UPDATE 12:09 p.m. Two hours after issuing its ruling on Texas’s redistricting dispute, the Supreme Court put on hold a lower court’s decision striking down the West Virginia legislature’s new plan for electing that state’s three members of the House of Representatives. The lower court ruling will be on hold until the Justices decide a coming appeal by state officials. The Court’s order is here. A separate post will appear shortly.
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The Supreme Court on Friday unanimously overturned orders issued by a federal court in Texas that drew its own new maps for legislative districts, and ordered it to reconsider. In an 11-page unsigned opinion, the Court said that the three-judge District Court in San Antonio may not have used the “appropriate standards,” which the Court spelled out in some detail. Justice Clarence Thomas, in a separate opinion, repeated his view that a key federal voting rights act implicated in the Texas case is unconstitutional. The decision is here.
Because of Justice Thomas’s view about Section 5 of the Voting Rights Act of 1965, he would have ordered the San Antonio court to let Texas use its own maps without change for the 2012 elections. However, the other Justices did not accept that approach, instead ordering the court in Texas to start with the state’s plan but also to make some rulings about whether any parts of it are likely to be nullified in court.
The Court ordered its ruling into effect immediately, thus stressing the importance of moving rapidly on a dispute in which there has been a Feb. 1 deadline for creation of new maps for the election of members of the Texas state legislature and its 36-member delegation in the U.S. House of Representatives. The Justices themselves produced their opinions just 11 days after lawyers had argued the case.
When the case is taken up again by the San Antonio court, it is now under orders to use a series of maps drawn by the state legislature last year “as a starting point” for crafting any new districts. Although Texas’s own maps have not yet been legally cleared in Washington, as Section 5 of the Voting Rights Act requires, the Court said that does not mean that the legislature’s maps, or the policies that lay behind the creation of those maps, “can be disregarded by a district court drawing an interim plan.”
The San Antonio court is judging challenges to the Texas maps only under a different part of the Voting Rights Act — Section 2 — and under the Constitution. A federal District Court in Washington this week began a trial of the Section 5 issue. The Supreme Court told the San Antonio court not to prejudge what the Washington court may do under Section 5, but the Texas court is under a duty to decide whether it is “reasonably probable” that parts of the plan will not get cleared under Section 5.
Starting with Texas’s own maps, the Court told the San Antonio tribunal, it is to take guidance from them about state policy judgments “unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain” clearance in Washington.
Turning to its own past precedents, the Court — citing its 1996 decision in Lopez v. Monterey County — said that a District Court may not adopt “as its own” a state plan that needs Washington clearance but does not yet have it. However, the precedents “say nothing about whether a district court may take guidance from the lawful policies incorporated in such a plan for aid in drawing an interim map.” Turning then to its 1982 decision in Upham v. Seamon, the Court said that a district court has a duty to “defer to the unobjectionable aspects of a state’s plan” even in a situation where clearance was sought but had been denied.
The Justices flatly rejected the declaration of the San Antonio court that it was “not required to give any deference” to what the legislature had crafted. The lower court was wrong, the Court added, “to the extent” it “exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of ‘the collective public good’ for the Texas legislature’s determination of which policies serve ‘the interests of the citizens of Texas.’ ”
Further, the Court wrote, “because the District Court here had the benefit of a recently enacted plan to assist it, the court had neither the need nor the license to cast aside that vital aid.”
Justice Thomas, writing for himself, made clear that he holds to the view that the entire structure of Section 5, requiring some states and local governments to get Washington legal approval before they may put into effect any change in their election laws, is unconstitutional. That constitutional question is under new review in the D.C. Circuit Court, and is likely to be raised further by state or local governments governed by Section 5.
In Friday’s ruling, the other members of the Supreme Court did make a passing reference to the doubts that the Court had previously expressed about the burdens that Section 5 puts on the sovereign interests of state governments. In ordering the San Antonio court to give more heed to the redistricting maps fashioned by the Texas legislature, the Court’s opinion said that the “serious constitutional questions” raised by Section 5’s “intrusion on state sovereignty” would “only be exacerbated” if that law “required a district court to wholly ignore the state’s policies in drawing maps that will govern a state’s elections, without any reason to believe those state policies are unlawful.”
The new ruling, beyond its mandate to lower courts to look more generously on state election policies that underlie election law changes, sought to give the San Antonio court some very explicit guidance by citing specific ways in which that court either had made an error, or had left its rationale unexplained. It will now be up to the court in Texas to establish new mechanisms, with the aid of lawyers in the case, to get redistricting maps in place in time. The February 1 deadline to which the Texas court has previously referred is necessary to assure that new maps are in place so that the Texas primary elections can go forward, as currently scheduled, on April 3.
While it is conceivable that the primary date may have to be postponed as it was once earlier, there is likely to be strong resistance to that among political parties and election officials in Texas. This resistance will put a premium on the District Court moving with dispatch to carry out the orders that it got on Friday from the Supreme Court.
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