By Daniel P. Tokaji, a law professor at The Ohio State University Moritz College of Law and senior fellow for Election Law @ Moritz.
Whenever the U.S. Supreme Court decides a case, especially one involving elections, commentators have a tendency to wax eloquently about its importance. But let’s face it, not all Supreme Court decisions are really that important. A case in point Friday’s opinion in Perry v. Perez, regarding Texas’ redistricting plans.
To be sure, the decision is important to Texans wondering what their congressional and state legislative districts will look like. It also helps clarify a procedural question involving preclearance under Section 5 of the Voting Rights Act of 1965 (“VRA”). But the broader significance of Friday’s
per curiam decision is limited. What’s most significant is an issue the Court doesn’t address: whether Section 5 is constitutional. That’s the 800 pound gorilla which the justices (with the noteworthy exception of Justice Thomas) avoid mentioning – but will probably come before them in the not-too-distant future.
per curiam decision is limited. What’s most significant is an issue the Court doesn’t address: whether Section 5 is constitutional. That’s the 800 pound gorilla which the justices (with the noteworthy exception of Justice Thomas) avoid mentioning – but will probably come before them in the not-too-distant future.A bit of context is useful. Every state must redraw its congressional and state legislative maps at the start of each decade to account for population shifts. Section 5 of the VRA requires some jurisdictions to obtain “preclearance” of voting changes – including redistricting plans – before they take effect. As originally enacted, Section 5 covered Southern states that excluded African Americans from voting. Coverage was later expanded to include states with a history of excluding Latinos and other groups from fully participating in the electoral process. Texas is among the states now covered by Section 5, which was reauthorized and extended for another 25 years in 2006. To obtain preclearance, covered jurisdictions must show that their proposed changes don’t have a discriminatory purpose or retrogressive effect on minority voters.
At issue in Perry v. Perez is what should happen when a state legislature has drawn new districts, but no preclearance decision has yet been made. After the 2010 Census, the Texas legislature redrew its congressional and state legislative lines. As required by Section 5, the state then requested preclearance of the legislature’s plan, filing suit in the federal district court in Washington, D.C. That court denied Texas’ motion for summary judgment, but hasn’t yet ruled on whether preclearance should be granted. Meanwhile, separate lawsuits were filed in another federal court, alleging that the redistricting plans violate the U.S. Constitution and another section of the VRA. (You can find court filings from the cases here and here.)
Here’s the problem: Under Section 5, the 2011 Texas redistricting plans can’t take effect until they’ve been precleared. But the old districting plan, the one in effect through 2010, can’t be used either – that would violate the one person, one vote rule due to population shifts of the last decade. The lower court was therefore left with no choice but to draw its own map. That map departed from the legislatively-drawn map in significant respects, even though the court didn’t find a likelihood that plaintiffs would prevail in their legal challenges to it. Texas argued that the court didn’t show enough deference to the un-precleared plans drawn by the state legislature.
The Supreme Court reversed, holding that lower courts should “take guidance” from the state legislature even though its plan hasn’t yet been precleared. But there’s an exception, in cases where there’s a “reasonable probability” that certain aspects of the plan won’t be precleared. The Court defines “reasonable probability” to mean a “not insubstantial” challenge to preclearance.
It’s hard to describe this holding without being overly technical, but let me try: If there’s a substantial challenge to preclearance, a court need not defer to the state legislature. Note that this is a lower standard than would ordinarily apply to someone asking a court to stop a redistricting plan. If a plan is alleged to violate the U.S. Constitution, for example, plaintiffs ordinarily have to show a “likelihood of success on the merits” to get a preliminary injunction. But those seeking to stop an un-precleared plan don’t have to satisfy this burden, so long as their Section 5 argument is “not insubstantial.” While it’s not entirely clear what this term means, it is pretty clear that this is less onerous than the general preliminary injunction standard. After all, a legal claim can be “not insubstantial” without being likely to succeed.
For this reason, voting rights advocates shouldn’t be too dismayed by Perry v. Perez. The Court has provided some guidance for cases like this one, rare though they may be, in which courts are forced to draw district lines while preclearance requests are pending. It’s true that the standard requires some deference to state legislative judgments about where lines should be drawn, but not to an unreasonable degree. The standard the Court chose is a reasonable one. It prevents districts from going into effect if there’s a substantial question about whether they violate Section 5. On the other hand, if there’s little or no chance that districts violate Section 5, it’s reasonable for courts to defer to the legislature’s line-drawing judgment.
What should worry voting rights advocates? The issue of the reauthorized Section 5's constitutionality, which eight of the nine justices have so far avoided. This issue was before the Court in Northwest Austin Municipal Utility District, Number One v. Holder (“NAMUDNO”), decided in 2009, but the Court adopted a Houdini-like interpretation of the statute to avoid it. So far, only Justice Thomas has expressly addressed the issue, concluding in NAMUDNO and repeating in Perry v. Perez that he thinks Section 5 is unconstitutional.
Since NAMUDNO, the constitutional issue has been raised in several other cases, including a case brought by an Alabama county which was argued before a federal court last week. And just yesterday, the State of Texas filed another case, asserting that a “grave constitutional question” would be raised about Section 5, if it were applied to stop its voter ID law.
To strike down Section 5 on its face would be an instance of profound judicial overreaching, given the voluminous record of continuing voting discrimination before Congress in 2006. Moreover, Congress has explicit constitutional authority to “make or alter” regulations for congressional elections under the Elections Clause, contained in Article I, Section IV. Even aside from the history of voting discrimination in Texas and other states, the Elections Clause easily justifies Section 5's application to congressional redistricting and to procedures (like voter ID) used in federal elections. Although the Elections Clause has been almost completely overlooked in the litigation over Section 5's constitutionality – including the Department of Justice’s briefs – it provides sufficient authority for many of its applications and therefore requires rejection of any facial challenge to the statute.
Thankfully, Perry v. Perez avoids the looming issue of Section 5's constitutionality, which wasn’t necessary to decide the case. But we may not have to wait long before it appears again. However the Court ultimately resolves that question, it will be a really big deal.
Section 5
Phrases like "profound judicial overreaching" and "easily justifies" sound like whistling past the graveyard; I doubt the Justices are swayed. What has doomed Section 5 is the failure to either extend it to every state or revise its formula to be facially neutral using recent (i.e. relevant) voting statistics. Neither could be accomplished because the outcome was either too onerous or too random. And when neutral rules become so onerous or random that lawmakers have to rig them with 40 year old data to make sure they are directed against "the bad states", it's a sure sign they've outlived their usefulness. If Section 5 is so wonderful, perhaps the State of Ohio could be persuaded to volunteer for it? They'd get a lot of positive publicity, and it shouldn't really be a problem because there's never any redistricting or voting discrimination issues in Ohio...oh, wait...
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