Will the Supreme
Court Strike Down Part of the Voting Rights Act?
by Lois Beckett | ProPublica
(Jan. 9, 2012) This afternoon, the Supreme Court heard
arguments in a Texas redistricting case that could have major implications for
minority voters -- as well as determine which party is likely to control
Congress after the 2012 elections.
Here's our guide to why the case matters, why it could pose a challenge to part of the
Voting Rights Act, and what impact the Court's ruling could have on voters
across the country.
How did this case end
up in front of the Supreme Court?
At its most basic, the case is contesting which district
maps Texas will use in the 2012 elections.
This seems like a dry question, but it's not. Thanks to
population growth, Texas is gaining four seats in Congress, and how the
district lines are drawn is likely to determine whether those additional seats
will be won by Democrats or Republicans -- and how big an impact minority
voters will have in deciding who the new representatives will be.
Because those four seats could help determine which party
controls the House of Representatives, the Texas case is being closely watched
across the country.
As it has done before , the Republican-dominated state legislature drew maps that heavily
least three of the four new congressional districts were drawn in a way
that seemed likely to favor Anglo Republican candidates -- even though Latinos
and African-Americans accounted for most
of the state's population growth.
The legislature's maps immediately faced legal challenges
from minority groups who argued that the lines were drawn to purposefully
weaken the ballot power of Latino voters -- as well as from the Department of
Justice, which argued that Texas' state
house and congressional map plans are illegal
because they diminish the ability of minority voters to elect the candidate of
Because the ongoing legal battle over the legislature's maps
was interfering with the state's
election schedule , the federal district court in San Antonio drew an
alternate set of maps for the state to use.
These maps are seen as being more favorable
to minority voters — as well as much friendlier to
Rather than use these court-drawn maps, the state of Texas appealed the
case to the Supreme Court, arguing that the state court overstepped its
bounds, and that, because of the time-crunch, the legislature's
original plans should be used for the 2012 elections — even though the federal government has yet
to give the plans "preclearance."
The Problem with
This is where the case bumps up against the Voting Rights
Act. Section 5 of the 1965 act requires that certain states with a history of racial discrimination —
including Texas — get federal "preclearance,"
or approval, before implementing any laws that affect voting.
The Texas legislature's original plans haven't received
preclearance yet — and it's unlikely that they will before this year's elections.
While most states simply ask for preclearance from the
Department of Justice, Texas has taken the less-common, more-expensive route of
asking for approval from a panel of federal judges in Washington.
In denying summary judgment on the case, those judges have
already concluded that "the State of Texas used
an improper standard to determine which districts afford minority voters
the ability to elect their preferred candidate of choice."
But the final ruling on preclearance is unlikely to come
soon enough to get Texas' already
delayed election season underway.
By asking the Supreme Court to use the state legislature's
maps before they have received federal preclearance, Texas is essentially
trying to perform a temporary end-run around the Voting Rights Act's
Texas is arguing that this move is perfectly
legal, and would not affect the state's "undisputed obligation"
to get federal preclearance before using its new maps "on a permanent
Nina Perales, the director of litigation for the Mexican American Legal Defense and Education Fund, told
the Washington Post that this
move "flips Section 5 completely on its head," and argued the state
was trying to squeeze in one more election cycle before having to reckon with
the growing power of Latino voters.
How is the Court likely
The fact that the Supreme Court decided to hear the case at
all makes it seem unlikely that
they will simply endorse the maps drawn by the federal court in San Antonio.
But whether the court will approach Texas' redistricting
quandary narrowly, or take a broader stance on the constitutionality of
preclearance, remains to be seen.
At minimum, the Supreme Court will have to rule on what maps
Texas should use in its upcoming election.
Denniston of SCOTUSblog put it, "The Court must either draft maps of
its own, accept — even grudgingly — something that already exists, or find a
streamlined way to get the District Court in San Antonio to craft a plan that
minimally alters the state's maps."
But there's been speculation that the Court could also use
the case as an opportunity to address the constitutionality of Section 5 of the
Voting Rights Act, the part that requires certain states to obtain preclearance
of plans that affect minority voters.
The Washington Post's
Aaron Blake called this "the
Nuclear Option." One of the key elements of preclearance is that it
places the burden of proof on the state governments to prove that their plans
are not discriminatory, rather than requiring minority groups to organize and
pay for expensive legal challenges. By invalidating the Section 5 preclearance
requirement, the Supreme Court "would allow these states greater freedom
to draw their maps and increase the burden on minority groups and others who
may fight the maps in court," Blake wrote.
The Supreme Court seemed to come close to overturning
Section 5 two years
ago, in another
case from Texas. That decision made it clear that the Court had serious
reservations about the limits the Voting Rights Act places on a state's
In that ruling, Chief Justice John
Roberts Jr. wrote that "the Act now raises serious constitutional
concerns," and that it "differentiates between the States in ways
that may no longer be justified."
This time around, the conservative Cato Institute has submitted an amicus brief to
the Texas case asking the Court to review the constitutionality of the Voting
Rights Act, arguing that the statute "no
longer serves its original purpose ."
But some experts doubt that the Supreme Court will tackle
Section 5's constitutionality in the Texas case.
Pildes , a New York University law professor, told
MSNBC, "The court recognizes that it must act more quickly than usual,
given the time pressures involved with primary elections looming shortly down
the road. For all those reasons, the court is likely to focus on the narrowest
issues needed to resolve the particular legal issues presented."
Cato isn't alone in its opposition of the Voting Rights Act.
Georgia Congressman Lynn Westmoreland, the Republicans' point man for
congressional redistricting, has long
opposed the act, calling it "outdated, unfair and unconstitutional."
In a speech
opposing the extension of the act in 2006, Westmoreland argued that
Georgia's record of voter equality "can stand up to any other state in the
nation" and that the Voting Rights Act's renewal would "keep my state
in the penalty box for 25 more years based on the actions of people who are now
But the Voting Rights Act also has strong, bipartisan
support. President George W. Bush gave it high praise.
Executives from Wal-Mart,
AT&T, Pfizer, Coca-Cola, Disney and other large corporations wrote to
Bush urging him to reauthorize the law and describing it as a cornerstone of
American society. The Senate ultimately approved the 2006 extension of the act 98-0,
and the House 390-33.