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.
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 As originally enacted, Section 5 covered Southern states that excluded African Americans from voting.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.
In a unanimous unsigned opinion, the court rejected election maps devised by a Texas federal district court, asking the lower court to give the map-drawing another try, this time using the original maps drawn by the Texas Legislature as a "starting point."
As UC Irving Law professor Rick Hasen notes in very early commentary for Election Law Blog, the decision is a win for the Texas, “and will require the drawing of districts much more likely to favor Texas’s interim plan.” The alternative court-drawn map was the result of legal challenges alleging that the map discriminated against minorities.