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Supreme Court Tosses Texas Court's Congressional Map

Supreme Court Tosses Texas Court's Congressional Map

By Sean Trende - January 20, 2012


The seemingly never-ending drama surrounding Texas' congressional lines continues. To recap, Texas gained four seats in redistricting. Because that pickup stems primarily from an increase in the minority population, most observers expected the state to add two or three minority-majority seats.

Instead, Texas drew four Republican-leaning seats, and weakened the Latino electorate in a fifth district (it technically drew a new minority-majority seat by turning Lloyd Doggett’s seat into a Latino opportunity district). To the surprise of no one, litigation ensued. Texas also opted to bypass the Department of Justice, and asked a district court in the District of Columbia to rule directly on the question of whether the maps violated the Voting Rights Act of 1965.

So there are essentially two lawsuits at work: One in Texas, brought by private plaintiffs against the Lone Star State, challenging the new lines’ legality under Section 2 of the Voting Rights Act, and one in Washington, D.C., brought by Texas against the Justice Department, seeking to short-circuit any challenge under Section 5 of the Voting Rights Act. The differences between the two sections are largely irrelevant for purposes of our discussion.

One relevant distinction is this: A state may not proceed with a map that has not been “pre-cleared” by the Department of Justice or a court. Because the D.C. litigation is ongoing, Texas is unable to proceed with its map.

So the district court in Texas was faced with the task of drawing its own map. Indeed, it restored Doggett’s district to white majority status (in the electorate), and drew a new, Latino-leaning district in south Texas. It drew a “coalition” district -- where Latinos, Asians and African Americans will combine to constitute a majority of the electorate -- in Tarrant County. Other district lines were changed substantially, weakening incumbent Republicans in Austin and south Dallas.

On Friday, the U.S. Supreme Court threw out that map. In a unanimous opinion, it concluded that “a district court should take guidance from the State’s recently enacted plan in drafting an interim plan” because such a 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.” The fact that a plan is being challenged under the Voting Rights Act “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.”

And so, even in the face of a Section 5 challenge, a court should still take heed of the legislature’s plans, insofar as those plans do not raise Voting Rights Act questions. In Texas’ case, that is with respect to the vast majority of its districts.

So, now the district court must try again. It is a bit unclear, however, exactly what this means. For example, the Supreme Court noted that the district court’s attempt to avoid splitting precincts was unsound, given that the Texas legislature had opted to split precincts. In other words, the court was not allowed to substitute its interpretation of sound public policy for that evidenced by the legislature.

More importantly, the Supreme Court cast doubt on the creation of the new 33rd district near Fort Worth, noting that its previous decisions made clear that the district court had no basis for creating a “coalition district.” This was one of the changes that Texas Republicans had found the most objectionable, and it now stands a very good chance of being undone.

One final observation, which has received scant attention: The high court at one point reiterated language from earlier court decisions, noting “serious constitutional questions” raised by Section 5. The reference seemed somewhat gratuitous in context, and may be a signal that a majority on the court is poised to strike down Section 5, if faced with a direct challenge.

In the meantime, this is an important decision for Texas Republicans. The district court has essentially been sent back to the drawing board, this time with instructions that tell it to incorporate as much of the legislature’s plan as possible, without running afoul of serious constitutional or statutory issues. Obviously, much of this will turn on how seriously the district court takes the various Voting Rights Act challenges. But it gives Texas Republicans some hope that their incumbents in Austin and Dallas won’t be weakened, and that their Republican-leaning district in the Dallas-Fort Worth area will be restored. 

Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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