Fri January 20, 2012
How 'Reasonable' is the Supreme Court’s Redistricting Decision?
It’s back to the drawing board for a San Antonio court that reworked Texas’ most recent redistricting plan.
This morning, the Supreme Court offered an opinion in a lawsuit brought by Gov. Rick Perry, representing the State of Texas, against members of a three-person San Antonio court. The San Antonio justices had rejected the Texas Legislature’s 2011 overhaul of congressional districts, drafting their own map of new districts.
At issue was Section 5 of the Voting Rights Act. Enforced in southern states including Texas, the act requires the Department of Justice to “preclear” election changes with the Department of Justice to ensure changes don’t adversely affect the ability of ethnic minorities to elect the candidates of their choice. The San Antonio court felt that with 2010 census numbers confirming explosive growth in Texas’ Hispanic and Latino population, the new map drawn by the Texas Legislature in 2011 wouldn’t meet preclearance standards.
In a decision issued today, the Supreme Court pays heed to potential preclearance issues, but ordered the San Antonio court to keep the Legislature’s changes in mind as they rework the map --- again. The court writes
“To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth.”
“They’re sending it back with some instructions,” says election law attorney Steve Bickerstaff. “They’re telling the district court that you can’t ignore the plan which was adopted by the State of Texas in the spring just because it has not yet received preclearance … The court said you simply can’t start from scratch, you have to look at the state plan as it’s adopted and take some guidance from that.”
The court repeatedly referred to the concept of “reasonable probability” in their decision. The court writes:
“The need to avoid prejudging the merits of preclearance is satisfied by taking guidance from a State’s policy judgments unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain [Section 5] preclearance. And by ‘reasonable probability’ this Court means in this context that the [Section 5] challenge is not insubstantial. That standard ensures that a district court is not deprived of important guidance provided by a state plan due to [Section 5] challenges that have no reasonable probability of success but still respects the jurisdiction and prerogative of those responsible for the preclearance determination. And the reasonable probability standard adequately balances the unique preclearance scheme with the State’s sovereignty and a district court’s need for policy guidance.”
“The court really established a new standard, and that is what is called reasonable probability,” says Bickerstaff. “That is that the parts of the plan which may violate Section 5 – there’s reasonable probability that they violate Section 5 – will need to be changed in the [San Antonio] court’s order. But otherwise the court is directed to look to the legislative plan as it was adopted last spring.”