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Constitutional Opinions
Texas Wins One for Judicial Restraint
In Perry v. Perez, the Supreme Court has demanded judicial restraint in redistricting.
On January 20, the Supreme Court unanimously reversed the decision of a three-judge federal court in Texas in a case that shows the Voting Rights Act at its most unworkable. The Court’s ruling highlights the importance of a state’s legislative policy judgments in redistricting work and, in so doing, reinforces the importance of judicial restraint.
In Perry v. Perez, the Court had to decide which of two three-judge federal district courts get to do what with statewide redistricting plans the Texas Legislature adopted. Right now, one court in Washington, D.C. is in the middle of a trial to determine whether those legislatively enacted Texas plans can be put in effect, while the other court in Texas largely ignored them because the court in Washington, D.C. wasn’t done with its work.
The Supreme Court told the Texas court to give greater respect to the legislature’s work. As the Court explained, that’s as it should be, given that redistricting involves the making of “policy judgments” that courts are “at best, ill suited” to make.
The circus began because Texas is subject to Section 5 of the Voting Rights Act. As a result, it needs permission, called preclearance, from either the Washington D.C. court or U.S. Department of Justice(USDOJ), before it can use its new congressional, state house, and state senate redistricting plans. Section 5 was enacted in 1965 as emergency legislation, but Congress keeps extending and tightening it up even though the targeted Southern states have demonstrated continued improvement in the rate of minority participation in registration and voting and in the number of minority elected officials. In 2006, though, Congress said that Section 5 is not just directed at backsliding but can be used to sniff out “any discriminatory purpose” on the part of a covered jurisdiction.
When Texas sought preclearance from the court in Washington, D.C., USDOJ balked, and it was joined by Democratic-leaning individuals and groups. USDOJ was OK with the state senate plan, but the interveners weren’t. Moreover, USDOJ and the interveners had specific objections to different districts, and both suggested that the plans were the product of discriminatory motives. Now, Texas has to go through a trial to prove that its plans don’t have the purpose or effect of “denying or abridging the right to vote on account of race or color.”
In the meantime, Texas has to get ready to run elections for Congress and the state legislature. It can’t do that with the old plans because they no longer comply with constitutional one-person, one-vote standards. It can’t use the new ones until the court in Washington says it can.
That’s where the court in Texas comes in. The same litigants, with the same lawyers, who jumped into the case in Washington, D.C. convinced that court to adopt new plans to be used in the upcoming elections. The Texas court drew an “independent map” that applied “neutral principles that advance the interest of the collective public good.” Where the Texas Legislature’s plans favored the Republican majority elected by the voters, the “neutral principles that advance the interest of the collective good” turned out to favor the interests of Democrats.
In past cases, the Supreme Court has said that the courts should fix the problem in front of them and stop when they have to draw interim plans. When the problem is with one-person, one-vote standards, draw a plan that meets those standards, and, when USDOJ has an objection, use the covered jurisdiction’s plan to the extent it isn’t affected by USDOJ’s objection. The Supreme Court reinforced that guidance in its decision.
The Court noted that the State’s new congressional plan, which adds four districts, “reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth.” When the Texas court “displace[d] legitimate policy judgments with the court’s own preferences,” it made “standardless decisions” in placing those new districts. In fact, if the lower court “wholly ignore[s] the State’s policies… without any reason to believe those State policies are unlawful,” the “serious constitutional questions” surrounding Section 5 would only be “exacerbated.”
The Court may have solved one problem, but another lurks. That is the new authority to look for “any discriminatory purpose.” This is the first time it has been invoked, and it has helped to make a trial necessary, delaying a decision by the court in Washington, D.C. The longer the preclearance process takes, the more likely it is that local courts will have to draw interim plans. When they do, they’ll have to follow the Court’s guidance.
In the end, the job of redistricting belongs to the legislature, not the courts. By reversing a court’s decision to put “neutral principles that advance the interest of the common good” ahead of a legislature’s exercise of its judgment on political issues, the Court unanimously reinforced the importance of judicial restraint.
About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.
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Mike 3/505| 1.26.12 @ 8:44AM
We are solving the wrong problem. The prior permission clause is illegal and unconstitutional. ALL states affected need to ignore it and put the Federal government on notice that they are ignoring it. If Federal agents need to be escorted out of the state(s) to prevent their interference with what the Constitution says are state affaires, so be it.
