By Associate Professor Justin Levitt
"Don't mess with Texas": this time, the Supreme Court should have listened. The Court has injected itself into a 10-gallon disaster that grows messier with every passing day. Today, the Court hears argument. If only it could slowly back out of the room.
The problem arises (again) from a Texas redistricting plan. Last cycle, Texas re-redrew a court's lines, causing Democrats to twice flee the state to gut a legislative quorum. This caused Tom DeLay to set federal law enforcement on their tail, which in turn earned Mr. DeLay a formal admonishment. The resulting districts were struck down under the Voting Rights Act; the Supreme Court found that they "took away the Latinos' opportunity because Latinos were about to exercise it."
This time around, the Texas legislature drew lines without calling in air support. Because of past discrimination, Texas is subject to section 5 of the Voting Rights Act; the state must "preclear" election-related changes to ensure that they don't make life worse for minority citizens. A change can't legally be implemented until it's precleared. Most jurisdictions submit section 5 changes to the Department of Justice, which has a relatively speedy procedure for assessing preclearance. The DOJ has precleared every statewide map that it's considered this cycle. Texas chose, instead, to go to a DC federal court.
The DC court found that it couldn't yet preclear the Texas plans. Texas had used the wrong standards in assessing whether it complied with the Act. And besides, said the court, there were serious allegations that Texas had illegally intended to discriminate in drawing the maps, and those allegations needed to be worked out at trial.
Meanwhile, a different set of lawsuits were raging in a San Antonio federal court (seventeen different lawsuits have been filed over Texas lines so far this cycle). Based on new Census numbers, the districts from the last cycle were unconstitutionally malapportioned. And there were still other alleged problems with the new maps. With filing deadlines for candidates on the doorstep, nobody knew where anyone was running . . . because there were no valid districts to run in.
So right around Thanksgiving, the San Antonio federal court drew temporary lines, for 2012 elections only. And that's when the Supreme Court stepped in. It stayed the temporary lines, apparently to hear Texas's allegations that the San Antonio court should have paid more attention to the state's wishes in drawing an interim plan. That's the argument that the Court is hearing today.
Every day at the Court is another day's misery for election administrators, who have an election to prepare for without districts (or candidates) to make preparation possible. The Court does not do its finest work at a dead sprint. And the Court has given itself a thorny problem to resolve in a hurry.
The bind confronting the Court is that there is no way to purge the process of potential gamesmanship. Before the San Antonio court drew its maps, there were no lawful districts: existing districts were malapportioned, and the enacted plan had not been precleared. Texas law provides few criteria for state legislative districts, and none at all for Congress. This vacuum creates bad incentives no matter what the legal regime. If the Supreme Court tells courts like San Antonio to defer to a state's enacted plan, states could drag their feet on preclearance in DC, in order to implement their wishes through courts back home. If not, those who oppose state plans could drag their feet in DC, in order to delay the implementation of state maps that would be validly precleared in due course. And it's all complicated by the prospect that the interim plan lines could themselves feed back into the preclearance decision. Yeek.
The least bad of the available options is for the Court to go back to first principles. The whole point of section 5 was to stop covered jurisdictions from immediately getting their way, based on demonstrated past problems with "their way." Section 5 imposes delay -- at least until either the DOJ or the DC federal court can sign off -- as its entire reason for being.
It is true that the Court has recently raised some questions about that "reason for being." But this case is not an excuse to answer those questions. It's not that the Court is averse to expanding the question presented in the service of an overly bold holding. It's that other cases will present the issue directly, without quite the imperative to sprint.
Which leaves today's case. If the Court is concerned with deference to a state sovereign, Texas's legitimate policy interests can still be (imperfectly) recognized. The way to do what Texas appears to want, without risking the harm to minorities that section 5 exists to protect, is to start with the last precleared expression of Texas's desires. This "benchmark" plan should be the baseline for a court drawing an interim plan, with updates for population growth and guesstimates for compliance with the Voting Rights Act.
The good news is that this is what the San Antonio court says that it did. There are doubtless flaws -- the court was working at warp speed to put a plan in place before the elections had come and gone. But unless the imperfections are vast, time is too short in this emergency stay from an interim order for the Supreme Court to micromanage the process.
The DOJ has offered a promising face-saving solution: approve the San Antonio court's general approach, but remand for that court to incrementally explain some of its particular choices. If the added scrutiny leads to a few tweaks that get even closer to the benchmark plan, everyone can claim victory. But this much is clear: with no particularly good answer other than flying us all around the world backward to bring us back to Thanksgiving, the Supreme Court needs to issue a rule in keeping with section 5's design, and then get out of the way. On the double.