*Mr. Rosdeitcher is Senior Policy Advisor at the Brennan Center and Of Counsel at Paul, Weiss, Rifkind, Wharton & Garrison LLP. Mr. Taylor is an associate at Paul, Weiss.
In this posting, we preview two arguments in the Supreme Court’s upcoming session beginning on January 9.
The one that has drawn the most public attention is the argument of the consolidated Texas redistricting cases, Perry v. Perez (No. 11–713), Perry v. Davis (No. 11–714), and Perry v. Perez (No. 11–715). These cases have been subject to expedited briefing and argument in light of Texas’s upcoming primary elections, scheduled for April 3. They will be argued on January 9. The complexity of the cases and their importance may be reflected by the separate briefs filed by four different groups of appellees and numerous amici, including several states and the Obama administration.
The specific issue in the case involves the role of the federal courts in fashioning interim redistricting plans during the pendency of proceedings to “preclear” the redistricting plans drawn by the Texas legislature following the 2010 Census, as required by Section 5 of the 1965 Voting Rights Act, most recently amended and reauthorized in 2006 (“VRA”). Under that provision, jurisdictions like Texas with a long history of discriminatory voting practices may not change their voting practices or procedures without first obtaining clearance from the U.S. Attorney General or a three-judge district court in the District of Columbia.
Judicial proceedings to determine whether Texas’s redistricting plans may be cleared are now pending in the District of Columbia and interim redistricting plans, pending the outcome of the D.C. judicial proceedings, have been issued by a different three-judge federal court in San Antonio. The propriety of those interim plans, which differ significantly from the plans drawn by the Texas legislature, are in issue before the Supreme Court.
The resolution of that issue will not only have significant political consequences for the four Texas congressional seats that are at the heart of this controversy, but will affect the voting rights of millions of Latino and other minority voters and the future efficacy—and possibly the validity—of Section 5 of the VRA, which has been the principal vehicle for remedying the effects of voting discrimination against minorities.
The other case we preview is Coleman v. Maryland Court of Appeals (No. 10–106), to be argued on January 11. The immediate issue there is not one usually falling directly within the Brennan Center’s mission: Whether enactment of the provision of the Family and Medical Leave Act that entitles employees to unpaid leave to care for their own health conditions (the “self-care” provision)—as distinct from their families’—was within Congress’ powers under section 5 of the Fourteenth Amendment. But the Court’s resolution of that issue could have ramifications not only for the scope of Congress’ powers under the Fourteenth Amendment, but also under the Fifteenth Amendment—the basis for Congress’ enactment of the VRA.
Here are the details:
The Texas Redistricting Cases: Perry v. Perez, Perry v. Davis, and Perry v. Perez
At stake in these three consolidated cases is what the election maps in Texas will look like, for both the state legislature and the U.S. House of Representatives, in the upcoming 2012 elections. Specifically, the question before the Court is which of the following redistricting plans should apply: (i) those enacted by the Texas state legislature, which have not obtained the necessary “preclearance” under Section 5 of the VRA; (ii) the interim plans adopted by a special three-judge federal district court in San Antonio; or (iii) yet some other redistricting plans, to be established by the Supreme Court on review or by the San Antonio district court on remand.
The Court’s decision in these cases will, of course, have direct and immediate effects on Texas electoral politics. Experts have estimated that, if the plans adopted by the three-judge court are chosen over those enacted by the state legislature, as many as four additional Texas congressional seats could be won by Democrats in November. In addition, the court-drawn election maps, unlike the ones enacted by the state legislature, are likely to greatly increase the opportunities for Hispanic voters in Texas to elect the candidates of their choice
The implications of these cases also go well beyond Texas. The Court’s ruling here should, more broadly, provide guidance concerning the power of federal courts to review and revise state-enacted redistricting maps in face of challenges to their validity under the VRA and the Constitution. And, although not directly presented here, the decision may offer insights as to the Court’s views on the constitutionality of Section 5 of the VRA itself—an issue the Supreme Court signaled in 2009 that it may be willing to reexamine due to the purported burdens the provision places on state sovereignty, see Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009), and that, more recently, has been raised in litigation by several states and is currently percolating in the lower federal courts.