Dmac| 1.26.12 @ 9:42AM
Well put Mike. This permission clause is discriminatory or its face. All laws shall aplly equally to all states, isn't that what our constitution requires? Then either make this the law and requirement for all fifty states, repeal it, or the states should ignore it all together. The fact is all registered voters in Texas have the right to vote. Now, can anyone show how that is discriminating against anyone?
What it really comes down to is that democrats can't get elected without anymore. They could when they actually had a platform for the working class but they gave that up long ago and have decided they would rather be a party that divides Americans, not a prty that brings Americans together.
Derek Leaberry| 1.26.12 @ 10:00AM
Yes, the cited decision was wise. However, when the Voting Rights Act is up for renewal next, expect the Republicans to trample over themselves in support of renewing it. Just as the Republican Party doesn't have the guts to crush affirmative action and quotas, so is the Republican Party institutionally far too cowardly to end the Voting Rights Acts.
KennesawJack| 1.26.12 @ 10:13AM
Derek, you are entirely correct and until the Party does begin to show the courage of its (purported to be) convictions, we will continue to adopt a conciliatory posture when dealing with the Democrats and roll over for them on issue after issue. That's why we get a McCain followed by a Romney as the preferred standard bearers of the establishment.
jomo2009| 1.26.12 @ 10:22AM
Time to repeal Section 5, me thinks.
RichTex| 1.26.12 @ 11:23AM
The only way this is going to be repealed, or even changed significantly, is for some court to extend it to a large, liberal state not now covered under its terms. Perhaps, some member of a racial minority, say an Asian in California, will bring a suit asserting that the equal protection clause of the 14th Amendment mandates that if this law benefits minorities in southern states, it must also be extended to benefit him. Once all of the Democrat-controlled legislatures have to submit to a (Republican, we hope) federal administration for permission to gerrymander their own districts, we might see an end to this.
Redstateboy| 1.26.12 @ 11:51AM
Right........... Get the Government involved and everything will work just b-u-t-fully.. ain't dat right Liber-uls? From HusseinCare, to Amtrak, to developing our Natural Resources to Medicaid and Medicare.. Let's let the Government do it. More further examples of how Liber-ulism is a Mental Disorder.
bill| 1.26.12 @ 1:42PM
The 1965 Voting Rights Act (VRA) is discriminatory because it is unconstitutional, and this law is enacted simple for the sake of politics, ignoring the constitutional obligation of being fair and balanced to all voters, regardless of color of their skins.
VRA has become a tool for local lawmakers to gerrymander the district to allow more blacks and Hispanics lawmakers elected, even though this law super-cedes the state constitution.
VRA favor blacks and Hispanic constituents, and restrict any white get elected in those so-called "minority-majority" districts. In particular, VRA has targeted the southern state that has been "alleged" hostile towards minority. in my humble opinion, it's a lie.
We must abolish the 1965 Voting Rights Act. This law is outdated and unconstitutional.
Michael| 1.26.12 @ 3:10PM
Is there any particular reason that white Republicans "must" live in any State that is bound by the 1965 VRA? If blacks and Hispanics think they can do it better, just let them try.
And, bill, you have nominated yourself to take charge of finding funding and a law firm to carry your charge to DC. Go, Don Q, Go!
nitengail8| 1.26.12 @ 4:03PM
Plenty of Hispanics and Blacks have been elected in Texas. They just mostly happen to be Republican, but some Dems in the liberal areas of the State have also been elected. There is no reason for the VRA there.
Derek Leaberry| 1.26.12 @ 4:40PM
I would be surprised if your assertion bore scrutiny. I would guess that 98 % of elected blacks in Texas are Democrat and about 80 % of elected Hispanics are Democrat.
Nite| 1.28.12 @ 9:45PM
There are several African Americans and Hispanics in the Legislature or on key boards throughout the state. If I remember correctly, the Chief Justice is black. Perry has a long history of appointing and working to elect minorities. I think your percentages are a little off. 90% are black and at lest 10 percent are Republicans. Hispanics are about 70% Dems and 30 or perhaps more ar Republican.
nitengail8| 1.26.12 @ 3:58PM
The Dems in Texas are trying to get the liberal court there to give them seats that they can't get in elections.