The Texas Redistricting Fiasco

The legacy of the 1960s is still with us today in the area of voting. The great 1962 decision in Baker v. Carr announced the intuitively beguiling constitutional standard of one-person, one-vote as a way to clean up the totally corrupt districting processes that existed at that time in Tennessee and other states. In 1965, the Voting Rights Act put in place an extensive preclearance process via the Department of Justice for redistricting efforts that take place in certain designated states, Texas included, that had a history of racial segregation.

Taken together, these two requirements have the capacity to introduce a kind of judicial gridlock whenever redistricting is required, as is now the case in Texas, where the large surge in population has generated four new congressional seats and has required a complex redistricting plan for the Texas Senate and House of Representatives.

It would be foolish of anyone not steeped in voting law to wade into this area. The Supreme Court today announced a unanimous Per Curiam (a decision in which the opinion is issued in the name of the court rather than in the name of specific judges) in Perry v. Perez, the remarkable opacity of which cannot conceal its central message: district court judges cannot go looking for trouble when reviewing a legislative plan to see whether it meets all the external requirements of the Constitution and the VRA. The upshot is that greater deference has to be given to the legislature in overseeing the plan. The Department of Justice cannot impose its will by insisting that the legislative plan is inoperative in its entirety unless it has received DOJ’s blessing. And the district court cannot ban various techniques to equalize votes that do not violate the Voting Rights Act.

Whatever the precise details of this case, it seems clear that the Supreme Court is unhappy with the adventurism of federal district courts. Here is its punch line:

To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.

That seems surely correct. There are other straws in the wind that indicate the increasing impatience that the Court has with the obnoxiously intrusive role that the Voting Rights Act plays in redistricting. The time may well have come when its preclearance provisions will receive their well-deserved constitutional kibosh.

  1. Sisyphus
    Jim Chase

    Richard Epstein:

    The Department of Justice cannot impose its will by insisting that the legislative plan is inoperative in its entirety unless it has received DOJ’s blessing.

    But it certainly doesn’t stop them from trying, even if it relates to issues not directly tied to redistricting.  Preclearance is a power DOJ is unlikely to give up. · 1 hour ago

    On the contrary, I think the next administration and congress will retire the requirement entirely. 

  2. Valiuth

    I must say I was a huge fan of your mathematical redistricting strategy. It would take I think not even a week for a class of CS majors to write the program input the data and demonstrate that it works. I think both Republican politicians and democrat politicians would oppose it. A clear sign that it is probably good and fair. 

  3. Jim Chase
    Sisyphus

    On the contrary, I think the next administration and congress will retire the requirement entirely.  · 32 minutes ago

    I wish I were as optimistic, but I would think it would take some kind of a court decision to force a new administration or Congress to go back and revise the Voting Rights Act to eliminate preclearance.  Is that a battle they would really be willing to fight on the heels of ending Obama’s presidency?  Conservatives in Washington can barely defend first principles now – would they really have the courage to kick the hornet’s nest that would erupt after 40 plus years of the VRA? 

  4. NormD
    Valiuth: I must say I was a huge fan of your mathematical redistricting strategy. It would take I think not even a week for a class of CS majors to write the program input the data and demonstrate that it works. I think both Republican politicians and democrat politicians would oppose it. A clear sign that it is probably good and fair.  · 2 hours ago

    This is not as easy as it sounds.

    Rightly or wrongly the debate about district boundaries always raises the question what constitutes a community.  Should farmers be mapped into a single community or should they be split up and added to cities?  What about religious groups, say the Amish?

  5. Tom Lindholtz

    Richard, I am given to understand that the California Republicans have challenged the recent re-districting map that was ostensibly produced by a citizens’ committee.  Do you know if this court finding would have any impact on that challenge?  Thanks.

  6. Jim Chase
    Richard Epstein:

    The Department of Justice cannot impose its will by insisting that the legislative plan is inoperative in its entirety unless it has received DOJ’s blessing.

    But it certainly doesn’t stop them from trying, even if it relates to issues not directly tied to redistricting.  Preclearance is a power DOJ is unlikely to give up.

  7. Sandy

    This is encouraging news.  Has the political question doctrine entirely disappeared, by the way?  I haven’t followed the issue for a long time.  It would be  nice to see its return.

  8. robberberen

    As someone whose entire livelihood depends on the outcome of a local election in Texas, I want to point out how damaging this judicial adventurism has been to people like me.  If we must constantly worry that courts will randomly decide to redraw maps, then we cannot plan, we cannot campaign effectively, and we cannot make decisions about the future of our families and institutions.  This has been an incredibly frustrating and uncertain time, and the sooner the courts butt out, the better — for everyone.

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