The Supreme Court heard oral arguments on Monday in a case that could have big legal consequences in Texas this election year as well as portend an uncertain future for Section 5 of the Voting Rights Act.
The justices seemed to struggle with how to handle a case focusing on Texas redistricting given the tight time constrains and the need to implement some map for the 2012 election. At issue is whether a panel of federal judges in San Antonio had gone too far when they drew up interim redistricting maps before a separate panel of judges had ruled on whether the original maps drawn by the legislature were discriminatory. Under Section 5 of the Voting Rights Act the burden of proof is on Texas to prove that their redistricting maps were not discriminatory, because of the state’s history of racial discrimination.
Due largely to a population boom as a result of growth in the Latino population in the Lone Star State, Texas was given several additional congressional seats, but critics say the maps signed by Texas Gov. Rick Perry did not include a proportional amount of minority opportunity districts. The Justice Department has argued that based on their preliminary investigation they believe the maps were implemented with the intent of discriminating against minority voters.
Former Solicitor General Paul Clement argued on behalf of Perry, telling the court that a panel of judges in federal court in San Antonio went too far. Jose Garza argued on behalf of the Mexican American Legislative Caucus that the San Antonio court was right to create an interim plan while the legislatively drawn maps where still going through the redistricting process.
“The case is clear. Texas does not have pre-cleared maps. In this situation, a federal district court is required to follow certain procedures and criteria to create an interim plan. That is what the San Antonio court did. If the Supreme Court follows its own precedent, we will prevail,” Garza said in a statement.
But Clement maintained in court, and conservative members of the court seemed to agree, that there were too many political decisions that went into drawing up a redistricting map. He said that the panel of judges in San Antonio had “lost sight of first principles” and made a “truly remarkable” decision to draw up maps based on the previous benchmark plan instead of being guided by the plans drawn up by the Texas legislature.
Justice Samuel Alito contended that there was “no such thing” as neutral principals in redistricting.
“I’m sure a computer could shoot out dozens and dozens of possible maps and someone would have to choose between them,” Alito said.
Justice Sonia Sotomayor called one district an “oddly-shaped district” that she said looked like a deer “with two antlers,” referencing a district that critics said was was drawn in a way that would specifically minimize the Latino vote. Sotomayor suggested that giving “deference” to the map drawn up by Texas legislatures could “turn Section 5 on its head.”
Justice Kennedy seemed to indicate an aversion to Section 5 of the Voting Rights Act, saying it put Texas at a “tremendous disadvantage” and asking how the process would have worked with a state that wasn’t covered by Section 5. While this case isn’t expected to address the constitutionality question, observers expect the Supreme Court to address the constitutionality of Section 5 in a case down the line as several potential cases are working their way through federal courts.
Gerry Hebert, a voting rights lawyer who has represented clients opposing the maps, told TPM he was encouraged that most of the justices seemed “to recognize that you can’t let an uncleared map to go into effect.”
Hebert said he was “pretty optimistic” that the court would send the case back and let the D.C. case run its course after the San Antonio decision was vacated.