Tuesday, January 10, 2012
The Supreme Court heard oral argument yesterday in Perry v. Perez, the Texas redistricting case testing what deference a federal district court in Texas should give to the Texas legislature's redistricting plan, when preclearance of the plan is pending in the Federal District Court for the District of Columbia. We posted most recently here.
Questioning suggested that the Justices are likely to fall along the traditional divide, with Justice Kennedy likely straddling (but leaning toward Texas)--if the Court is forced to choose between the Texas legislature's plan and the Texas court's plan. But that may be a big "if": Questioning also suggested that at least some of the Justices (including Justice Kennedy) are looking for a third way, a practical, fair solution--outside the dualistic choice of the Texas legislature's plan or the Texas court's plan--that navigates Section 2 and Section 5 of the Voting Rights Act given the tension between the two here and given the very short timeline. This might be a variation on some other plan (like Judge Smith's plan, in dissent in the Texas court), or switching the burden to Texas in the Section 2 case while Section 5 preclearance is pending, or some other alternative. It wasn't clear that a majority of Justices could coalesce around any particular third way, but it was clear that some on the bench were looking for one.
The case grows out of Texas's redistricting efforts in the wake of the 2010 census. Texas had to redraw its congressional districts and its state House and Senate districts to comply with the one-person, one-vote principle. Texas, as a covered jurisdiction under the Voting Rights Act, also had to get preclearance under Section 5 of the VRA for its redistricting plan from either the Department of Justice or the Federal District Court in the District of Columbia. Texas chose the latter, slower method, and preclearance is still pending.
At the same time, a group of plaintiffs filed suit in a federal district court in Texas, alleging that Texas's plan violated Section 2 of the Act, because it illegally discriminated.
Because preclearance was pending in the D.C. court, the Texas court drew its own maps as an "interim" plan for the state. (There was, as is, some urgency, as Texas's elections are impending. Texas has an unusually early primary, which it agreed to push back as long as maps are in place by February 1.) Texas appealed, and the Supreme Court put the case on the fast track.
In briefing, Texas argued that the Texas court should have granted deference to its plan--the one that's pending preclearance. The plaintiffs and U.S. government argued that the court rightfully drew its own maps and owed no deference to a yet-to-be-precleared map by a covered jurisdiction. Chief Justice Roberts put the core problem this way:
One, you cannot assume that the legislature's plan should be treated as if it were precleared. The district court in Texas cannot assume or presume what the district court here in D.C. is going to do.
But on the other hand, it can't presume it the other way. In other words, it can't draw its interim plan assuming that there are going to be these section 5 violations, because that's presuming what the Court's going to do the other way. So how do we decide between those two--you have two wrong choices. How do we end up?
The choice for the Court is not necessarily binary--as between the Texas plan and the Texas court's plan--but if it wants to explore third options, it'll need to move very quickly, or put the Texas primaries back even further.
In briefing, nobody took on the Texas court's authority to draw its own map at all, and nobody took on congressional authority to enact Section 5 of the VRA, requiring preclearance in the first place (although Texas pushed in this direction in its reply brief).
At oral argument yesterday, Justices Sotomayor and Ginsburg came right to the point, pressing Paul Clement (arguing for Texas) on the state's position that the Texas court should have granted complete deference to Texas's plan, even as preclearance was pending in the D.C. court. Justice Kagan approached the question in a different way, asking whether the state's position meant that the Texas court should just mimic what it thought the D.C. court would do. Through both lines of questions, Clement stuck to his position--that the Texas court should defer to Texas's plan--arguing that the D.C. court was likely to indicate that at least part of the Texas plan satisfied the Section 5 standard, and then, under Upham v. Seamon, the Texas court should grant deference to the whole thing.
Justice Alito quickly moved to the pragmatic, asking how Texas would feel moving its primary back yet further to deal with the case. Or, more precisely: Would Texas prefer the Court to deal quickly with a binary choice (leaving the primaries where they are), or would Texas accept a delayed primary to allow the Court to fully explore third options? Clement's answer suggested that Texas would be fine with a delayed primary.
Clement offered two districts to illustrate why the Texas court got it wrong. But when pressed, by Justices Breyer and Sotomayor, why the court got it wrong, he couldn't answer, at least not to their satisfaction. Justice Scalia helped out--because the court assumed the validity of the challenges to Texas's plan--but Clement's answer still seemed incomplete.
Justices Alito and Scalia pressed the government, represented by Sri Srinivasan, and the plaintiffs on the inherently political nature of legislative map-drawing--or the inherent policy choices involved in line-drawing--and why the court's maps weren't just as political, or didn't involve similar policy choices, as the Texas legislature's, and why the court therefore shouldn't have preferred the Texas legislature's choices over its own. (Example, from Justice Scalia: The court followed a principle of not dividing any voting districts, but that wasn't an animating principle for the legislature.) Answer: Map-drawing isn't inherently political, and the Texas court used neutral principles in drawing its maps. This didn't seem to assuage the Justices' concerns, for the reason that Justice Scalia suggested with his example. Chief Justice Roberts hit the heart of the problem, for some, in the government's (and plaintiffs') position:
[Y]ou can't treat it as if it's being pre-cleared because that would be prejudging what the court is doing in D.C. But you have no trouble with them saying, assuming that there are going to be these section 5 violations, in drawing additional majority-minority districts, which is just assuming in the other way what the court here in D.C. is going to do.
I don't know how you lean one way and say, it's horrible, you can't use it because it hasn't been precleared, but it's all right in drawing the interim plan to treat it as if preclearance has been denied.
Srinivasan's answer, again: The district court had to "apply traditional districting criteria to the benchmark."
Questioning with the plaintiffs' attorney, Jose Garza, focused on a particular district, district 33, and some on the bench, led by Chief Justice Roberts, suggested that the court drew it as a minority coalition opportunity district, putting two different minority groups together because the court thought they would vote similarly. Garza, helped by Justice Breyer, explained that the court drew the district to reflect population growth in the Dallas-Fort Worth metro area, not to create a district using illegal criteria under the VRA. Justice Kennedy said that he inferred that the court thougth a minority coalition opportunity district was desirable; Garza said it was "fair." Questioning turned again to the pragmatic, considering the impending elections, and ended with Justices Kennedy and Kagan exploring different possible solutions-- respectively offering Judge Smith's plan (the dissent in the Texas court's plan), or some variation; and flipping the burden to Texas in the Section 2 case.