Two weeks ago I wrote about the emergency appeal of Texas’s new redistricting maps that reached the Supreme Court last month and was argued early last week. The state argued that the interim maps a three‐judge district court in San Antonio drew didn’t defer sufficiently to the maps passed by the Texas legislature (which could not go into direct effect because they hadn’t been approved by either the Justice Department or a three‐judge D.C. district court, per the requirements of Section 5 of the Voting Rights Act). A group of challengers, meanwhile, claimed that Texas’s maps discriminated against and diluted the voting strength of minorities in violation of the VRA’s Section 2. Cato’s brief supported neither side but urged the Court to reconsider the constitutionality of the modern VRA altogether, not least because Sections 2 and 5 conflict with each other and with the Constitution.
Today, the Supreme Court unanimously overturned the San Antonio court’s maps because that court may not have used the “appropriate standards” in drawing its interim maps. In a tight 11‐page opinion, the Court made clear that, regardless of the legal ambiguities and other challenges the lower court faced, it still had to use the Texas legislature’s maps as a starting point and only deviate from them on districts where the Section 2 plaintiffs had a “likelihood of success on the merits” of their claims or where there was a “reasonable probability” of failing to get Section 5 approval. Here’s the nut of the Court’s decision:
To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.
That legal ruling is almost certainly correct — and in any event provides much‐needed guidance for future such difficult situations — but may not change the ultimate result all that much because the district court most erred in explaining how it did it what it did rather than in doing it. It even deferred significantly to the Texas maps after saying that it owed them no deference!
Unfortunately, the perfect storm that landed this case in the Supreme Court’s lap — no Section 5 “preclearance,” potentially viable Section 2 challenges, the need to have maps finalized quickly for the timely administration of primaries, the undesirability of having courts draw maps and the lack of clear rules of doing so — is not unique. Justice Thomas is thus onto something when he reiterated today, in his separate concurrence, his long‐held position that Section 5 is unconstitutional.
But the problem is bigger than that: the Voting Rights Act as a whole has served its purpose but is now outmoded and unworkable — and consequently unconstitutional. Section 2 requires race‐based districting, even as Section 5, along with the Fourteenth and Fifteenth Amendments, seem to prohibit it. For its part, Section 5 arbitrarily prevents common national redistricting standards. These tensions cannot but produce chaotic proceedings like those here, which are replicated every redistricting cycle. This state of affairs only serves to frustrate state legislatures, the judicial branch, and the voting public.
Put simply, the VRA’s success has undermined its continuing viability; courts and legislatures struggle mightily and often fruitlessly to satisfy both the VRA’s race‐based mandate and the Fifteenth Amendment’s equal treatment guarantee. Section 5’s selective applicability precludes the establishment of nationwide districting standards, confounding lower courts and producing different, often contradictory, treatment of voting rights in different states — in large part because Sections 2 and 5 themselves conflict with each other.
These difficulties — constitutional, statutory, and practical — disadvantage candidates, voters, legislatures, and courts, and undermine the VRA’s great legacy of vindicating the voting rights of all citizens. While Perry v Perez may not have been the right vehicle for doing so because of exigencies involved in election administration, the Court should reconsider the constitutionality of the Voting Rights Act as presently conceived at the next available opportunity.