by Jeremy Leaming
During yesterday’s oral argument before the U.S. Supreme Court over legal challenges to recently redrawn electoral maps, the justices, according to Adam Liptak, appeared “frustrated” as they grappled with how to resolve the matter, which could have a major impact on which party controls the House of Representatives.
“The justices,” Liptak, The New York Times Supreme Court correspondent, wrote, “in essence must choose between
two sets of electoral maps, or at least tell lower courts how to do so. The maps concern the two houses of the Texas Legislature and the House of Representatives.”
Prompted by the 2010 census – which reported that Texas gained more than 4 million new residents, most of them Latinos – the Republican-controlled Texas Legislature created new electoral maps that public interest groups criticized as failing to reflect minority population growth. Texas, because of its history of discrimination against minority voters, is one of the states that must get “preclearance,” pursuant to Section 5 of the Voting Rights Act, from the Department of Justice or a federal court before any electoral changes can take effect. While Texas officials sought preclearance from a federal court in Washington, a federal court in San Antonio created its own electoral maps as a substitute, which state officials challenged. That three-judge court in San Antonio found that the Legislature’s redistricting sharply reduced the number of minority voting opportunities.
During oral argument, Justice Sonia Sotomayor suggested the Texas Legislature’s maps could not be used in the state’s primaries, because the maps had not been approved pursuant to Section 5 of the Voting Rights Act.
“I don’t see how we can give deference to an enacted new map,” she said, “if Section 5 says don’t give it effect until it’s been precleared.”
Chief Justice John Roberts, Liptak reported, groped for a middle ground. “You cannot assume that the Legislature’s plan should be treated as if where precleared,” he said. But Roberts also faulted the court in San Antonio for creating an “interim plan assuming that there are going to be these Section 5 violations.”
“How do we decide between those two?” the chief justice asked. “You have two wrong choices. How do we end up?”
Election law expert Richard L. Hasen told ABC News that it appeared the justices were mulling two possibilities.
“One is that the court sends it back to the Texas court to consider whether Texas can prove that the legislature drawn maps are not discriminatory,” Hasen, a law professor at the University of California, Irvine, said. “The other possibility is that the Court waits for the DC Court to reach the merits of the underlying dispute. That would make the interim map moot.”
Pamela S. Karlan, a distinguished law professor at Stanford University, told NPR that the debacle of Texas redistricting was the making of state lawmakers who could have sought a quicker route for preclearance – through the Justice Department instead of the federal court in Washington.
“Texas’ claim that this process has bogged down and, therefore, it should somehow be excused [from complying with the Voting Rights Act] is a little bit reminiscent of the claim of somebody who kills his parents and then throws himself on the mercy of the court because he’s an orphan,” Karlan said.
During an ACS symposium on redistricting and the 2012 elections, Nina Perales, director of litigation for MALDEF, a Latino civil rights group, also blasted Texas legislators over the redistricting controversy.
“This is a crisis entirely of the state’s making, and I want to be absolutely clear about this,” Perales said. “There is nobody else at fault for having un-precleared redistricting plans than Texans and when you have an un-precleared plan, a court is going to draw it for you.”
Perales added that for minority voters, such as Latinos, the problems regarding the Texas redistricting are disconcertingly familiar.
“We see the same themes coming up in this round as we have before,” she said. “From the Latino perspective, an entrenched historical exclusion from the political process in places like Texas and other parts of the Southwest, strong demographic pressure not just from immigration ... combined with a very strong urge in the Latino community to get fair representation, and a similarly strong urge on the other side of those who are in power now to prevent that from happening.”
See more comments from Perales here.
In a statement released late yesterday, House Judiciary Committee Ranking Member John Conyers Jr. (D-Mich.) urged the Supreme Court “to ensure that minority voters there have an equal opportunity to elect candidates of their choice. The lower court found evidence of discriminatory intent and that the maps proposed by the legislature appear to deny minority voters the opportunity to elect candidates of their choice. The Court should not stand in the way of legal proceedings that will bring these facts into the open or delay the rights of minority voters.”
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