The U.S. Supreme Court tried Monday to untangle a three-court knot in a Texas redistricting case with nationwide repercussions. The case tests the allocation of four new congressional seats in Texas, new seats created largely because of the state's booming Latino population. It is also a case that pits the rights of minority voters under the Voting Rights Act against the powers of the state legislature.
The Voting Rights Act requires that states like Texas, with a demonstrated history of racial and ethnic discrimination, get advance preclearance before putting into effect a new redistricting plan. The fastest way to do that is under the Justice Department's 60-day preclearance system. But, amazingly, this is the first year since the 1965 voting rights law was enacted that the decennial redistricting has occurred when a Democrat was president and when Democrats were running the Justice Department. Perhaps because of that, the Republican-controlled Texas Legislature took the alternative and longer preclearance route: It sought approval from a three-judge court in Washington, D.C.
So far, however, that has not worked out well for the state. It has not won preclearance to date, and now it is challenging an interim plan drawn up by a federal court in Texas. The interim plan gives greater weight to the state's exploding Latino population, but the result is that three out of four new congressional seats would likely go to Democrats, as opposed to the GOP plan, which would likely result in three out of four seats going to Republicans.
The state says its map should be assumed valid, pending preclearance, and it maintains that the interim plan designed by the federal court in Texas is a prime example of judges substituting their choices for the Legislature's.
But on the steps of the Supreme Court on Monday, Domingo Garcia, representing a coalition of Hispanic groups, said the Texas Legislature's plan shows why the Voting Rights Act bars adoption of a plan that has not been precleared.
"What we've seen the Texas Legislature do is they gerrymandered and divided Latino communities all over the state of Texas in order to maintain political control," Garcia said.
State's Lawyer Contests Texas Court's Actions
Inside the Supreme Court chamber, Paul Clement, the state's lawyer, was first up. He contended that the Texas court should have deferred to the state Legislature for an interim plan.
Justice Sonia Sotomayor, the court's only Hispanic justice, interrupted: "Doesn't that turn the Voting Rights Act on its head?" She added that instead of the state having to show its plan is not discriminatory, minorities would have the burden of proving it is discriminatory.
Justice Ruth Bader Ginsburg then noted that the trial on the Texas preclearance application is set to begin next week in Washington, D.C., and end Feb. 3.
Justice Samuel Alito questioned how the state could hold its scheduled primaries in April. "Texas has a very early primary," Alito said. "Why can't this all be pushed back?"
Clement, the state's attorney, replied that the Supreme Court should send a message to the Texas court and others drawing interim plans that when preclearance is pending, the state legislature's plan should be presumed valid unless there are violations of the law.
But Justice Elena Kagan noted that the Supreme Court has ruled repeatedly that only the Justice Department or the district court in Washington, D.C., can find such a violation. Sotomayor asked why the courts should defer to a state legislative map that drew an "antler-shaped" district in El Paso that was challenged for allegedly minimizing the Latino vote.
Others Defend Interim Plan
Next up was Sri Srinivasan, the Obama administration's deputy solicitor general, who asserted that the interim plan was drawn up based on neutral principles.
Alito suggested the idea of neutral principles is a fiction, given the fact that many political principles, such as incumbent protection, are permissible.
The last lawyer to argue was Jose Garza, representing minority groups. He noted that the preclearance court in Washington, D.C., has already written a preliminary opinion saying that Texas does not even dispute some allegations of discriminatory purpose in its redistricting plan.
Several justices asked how fast they could expect a decision on preclearance from the Washington, D.C., court, with the trial set to end Feb. 3. Garza replied that he expected a decision within 30 days.
Chief Justice John Roberts said puckishly, "When do you expect our decision on the appeal from the district court from D.C.?"
Garza, tongue firmly in cheek, said, "Later this afternoon, your honor."