Crum: The Prospect of Bailing-in Texas: The Constitutional Argument for Bail-in (4)

This is the fourth in a series of guest posts by Travis Crum:

As I discussed in my previous post, Texas’s conduct during the 2011 redistricting cycle qualifies it for bail-in. But as is often true in election law, this case raises novel constitutional questions. The first question is whether a Shaw violation can trigger bail-in. The second question is whether Section 3(c) remains constitutional after Shelby County.

I’ll start with Shaw. In the first wave of Shaw cases in the 1990s, the Court invalidated redistricting plans that created majority-minority districts intended to benefit minority voters and did, in fact, empower them to elect candidates of their choice. But in the second wave of Shaw cases in the past few years, the Court addressed redistricting plans where States adopted strict racial quotas for the percentage of minority voters in certain districts. States claimed that these quotas were mandated by the VRA. That putative desire for VRA compliance, however, was superficial, and States used the quotas as a pretext to sort minority voters in ways that undermined their electoral strength. Notwithstanding that the two waves of Shaw cases are theoretically distinct, the Court treats them under same doctrinal framework.

Although all Shaw violations fit the statutory definition for bail-in, it is somewhat counter-intuitive to rely on first-wave cases for imposing preclearance. It would be odd to fault a State for using race in the redistricting process and then re-inject racial considerations as part of the remedy. The state house district that the Supreme Court concluded was a racial gerrymander—HD90—falls into this category. Although HD90 is the sole remaining finding of unconstitutional conduct as to the 2013 plans, it is a thin reed to impose bail-in.

To be sure, the Texas court found second-wave Shaw violations for the 2011 plans. Granting Section 3(c) relief in second-wave Shaw cases is on firmer theoretical ground because the State’s race-conscious line-drawing was designed to undermine minority political strength. One example from this litigation aptly demonstrates this point: regarding a state house district, the Texas court found that the “redistricters insisted that the district not only have exactly 50.1% SSRV [Spanish-Surnamed Voter Registration] but that it also perform less favorably for Latino voters.” This discriminatory animus toward minority voters calls out for federal oversight.

The Supreme Court, however, has refused to acknowledge the key distinctions between first- and second-wave Shaw cases. As such, it may be prudent to order bail-in based on the bevy of intentional vote dilution findings in this litigation rather than on the second-wave Shaw violations.

Turning now to the broader question of constitutionality, Section 3(c) avoids the pitfalls that doomed the coverage formula. As I explained after Shelby County, Section 3(c) replaces the coverage formula’s reliance on outdated proxies with judicial findings of contemporary constitutional violations and directly links a constitutional violation to Congress’s enforcement power to establish remedial schemes. Section 3(c) also sidesteps Shelby County’s “equal sovereignty” principle. Whereas Section 4 used a reverse-engineered formula to impose preclearance, Section 3(c) applies nationwide and is triggered only after a judicial finding of unconstitutional conduct.

The Texas court should also craft its preclearance remedy to ameliorate any constitutional concerns. In this way, Section 3(c) addresses a “current need” with minimal “current burdens,” namely, responding to a recent constitutional violation with targeted preclearance. Courts have frequently fashioned bail-in remedies to be more temporally limited and substantively targeted than Section 5. In the 1980s, for example, New Mexico agreed to preclear its 1991 redistricting plans, rather than all election-law changes in perpetuity. A similar remedy could be crafted here: Texas should be required to preclear its post-2020 redistricting plans and, given Texas’s penchant for mid-decade redistricting, any plans enacted prior to the 2030 Census.

Here, it’s worth pointing out that we have a sneak preview of Texas’s arguments against bail-in. In a prior post, I noted that the City of Pasadena, Texas, has been bailed-in. Before that case settled, Texas filed an amicus brief in the Fifth Circuit arguing that Pasadena’s actions did not merit bail-in. (The brief can be found on Westlaw at 2017 WL 1232317).

As an amicus, Texas asserted that bail-in was appropriate only when courts are faced with defiance on par with the Jim Crow era. It’s telling that Texas lacked the chutzpah to argue that Section 3(c) was facially invalid. After all, the Texas SG’s office is staffed with top-notch attorneys who aggressively defend their State’s interests and are no strangers to novel legal claims.

Texas’s argument ignores Section 3(c)’s plain text, which triggers coverage based on violations of the Fourteenth and Fifteenth Amendments, not repeated evasion of court decrees. Texas’s argument also sets an implausibly high bar for Congress’s enforcement authority, which is at its zenith when it combats racial discrimination in voting. And even assuming defiance and recidivism are the touchstones, that standard is satisfied here: Texas has committed numerous constitutional violations and repeatedly failed to adopt non-discriminatory redistricting plans in the 2010 cycle and over the past several decades.

In my next and final post, I’ll discuss whether this case is an ideal vehicle for bail-in given recent changes at the Court.

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