The briefer version of the amicus briefs: The DOJ brief – The Justice Department is not a party to the San Antonio case and, until now,
it hasn’t been involved in the interim map appeal before the Supreme Court.
However, given the possible impact that a Supreme Court ruling could have on operation of section 5 of the Voting Rights Act,
legal observers widely expected the DOJ to weigh in with a brief – and, on Wednesday, it did.
The gist can be summed up as “section 5 says what it meant and meant it said” (to paraphrase Dr. Seuss).
According to the Solicitor General:
The fundamental object of Section 5 is to require a covered jurisdiction to obtain preclearance before a voting change may take effect.
Appellants nonetheless seek immediate implementation of the enacted redistricting plans to govern the upcoming elections, even though those plans have yet to gain preclearance through the judicial-preclearance proceedings Texas opted to pursue.
The terms of the statute, and this Court’s decisions, foreclose appellants’ argument.
…When a local district court encounters a covered jurisdiction seeking to administer an unprecleared change,
the court does not examine the likelihood that preclearance will be granted or assess the strength of the arguments for or against preclearance;
nor does it leap forward to address any non-Section 5 challenges to the proposed change before it is precleared.
Instead, as long as the change is subject to Section 5 and has yet to gain preclearance, the local district court must enjoin it.
That straightforward rule, this Court has explained, vindicates Congress’s decision to make centralized, consistent review in the D.C. district court (or by the Attorney General) the exclusive method of determining the validity of a voting change under Section 5.
The Solicitor General also took exception to the state’s claim that the Supreme Court’s 1982 ruling in Upham dictates a different result –
noting that in the preclearance case the D.C. court unanimously found just last week that there was a triable issue of discriminatory intent:
Appellants err in arguing to the contrary based on Upham v. Seamon, 456 U.S. 37 (1982) (per curiam).
In that case, the Attorney General determined that the State had satisfied its burden under Section 5, except as to two districts.
In that context, this Court held, a local district court’s interim plan should not have disregarded aspects of the State’s plan as to which the Attorney General determined the State had met its burden.
Here, by contrast, Texas has yet to carry its burden, even in part.
To the contrary, the D.C. district court before which Texas elected to proceed has found triable evidence of a violation of Section 5—including evidence that the plans as a whole reflect a discriminatory purpose.
However, the Solicitor General was not wholly uncritical of the interim maps –
saying that the San Antonio court should have provided a more fulsome explanation of the reasons why it created three new minority state house
and two new minority congressional seats and made factual findings to support its creation of coalition districts.
As for what the Supreme Court should do, DOJ asks the court either to send the case back to the San Antonio court to have it address those issues (and possibly make changes to the maps) or,
if there is not time, to order use of the interim maps, explaining that:
If the choice is between an unprecleared map that actually violates the VRA, and a map drawn by federal judges that may (pending further explanation) be insufficiently sensitive to state redistricting principles,
the choice is clear: Section 5 exists precisely to ensure that discriminatory, retrogressive voting changes—like the Texas House and congressional plans—are caught before they ever go into effect.
Alabama, Virginia, Florida, South Carolina, Arizona, Michigan, Georgia, and Louisiana
This brief was filed by eights states that, like Texas, are covered by section 5 of the Voting Rights Act.
ARGUMENT:
Courts are well-suited for altering maps to address violations of federal law, but they are “ill-suited to draw such lines from scratch” because of the large number of political judgments and compromises inherent in any map. Courts should defer to state maps for this reason.
Giving deference to the state’s maps also avoids possible questions about the constitutionality of section 5, which are especially great in this case because a state is not merely being required to keep an existing practice in place pending preclearance but to adopt a wholly new one that the state did not choose in the first place (i.e. the court-drawn map).
Cato Institute
The Cato Institute is a libertarian-leaning think tank based in Washington D.C.
ARGUMENT:
“The Voting Rights Act has served its purpose but is now outmoded and unworkable. 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.”
The Supreme Court should schedule argument about whether the the VRA is still constitutionally viable.
Project for Fair Representation
The Project for Fair Representation is a Washington D.C.-based non-profit that “support[s] litigation that challenges racial and ethnic classifications.” The Project is currently litigating a case brought by voters in Kinston, North Carolina that is challenging the constitutionality of section 5 of the Voting Rights Act. The Project also is currently representing plaintiffs in a case challenging the University of Texas’ diversity policies.
ARGUMENT:
All sides are missing the key issue, which is that the ‘one-person, one-vote’ principle of the Constitution requires that districts be drawn using citizen voting age population rather (CVAP) than total population.
Congressman Canseco
Congressman Quico Canseco is a freshman Republican congressman representing CD-23. During the interim map process, Congressman Canseco, together with Democratic Congressman Henry Cuellar, proposed an alternative congressional map (Plan C216).
ARGUMENT:
The San Antonio court modified CD-23 for political reasons, including swapping Anglo Democratic voters for Anglo Republican voters and placing Maverick County in CD-23 rather than CD-28 (where Canseco says it would more naturally fit).
In addition, the court’s interim congressional map makes unnecessary changes to CD-10, CD-27, CD-31, and CD-34, contains constitutionally impermissible population deviations, and improperly added coalition districts to try to achieve proportionality.
Plan C216, submitted by Canseco and Cuellar, would be a better guide for identifying problem areas and fixing the congressional map, if the court determines that the state’s map cannot be used.
Eagle Forum Education and Legal Defense Fund
The Eagle Forum is a St. Louis-based non-profit that, as set out in its brief, “has consistently defended federalism and supported States’ autonomy from federal intrusion in areas that are of traditionally State or local concern.”
ARGUMENT:
The interim map order was really a preliminary injunction order, and the redistricting plaintiffs failed to show that they were entitled to a preliminary injunction, including showing a likelihood of success on the merits. The redistricting plaintiffs also lacked standing to seek to enjoin a plan on a statewide basis.
Section 5 of the Voting Rights Act unconstitutionally places burdens on states based on outdated coverage formulas.
The Voting Rights Act does not authorize creation of minority coalition districts.