As a general matter, Section 5 of the VRA—which is at the center of these consolidated cases before the Supreme Court—prohibits covered jurisdictions (i.e., those, like Texas, with a history of discriminatory voting practices) from implementing changes in “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” without first obtaining either judicial or administrative preclearance of those changes. 42 U.S.C. § 1973c(a). Administrative preclearance is obtained through a petition to the U.S. Attorney General. Id. Judicial preclearance may be obtained through a declaratory-judgment action before a three-judge district court in the District of Columbia. Id. Under either route, the covered jurisdiction has the burden of demonstrating that the voting change at issue “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of” a prohibited ground, such as race, color, or membership in a language minority. Id.
Here, Texas—which has been covered by Section 5 since 1975, and which the Supreme Court recently noted “has a long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process,” LULAC v. Perry, 548 U.S. 399, 439 (2006)—was required by population changes to redraw both its state legislative and U.S. congressional districts for the 2012 elections. Specifically, the 2010 Census showed that Texas’s population had increased by nearly 4.3 million since 2000, with this growth overwhelmingly attributable to an increase in the state’s Latino population. Because of its enormous population expansion, Texas is now entitled to four additional congressional seats, and both its state and federal legislative districts have to be adjusted to comply with the constitutional rule of “one person, one vote.” Under Section 5 of the VRA, before any of these required changes to Texas’s election maps can be implemented, they have to be “precleared” by the federal government.
After receiving the necessary census data in February 2011, the Texas legislature passed a redistricting plan for the state House on May 2, 2011, and a plan for the state Senate on May 17, 2011. On June 17, 2011, Governor Perry signed both bills. Then, on June 24, 2011, the legislature passed a redistricting plan for Texas’s congressional districts, which the Governor signed on July 18, 2011.
On July 19, 2011, Texas submitted all three plans for preclearance under Section 5. Despite looming elections deadlines, and unlike numerous others states that have had to submit redistricting plans for preclearance this year, Texas opted not to avail itself of the more “expeditious alternative” of administrative preclearance before the U.S. Attorney General. Morris v. Gressette, 432 U.S. 491, 504 (1977). Instead, Texas sought judicial preclearance from a three-judge district court in the District of Columbia.
On September 19, 2011, the United States, through the Justice Department, answered Texas’s complaint in that action, asserting that the State was entitled to preclearance of the state Senate plan, but opposing preclearance of the state House and congressional plans. Additional private-party defendants intervened, some of whom opposed preclearance of the state Senate plan.
Forgoing an expedited trial, on September 14, 2011 (five days before the United States even answered the complaint), Texas filed a motion for summary judgment as to each of its three redistricting plans. On November 8, 2011, the three-judge D.C. district court unanimously denied Texas’s motion, finding that the State had used an improper methodology to determine which districts afford minority voters the ability to elect their candidates of choice, and that “Texas ha[d] failed to demonstrate” that any of the three plans “do not have the purpose of ‘denying or abridging the right to vote on account of race or color.’” See Texas v. United States, No. 11-cv-1303, 2011 WL 64406, at *12–15, *21–22 (D.D.C. Dec. 22, 2011). Trial in the preclearance action is scheduled to begin on January 17, 2012, with closing arguments on February 3, 2012.
While the preclearance action was pending in the District of Columbia, these consolidated cases now before the Supreme Court were separately brought before a different three-judge district court in San Antonio, in the Western District of Texas. In these cases, numerous Texas voters, elected officials, and citizen groups challenge the legislature’s redistricting plans under both Section 2 of the VRA, which can provide an independent bar even if preclearance is obtained under Section 5, and the U.S. Constitution. Like Section 5, Section 2 bars voting practices and procedures that result in the denial or abridgement of the right to vote on the basis of race, color, or membership in specified language minority groups.
