Crum: The Prospect of Bailing-in Texas: Strategic Considerations (5)

This is the fifth and final in a series of posts by Travis Crum:

As my previous posts have made clear, Texas is eligible for bail-in for its unconstitutional conduct during the 2011 redistricting cycle. But there are strategic risks in seeking this high-profile bail-in rather than using a smaller, county-level jurisdiction as a test case at the Court. The fact that Texas has already won in the Supreme Court twice in this litigation is not ideal. Moreover, a case that lacked the “second enactment” wrinkle—here, the 2013 plans—would be a better vehicle, as the Court could not point to that action as a reason for denying bail-in.

Under the district court’s scheduling order, briefing on Section 3(c) relief won’t be complete until January 2019. If past is prologue, we should expect a lengthy wait for a decision—one that will almost certainly include a dissent from Judge Smith given his past statements criticizing the plaintiffs’ reliance on Section 3(c). Assuming that the district court orders bail-in, Texas can immediately appeal to the Supreme Court because the case involves a statewide redistricting plan. That means we could be seeing a Texas bail-in case argued in the October 2019 Term and decided in early 2020. On the one hand, that’s right before the next round of redistricting and could set an important precedent as we enter the first post-Shelby County redistricting cycle. But on the other hand, Texas and opponents of bail-in will cry foul over the length of these proceedings.

And to understate the obvious, the Court is a very different institution today than when it decided Shelby County in 2013. As Rick Hasen and Dan Tokaji have noted, Justice Gorsuch joined Justice Thomas’s concurrence in Abbott arguing that Section 2 of the VRA does not cover vote dilution—a position that Scalia also held for decades. But Gorsuch’s appointment may have moved the needle on bail-in. Scalia declined to join Thomas’s concurrence in Shelby County that preclearance itself was unconstitutional. Given Gorsuch’s votes so far, it would not be surprising if he shared Thomas’s views on preclearance.

And then there’s the retirement of Justice Kennedy—the Court’s erstwhile swing vote. If Judge Kavanaugh is confirmed, his views on race and federalism will be key in any bail-in case. Because of the D.C. Circuit’s unique docket, Kavanaugh’s views on these issues aren’t as well-known as his opinions on, say, administrative law and separation of powers. But back in 2012, Kavanaugh sat on a three-judge district court that decided whether South Carolina’s voter ID law should be precleared. In an opinion written by Kavanaugh, the court unanimously precleared the law for post-2012 elections and only after adopting a broad interpretation of the “reasonable impediment” exception to the voter ID requirement. That was a decidedly middle-ground position.

Here, it’s important to note that Kavanaugh declined to question the VRA’s constitutionality while the cert petition in Shelby County was pending. As his long trail of judicial writings makes clear, Kavanaugh isn’t shy about letting us know what he thinks about issues. But at the same time, he did not join Judge Bates’s concurring opinion that highlighted Section 5’s “vital function” and important deterrent effects. Since Judge Kollar-Kotelly also joined Bates’s concurrence, one can infer that Kavanaugh did not want to include that language in the court’s opinion. Kavanaugh’s views on the old preclearance regime are therefore unclear, but, in any event, Section 3(c) does not suffer from the same flaws that doomed the coverage formula.

Ultimately, the question of bailing-in Texas may come down to whether the Roberts Court has the appetite to weaken another provision of the Voting Rights Act. Given the swiftness with which formerly covered jurisdictions enacted discriminatory laws, the Court may pause before further chipping away at the crown jewel of the civil rights movement.

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In this series of posts, I’ve argued that Section 3(c) remains an important and constitutional part of the civil rights arsenal. In the wake of Shelby County, bail-in suits have re-shaped the legal landscape, kept cases from being declared moot by subsequent developments, and helped ameliorate discriminatory election practices. But the biggest test for Section 3(c) may be yet to come.

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