Maybe y’all should have thought of that last December.
Sri Srinivasan gets 10 minutes to represent the Obama administration and argue that the Texas court was right to reject the Texas map, and should boot the case back to the Texas court to better explain itself. Justice Antonin Scalia says that if you can’t rely on the old plan, and are absolutely barred from using the new plan, you are pretty much poised to “disenfranchise every voter in Texas.” And Justice Anthony Kennedy says, in a manner likely to strike terror into the hearts of anyone who thinks this case will spell the death of Section 5 of the Voting Rights Act, “Isn’t it odd that this is a Section 2 suit but Section 5 seems to be driving it?” In case you’re wondering whether he thinks it’s unfair that the states with a history of racial discrimination bear extra burdens under Section 5, he then adds, “Texas is at a tremendous disadvantage here!”
But Section 5 looks a little less wobbly when Jose Garza, the attorney for Hispanic groups who oppose the state’s plan, starts to enumerate Texas’ “terrible history of discrimination . . .” only to be cut off by the chief justice pronouncing, “The constitutionality of the Voting Rights Act is not at issue here.” It looks like the court barely has time to feed the meter, much less use this case as the vehicle to kill off Section 5 of the VRA altogether.
This is when the chief justice and Alito, Scalia, and Breyer start making more noises like they’re Jack Bauer and they’re only starting to notice the beeping clock at the bottom of the screen. The chief justice tells Srinivasan that “we’re all under the gun.” And counting back from when the federal court in D.C. might produce a final decision on the Texas maps, Breyer asks, “How can any human being redraw a map in five days?” Alito asks Garza when the “drop dead deadline” is for getting these map issues resolved. (The response: Something about 90 days, plus 45 days, plus auuuuuuggghhhh to get out the overseas ballots before Nov. 6 elections.) Scalia asks again when the D.C. court decision is expected in the preclearance case. Garza says, “30 days from today.” The chief justice shoots back, palms sweating, “And when do you expect our decision from the appeal of the district court?"
“Later this afternoon,” grins Garza. Nobody seems all that keen on waiting for the D.C. court to sort this out.
Clement and Garza seem almost to agree on a Kagan-suggested compromise whereby the lower court starts again with the new Texas map, but Texas bears a burden of proof to show that each district isn’t unconstitutional. Garza says that if it keeps the burden of proof on Texas it would be “far more preferable.” Clement seems to concede that it’s better than the court-drawn maps. It’s not pretty, and who knows what it will all mean for the future of the Voting Rights Act. Fortunately, the other thing we learned from Bush v. Gore is that when the court does make quick, sloppy law to solve election crises, those cases are never cited for their legal rule again.