In September 2011, the Texas district court held a two-week bench trial on these Section 2 and constitutional claims, but it has stated that, consistent with Supreme Court authority, it will not render a decision on these claims while the redistricting plans remain unprecleared. In the meantime, in accordance with Section 5, the court has enjoined Texas from implementing its legislatively-enacted plans “unless and until” those plans are precleared. 42 U.S.C. § 1973c.
On October 4, 2011, anticipating the possibility that Texas might fail to obtain preclearance and aiming to keep Texas’s statutory election schedule on track, the Texas district court ordered the parties to submit proposals for interim redistricting plans, which would go into effect if no state-enacted plans were precleared in time. Texas responded by urging the court to simply adopt its unprecleared plans, unmodified, on an interim basis. Plaintiffs and numerous intervenors submitted their own proposals and also argued that, while the legislature’s plans remained unprecleared, the State’s suggestion to adopt those plans wholesale was impermissible under the Supreme Court’s precedents and the plain terms of Section 5.
After conducting extensive hearings on the proposed interim plans, and receiving comments from the parties on its own draft proposals, the three-judge Texas district court adopted interim, judicially-drawn redistricting plans for the Texas House and Senate on November 23, 2011, and an interim congressional plan on November 26, 2011. Approval of the state Senate plan was unanimous. One judge (Fifth Circuit Judge Jerry Smith) dissented from the ruling on the state House and congressional plans.
Among other things, the court-drawn plans adopted by the Texas district court increase the number of districts in which minority voters will likely be able to control election outcomes (“ability-to-elect” districts). This is in stark contrast to the plans enacted by the Texas state legislature, which, despite the massive growth in the state’s Latino and minority population over the last ten years, actually reduce such minority “ability-to-elect” districts.
On November 28 and 30, 2011, the State filed a motion in the Supreme Court to stay the Texas district court’s three interim redistricting plans. On December 9, the Supreme Court granted the State’s motion. It also granted the State’s request to hear its appeal of the cases themselves and issue a prompt ruling, ordering expedited briefing and setting oral argument for January 9, 2012.
In their briefs to the Supreme Court, Texas officials, represented by former Bush Solicitor General Paul Clement, continue to argue that the legislature’s unprecleared redistricting plans should be adopted “as the interim plans while preclearance is pending.”
The State asserts that “Texas’ legislatively enacted map, which is entitled to a presumption of good faith, must be used as the ‘interim’ map while preclearance is pending, unless the court makes a finding that some aspect of that plan is likely to violate the VRA or the Constitution.” The State contends that by failing to follow this course and instead “refusing to grant any deference to Texas’ legislatively enacted districting maps,” the interim plans adopted by the district court “disregard core principles of state sovereignty and equitable jurisdiction, exceed the properly restrained role of the judiciary, punish Texas for delays in another judicial proceeding [i.e., the D.C. judicial preclearance proceeding] that are beyond its control, and open the door to gamesmanship by opponents of legislatively enacted districting plans.” Accordingly, the State contends, vacatur of the Texas district court’s interim maps is required here.
Moreover, the State argues, there is not time enough “for a remand for the Texas court to apply the proper remedial standard and to craft yet another batch of interim maps for the upcoming elections.” Instead, the State contends that to allow the already-delayed Texas primary elections to take place as scheduled on April 3, the Supreme Court should vacate the judicially-drawn interim plans immediately and remand to the district court with specific instructions to impose Texas’s legislatively enacted maps as the interim plans while preclearance is pending. Nothing in such an order, the State asserts, “would relieve Texas of its undisputed burden to obtain preclearance before implementing its new maps on a permanent basis.”
