Texas Case Could Lead to Changes in Voting Rights Act

Jan. 6, 2012 -- The Supreme Court will attempt on Monday to untangle the political mess in Texas created by a voting rights controversy.

The case could have important political consequences, and highlights a lurking issue regarding the continued viability of a key provision of the Voting Rights Act, the landmark legislation passed in 1965 to protect minorities from discriminatory voting practices.

At issue are two very different sets of redistricting maps drawn up to take into account new census numbers for the state: Texas has grown by 4.3 million people since the previous census, and minorities make up the majority of the growth. Because of the population growth, Texas was awarded four additional seats in the U.S. House of Representatives.

Last spring the Republican-dominated Texas legislature passed one set of redistricting maps. But Democrats and minority rights groups immediately criticized them, arguing they did not reflect the growth of minority representation.

Texas, a state with a history of past discrimination in voting, is subject to Section 5 of the Voting Rights Act, which requires the state to get approval or "preclearance" from the Department of Justice or a federal court in Washington, D.C., for any election-related changes.

As such, a Washington, D.C., court is currently reviewing the Texas maps. Because the court realized that the redistricting issue would not get resolved before the next election, it asked a panel of three Texas judges to draw up a set of interim maps.

Those interim maps are at the heart of the Supreme Court challenge. Texas Attorney General Gregg Abbott asked the high court to block the court-drawn maps, which he said favored Democrats, arguing that the Texas court did not give enough deference to the legislature's maps.

The Supreme Court agreed to temporarily block the interim maps and expedite a review of the redistricting issue.

In court papers, Paul D. Clement, an attorney representing Texas, argued that the Texas court improperly ordered "sweeping changes" to the legislature-enacted maps and "made numerous highly controversial policy judgments."

"Even though the vast majority of districts for the Texas House had not even been challenged by DOJ in the preclearance proceeding or by the plaintiffs in this case, the majority's interim plan redrew the boundaries of 128 of the 150 House districts," Clement wrote.

He argued that the Supreme Court should allow the maps drawn by the legislature, not those drawn by the Texas court, to be used temporarily in the upcoming election while the preclearance procedure runs its course.

The Obama administration disagreed. It argued that if the Supreme Court were to allow even the temporary use of the legislature-drawn maps it would undermine Section 5's mandate that requires the state to obtain preclearance before enforcing voting changes.

Stanford Law School professor Pamela S. Karlan, who serves as counsel for the Mexican American Legislative Caucus, agreed, saying, "To allow an unprecleared plan to go in effect when it has been challenged long before an election cycle would be a major retreat from the way Section 5 has operated until now."

Although the constitutionality of Section 5 is not presented in this case, election law experts said the court would soon have to face that much more explosive question.

"This is an issue that comes up every redistricting cycle," said Mark P. Jones, a professor of political science at Rice University. "As time passes, the ability of the Voting Rights Act to resist conservative pressure weakens. The Supreme Court will in turn be under increasing pressure to clarify the extent and the reach of the Act almost 50 years after its passage."

In 2006, Congress extended Section 5, which affects 17 states, for another 25 years, and last month Attorney General Eric Holder gave a speech passionately endorsing the law. But critics said that states should no longer be punished for discriminatory practices of the past.

Erin Chemerinsky, a professor of law at the University of California at Irvine, said that the constitutionality of Section 5 is very much "the backdrop of what the Supreme Court will be considering.

"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," Chemerinsky wrote in the American Bar Journal.

In the meantime, the redistricting controversy is wreaking havoc in Texas. Primary dates have been postponed until April, voters are not sure who their candidates are, and election officials worry that they won't be able to print and mail absentee and overseas ballots in time.

The Supreme Court is expected to act quickly. "Texas needs to have a map, and it needs to have one soon," said Karlan.