Crum: The Prospect of Bailing-in Texas: Initial Thoughts (1)

The following is the first of five guest posts from Travis Crum on Bailing in Texas to voting rights preclearance:

The three-judge district court overseeing the long-running Texas redistricting litigation recently ordered the parties to brief whether the State should be “bailed-in” under Section 3(c) of the Voting Rights Act for its unconstitutional conduct during the 2011 redistricting cycle. Section 3(c) authorizes courts to place States and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance—a process that requires pre-approval of election-law changes by federal authorities. The prospect of Section 3(c) relief in the Texas redistricting litigation is the latest and perhaps most significant development for bail-in since Shelby County. Indeed, a Lone Star bail-in has been at the top of the agenda of numerous civil rights groups and, until recently, the Department of Justice.

After Northwest Austin sounded the alarm bells over the VRA’s constitutionality, I outlined a blueprint for using bail-in as an alternative if—and, as it turns out, when—the Supreme Court invalidated the VRA’s coverage formula for preclearance. In this series of posts, I am expanding on that idea and will be discussing recent bail-in cases as well as the statutory, constitutional, and strategic issues surrounding a potential bail-in of Texas.

Supreme Court watchers may recall this litigation from the recent 5-4 decision in Abbott v. Perez, which reversed the district court’s findings of intentional vote dilution in Texas’s 2013 redistricting plans. But hope is not lost. Even after that decision, there are numerous judicial findings of unconstitutional conduct that justify bailing-in Texas. These constitutional violations span Texas’s 2011 and 2013 redistricting plans and include both intentional vote dilution—that is, the drawing of districts that deny racial minorities a fair opportunity to elect their candidates of choice—and Shaw claims, which occur when a State’s use of race predominates over traditional redistricting criteria and is not narrowly tailored to achieve a compelling governmental interest. As I’ll argue in a subsequent post, although any of these findings could trigger bail-in as a statutory matter, it would behoove plaintiffs to focus on the intentional vote dilution claims from the 2011 plans.

And even though a Texas bail-in is statutorily authorized and constitutionally sound, the voting rights community should approach this case with eyes wide open. Indeed, a Texas bail-in could be the first major race and federalism case heard by Justice Kennedy’s anointed successor, Judge Brett Kavanaugh. As I’ll address in my last two posts, Section 3(c) relief should be carefully crafted to survive a more conservative Supreme Court.

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