U.S. Supreme Court justices grappled with minority voting rights Act 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.
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.
As Lyle 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 sovereignty.
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.
Richard 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 dead.”
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.
Voting Rights Act of 1965 42 U.S.C. §§ 1973–1973aa-6 is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S.
Echoing the language of the 15th Amendment, the Act prohibits states from imposing any "voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color. Specifically, Congress intended the Act to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African-Americans from exercising the franchise. The Act was signed into law by President Lyndon B. Johnson, a Democrat, who had earlier signed the landmark Civil Rights Act of 1964 into law.
The Act established extensive federal oversight of elections administration, providing that states with a history of discriminatory voting practices (so-called "covered jurisdictions") could not implement any change affecting voting without first obtaining the approval of the Department of Justice, a process known as preclearance. These enforcement provisions applied to states and political subdivisions (mostly in the South) that had used a "device" to limit voting and in which less than 50 percent of the population was registered to vote in 1964. The Act has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by President George W. Bush in 2006.
The Act is widely considered a landmark in civil-rights legislation, though some of its provisions have sparked political controversy. During the debate over the 2006 extension, some Republican members of Congress objected to renewing the preclearance requirement (the Act's primary enforcement provision), arguing that it represents an overreach of federal power and places unwarranted bureaucratic demands on Southern states that have long since abandoned the discriminatory practices the Act was meant to eradicate.Conservative legislators also opposed requiring states with large Spanish-speaking populations to provide bilingual ballots. Congress nonetheless voted to extend the Act for twenty-five years with its original enforcement provisions left intact.
Some who think that this federal oversight is discriminatory to these particular states have proposed that the oversight be extended to all 50 states or eliminated entirely.
The 2006 extension of the preclearance procedure was challenged in a lawsuit, Northwest Austin Municipal Utility District No. 1 v. Holder, which was argued before the Supreme Court on April 30, 2009. The lawsuit was brought by a municipal water district in Texas, which elects members to a water board. The district does not register voters, nor has it been accused of discrimination. However, it wished to move the voting location from a private home to a public school; the preclearance procedure required it to seek approval from the Justice Department, because Texas is a covered jurisdiction under Section 5. While the Court did not declare preclearance unconstitutional, the decision redefined the law to allow any political subdivision covered by Section 5 to request exemption from federal review.
During the 2010 election cycle, the state of Florida passed two redistricting amendments to their state constitution that were aimed at preventing future attempts at gerrymandering. Then-governor Charlie Crist, a supporter of both amendments, submitted a request to the DOJ for preclearance, as required by the VRA. In early 2011, Florida's newly-elected governor Rick Scott, a vocal opponent of these amendments, withdrew the request for preclearance, placing the legal status of the amendments in limbo. In particular, only four of Florida's counties are required to obtain preclearance under the Act, making it unclear what the status of these amendments is in the remaining counties. Proponents of these amendments, both of which passed with greater than 60% voter approval, are accusing Scott's administration of attempting to "thwart the will of the voters", by "abusing their power", and the VRA's preclearance clause, as a means to defeat these amendments despite overwhelming voter support.
The Act requires municipalities that receive requests for ballots in other languages to comply with the request. Rep. Dana Rohrabacher (R-CA) of California said of the Act, "What unites us? It's our language, the English language," and that the Act is "hurting America by making it easier not to learn English.
Some judges and proponents of racially drawn congressional districts have interpreted Section 5 of the Act as requiring racial gerrymandering in order to ensure minority representation. The United States Supreme Court in Miller v. Johnson, 515 U.S. 900 (1995), overturned a 1992 Congressional redistricting plan which had created minority majority districts in Georgia as unconstitutional gerrymander. In Bush v. Vera, the Supreme Court, in a plurality opinion, rejected Texas's contention that Section 5 required racially-gerrymandered districts.
While the title of the Voting Rights Act might imply that it established an explicit right to vote for U.S. citizens to vote in presidential elections, there is no such federal right. In a Per curiam opinion regarding Bush v. Gore, 531 U.S. 98 (2000), the Supreme Court noted that, "The individual citizen has no federal constitutional right to vote for electors for the President of the United States," a logical conclusion given the history of the Electoral College. Although the Voting Rights Act and three constitutional amendments that prevent discrimination in granting the franchise have established in Supreme Court jurisprudence that there is a "fundamental right" in the franchise, voting remains a privilege that states grant, and over which states are given considerable leeway.
