Breaking News: Supreme Court Decides Texas Redistricting Case, Reverses Lower Court

In a unanimous per curiam opinion, the Supreme Court (with Justice Thomas concurring separately in the judgment) has reversed the maps drawn by the three judge court and remanded to draw new maps under new standards.

The Court’s plan is much along the lines I anticipated, a compromised suggested by Justice Kagan (and which, as Rick Pildes pointed out, gives Texas much of what it wants).  Speaking non-technically, the Supreme Court held that the three-judge court erred in starting its redistricting plan from scratch.  It should have started with the state’s plan, and then adjusted to the extent the plan violated the Voting Rights Act or the Constitution.

More technically, the Court held that as to the Voting Rights Act section 2 standards, the three-judge court is not to defer on those districts where it appears more likely than not that Texas is in violation of the section 2 standards.  (Burden appears to be on the VRA section 2 plaintiffs.)

As to section 5, however, because only the Washington DC court can decide on preclearance, the Court is not to take the section 5 preclearance question into account unless those plans have a reasonable probability of failing section 5 review (a tough standard for challengers to the law to meet).

So this is a big win for Texas, and will require the drawing of districts much more likely to favor Texas’s interim plan (and therefore favor Republicans over Democrats favored by the three-judge court’s original map).

One caveat: at most these lines will last for one election, as the preclearance issue being decided by the Washington court will dictate the preclearance going forward, and as the section 2 issue finally gets resolved by the three judge court in Texas.

Justice Thomas, in his concurrence, says that preclearance is not necessary because section 5 is unconstutional—the 800 pound gorilla in the background of this case.

And on timing, oh yeah, Rick Pildes owes me a beer.

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