Bloomberg News

Texas Voting Rights Case Confounds U.S. High Court Justices

January 13, 2012

(Updates with comments from justices starting in 10th paragraph.)

Jan. 9 (Bloomberg) -- U.S. Supreme Court justices grappled with minority voting rights in Texas’s congressional and state legislative districts, trying to find a quick answer to a legal conundrum against the backdrop of looming deadlines.

During arguments today in Washington, the justices gave no clear indication as to how, or when, they will rule. The case tests the power of judges to redraw election maps and the strength of a central provision of the 1965 Voting Rights Act.

Several justices lamented the lack of an easy solution to a case being considered on an expedited schedule because of the impending Texas primary, now set for April 3 after a judge delayed the vote for a month. The justices discussed moving the primary date back further to give the courts handling different aspects of the case more time.

“Why can’t this all be pushed back, and wouldn’t that eliminate a lot of the problems we are grappling with in this case?” Justice Samuel Alito asked.

The dispute stems from maps drawn last year by the Republican-controlled Texas legislature after the decennial census. Governor Rick Perry, now a Republican candidate for president, signed the maps into law. Minority groups are challenging the maps.

The Texas case may affect Democratic prospects to retake control of the U.S. House of Representatives. Republicans now control the chamber 242-192, with one vacancy.

Population Growth

Texas gained four congressional seats after the 2010 census showed the state added almost 4.3 million new residents. Hispanics accounted for about 65 percent of that increase, according to the census.

A panel of federal judges in San Antonio blocked the Republican plan from taking effect for 2012 and substituted court-drawn interim maps on a 2-1 vote. The majority said the state maps couldn’t be used because they hadn’t received approval clearance from a different court, as required under the Voting Rights Act.

The so-called preclearance requirement in the 1965 civil- rights law, also known as Section 5, is designed to ensure that states and other jurisdictions don’t dilute the election power of minority groups. The requirement covers all or parts of 16 states with a history of voting rights violations.

Texas Argument

Texas contends that the judges in San Antonio overstepped their bounds and should have deferred to the legislature’s plans in the absence of evidence that the state had violated the voting law.

Justice Sonia Sotomayor questioned whether the legislature’s maps were entitled to any respect until they had received preclearance. She suggested the lower court was right to start its line-drawing with the maps that were used in 2010.

“The only thing that exists is the old maps until you get the preclearance,” she told Paul Clement, the lawyer representing the state. “I don’t see how we can give deference to an enacted new map if Section 5 says, ‘Don’t give it effect until it has been precleared.’”

Other justices said that reasoning went too far. With the Obama administration largely backing the minority groups in the case, Justice Antonin Scalia aimed a barrage of questions at Sri Srinivasan, the government’s lawyer.

“The government takes an absolutist approach to the proposition that you cannot use an unprecleared plan for any purpose,” Scalia said.

Middle Ground

Other justices suggested they were looking for a middle ground, while wondering whether there was enough time to put a nuanced ruling into effect. Alito and Chief Justice John Roberts both suggested they weren’t satisfied with either the Texas legislature’s plan or the one adopted by the lower court.

“How do we decide between those two?” Roberts asked. “You have two wrong choices. How do we end up?”

The calendar issue is complicated because the preclearance issue itself is before a three-judge panel in Washington, where trial starts Jan. 17, with closing arguments schedule for Feb. 3. Texas sought preclearance from the Washington court, as is permitted under the Voting Rights Act, rather than seeking approval from the Justice Department.

The justices spent part of the 70-minute argument speculating as to how long that court would take to issue its ruling. Justice Ruth Bader Ginsburg said she had “some doubts about how swiftly they’re going to render their decision.”

The Supreme Court under Roberts questioned the constitutionality of the preclearance requirement in a 2009 ruling that narrowed the provision’s scope. The requirement’s constitutionality isn’t at issue in the latest case.

The cases are Perry v. Perez, 11-713; Perry v. Davis, 11-714; and Perry v. Perez, 11-715.

--Editors: Justin Blum, Laurie Asseo

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.


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