Constitutional Opinions

Texas Wins One for Judicial Restraint

In Perry v. Perez, the Supreme Court has demanded judicial restraint in redistricting.

By 1.26.12

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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.

 

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About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.