The dust still hasn’t fully settled from the 2010 census, particularly in terms of the redistricting fights going on around the country. One particular battle which is taking on a serious sense of urgency is happening in Texas, (Perry v. Perez) and this week it was tossed into the lap of the United States Supreme Court. This is a pretty complex story, because the date for the Texas primary is fast approaching (and moving) and the case still isn’t settled as to what the map will be which accommodates the 4 new congressional seats they picked up as their population expanded.
Texas did create a new district map which was signed off on by Rick Perry. But because they fall under the restrictions of the Voting Rights Act (VRA) the map can not be implemented until it receives “preclearance” through either a federal court or the Department of Justice to ensure that it is “free of racial and ethnic discrimination.” Texas sent their new map to the U.S. District Court for the District of Columbia to request preclearance, but at the same time, private plaintiffs brought suit in Texas saying the map discriminated on the basis of race.
As I said, it gets very complex from there, but at The Atlantic, Garret Epps offers a long, detailed, and understandable review of the current status. He also explains why the Supremes might choose to toss the case back to the lower courts rather than weigh in on a messy fight over the status of the VRA.
The federal government, which argued that the Texas plan deserved no deference but that the District Court plan was flawed, was represented by Deputy Solicitor General Sri Srinavasan. “The fundamental flaw with Texas’s approach is that it directly inverts the burden established by the Voting Rights Act,” he told the Court. Section 5 says that in this context, the burden should be on the state.
The latter point may offer the Court a way out of the case. All three attorneys agreed that the Court could remand the case to the District Court with instructions to use the state’s plan as a basis for a new map — but without deference to the state, in fact, with the burden of proof on Texas to show the each aspect of the plan does not violate § 2. This seems to be Justice Kennedy’s preference — and Justice Kennedy’s preferences have a certain whiff of law.
If Texas does not bear that burden as to any part, the District Court could redraw that part. That might require another delay in the Texas primary; but Texas has the earliest congressional and legislative primaries in the country, and there is time to reschedule. In the meantime, the D.C. District Court might resolve the preclearance question, simplifying everybody’s life.
Whether the Court takes that route may tell us a lot about what its members have in mind to do when § 5–and with it, the future of minority participation in American politics — are squarely before it at last.
The biggest takeaway for us on this one may be whether or not the court even agrees to debate this, rather than the final shape of the map in Texas. Tossing it back to
the D.C. District Court the District Court in Texas could be taken as a sign that the status quo under the VRA sits well enough with the SCOTUS and they want the process followed as usual, even if it means another delay for Texas. But if they take up the question of whether or not a legitimate challenge exists to allow Texas to move forward, it could open up a very messy can of worms indeed.
EDIT: (Jazz) Incorrectly suggested the case could be tossed back to the D.C. court. Should have read “the District Court in Texas.” Corrected.