Today, the Supreme Court tossed out the work of a district court that attempted to force its own electoral maps on the state of Texas, while ignoring the maps drawn by the Texas legislature. The unanimous decision is a major victory for constitutional federalism, and a blow to runaway judicial activism.
Drawing electoral districts is one of the core responsibilities of state legislatures, and a vital part of the democratic process, and the federal courts have at least paid lip service to the principle that legislator-passed electoral maps are due significant deference. But some courts have been increasingly eager to intervene in the redistricting process, substituting their views for those of elected representatives in cases challenging maps under the Voting Rights Act and Equal Protection Clause.
The three-judge district court here was one of the most aggressive in recent memory. Faced with activist-group challenges to the redistricting plan adopted by the Texas legislature under section 2 of the VRA, at the same time that another court in Washington, D.C., was slow-walking challenges to the entire plan under section 5 of the VRA (which requires “covered jurisdictions,” like Texas, to obtain preclearance of changes to electoral processes), the court decided to simply ignore the legislature’s handiwork and enact its own plan that it believed “place[d] the interests of the citizens of Texas first,” over the state’s vigorous objections.
Judge Jerry Smith, of the Fifth Circuit, vigorously dissented, arguing that the majority’s actions were “untethered” from the applicable law and that the practical effect of court’s action was “to award judgment on the pleadings in favor of one side—a slam-dunk victory for the plaintiffs—at the expense of the redistricting plan enacted by the Legislature, before key decisions have been made on binding questions of law.”
According to the Supreme Court, Judge Smith had it exactly right. The Court confirmed that redistricting is “primarily the duty and responsibility of the State,” and that the fact of an ongoing section 5 challenge does not give a court license to throw out the state’s electoral maps and start over. Instead, it must “take guidance” from “the State’s policy judgments on where to place new districts and how to shift existing ones” and should only deviate from those choices where they are subject to challenges are likely to succeed or are, at the least, “not insubstantial.”
In this way, a state’s redistricting plan, even if it has not yet been “precleared” by federal authorities pursuant section 5, still has force, and a district court cannot choose to “wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.” Accordingly, the Court sent the case back to the district court to try again, this time taking the Texas legislature’s plan into account.
The issue lurking in the background of this decision is the constitutionality of section 5, which imposes a unique burden on states, in a very sensitive area, based on discrimination in voting processes decades ago that is no longer supported by the current facts on the ground. The Court ducked this issue several terms ago, ruling that DOJ had to make it easier for states to escape section 5 coverage, but the Obama DOJ has been wielding section 5 like a baseball bat against state voter-ID laws and redistricting plans, making the Court’s ultimate resolution of the issue inevitable. Justice Thomas filed a concurring opinion today, however, again declaring his view that Section 5 was unconstitutional and thus should be ignored in drawing up any interim map.
The decision today, while modest, demonstrates that the entire Court takes states’ rights and prerogatives in drawing electoral maps seriously and is wary of any scheme that intrudes on those state interests without a compelling and persuasive legal basis—as well it should be.