TEXAS REDISTRICTING & ELECTION LAW

Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers. Have questions, comments, suggestions, additional content, or a redistricting joke (or two)? Feel free to contact me: Michael Li, michael.li@mlilaw.com, 202.681.0641.
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Does today’s DOJ decision mean the law is dead?

No.  A decision by the Justice Department to grant preclearance is final and cannot be reviewed by any court.  However, a decision, like today’s, to deny preclearance can be reviewed in the D.C. district court by a three-judge panel - and from there on appeal to the Supreme Court.  

The State of Texas already started that review process when it filed suit in Washington in January - although the D.C. case has been held in abeyance pending a preclearance determination by DOJ.

Is the D.C. court required to give deference to DOJ’s findings?

In the strict legal sense, no.  The D.C. court’s review is de novo, which is legalspeak for an independent, fresh eyes review.  

But the Attorney General is a defendant in the case and will have the opportunity to make the department’s case for rejection of the law.  And as a practical matter, the opinions of the department often carry a lot of weight.

When will the D.C. court decide the case?

That’s not clear at this point but may be clearer by mid-week after the D.C. court holds a status conference.

One issue likely is going to be whether the case can be decided on papers without a trial, as some observers expect the State of Texas to argue.

On the other hand, the case be too fact intensive to permit a quick move to summary judgment proceedings.  If that’s the case, there likely will be a period of discovery that could push matters into summer at the earliest. Moreover, discovery, motion practice, and the court’s schedule (remember there are three busy judges) well could push the litigation later.

Is it possible that the court could decide in time for the law to be in place for the November election?

It is possible.  But given the exigencies of litigation, it is also possible that a decision will come too late for this year’s cycle - especially since, even if the law were precleared, government departments would need time to gear up, e.g., to issue new free photo IDs, people will need time to get them, and so forth.

If the D.C. court also denies preclearance, it is exceptionally unlikely that the case could reach the Supreme Court and result in an opinion before the November 2012 elections.

What about the South Carolina suit?

South Carolina also sued in D.C. district court to have its voter ID precleared after DOJ rejected the law shortly before Christmas.

Like Texas’ case, the South Carolina case, which was filed in February, also is still in the preliminary stage.

At this point, it’s not clear which, if either case, will proceed on the faster track - or whether they might somehow move in tandem.

What about constitutional arguments? Are these cases likely to challenge the constitutionality of section 5 of the Voting Rights Act?

So far, both Texas and South Carolina have not used the voter ID cases to directly challenge the constitutionality of section 5 - contrary to many expectations.  Instead, both have argued only that the courts should preclear the laws in order to avoid constitutional concerns that might arise.

However, it is not inconceivable that either or both could launch broader constitutional challenges.