Under the U.S. Supreme Court: Administration, Texas crack heads in high court

By MICHAEL KIRKLAND  |  Jan. 8, 2012 at 3:30 AM
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WASHINGTON, Jan. 8 (UPI) -- The Texas redistricting case hits a climax of sorts Monday as the U.S. Supreme Court hears argument on competing redistricting plans -- at stake, the lions' share of the four new seats in Congress the Lone Star State is due.

If a plan drawn up by the Republican-dominated Texas Legislature wins out, the GOP should take all four of the seats. If an interim plan drawn up by a three-judge court in San Antonio succeeds, and the voting impact of minorities is maximized, Democrats could take three out of the four.

Underneath the bare knuckle politics is the suspicion that one of the truly landmark laws in U.S. history, the Voting Rights Act, also may be facing some jeopardy.

The Obama administration has joined the fight, and filed a friend-of-the-court brief last month partly supporting challengers of the Legislature's plan. Lawyers for Texas and the challengers get a half hour each to make their arguments Monday. The administration has been granted a bare 10 minutes.

But the U.S. Solicitor General's Office already has made much of its case in the brief filed with the high court.

Section 5 of the 1965 Voting Rights Act prohibits a "covered jurisdiction" -- jurisdictions such as Texas which have a history of racial discrimination -- from making changes in voting procedures without getting judicial or administrative "pre-clearance."

State and local jurisdictions can seek judicial pre-clearance for a redistricting plan by going to a three-judge district court in Washington. Or they can get pre-clearance from the U.S. attorney general.

But under the federal act, the jurisdiction has the burden of showing the voting change "neither has the purpose nor will have the effect of denying or abridging the right to vote" that, among other things, "would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise."

In submitting its plan to the Washington court, Texas said its "proposed redistricting plans for the U.S. House of Representatives, the Texas House of Representatives and the Texas state Senate neither have the purpose nor will have the effect of denying or abridging the right to vote on account of race, color or membership in a language minority and otherwise fully comply with Section 5 of the Voting Rights Act of 1965."

The state asked for a quick ruling that its plan could be implemented for the upcoming elections.

But the three-judge panel in Washington, tied up with related litigation and initially rejecting the Legislature's maps, ordered the three-judge federal panel in San Antonio to review the redistricting plan to test its compliance with Section 5 and come up with an interim plan if necessary, pending a final ruling in Washington.

The Lone Star State gained more than 4 million residents from 2000 to 2010, translating into the additional four seats in Congress. The growth was overwhelmingly because of an increase in the Hispanic population.

Using Section 5, the San Antonio panel rejected the state Legislature's plan 2-1 and substituted an interim plan of its own that tends to favor Hispanics and Democrats. The panel also refused to stay its ruling.

The panel majority implied its hands were tied.

"Had the state chosen the path of administrative pre-clearance through the [U.S.] Department of Justice, we would perhaps be in the remedial phase right now," the majority said. "However, the state chose to file a lawsuit in the United States District Court in the District of Columbia, which is still pending, and we are not in the remedial phase. ... The court [panel in San Antonio] cannot simply adopt an unpre-cleared redistricting plan, in whole or in part, with the signatures of a few judges sitting in Texas."

Texas officials, led by state Attorney General Gregg Abbott, took their case the U.S. Supreme Court.

In fighting for the plan that would give Republicans an advantage, Texas officials are carrying on an old tradition. Generations of state Democratic officials enjoyed a gerrymandered congressional map that favored them until Texas Republicans began flexing their political muscles less than a decade ago.

But the administration's brief to the Supreme Court points out that for once, the arithmetic is on the side of minorities.

The 2010 census showed the state population has increased by nearly 4.3 million since 2000, the brief said. The Latino population accounted for more than 2.79 million of that increase; blacks for more 522,000. Whites accounted for fewer than 465,000.

Despite those numbers, the Legislature's state House plan "dismantled several districts in which Hispanics were able to elect their candidates of choice ... [and the] congressional plan resulted in nearly 500,000 fewer Hispanic voters living in ability-to-elect districts. ... Both plans bore indicia of discriminatory purpose," the administration brief said. "For instance, precincts were carefully split so that districts would include certain voters and exclude others; the only basis for distinguishing at that level ... was race."

The administration has joined in the challenge to the state House and U.S. House redistricting, but not in the challenge to the state Senate redistricting.

The administration argues in its brief that Section 5 of the Voting Rights Act "prescribes a bright-line rule: A voting change cannot take effect 'unless and until' it is pre-cleared. [Texas officials] cannot avoid the clear dictates of Section 5 by contending that the unpre-cleared plans should go into effect on an interim basis. There is no basis for allowing any temporary circumvention of the pre-clearance requirement, much less one of the magnitude [Texas officials] seek. Indeed, had the District Court [in San Antonio] attempted to order the use of unpre-cleared plans ... it would have been clearly reversible error under this [Supreme] Court's decisions."

The brief argues at length that the San Antonio panel had no power to act under the Voting Rights Act except in the way it did.

Texas officials seek "to put this [Supreme] Court to a binary choice: The state's maps, or the [San Antonio] District Court's," the administration said. "If the choice is between an unpre-cleared map that actually violates the [Voting Rights Act], and a map drawn by federal judges that may ... be insufficiently sensitive to state redistricting principles, the choice is clear: Section 5 exists precisely to ensure that discriminatory, retrogressive voting changes -- like the Texas House and congressional plans -- are caught before they ever go into effect."

The administration's brief makes a pretty good argument that Texas is violating the Voting Rights Act. But an unspoken motif in the case is whether Section 5 of the act itself might be in peril.

Erwin Chemerinsky, dean and distinguished professor of law at the University of California, Irvine School of Law, at least approaches the question in an article last week in the ABA Journal -- "The Eyes of Texas Are Upon Supreme Court."

"In 2006, Congress extended Section 5 for another 25 years," Chemerinsky wrote. "In 2009, in Northwest Austin Municipal Utility District No. 1 vs. Holder, the [Supreme] Court expressed doubts about the continued constitutionality of Section 5, but resolved the case without deciding the constitutional question. Chief Justice John G. Roberts Jr., writing for the majority in an 8-1 decision, discussed the significant intrusion of Section 5 on the prerogatives of state and local governments and said that the constitutionality of the law is a 'difficult question.'

"But the court avoided the constitutional question by holding that local governments could 'bail out' of the requirements of Section 5 by showing that they do not have a recent history of race discrimination in voting," he added.

The issue of the constitutionality of Section 5 is not in the current case, "Yet, the constitutional issue is very much the backdrop of what the Supreme Court will be considering.

"The stakes in all of this are potentially high, ..." Chemerinsky said. "Ultimately the [Texas cases] highlight a crucial issue sure to come directly before the court: Was the extension of Section 5 for another 25 years constitutional?"

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