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.