We need a constitution that will bend to populist winds so that it will not break.
Buoyed by a significant victory in the Supreme Court on January 20, Texas officials were hopeful that they could craft a settlement to protracted litigation over their congressional and legislative redistricting map so that Texas could hold its primary as originally scheduled on Super Tuesday, March 6. But the cards still held by the objectors under the Voting Rights Act (VRA) were sufficient to prevent agreement, and so a federal court indicated last week that Texas would have to move its primary.
Texas would have been the most delegate-rich state in the Super Tuesday primary, with 155 GOP delegates. Instead, Texas voters will likely have to wait until at least May 29, when the Republican primary contest may be effectively decided. This is just one example of the mischief the VRA creates with its convoluted proscriptions that invite litigious rent-seeking.
As Anthony Peacock recently explained in this space, the VRA has two troublesome provisions that make redistricting a headache in a state like Texas. Section 2 has been changed by amendment and interpretation from its original aim in 1965 of preventing intentional discrimination against individual voters to prohibiting any change that “results in” the dilution of any racial group’s collective voting strength.
The results test is the most constitutionally questionable and inherently unworkable aspect of section 2. If it were applied to tax laws, almost every tax would be invalidated as having a greater affect on some racial or ethnic groups than others. For example, a cigarette tax has a greater impact on ethnic populations with a higher rate of smoking. Since most of the VRA applies equally to white, black, Hispanic, and other ethnic groups (even if it is not enforced evenhandedly by DOJ), a change in voting law can always be challenged by someone claiming a negative result, especially since the guidance offered by the courts and DOJ on what it prohibits is far from clear.
Although section 2 is enough for most states to deal with, Texas is also one of the “covered jurisdictions” under section 5 of the VRA. Section 5 prevents the election changes of nine states and parts of seven others, including redrawn district lines or even polling location changes, from going into effect until those changes are submitted to and approved by either the Attorney General or a special three-judge district court in Washington, DC. Under current law, the change cannot be approved under section 5 if it has the purpose or effect of diminishing the ability of citizens (categorized by race, color, or language minority status) to “elect their preferred candidate.”
The aim of this five-year, “emergency” pre-clearance provision in 1965 was to thwart the intentional gamesmanship that had prevented minority registration and voting in elections prior to that time. The idea was to prevent “retrogression” or losing the ground that was gained, which makes more sense under the original VRA of 1965 that focused on individual rights. But as Peacock’s history helps explain, this “retrogression” standard became significantly more problematic once the VRA was transformed from a statute that guaranteed equal rights of all voters into one that primarily promotes and entrenches group rights.
The truly remarkable effectiveness of the VRA as a whole and the power of section 2 to stop discriminatory practices by 1970 should have eliminated the need for section 5, which is an extraordinary intrusion into state sovereignty given normal federalist presumptions. Moreover, section 2 allows injunctions to stop discriminatory provisions from going into effect if the plaintiff can show a likelihood of prevailing in its challenge. The typical objector (including DOJ) would rather not have to bear the burden of proof, yet that is rarely enough to change the normal burden in American law.
Those who clamored for section 5’s repeated renewal and expansion asserted that the unquestionably dramatic gains in black voter participation (surpassing the national average in many areas) were due to section 5 and would all be lost if the southern states—and portions of other states—did not remain under the thumb of federal overseers. But even if you believe this post hoc ergo propter hoc fallacy of an argument, there is still no good reason why only some states and not others must wear a 47-year-old badge of infamy that presumes any change in their law is discriminatory until proven otherwise. Why not impose this same law on all states if it remains a vital tool in preventing discrimination today?
A potent mixture of fear and political self-interest fueled the continued renewal of section 5, in which Congress refused to change the coverage formula to determine which states would wear those badges of infamy for up to 65 years after the supposed emergency began. The demagogic claims in minority neighborhoods that blacks’ voting rights would “expire” if section 5 was not renewed convinced many politicians that the well of rational discourse was poisoned. Members of Congress also learned that the new VRA, with its results and effects tests, advantaged incumbents from both parties. It led to a number of “safe” Democratic minority districts, which “bleached” the surrounding districts to make safe seats for Republicans. Sadly, the protected incumbents in each party had little need to appeal to cross-over voters.
