Friday, January 20, 2012
The Supreme Court today vacated the Texas district court redistricting maps in Perry v. Perez, saying that it was "unclear whether [the district court] followed the appropriate standards in drawing" those maps. The ruling sends the case back to the U.S. District Court for the Western District of Texas for more map-drawing, consistent with the standards set out in today's opinion. We most recently posted on the case here.
The standard the Court set--that the district court should take guidance from a state's policy judgments, unless they reflect aspects of a plan that stand a "reasonable probability" of failing Section 5 preclearance--is a compromise between the positions taken by the parties. "Reasonable probability" means that the Section 5 case is "not insubstantial"--a low bar--and leaves some room for a district court to deviate from a state's plan. The approach requires the district court to determine the "reasonable probability" of the legislature's plan piece-by-piece (or aspect-by-aspect), and not as a whole; thus a district court has to leave in place any aspect of the legislature's plan that meets the standard.
As expected, the opinion said almost nothing about the constitutionality of Section 5 of the Voting Rights Act, the preclearance requirement. (It only reiterated what it said in Northwest Austin--that it raises "serious constitutional questions"--and that those might be exacerbated with standardless map drawing by a district court.) The Court also did not question a district court's ability to redraw district maps in a challenge under Section 2 of the Voting Rights Act; indeed, it gave guidance to the district court in how to do that.
The opinion was per curiam. Only Justice Thomas wrote separately--a concurrence, arguing that Section 5 is unconstitutional.
The case arose out of the Texas district court's redrawing of Texas legislative maps in a case challenging the Texas legislature's maps under Section 2 of the Voting Rights Act. The problem was that the Texas legislature's maps were pending Section 5 preclearance in the D.C. district, and the Texas primaries are impending.
The Court set the standard for the Texas court's redrawing of the maps in its opinion today:
To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State's recently enacted plan in drafting an interim plan. That plan reflects the State's policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. . . . ["A] court, as a general rule, should be guided by the legislative policies underlying" a state plan--even one that was itself unenforceable--"to the extent those policies do not lead to violations of the Constitution or the Votigin Rights Act." . . .
Section 5 prevents a state plan from being implemented if it has not been precleared. But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan. On the contrary, the state plan serves as a starting point for the district court. It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court's own preferences.
A district court making such use of a State's plan must, of course, take care not to incorporate into the interim plan any legal defects in the state plan. Where a State's plan faces challenges under the Constitution or Section 2 of the Voting Rights Act, a district court should still be guided by that plan, except to the extent those legal challenges are shown to have a likelihood of success on the merits. Plaintiffs seeking a preliminary injunction of a statute must normally demonstrate that they are likely to succeed on the merits. . . .
The need to avoid prejudging the merits of preclearnace is satisfied by taking guidance from a State's policy judgments unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain Section 5 preclearance. And by "reasonable probability" this Court means in this context that the Section 5 challenge is not insubstantial. That standard ensures that a district court is not deprived of important guidance provided by a state plan due to Section 5 challenges that have no reasonable probability of success but still respects the jurisdiction and prerogative of those responsible for the preclearance determination. And the reasonable probability standard adequately balances the unique preclearance scheme with the State's sovereignty and a district court's need for policy guidance in constructing an interim map. This Court recently noted the "serious constitutional questions" raised by Section 5's intrusion on state sovereignty. Northwest Austin. Those concerns would only be exacerbated if Section 5 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.
Op. at 5-8. The Court wrote that the Texas district court met this standard in some ways, that it did not meet it in others, and that it couldn't tell in yet others.