Finally, the State argues that, even if the Supreme Court vacates and remands without specifically ordering the use of Texas’s legislatively enacted plans on an interim basis, the Court should “provide additional guidance to the district court so that the court does not repeat the same errors on remand.” Among other things, the State asks the Supreme Court to rule that “nothing in the VRA requires proportional representation on the basis of race, and that a State’s failure to maximize the strength of minority groups does not violate the VRA”; to rule that “nothing in the VRA requires a State to draw ‘coalition districts,’ in which multiple minority groups are a combined majority of the population”; to make clear that the federal courts “may not depart from traditional districting principles,” such as Texas’s rule not to break county lines, “unless that departure is the only way to address an actual or likely violation of law”; and to “clarify that the district court cannot seek to equalize population among state legislative districts unless the population deviations in the legislatively enacted map violate the law.”
In response to Texas’s appeal, plaintiffs and intervenors in the Western District of Texas action filed briefs as appellees in the Supreme Court arguing that the district court’s interim redistricting plans should be affirmed in their entirety. These parties argue that siding with the State and allowing it to use the legislature’s maps before they have been precleared would violate the plain language of Section 5 and is impermissible under the Supreme Court’s clear precedents. Indeed, the Texas plaintiffs and intervenors contend that because the State’s legislatively-enacted plans have not obtained preclearance, the Texas district court “was precluded” by Supreme Court case law “from assessing any other deficiencies in the map and was required to adopt an interim plan.” And, contrary to the State, they argue that “the district court proceeded exactly as it should have . . . , carefully drawing an interim plan that respected the most recent plan to obtain preclearance and even respecting the Legislature’s proposed plan to the extent it could without violating federal law.” To now reverse the district court, the appellees contend, would “effectively . . . overrule” the Supreme Court’s “longstanding approach to Section 5” and “reward Texas for its delay in seeking preclearance.”
The Obama Administration has also weighed in here, filing an amicus brief late last week in which it urges the Supreme Court not to permit Texas to use the unprecleared redistricting plans enacted by the state legislature. Like the appellees, the Administration submits that the use of these plans before preclearance, even on an interim basis, is barred by the terms of Section 5 and Supreme Court precedent.
Unlike the appellees, however, the Obama Administration does not argue simply for affirmance of the Texas district court’s interim plans. Instead, the Administration asserts that, “[w]hile the plans in substantial measure are justified by the need to avoid violations of the VRA while respecting State districting principles, the court should have further explained certain aspects of its interim House and congressional plans.” As to the state House plan, the Administration contends that the Texas district court should have given more explanation for its decision to add three new districts in which minority voters have an ability to elect candidates of their choice. As to the congressional plan, the Administration states that the district court “should have given additional explanation for drawing two of the State’s four new seats as [minority] ability-to-elect districts while also restoring all of the preexisting ability-to-elect districts.” In addition, while acknowledging that the creation of “coalition districts” (i.e., districts in which two or more racial-minority groups together form a numerical majority) may be protected under the VRA, the Administration argues that the Texas district court failed to lay a sufficient foundation for the use of such districts here. To address all of these issues, the Administration argues that vacatur of the interim state House and federal congressional plans and remand to the district court would be appropriate.
Finally, and to the extent the Supreme Court decides that time or other factors require it to decide now between the state legislature’s unprecleared plans and the interim plans drawn by the Texas district court, the Administration urges the Court to select the latter. As the Administration states in its brief, “[e]ven if the court-drawn plans may—pending further explanation—insufficiently adhere to state redistricting principles in certain respects, those plans are preferable to ones whose very use would contravene Section 5’s preclearance regime and whose content violates Section 5 in purpose and effect.”
As noted, the Supreme Court is resolving these Texas redistricting cases on a very expedited schedule. Briefing was completed just this week. Oral argument will take place next Monday. And a final decision on the merits—with all the implications it will have both for Texas and for federal election law more generally—is expected shortly after that. The Brennan Center will, of course, be closely monitoring any developments.
