If the Supreme Court were a car, it would be a Volvo. Slow, safe, and built for the long haul. In fact if Bush v. Gore taught us anything, it’s that when the court tries to be a Lamborghini, racing to meet deadlines and flipping through its day planners to forestall impending election disasters, that’s usually when the law ends up flipping a guardrail and landing upside down on the side of the road.
The good folks of Texas have an election looming. Specifically, on April 4 (already pushed back from March 6) they are meant to go to the polls to vote in a primary. That’s problematic because they currently have no districting maps. Or, to be more precise, they currently have three. They have the map that was used 10 years ago, before the population expanded by 4.3 million voters (of whom 65 percent are Hispanic), thus requiring that legislative lines be redrawn to reflect that minority voting will not be diluted under Section 2 of the Voting Rights Act. (That will mean four more seats in the U.S. House of Representatives.) Then we have the redistricting map drawn by the GOP-dominated Texas legislature, which is also obsolete, because under Section 5 of the 1965 Voting Rights Act, states with a history of discrimination in voting must be “precleared” by either the U.S. Justice Department or a federal court in Washington, D.C., before any election-related modifications can be put into place. A federal court in Washington is set to decide whether the Texas redistricting plan will be precleared, but possibly seconds before the April primary. Enter the third set of maps, cooked up by a federal court in Texas—in part at the behest of the federal court in D.C., and several minority groups who say the new maps drawn up by the legislature in no way reflect the minority growth in the state. The Texas court thus drew up a set of “interim maps” to get Texas through this election crisis. One might think that with two federal courts working off three sets of maps, over two dueling sections of the Voting Rights Act, all on a ticking deadline, the worst possible decision would be for yet another court to step in.
One would be mistaken. And so last December the U.S. Supreme Court blocked the interim maps and agreed to hear a challenge from Texas Republicans who don’t think the Texas courts were sufficiently deferential to the Texas legislatures’ maps in drawing up the new maps. The whole heap of it was argued this afternoon at 1 p.m., and by the time the lawyers sat down at 2:20, it was clear that the justices had done little more than get us 80 minutes closer to an April deadline without much hope of solving the problem, much less solving it yesterday.
Paul Clement represents the state of Texas, and he tells the assembled justices that the map put together by the Texas court “lost sight of first principles” and that courts shouldn’t be drawing remedial maps unless substantive constitutional violations have occurred. Justice Sonia Sotomayor quickly jumps in to say that by asking the court to defer to the legislature-drawn map, which has yet to be precleared, Clement is “turning Section 5 of the Voting Rights Act on its head.”
Justice Samuel Alito asks why the Texas primary can’t be pushed back to the fall. You can practically hear his heart pounding at the adrenaline rush that comes with a problem that requires the high court to yell “Clear!” and fire up the defibrillator. Justice Elena Kagan says it’s not proper to ask the Texas courts to predict what the D.C. court will decide about preclearing the maps under Section 5. Justices Sotomayor and Stephen Breyer become so anxious about the looming time crunch they stop allowing Clement to answer their questions, forcing the chief to interrupt their interruptions. Kagan insists that Section 5 makes it “unlawful” to put maps into effect until they have been precleared, and Chief Justice John Roberts points out that the problem in this case is that if the courts assume the unapproved maps are unconstitutional, they are wrong, and if the courts assume they are constitutional, they are also wrong. “So how do we decide between two wrong choices?” he muses.
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.