Closely Divided SCOTUS Decides Texas Racial Gerrymander in Favor of Texas

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its 5-4 opinion in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013, the Court's majority decision by Justice Alito concluded that only one district in the redistricting plan was unlawful.

Both the majority opinion (joined by the Chief Justice, Kennedy, Thomas, and Gorusch) and the dissenting opinion by Justice Sotomayor (joined by Ginsburg, Breyer, and Kagan) first spent substantial effort on the jurisdictional issue which had also preoccupied the Court during the oral arguments. The jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order with the majority concluding it was reviewable and the dissent arguing it was not.

On the merits of the Equal Protection Clause issue Justice Alito's opinion for the Court faulted the three judge court's detailed decision for committing a "fundamental legal error" when it concluded the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.  For the majority, the three judge court did not recognize that when "a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State," a standard with "special significance" in redistricting cases in which there is a "presumption of legislative good faith." This standard, the Court emphasized, does not change when there has been past racial discrimination but remains only one of the factors of showing intent under Village of Arlington Heights v. Metro. Housing Development Corp. (1997). Instead, the majority finds that Texas did have a legitimate intent, that of bringing the litigation about the redistricting to an end.

The dissenting opinion on the Equal Protection Clause issue criticizes the majority for selectively misreading (and misquoting) the three judge court opinion, arguing that the three judge court did not remove the burden from the challengers and did rigorously apply the Arlington Heights factors (contending that the majority did not). The "historical background" factor is an evidentiary source of intent which the majority recognized but did not credit, essentially substituting its own judgment for the three judge court.

On the Voting Rights Act (VRA) issue, which is limited to §2 given that the United States Supreme Court held §5 unconstitutional in Shelby County v. Holder, decided five years ago, the majority discussed the factors from Thornburg v. Gingles (1986), and essentially found that only one district — HD90 —was an impermissible racial gerrymander.  A brief concurring opinion by Thomas, joined by Gorsuch, argued that §2 should not apply to redistricting. Again, the dissent argued that on the other districts the majority was essentially substituting its own judgment for that of the three judge court rather than reviewing the factual findings only for clear error.

The difference in the rhetorical approaches of the majority and the dissent is striking. In Alito's opinion for the Court, federal the application of the Equal Protection Clause in redistricting is "complicated," equal protection and the VRA pull in opposite directions, and in "technical terms" the Court has assumed that complying with the VRA is a compelling state interest. In Sotomayor's opinion for the dissenting Justices, the "Equal Protection Clause of the Fourteenth Amendment and §2 of the Voting Rights Act secure for all voters in our country, regardless of race, the right to equal participation in our political processes," a "fundamental right" which courts should remain vigilant in protecting including "curbing States’ efforts to undermine the ability of minority voters to meaningfully exercise that right."