This was the tangled web politicians of both parties wove, except that neither party is content if it thinks it can gain a new advantage. So the 2006 reauthorization of the VRA not only renewed section 5, but broadened its reach to invite even more litigation, opening up the possibility that states must maintain or increase the number of “influence districts” where minority voters mixed with the right number of white Democrats can elect even more of their supposedly preferred candidates.
In 2009, a majority of the Supreme Court wrote in Northwest Austin Municipal Util. Dist. No. One v. Holder that the reauthorization of section 5 was constitutionally suspect, with Justice Thomas stating unequivocally that it was unconstitutional. Although the majority construed the VRA to allow the small utility district to “bail out” of section 5 coverage to avoid a constitutional ruling, the Court is widely expected to strike section 5 down when it rules on one or more of the challenges that are making their way through the appellate courts. Until then, states must continue to comply with it.
This was the situation Texas faced when the new census data was released a year ago. Even if it did not have extra congressional seats, Texas would be required by the “one-man, one-vote” interpretation of the Fourteenth Amendment to redraw its district lines to reflect population shifts within the state. Drawing district lines is inherently political, and gerrymandering for political ends is not prohibited by any law—not yet anyway. But given the predominant support blacks and Hispanics give to Democratic candidates (especially in the existing VRA-inspired districts), it is easy to argue that any plan designed to favor the GOP really has the purpose or effect of disadvantaging minority voters.
The above changes allow the VRA to be wielded as an ideological or partisan weapon, principally against the covered jurisdictions that are predominantly Republican. Compounding that bias in the law’s coverage, this is also the first post-census period since 1965 when Democrats control the DOJ. Anticipating that the redistricting plan its Republican-controlled legislature drew up might not be pre-cleared by Attorney General Holder, Texas sought section 5 approval in the three-judge court in DC soon after its plan was enacted into law. Meanwhile, several groups filed suit under section 2 in a three-judge court in Texas, alleging that the state plan diluted black and Hispanic voting strength.
So what constitutes “retrogression” (the convoluted section 5 inquiry) in a state like Texas that gained four congressional districts since the last census? The district lines drawn by the legislature last summer maintained at least as many if not more protected seats for blacks and Hispanics. But the groups who filed suit argued that Texas must maintain the same percentage of representatives for blacks and Hispanics. (The main dispute is over the required number of safe or “ability” districts for Hispanics.) The statute’s language doesn’t easily resolve the retrogression and similar questions, and existing court decisions can be read to support both positions.
Last November, the three-judge court in Texas also announced it was in a bind because the three-judge court in DC looked like it would not preclear the state plan in time for the 2012 primary and election. Thus, the three-judge court in Texas took it upon itself (over the strong dissent of Fifth Circuit Judge Jerry Smith, sitting by designation) to draw its own map for the 2012 election, until litigation in both courts over the legislative plan was resolved. Texas objected to the resulting interim plan and sought a stay from the Supreme Court.
The Supreme Court’s per curiam opinion in Perry v. Perez in January describes the unfortunate result of a scheme that requires different courts to exercise jurisdiction over two distinct but related inquiries. All nine justices agreed that the Texas three-judge court should not have ignored the legislative plan simply because it had not yet been precleared by the three-judge court in DC. Instead, the Supreme Court handed Texas a substantial victory by ruling that the lower court should hew as closely as possible to the state-approved plan when creating an interim map. It should only depart from the legislative plan if challengers showed a “likelihood of success” on particular section 2 claims, although eight justices said the lower courts also needed to evaluate the “reasonable probability” of any claim pending in the section 5 pre-clearance litigation in DC. (Justice Thomas wrote again to say that section 5 should be ignored because it was unconstitutional.) Got that?
On remand, the three-judge court in Texas stated that it would not be able to draw another map in time for the March 6 primary unless the parties jointly submitted one for its consideration. No one should have been surprised that the parties could not agree given their respective institutional interests and the remaining lack of guidance under the VRA. It shouldn’t be this way. But there is probably no way out of this complex web for states like Texas until the Supreme Court strikes down section 5 and either does the same with the results test of section 2 or gives it a saving construction that significantly narrows its reach and makes it reasonably predictable.