U.S. Supreme Court

Chemerinsky on 3 Texas Election Cases with Potential for 'Enormous' Consequences

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Erwin Chemerinsky

Three election cases from Texas, with potentially enormous legal and political consequences, will be argued before the U.S. Supreme Court Jan. 9.

The immediate issue in Perry v. Perez, Perry v. Davis and Perry v. Perez is: which plan should be used to delineate voting districts in races for the United States House of Representatives, the Texas Senate, and for the Texas State House? Should Texas use the districting plan drawn up by the state legislature–which is being challenged in two courts? Or should it use the one devised by a three-judge federal court in Texas?

But lurking in the background of these consolidated cases is the constitutionality of an important civil rights statute: Section 5 of the Voting Rights Act of 1965. The statute requires that for jurisdictions like Texas, with a long history of race discrimination in voting rights, there must be preclearance of any changes in their election systems to ensure that they will not make worse the electoral position of protected minority groups.

The cases’ complex procedural posture is the result of the interaction of Section 5 with another federal law designed to ensure equality in voting: the Voting Rights Act’s Section 2, which prohibits government actions that have the intent or impact of discriminating against minority voters.

In June and July 2011, Texas enacted laws for new districts for the state House of Representatives, the state Senate, and for the Texas delegation to the U.S. House of Representatives. On July 19, Texas filed a request for a declaratory judgment in the U.S. District Court for the District of Columbia asking for the required Section 5 preclearance of its new election districts.

Meanwhile, lawsuits were filed in federal district court in San Antonio claiming that the districts for the Texas House of Representatives, the Texas Senate, and the U.S. House of Representatives violated Section 2 and denied equal protection.

A three-judge federal district court, convened pursuant to that law, held a two week trial in September. There was very substantial evidence of both intentional discrimination against minority voters and of a discriminatory impact against them in the new districting. For example, despite a significant increase in the minority population in Texas, the number of districts for the State House with a population composed of a majority of voters of color was reduced from 50 to 45.

The three-judge district court in Texas faced a quandary: it could neither accept nor reject the districts drawn by the Texas legislature until the D.C. District Court completed its proceedings regarding preclearance. On Nov. 8, the D.C. federal court denied Texas’ motion for summary judgment and found that Texas had used an improper method to determine if there would be retrogression with regard to the electoral influence of minority voters.

The D.C. court instructed the Texas three-judge federal court to draw interim districts for the 2012 elections. A trial is scheduled to begin in January in the federal court in D.C. on whether to grant preclearance to the Texas districting plans.

On Nov. 23, the three-judge court in Texas issued the interim districts. On Dec. 9, the Supreme Court granted a stay, treated the stay application as a request for its review, and granted review. It ordered all briefs to be filed simultaneously on Dec. 21 and reply briefs on Jan. 3.

There is an obvious time urgency to have the districts set. The primary elections were to be held on March 6, but the three-judge federal court changed the date to April 3. But even this requires that the Supreme Court act quickly so that candidates can know the districts and all of the details can be arranged for the elections.

One consequence of the unusual posture of the case is that it is not clear as to the issues before the Supreme Court. Usually a matter comes before the court on a petition for certiorari or a “jurisdictional statement” if it is a case where the court is obligated to grant review, such as when there is a decision of a three-judge federal district court. The papers filed with the court state the issue, which the justices can reformulate if they wish. But since this came to the court on a request for a stay, review was not granted on specific issues.

The parties, in their briefs filed Dec. 21, characterize the issue differently. The state of Texas characterizes the issue as: “Whether, while preclearance remains pending [in the Washington court], another district court may order the use of judicially drawn ‘interim’ electoral maps that give no deference to the state’s duly-enacted maps, are not premised on any actual or likely violation of law, and are based on nothing more than the court’s own notion of sound public policy and ‘the collective public good.’”

By contrast, one of the briefs from the challengers to the legislatively drawn districts, filed by the NAACP and African-American members of Congress, says that the issue is: “Where the legislature failed to enact and obtain preclearance for redistricting plans in time for upcoming elections, did the trial court properly order the use of interim plans that preserve the status quo to the extent possible while also complying with applicable constitutional and statutory provisions in federal and state law governing redistricting?”

The central question before the Supreme Court is how to handle a situation where preclearance is required, but it is not completed in time for an election to go forward, and where there is substantial evidence of a violation of both Section 2 and Section 5 of the Voting Rights Act. What is the role of a three-judge court hearing the Section 2 challenge while the preclearance is pending in another court? Should it defer to the legislature and allow districts that have not been precleared to be used? Or should it draw its own districts to ensure compliance with the Voting Rights Act and the Constitution?

Underlying these questions are deeper issues in terms of the relationship between the federal courts and the states in the area of voting and the constitutionality of Section 5. While Section 2 authorizes lawsuits for race discrimination in election systems, Section 5 is meant to be prophylactic: for jurisdictions with a history of race discrimination in voting, there must be approval—preclearance–before changes in their election systems. The Supreme Court has upheld the constitutionality of Section 5 in the past; in City of Rome v. United States, in 1980, and 1973’s Georgia v. United States, for example.

In 2006, Congress extended Section 5 for another 25 years. In 2009, in Northwest Austin Municipal Utility District No. 1 v. Holder, the court expressed doubts about the continued constitutionality of Section 5, but resolved the case without deciding the constitutional question. Chief Justice John G. Roberts Jr., writing for the majority in an 8-1 decision, discussed the significant intrusion of Section 5 on the prerogatives of state and local governments and said that the constitutionality of the law is a “difficult question.”

But the court avoided the constitutional question by holding that local governments could “bail out” of the requirements of Section 5 by showing that they do not have a recent history of race discrimination in voting.

The issue of the constitutionality of Section 5 is not before the court in the cases to be heard in January. And the case against Texas involving preclearance is the one pending in the D.C. district court. Yet, the constitutional issue is very much the backdrop of what the Supreme Court will be considering.

The stakes in all of this are potentially high. The districts drawn by the three-judge district court, compared with those from the Texas legislature, might mean more Democrats and fewer Republicans in the House of Representatives. That could have enormous political significance if it swings the balance of control between the parties.

More generally, the case forces the court to consider when the judiciary can draw interim districts. And it involves the interplay between Section 2 and Section 5 of the Voting Rights Act. Ultimately the cases highlight a crucial issue sure to come directly before the court: was the extension of Section 5 for another 25 years constitutional?

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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