Though the three-judge-court denied summary judgment a few weeks ago and set the Texas redistricting case in DC for trial, it did not issue an opinion at that time. It said an opinion would come later (to give time for the other three-judge court (in San Antonio) to craft a redistricting plan to be used in the interim, the plan which is currently before the Supreme Court). Today the Court issued a 44-page opinion explaining its reasoning in denying summary judgment.
The opinion is significant for two independent reasons.
First, and most importantly, the opinion provides strong reasons to think that Texas will not be able to obtain preclearance of its plans (though the issues will depend upon how the judges resolve contested facts at trial), and that fact could be relevant to the Supreme Court’s forthcoming hearing and decision on the interim plan. If the opinion convinces Justice Kennedy (and the Court liberals) that Texas’s proposed plans likely should not be precleared, then that is good reason these plans should not be deferred to by the courts in crafting an interim plan. Texas in its brief filed yesterday conceded there should not be deference to a proposed (but unprecleared) plan when it is likely to believe the plan should not be precleared. The opinion today will be thrown back in Texas’s face in the second round of briefing before the Supreme Court.
Second, the opinion is the first one (or one of the first ones) to answer some open questions about the meaning of section 5 of the Voting Rights Act since Congress amended it in 2006, and to answer how section 5 is supposed to handle retrogression questions in the face of an increasing minority population. The decision here is sure to influence how other courts consider these questions, at least until the Supreme Court speaks on these questions.
Pretty busy in the election law world for the week before Christmas.