Coleman v. Maryland Court of Appeals
In its 2003 decision in Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), the Supreme Court held that Eleventh Amendment state sovereign immunity does not bar private damage suits against states for violating the “family leave” provision of the Family and Medical Leave Act (the “FMLA”). Under that provision employers (including state governments) are required to provide their employees with up to 12 weeks of unpaid, job-protected leave in order to care for a seriously ill family member. This decision, in turn, rested on the Court’s ruling that in enacting those provisions, Congress properly exercised its powers under section 5 of the Fourteenth Amendment to enforce the Amendment’s protections against gender discrimination and to abrogate state sovereign immunity against private damage suits like the one brought by Hibbs.
The issue before the Supreme Court in Coleman v. Maryland Court of Appeals, which will be argued on January 11, is whether this same rule applies to permit suits against states under the FMLA’s “self-care” provision, which requires employers to provide their employees with temporary medical leave to care for their own serious illnesses. More specifically, the Court must decide in Coleman whether Congress acted appropriately pursuant to its Fourteenth Amendment enforcement authority to prevent gender discrimination and to abrogate states’ sovereign immunity when it enacted the FMLA’s self-care provision, as Hibbs found it did when enacting the family-leave provision.
Perhaps even more important than the Supreme Court’s resolution of that specific question, however, are the ramifications that the decision here may have on the scope of Congress’s enforcement powers—not only under the Fourteenth Amendment, but also with respect to Congress’s parallel power to enforce the provisions of the Fifteenth Amendment in order to combat discrimination in voting.
The facts of the Coleman case are relatively straightforward: From 2001 to 2007, petitioner Daniel Coleman was employed by the State of Maryland, serving as the executive director of procurement and contract administration for the Maryland Court of Appeals. On August 2, 2007, Coleman, suffering from an unspecified illness, sent his supervisor at the state court a request for sick leave. That request was denied, and Coleman was terminated the following day. Coleman then filed suit in Maryland federal court to challenge his termination, alleging, among other things, that the State’s refusal to grant his request for leave violated the self-care provision of the FMLA and seeking money damages.
Both the district court and the Fourth Circuit on appeal dismissed Coleman’s FMLA claim on Eleventh Amendment grounds, holding that Congress did not validly abrogate states’ sovereign immunity in enacting the self-care provision. This decision, as both courts below recognized, was in accord with the decisions of every federal court of appeals to consider the question, including post-Hibbs rulings by the Fifth, Sixth, Seventh, Eighth, and Tenth Circuits. All of these courts, including the Fourth Circuit in this case, have determined that, unlike the family-care provision at issue in Hibbs, the FMLA’s self-care provision was not enacted in response to a record of gender discrimination by states, but was instead motivated by economic policy objectives that are distinct from the substantive rights guaranteed by the Fourteenth Amendment. In the Fourth Circuit’s view, the legislative record in Congress simply did not establish that “states as employers [had been] discriminating on the basis of gender in granting leave for personal reasons.” Without such evidence, the Fourth Circuit concluded, the self-care provision “cannot pass the congruence-and-proportionality test” that the Supreme Court established in City of Boerne v. Flores, 521 U.S. 507 (1997), for assessing whether legislation is a proper exercise of Congress’s enforcement powers under Section 5 of the Fourteenth Amendment. Accordingly, the court of appeals held that Congress has not validly abrogated the states’ sovereign immunity from private damages claims based on the self-care provision, and that Coleman’s FMLA claim against the State must, therefore, be dismissed.
Relying primarily on Hibbs, Coleman now asks the Supreme Court to reverse the Fourth Circuit’s decision, reject the rulings of the other federal courts of appeals to consider this question, and hold that, when it enacted the FMLA’s self-care provision, Congress was validly exercising its powers under Section 5 of the Fourteenth Amendment to eradicate gender stereotypes that resulted in discrimination against women and thus properly abrogated the states’ Eleventh Amendment sovereign immunity. As Coleman puts it in his brief, “[t]he Hibbs decision . . . provides all the guidance necessary for this Court to find that the self-care provision is a valid abrogation of Eleventh Amendment immunity.”
