The Texas Redistricting Decision

Today’s Supreme Court decision in the Texas redistricting case is largely a win for the State of Texas, for reasons I explained in advance of the decision.  But the Court forged a “compromise” solution that was not raised or discussed at all at the oral argument in the case, nor one raised in the briefs.  It is actually not the “compromise” solution that Justice Kagan raised at the argument, but a somewhat different one the Court apparently came up with during its internal deliberations in the case.  And I fear that this compromise is going to make an already complex situation even more unwieldy when these situations arise in the future.

Until today’s decision, there was at least one clear rule when we have dueling federal courts dealing with redistricting plans that have to be evaluated under both Section 5 of the Voting Rights Act and Section 2 of the VRA and the Constitution:  only the pre-clearance court in D.C. could address the Section 5 issues, while the second federal court (here, in San Antonio) was the only court that could address the Section 2 and constitutional issues.  Now, the Supreme Court has decided that the second federal court should also become a second court for looking at the Section 5 issues as well – thus putting two federal courts in the position of addressing the identical issue, with the possibility that those courts could come out differently on the question.  The Court has held that the San Antonio court has to make the predictive judgment of whether there is a “reasonable probability” that the state’s plan will fail to gain preclearance in the other federal court – the preclearance court in DC.  So the court in Texas has been given added legal responsibilities in which it is already under enormous time pressure to come up with an emergency, temporary and interim redistricting plan – it now has to address the Section 5 issues, in addition to the Section 2 and constitutional issues.  This solution is going to proliferate litigation complexities and create even more confusion, rather than reduce the uncertainties.

There are at least two better solutions to this trainwreck situation of two different federal courts both reviewing the same redistricting plan.  First, the Court could have said that if the case is one in which the Department of Justice has already taken the legal position in the pre-clearance court that the plan does have Section 5 violations, the Texas court should be obligated to accept those objections, if there is a reasonable legal basis for them, and cure them when it creates an interim plan.  Indeed, DOJ has done exactly that in this case.  Yet one of the oddities of the Court’s opinion is that there is no mention of this fact, let alone any discussion of its relevance. I am puzzled as to why the Court said nothing about the relevance of the already-existing DOJ Section 5 objections to Texas’ plans, although the argument did not flag this issue clearly for the Court.  So the situation now is that even if DOJ has not yet taken a position on whether a plan complies with Section 5, the second court still has to make its own inquiry into that question.

If the second court is going to be instructed to reach Section 5 issues, it would be better to have its inquiry anchored in a firm baseline, such as whether DOJ has argued that Section 5 is indeed violated.  Instead, the Court’s decision instructs the second court to engage in essentially a general, wide-ranging Section 5 analysis.

The even better solution to this problem, which is not one the Court itself was asked to adopt in this case, is for the system to find a way to consolidate the two actions in a single court, which would be the pre-clearance court in D.C.  It makes little sense to have two courts addressing the same redistricting plan, in the midst of uncertainty about how the other court will act, and under tremendous time pressures.  This consolidation could be accomplished either by a statutory enactment, if necessary, or possibly by the pre-clearance court exercising powers under the All Writs Act to transfer the merits case to its jurisdiction if a pre-clearance action had already been filed.  That would be a much more creative solution than any court has yet undertaken or any litigant proposed, and courts might be reluctant to exercise such powers.  But either through statutory amendment or such use of judicial power, we would be far better off with these issues all consolidated in front of one three-judge federal court to avoid the kind of trainwreck this case represents.

And Rick Hasen has indeed sneaked in under the wire on the last day and earned the right to have me buy him a beer, which I will gladly do!