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High Court Orders Redo Of Texas Redistricting Plan

Jan 20, 2012
Originally published on January 20, 2012 8:33 pm

The U.S. Supreme Court has ordered a lower court to redo an interim legislative redistricting plan in Texas, giving greater deference to the plan drawn up by the Republican-controlled Legislature.

The unsigned and unanimous ruling came 11 days after the justices heard arguments in the case, but the decision is unlikely to be the last word on how the Texas reapportionment will play out.

The 2010 census showed that the Texas population grew by more than 4 million people, and as a result, the state was allocated four new congressional seats.

But when the Republican-controlled state Legislature came up with its redistricting plan, black and Hispanic voters — who accounted for three-fourths of that population growth — challenged the plan in court. They contended it violated the nondiscrimination provisions of the Voting Rights Act.

Under the voting rights law, states such as Texas with a demonstrated history of discrimination are required to clear their redistricting plans in advance, with either the Justice Department or a special three-judge court in Washington, D.C.

When Texas failed to win timely pre-clearance, a federal court in Texas drew up an interim plan that maximized the power of the state's booming Latino population. The result was that three of the four new congressional seats would probably go to Democrats; under the plan drawn up by the GOP-dominated Legislature, three of the four seats would most likely go to Republicans.

'Texas Won More Than It Lost'

Texas appealed to the U.S. Supreme Court, and on Friday the high court ruled that the lower court had not given adequate deference to the state plan. The justices rejected the notion that a plan that has not been pre-cleared is totally invalid, and they told the lower court to use the state plan as the starting point, make an educated guess as to what parts of it are illegal under the Voting Rights Act, and fix just those parts.

Although minority groups sought to put an optimistic gloss on the decision, voting rights experts said Texas was the victor, at least for now.

"I think it's clear Texas won more than it lost," says Yale law professor Heather Gerken. "What it really wanted was something close to the plan that its own Legislature proposed, and that's ultimately what it's going to get."

In its unsigned opinion, the Supreme Court told the lower court in Texas that it had erred in several ways. Most important, for the first time the court said that to depart from the state Legislature's plan, the lower court must first make a determination that there is "reasonable probability" that the plan violates either the one-person, one-vote principle or the Voting Rights Act.

But if that sounds definitive, it is not.

'A Train Wreck For The Federal Judiciary'

The reason is that here the Supreme Court was dealing only with an interim plan, and right now, a federal court in Washington, D.C., is hearing evidence about whether the Texas Legislature's plan deserves to win pre-clearance under the Voting Rights Act.

There is every indication that sometime in the next month or so, the D.C. court will issue an opinion saying that at least some parts of the Texas plan illegally dilute minority voting strength and therefore, the plan cannot be pre-cleared. And once the D.C. court does that, that ruling becomes the new baseline.

"The whole situation is sort of a train wreck for the federal judiciary," says New York University law professor Richard Pildes. "You have two different federal courts both being asked, under tremendous time pressures, to make legal decisions about the same redistricting plan, with both courts kind of looking over their shoulders and trying to speculate to some extent what the other court is going to do."

All of this takes place against a backdrop of imminent primary elections in Texas, now set for April. The Texas congressional primaries are among the earliest in the country. The federal courts do have the authority to push the primary date back if necessary. Or the fight could continue, with the 2012 elections held under one redistricting plan and the next election under a different plan.

After all, there are some core issues presented in this case that have not been tackled yet — testing, for example, whether in cases where there is a huge bulge in the minority population, as there was in Texas' Latino population, the state can be required to maximize Latino voting power with a larger number of majority-Latino districts.

"I think it's highly likely to be back at the Supreme Court this year," Yale law professor Gerken says. "Texas has won the first battle, but there is a long war ahead of it, and it may well lose."

Separate Ruling On West Virginia Case

Texas wasn't the only state with a redistricting plan that the Supreme Court dealt with Friday. In a case from West Virginia, the court blocked a lower court order that had overturned a redistricting plan because there was some minor population variance between districts.

The lower court said there needed to be "zero variance." The Supreme Court prevented that decision from going into effect to allow an appeal to go forward. The practical effect would seem to be that elections will go on this year in West Virginia under the bipartisan plan drawn up by the state Legislature.

