This column by ACRU Senior Legal Analyst Ken Klukowski was published January 9, 2012 on The Washington Examiner website.
Former U.S. Solicitor General Paul Clement told U.S. Supreme Court justices Monday that lower federal courts cannot redraw state-approved election district maps unless they can point to concrete “identifying specific statutory or constitutional violations.”
Instead, Clement said during oral arguments on Perry v. Perez, two federal district judges have nullified the will of the people in Texas. The evident frustration of at least some of the Supreme Court justices suggests they agree with Gov. Rick Perry that state sovereignty must be restored.
Clement represented Perry and the state of Texas in an appeal of lower court decisions throwing out new congressional and state legislative election districts earlier this year.
Like every state, Texas redrew its legislative lines after the 2010 census as the U.S. Constitution requires. Groups unhappy with the new maps then sued, alleging violations of the Voting Rights Act.
In Texas, a three-judge federal district court heard arguments that the new map violates Section 2 of the VRA, which makes it illegal for states to enact voting changes with the purpose or effect of reducing racial minorities’ voting strength.
The Lone Star State’s congressional delegation has grown from 32 members to 36, thanks to population growth. Texas thus needs a map with 36 congressional districts.
The court held in a 2-1 decision that Texas’ new map violates Section 2. So the federal court drew its own maps for the people of Texas — assigning to them a completely different lineup of districts for the Texas legislature and Texas members of the U.S. House.
Supreme Court precedent makes clear that legislative redistricting is among the most delicate tasks state governments perform, balancing numerous political factors devoid of any legal principles courts can apply.
Yet two judges swept aside those admonitions, drawing districts out of whole cloth based on what they called “fairness” and the “collective public good.”
They created what are called “minority coalition opportunity districts” in which a majority of the population is made up of the combined totals for blacks, Hispanics and other racial minorities.
The theory behind this wrongheaded stereotyping is that all minorities vote the same way, so, if they reside in the same district, they will elect a minority member as their preferred candidate.
Complicating matters, Texas is a “covered jurisdiction” under Section 5 of the VRA, meaning the state must get permission from Attorney General Eric Holder or the federal court in the District of Columbia before changing its districting lines. But D.C. has not cleared Texas’ new maps.
So the Supreme Court heard arguments Monday on an expedited schedule in Perry v. Perez.
Clement faced off against the plaintiffs’ lawyer, Jose Garza, and President Obama’s Deputy Solicitor General Sri Srinvasan.
Texas’ primary was scheduled for March (now April). Given its imminence, Clement argued if the legislature’s maps have problems, they must be used as interim maps until being fixed, instead of judges inventing new maps. At a minimum, Texas should use all parts of the maps not at issue in court.
Justice Sonia Sotomayor cut him off, saying that Section 5 means the maps cannot be used for any purpose until they gain final approval.
At one point Monday, the court’s proceedings became heated when, after Justice Stephen Breyer repeatedly interrupted Clement, Chief Justice John Roberts intervened to enable Clement to finish his answer.
The issues in this case echo Perry’s campaign emphasis on federalism and the 10th Amendment. He argues that Texans should be able to decide how to draw their election districts without interference from Washington so long as they don’t violate the Constitution or federal law.
Other VRA cases are headed toward the Supreme Court, so voting rights could become a major issue in the 2012 election. A decision in Perry v. Perez is expected within weeks.