelming majority of which were Latino.
Due to a history of discriminatory voting practices, Texas has been under the jurisdiction of Section 5 of the Voting Rights Act since 1975. The Voting Rights Act obligates Texas to submit any election change, like its new redistricting plans, to the federal government for preapproval, or “preclearance,” through either the Department of Justice or the D.C. Circuit Court before any part of the redistricting plan may be enacted. In order for Texas to conduct elections in 2012, it needs to have redistricting plans in place no later than March so candidates have time to file for the primary election.
In July 2011, Texas finalized new redistricting plans for its state house, state senate, and Congress and submitted those plans to the D.C. Circuit Court for preclearance. The Department of Justice opposed preclearance, alleging the Texas legislative plan unfairly discriminated against minority voters. While the preclearance process was pending in D.C., plaintiffs filed different claims in federal court in San Antonio, TX, claiming the legislative redistricting plans violated federal law and the constitution. Because the San Antonio court could not know whether the legislative plans would go into effect until after the D.C. Court made a decision about preclearance, it stayed all action until the completion of the preclearance action.
In November 2011, the D.C. Court found that the Texas plans were not entitled to preclearance as a matter of law and ordered a trial on the merits. The San Antonio Court, noting that the D.C. Court could not finish its work in time for Texas to conduct its 2012 elections, ordered the parties to submit proposed plans so it could create interim plans to use for the 2012 elections. Then, the San Antonio court produced plans that were very different than the plans produced by Texas’ Republican-controlled legislature. In response, Texas filed a motion with the U.S. Supreme Court, asking the Court to intervene and stop the interim plans developed by the San Antonio Court from going into effect.
On December 9, 2011, five justices of the Supreme Court ordered the stay and an expedited hearing on the issue of whether the San Antonio Court interim plan should go into effect, which they heard Monday.
In considering this matter, the Court will weigh whether Section 5 of the Voting Rights Act retains its full force and effect by not allowing implementation of any non-precleared plan in whole or in part, or whether the San Antonio Court should have given greater deference to the Texas legislative plans – which have not been found to violate any state or federal law – in crafting interim redistricting plans.
Courts are frequently called upon to craft redistricting plans. But courts typically step in only after a state legislature or commission fails to complete the plan in time or after there is a legal finding that the state plan violated state or federal law and a court must draw a remedial plan. Here, the court in San Antonio acted to create an interim redistricting plan that differed significantly from a completed legislative plan that had not been found to be illegal. But because Texas’ legislative plans are under the jurisdiction of Section 5 of the Voting Rights Act, no part of the plan may be enacted until Texas achieves preclearance from the federal government.
There is legitimate concern that if the Supreme Court orders the lower court to show deference to the state legislative plan in crafting an interim solution, it will significantly undercut the ability of Section 5 to protect jurisdictions from redistricting plans that discriminate against minority voters. Moreover, such a decision could incentivize Section 5 jurisdictions to drag out the preclearance process with the intention that the non-precleared plans will serve as a benchmark for any interim plan until preclearance is granted or denied.
It remains to be seen whether the Supreme Court will uphold the full force of Section 5 and refuse to permit any deference to an unprecleared plan, or whether it will require courts placed in the position of drafting interim redistricting plans to show some degree of deference to legislative redistricting plans during the preclearance process. Arguably, if the Supreme Court was going to allow the interim plans to stand, five justices would have allowed the interim plans to go into effect rather than stay the order of the San Antonio court.
At oral argument the Justices expressed clear opinions about the sufficiency of the interim plan. Certainly the “progressive” justices suggested that the San Antonio panel did an appropriate job in crafting an interim solution. However, there was an unwillingness of the more “conservative” members of the court to find the Texas legislative plan void. Because the San Antonio Court crafted an interim plan, not a remedial one, and because there was no judicial finding of infirmity, the right-leaning side of the court certainly suggested that a legislatively enacted plan is entitled to deference. While the outcome is not certain, the entire Court appeared to accept that the constitutionality of Section 5 is not at issue in this case.
We expect that the Supreme Court will rule on this case quickly to ensure that Texas has new district lines in place for this year’s elections. The litigation in the D.C. Court and in San Antonio will continue, and legal determinations will be made as to whether the Texas district lines are legal under the Voting Rights Act and the U.S. Constitution. We can only wait to see what this will mean for the future of Section 5.