Pildes, the NYU professor, notes that for years, the Supreme Court has driven redistricting plans to be absolutely equal in population, while many academics and voting rights experts have wanted a little play in the joints, for instance, to follow county lines.

"The fact that they issued a stay here may be a signal that the court is open to rethinking that issue ... at the margins," Pildes says.

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The Supreme Court wants a do-over. It's ordered a lower court to redo a redistricting plan in Texas, giving greater deference to a plan drawn up by the state's Republican-controlled legislature. The unsigned unanimous ruling came 11 days after the justices heard arguments in the case. But as NPR legal affairs correspondent Nina Totenberg reports, today's decision is likely not the last word in how this Texas case will play out.

NINA TOTENBERG, BYLINE: The 2010 census showed the Texas population grew by more than 4 million people. And as a result, the state was allocated four new congressional seats. But when the Republican-controlled state legislature came up with its redistricting plan, black and Hispanic voters, who accounted for an astounding three-fourths of the population growth, challenged the plan in court, contending it violated the non-discrimination provisions of the Voting Rights Act.

Under the Voting Rights Law, states like Texas, with a demonstrated history of discrimination, are required to pre-clear their redistricting plans in advance either with the Justice Department or a special three-judge court in Washington, D.C.

SIEGEL: When Texas failed to win timely pre-clearance, a federal court in Texas drew up an interim plan that maximized the power of the state's booming Latino population. The result was that three of the four new congressional seats would likely go to Democrats, as opposed to the state-drawn GOP plan that would likely have resulted in three of the four seats going to Republicans.

TOTENBERG: Texas appealed to the U.S. Supreme Court. And today, the high court ruled that the lower court had not given adequate deference to the state plan. The justices rejected the notion that a plan that has not been pre-cleared is totally invalid. And they told the lower court to use the state plan as the starting point, make an educated guess as to what parts of it are illegal under the Voting Rights Act, and then to fix those parts.

Although minority groups sought to put an optimistic clause on the decision, voting rights experts said Texas was the victor, at least for now. Yale law professor Heather Gerken.

HEATHER GERKEN: I think it's clear that Texas won more than it lost. What it really wanted was something close to the plan that its own legislature proposed and that's, ultimately, what it's going to get.

TOTENBERG: If that sounds definitive, however, it is not. The reason is that, here, we're talking about an interim plan. And right now, a federal court in Washington, D.C. is hearing evidence as to whether the Texas Legislature's plan deserves to win pre-clearance under the Voting Rights Act.

There's every indication that some time in the next month or so the D.C. court will issue an opinion saying that at least some parts of the Texas plan illegally dilute minority voting strength and that therefore the plan cannot be pre-cleared. And once the D.C. court does that, that becomes the new baseline. NYU law professor Richard Pildes.

RICHARD PILDES: The whole situation, I think, is a sort of a train wreck for the federal judicial system as a whole.

TOTENBERG: Yale's Professor Gerken agrees.

GERKEN: Texas has won the first battle, but there's a long war ahead of it, and it may well lose.

TOTENBERG: All of this takes place against a backdrop of imminent primary elections in Texas now set for April. Texas has one of the earliest congressional primaries in the country. The federal courts do have the authority to push the date back if necessary, or the fight could continue on with the 2012 elections held under one redistricting plan and the next election held under a different plan. After all there are some court issues presented in this case that have not been tackled yet, just, for example, whether in cases whether there is a huge bulge in the minority population, as there was in the Latino population in Texas. The state can be required to maximize Latino voting power with a larger number of majority Latino districts. Professor Gerken.

GERKEN: I think it is highly likely to be back at the Supreme Court this year.

TOTENBERG: Texas wasn't the only state redistricting plan that the Supreme Court dealt with today. In a case from West Virginia, the court blocked a lower court order that had overturned a redistricting plan because there was some minor population variance between districts. The lower court said there needed to be zero variance. The Supreme Court prevented that decision from going into effect to allow an appeal to go forward. The practical effect would seem to be that, at least this year, elections will take place in West Virginia under the bipartisan plan drawn up by the state legislature.

NYU's Professor Pildes notes that for years the Supreme Court has driven redistricting plans to be absolutely equal in population, while many academics and redistricting experts have wanted a little play in the joints, for instance, to follow county lines.

PILDES: The fact that they issued a stay here may be a signal that the court is open to rethinking that issue, you know, sort of at the margin.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.