Whatever the Supreme Court decides here with respect to the question of state sovereign immunity under the FMLA’s self-care provision (and, given the unanimity in the circuits, a decision for Coleman appears to be something of an uphill battle), Coleman has potentially much more far-reaching implications. Indeed, as the first case in which the Roberts Court will interpret and apply Section 5 of the Fourteenth Amendment, Coleman may provide significant insights into how this set of Justices will assess the scope of Congress’s enforcement powers—and, in particular, how they will apply Boerne’s congruence-and-proportionality test.
In Hibbs, and then subsequently in its 2004 decision in Tennessee v. Lane, 541 U.S. 509 (2004), which involved the fundamental right of access to the courts, the Supreme Court, under Chief Justice Rehnquist, held that the test under Section 5 of the Fourteenth Amendment for whether a congressional statute is congruent and proportional to the constitutional violation being redressed was more easily met when the legislation at issue seeks to protect rights subject to heightened judicial scrutiny. In such circumstances, the Court made clear, Congress’s decision to exercise its Section 5 powers is entitled to substantial deference. See Hibbs, 538 U.S. at 735–36; Lane, 541 U.S. at 528–29.
But the decisions in Hibbs and Lane were divided ones that turned on votes for the majority from Justices (Chief Justice Rehnquist in Hibbs; Justice O’Connor in both Hibbs and Lane) who are no longer on the Court and whose successors (Chief Justice Roberts and Justice Alito) may have more conservative views particularly on issues of Federalism and state sovereignty.
Coleman should provide no occasion for any revision of Hibbs or Lane, given the fact that appellee’s in their briefs do not question Hibbs’s authority but merely argue that it is inapplicable to this case, involving different provisions of the FMLA. Nevertheless, given that the Supreme Court granted certiorari here despite the absence of any conflict among the six federal courts of appeals that have decided the legal issue presented by Coleman’s petition, one might speculate whether it might have done so to address some larger issues of Section 5 jurisprudence or to reevaluate the bounds of the current doctrine, as set forth in Hibbs and Lane.
With such potentially large ramifications—not only for Congress’s powers under Section 5 of the Fourteenth Amendment, but, as noted, also for its powers to enforce the Fifteenth Amendment’s protections of the right to vote—the Brennan Center will be following Coleman closely.
 As the Obama Administration notes in its amicus brief to the Supreme Court, the Census showed that, from 2000 to 2010, the Latino population in Texas had increased by 2,791,255, the African-American population by 522,570, and the white population by fewer than 465,000. See Brief for the United States as Amicus Curiae Supporting Affirmance in Part and Vacatur in Part at 4.
 The Administration does not ask for remand to the district court with respect to the interim state Senate plan. Because, as to the Senate plan, the State “raise[s] no specific challenges except [its] overarching argument for deference to an unprecleared plan,” the Administration argues that straight affirmance is appropriate.
 In Boerne and a series of cases in the years that followed, the Supreme Court under Chief Justice Rehnquist’s leadership held that state sovereign immunity barred private damage suits against the states for violations of a variety of federal laws, including anti-discrimination provisions of the American with Disabilities Act, the age discrimination law, the copyright laws, the bankruptcy laws, and the Fair Labor Standards Act. It found in each of these cases that Congress did not have sufficient evidence that the remedy it purported to enact under Section 5 of the Fourteenth Amendment was “congruent and proportional” to the enforcement of a right guaranteed by the Fourteenth Amendment, as established by prior Supreme Court precedent. This principle was intended to prevent Congress from creating new constitutional rights beyond those established by the Supreme Court in its interpretations of the Fourteenth Amendment. While these laws were also validly enacted under the Commerce Clause, the Commerce Clause power, unlike the Section 5 power, was held to be inadequate to authorize Congress to abrogate state sovereign immunity under the Eleventh Amendment. Hibbs, in upholding Congress’ authority to enact the family leave provisions under Section 5 of the Fourteenth Amendment, broke this trend of decisions.