The State of Texas’ brief opposing efforts to place the state back under preclearance review set the stage for a potential legal showdown by offering a starkly different interpretation of when it would be appropriate for a court to use section 3 of the Voting Rights Act.
While disagreeing at length in the brief that the 2011 Texas maps were the product of intentional discrimination, the state told the San Antonio court that - even if they were- it was not enough to warrant imposing “the sovereignty-infrining burdens of preclearance.”
Rather, the state argued that:
[E]ven if this Court concludes that the 2011 maps were not the product of intentional racial discrimination, the remedy of bail-in would not be congruent and proportional under Shelby County. Under Shelby County, preclearance remedies must be reserved for situations involving “‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination” that cannot be remedied through ordinary litigation. The very same constitutional scrutiny applied by the Supreme Court to the legislative reauthorization of the section 4 coverage formula must be applied to any request for judicial bail-in under section 3(c).
The state said that the fact that the Texas Legislature had adopted the 2013 maps showed that Texas had responded in good faith and was “nothing like the [pre-1965] recalcitrant southern jurisdictions’ efforts to ‘stay one step ahead’ of the courts, as DOJ suggests.”
And even if the 2013 maps also were found to be intentionally discriminatory (as African-American and Hispanic redistricting plaintiffs have alleged), the state said the remedy would be for the court simply to fix the maps.
The state’s papers also argued that the San Antonio court had no jurisdiction to impose section 3 review because, according to the state, adoption of the 2013 maps mooted the claims.
The Justice Department and African-American and Hispanic plaintiffs, of course, have put forth a sharply different view - with DOJ telling the court in its opening brief that:
Texas’s interpretation of when Section 3(c) relief would become moot would render the provision a nullity, effectively permitting a defendant to avoid bail-in by abandoning a challenged practice at any time up to the moment of final judgment. The jurisdiction could then adopt a slightly modified discriminatory practice, necessitating the filing of a new complaint. This cycle of discrimination would create the type of gamesmanship the preclearance requirements embodied in both Section 5 and Section 3(c) were designed to end.
The San Antonio court gets the first crack at the issue, but, given the stakes, it almost certainly will be the Supreme Court that gets the final say.