In a case that does not bode well for Section 5 of the Civil Rights Act, last week the Supreme Court unanimously threw out a federal judge’s redistricting map for the state of Texas. The Court’s per curiam opinion, released on Friday, said the judge failed to show enough deference to the Texas legislature’s map, which is still awaiting preclearance from a federal court in D.C. Like other states with a history of racial discrimination in voting, Texas is required by Section 5 of the Civil Rights Act to obtain “preclearance” for voting changes from the U.S. Department of Justice or the D.C. court. These states must demonstrate that the changes do not result in “denying or abridging the right to vote on account of race or color.”
While preclearance was pending, civil rights groups asked a court to rule the legislature’s map unconstitutional, arguing that it discriminated against Latino voters. The plaintiffs asserted that, even though Latinos accounted for 3/4 of the state’s population growth in the past decade, the legislature’s map would dilute Latinos’ voting power. The Texas judge delayed judgment, pending the results of preclearance. But as the state’s primary election approached, the judge drew up an alternate map. (The Supreme Court has said states covered by Section 5 cannot hold elections with new maps until they are precleared.) The Texas court said it drew an “independent map” based on “neutral principles.”
The Supreme Court said the judge should have used the legislature’s map as a “starting point.” The Court noted that redistricting is primarily the responsibility of state legislatures: “The failure of a State’s newly enacted plan to gain preclearance prior to an upcoming election does not, by itself, require a court to take up the state legislature’s task.” The drastic population growth in Texas required sweeping changes to its Congressional map, and the Court said a judge should only reject the legislature’s map if there is a “reasonable probability” that the map will not receive preclearance.
In rejecting the judge’s map, the Court noted that, when it comes to redistricting, there are no such things as “neutral principles.” All of the decisions involved are policy judgments. Attorney General Eric Holder recently stated that our election systems should be “free from partisan influence,” but I thought that was the entire point of redistricting. On what other basis are state legislatures expected to draw boundaries for Congressional seats? Do we really expect state legislatures to ignore political considerations?
In addition to noting federalism concerns in this case, the Court again stated that Section 5 presents “serious constitutional questions.” Justice Thomas, in a concurring opinion, reiterated his belief that Section 5 is unconstitutional. Notwithstanding Thomas’ doubts, new voting laws prove that federal oversight is still justified. Many Republican-led state legislatures have passed voter ID laws that will disproportionately impact minorities, and Florida went so far as to cut back on early voting. If the Obama administration continues its robust enforcement of the Civil Rights Act, it may find itself facing a skeptical Supreme Court.