Supreme Court to examine Texas redistricting

WASHINGTON ? As the election season intensifies, the Supreme Court will hear a dispute Monday involving the fairness of new voting districts drawn by the Texas Legislature.

The case arises as several challenges from other states and localities have been made against the landmark 1965 Voting Rights Act. Advocates on both sides are watching the Texas case for signals from the court on whether a decades-old provision intended to ensure equality at the polls should stand.

In Texas, a San Antonio-based federal court blocked the Legislature's voting-district maps, saying they could not be used until officials had ensured, based on the 1965 law, that they didn't harm the interests of Hispanics and blacks.

Texas contends the lower-court judges wrongly drew a new, interim plan for state House and Senate districts and Texas' 36 congressional districts. State lawyers say the judges should have deferred to the legislative plan even though it had not been cleared under Section 5 of the Voting Rights Act.

That section, covering nine mostly Southern states and scores of smaller jurisdictions elsewhere with a history of racial discrimination, requires the localities to show in advance that new maps or other changes would not undermine minorities' voting rights.

Though Texas only implicitly challenges that section, several direct attacks to the constitutionality of Section 5 are simmering, including one from Shelby County, Ala., to be heard by a federal court this month.

At the Supreme Court, the looming constitutional question "will be the 800-pound gorilla in the room," says Professor Richard Hasen, an election law expert at the University of California-Irvine. Hasen observes that because of other cases in the pipeline, the justices are likely to "sooner rather than later" rule on the constitutionality of Section 5's pre-clearance rule.

It's an issue that can determine the fate of voting districts, as well as voter identification rules and any new election procedures. It could also make a difference not just in who casts a ballot but who wins an election.

The justices put the case on a fast track because of scheduled primary elections this spring. The Texas primary already has been delayed from March 6 to April 3 because of the litigation.

In 2009, when the justices last took up the Voting Rights Act, Chief Justice John Roberts said the "pre-clearance" rule intrudes on states and suggested it may no longer be necessary because "things have changed in the South." Yet in 2009, Roberts and the court majority did not rule on the constitutionality of Section 5 because the Texas utility district that challenged the law was exempt under a "bailout" provision.

The latest Texas dispute arises from growth in the state, particularly among Latinos, as documented by the 2010 Census. From 2000 to 2010, population rose by more than 4 million people, to 25 million. Hispanic population rose by about 2.8 million, the black population by about 523,000, and white population by about 465,000.

Because of that growth, the state gained four more seats in the U.S. House of Representatives. The GOP-controlled Legislature drew maps for the U.S. House and for the state Senate and House. As the San Antonio-based federal court documented, the Legislature's maps reduced "minority opportunity districts" (in which Latinos or blacks constitute at least 50% of voting age population) and minimized the chance that they could elect candidates of their choice.

"We picked up four seats, and it's important to look at the people who contributed to that," says state Rep. Trey Martinez Fischer, a San Antonio Democrat who is part of a coalition challenging the Legislature's maps. "It just seems very suspicious that the state of Texas is willing to accept that growth for political power in Congress but overlook those who brought them to the dance."

State Attorney General Greg Abbott defends the voting districts and emphasizes the drawing of boundaries is "a core function of" a state legislature requiring a "complex balancing of countless different interests." He says lower-court judges should have presumed the Legislature acted in good faith and not drawn a new map based on their own criteria.

The Justice Department says Texas may not enforce the districts until they are tested in a separate court proceeding underway in Washington. Yet it says the lower court should have more fully explained its rationale for the interim district boundaries.

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