One issue that I think may not have been covered in this blog is the relationship between the reauthorization of section 5 and the voting rights issues involved in the Texas gerrymandering case (Sessions et al. v. Perry). In particular, there are the two section 2 claims (Martin Frost’s district and the failure to create an additional Hispanic district in the south) and two Shaw claims involved with Henry Bonilla’s district and the district that stretches from Austin to the Mexico border.
In my earlier post I did not mean to understate the importance of the Shaw line of cases (as voiced by Abigail Thernstrom in her testimony) to the way the Court may resolve the constitutional questions surrounding the reauthorization of section 5. The 1990s round of DOJ-inspired majority-minority districting, as Thernstrom explains, led to the Shaw cases, and those precedents may lead the Court to strike down the proposed retrogression standard in the reauthorization bill.
I see the Shaw cases – assuming they exist as real precedent post-Easley – cutting both in favor and against the current bill. On the one hand, there is the argument that the new retrogression standard (the Ashcroft fix or ability to elect standard) is itself a violation of the Equal Protection Clause or will lead DOJ to force the creation or maintenance of districts in which race was the predominant factor. Indeed, if the law actually said that all majority-minority districts must be maintained, then I suspect Kennedy would vote to strike it down. This is why I think Congress (and then later the Court in interpreting the statute to avoid constitutional difficulty) will/should be clear that the ability to elect standard (1) does not place primacy on majority-minority (over 50%) districts, per se, (2) does not freeze in place the racial percentages in current districts for 25 years, and (3) does not permit retrogression by way of overconcentration (packing) of minority districts. If I am wrong about that, then the basic rule against racial predominance in Shaw/Miller could lead to the Court striking down the law.
However, the existence of Shaw as a background restriction on the drawing of minority districts could also help save the statute. In other words, the ability to elect standard is constitutional precisely because Shaw only allows districts created pursuant to that standard where race does not predominate or if it does, then the standard allows such districts only when narrowly tailored to avoid a voting rights violation.
Here is where the Texas case comes in. District 25 (the Austin to Mexico district) is an offset district – meaning that it was created to avoid a voting rights violation that might be caused by the drop in the Hispanic population in a different (Henry Bonilla’s) district. Although it is unclear and perhaps unlikely that the Court will view District 25 through the eyes of Shaw (as urged by the Democrats), if the Court does, then it may offer some ideas as to whether the district is narrowly tailored to avoid dilution or retrogression. (Of course, the Supreme Court, like the District Court, may just write all of this off as part of a partisan gerrymander and say partisanship, not compliance with the VRA, predominated in the construction of this district.) However, if and how it deals with that Shaw claim as well as MALDEF’s Shaw claim on Henry Bonilla’s district (which they argue is kept at barely 50% simply for racial reasons), could offer some insight as to how the Court may view the ability to elect standard. I suspect they will sidestep the issue of whether compliance with section 5 (or 2) is a compelling state interest that justifies the narrowly tailored creation of an otherwise Shaw-violative district, but maybe we will get some idea on that as well.
The VRA section 2 claim concerning Martin Frost’s district is also relevant to the reauthorization debate. The claim there is that Frost was the African American community’s candidate of choice, and that the reconstruction of his district diluted the black vote, despite the fact that African Americans did not constitute a numerical majority in the district. While some might call this a Section 2 influence district claim, both the memo from the DOJ line attorneys and the plaintiffs’ brief describe Frost as the minority community’s candidate of choice. Now, I don’t think for a minute that this will be an argument that will win over the Court’s majority. However, we have here, in essence, a claim about the ability of African Americans to elect their preferred candidate of choice – i.e., the standard that now appears in the reauthorization bill. How the Court evaluates this claim could give us an idea of what they would think about that standard in general.
I recognize this discussion will seem like overly nuanced inside baseball to some and beside the point for others who think the Court will largely ignore the voting rights and Shaw issues. Yet, if the Court does deal with these claims, as I suspect the more liberal Justices will and as Justice Kennedy seemed to indicate at oral argument, we may get some insight as to what they think of the constitutionality of the standard in the reauthorization bill.
–Nate Persily