The Supreme Court will hear oral arguments today over the controversial Texas redistricting map, setting the stage for what could be the most high-profile voting rights ruling in decades.
“It’s totally unpredictable what the court would do,” said former Rep. Martin Frost (D-Texas), a redistricting expert. “We don’t know if this will be decided on narrow grounds or on sweeping grounds.”
Redistricting and election law experts argue there’s a wide range of ruling options for the high court — anything from implementing an existing map to using the Perry v. Perez case as a vehicle to gut a pivotal part of the Voting Rights Act.
Either way, the stakes are incredibly high for this cycle and for the future of election law. At the very least, the Supreme Court will indirectly decide the 2012 Texas Congressional map, which includes several competitive seats. But the high court could also change election law by ruling on a key provision of the landmark 1965 civil rights law — an unlikely circumstance, election experts say, but a possibility nonetheless.
“[The] Voting Rights Act is not the core issue,” said Keesha Gaskins, senior counsel at the Brennan Center for Justice at New York University School of Law. “But how the court decides who has the authority — which branch of the court or the legislature — it’s going to impact how Section 5 [of the Voting Rights Act] is interpreted.”
The Lone Star State legal saga started last summer, when Texas lawmakers passed an aggressive new Congressional map that aimed to put a few more seats in the GOP’s column. The state was granted four new House seats in 2012 because of explosive population growth, mostly in the Hispanic community.
Under Section 5 of the Voting Rights Act, Texas is one of about nine states that requires preclearance before making changes to its voting laws. As a result, Texas had to get approval from the Justice Department or a federal court before the map became law.
In July, Texas officials sued the Justice Department in federal court to get approval for the new map. That trial in the District Court for the District of Columbia is scheduled to begin next week, but legal experts say it’s unlikely the court will preclear that map.
Democrats and Hispanic activist groups sued to overturn the Texas map in a federal court in San Antonio under Section 2 of the Voting Rights Act. In an attempt to speed up the legal proceedings, a three-judge panel in San Antonio drew an interim map, even though the federal court had not ruled yet on preclearance for the Texas map already signed into law. They drew an interim map much more favorable to Democrats.
Texas Attorney General Greg Abbott (R) successfully asked the Supreme Court to stay that court-drawn map, charging the San Antonio court overstepped its legal authority by overhauling the new map during an ongoing preclearance trial.
The Supreme Court will hear oral arguments today on Abbott’s case, but next Tuesday the District of Columbia’s District Court will begin its preclearance trial.
The dual trials put the map in somewhat unprecedented legal limbo. The Supreme Court is unpredictable, but interviews with redistricting and legal experts yielded several possible outcomes:
• The high court could stop the implementation of any map until the D.C. District Court finishes its preclearance trial in early or mid-February. Attorneys agree this would be the simplest ruling.
• After hearing arguments from both sides, the court could defer to the San Antonio court’s interim map. Democrats hope this happens, but attorneys say it’s unlikely the high court would take up the case unless they had a problem with the map or the San Antonio court’s actions.
• The court could ask the three judge panel in San Antonio to redraw certain parts of the map. It could order minor tweaks to fix specific boundaries or even the population deviation in each district.
• The court could use this case as an opportunity to rule directly on the constitutionality of Section 5 of the Voting Rights Act. But most voting rights attorneys agree this is out of the scope of the trial.
• The high court could ask the San Antonio court to defer to the map the state Legislature passed last summer — even though it has not been precleared — for the 2012 cycle.
It might seem like a minor procedural ruling, but Democrats and minority activists loathe and fear this outcome because they say it would effectively “gut” Section 5 of the Voting Rights Act. This ruling would set a precedent for courts to defer to passed maps if the state runs out of time for the courts to preclear or draw other maps.
“It doesn’t necessarily take the legs out from Section 5, but it certainly gives states the tools to slow down if they can just drag their feet,” Gaskins said. “This [case] seems like it’s teed up more for one of those procedural little pieces. It’s like death by 1,000 cuts.”
The Supreme Court tended to sidestep major rulings on election law in recent redistricting cases. Although attorneys caution that any predictions, even based on precedent, are highly speculative.
Nonetheless, attorneys look for some clues from the most recent Supreme Court ruling on preclearance, Northwest Austin Municipal Utility District Number One vs. Holder. In that 2009 case, the Supreme Court ruled, 8-1, that the municipality could “bail out” of its Section 5 preclearance requirement.
Justice Clarence Thomas dissented, calling Section 5 unconstitutional. But other justices, including Antonin Scalia and John Roberts, expressed concern about Section 5 in their oral arguments. Attorneys presume the trio of left-leaning justices on the court — Elena Kagen, Sonia Sotomayor and Ruth Bader Ginsburg — would probably oppose a ruling that would weaken the Voting Rights Act. That leaves Justice Anthony Kennedy as the pivotal swing vote.
But even if the Supreme Court opts not to deal with Section 5 in its ruling, it might not be able to stay away from it for too long. There are several cases directly related to Section 5 working their way through appeals that election law experts say will most likely be heard by the Supreme Court this year.
In Arizona, for example, officials sued the Justice Department directly over the constitutionality of Section 5 of the Voting Rights Act. And in South Carolina, officials are preparing to appeal the Justice Department’s decision not to preclear the state’s new voter identification law.
“It’s pretty momentous,” said Michael Li, a Texas-based Democratic election law attorney. “There’s been some big cases over the years, but they’re usually spread out over the years.”
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.