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Perry v. Perez

(Consolidated with Perry v. Perez and Perry v. Davis)

What’s at stake?
The voting rights of the African-American and Latino citizens of Texas.

Issues:
Whether a federal district court can impose an interim electoral map of its own design for an impending election, when the state has not yet obtained preclearance for its redistricting plan, as required under Section 5 of the 1965 Voting Rights Act.

Decision date:
January 20, 2012

Outcome:
Per Curiam in favor of Texas.

What the court held:
The state of Texas has experienced tremendous population growth and demographic change in recent years. The 2010 Census revealed that the state population had grown by more than one fifth – or 4.2 million – over the previous decade. A majority of that growth came from the Latino population, which increased by 2.8 million. As a result, the state electoral maps required a major overhaul, both to bring the state legislative districts in line with the U.S. Constitution’s one-person, one-vote provision, and to apportion fairly the electoral districts for the U.S. House of Representatives, in which Texas gained 4 seats as a result of the population increase.

Under Section 5 of the Voting Rights Act of 1965, Texas is one of a number of jurisdictions, primarily in the South, that are required to seek “preclearance” for any changes to their electoral system because of their history of voting discrimination on the basis of race. Under Section 5, a jurisdiction may seek preclearance from the Attorney General, or from a three-judge panel of the District Court for the District of DC. In this case, Texas chose to submit its newly drawn electoral maps to the DC District Court for approval, even though the administrative process is generally more expeditious. It is likely that Texas, under Republican Governor Rick Perry, took the slower route to avoid an adverse ruling from the executive branch under Democratic President Barack Obama.

While Texas’ preclearance application was pending before the federal court in DC, voters and advocacy groups filed a series of suits in federal court in San Antonio, alleging that the changes violate Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral procedures that undermine minority voting rights, as well as the Fourteenth Amendment. The federal court in San Antonio found that it was not free to determine the legality of the legislature’s maps, as that issue was pending in the preclearance action before the court in DC. However, the San Antonio court also found that the legislatively-drawn maps could not go into effect without being precleared by the DC District Court. Accordingly, in view of the impending 2012 election season, the San Antonio court designed interim maps to be used until the preclearance issue is resolved.

The Supreme Court rejected the maps drawn by the San Antonio court for failing to defer adequately to the legislature’s choices. In its decision, the Supreme Court reiterated that a new electoral map cannot be used until it has been precleared, while also noting that the old electoral map in this case could not be used because it violated the one-person, one-vote constitutional mandate. As a result, the Supreme Court concluded that the district court in San Antonio was correct to create an interim electoral map for the 2012 election. However, the Supreme Court found that the San Antonio court should have given greater deference to the legislature’s preferences rather than “substitut[ing] its own concept of ‘the collective public good’ for the Texas Legislature’s determination of which policies serve ‘the interests of the citizens of Texas.’” In essence, the district court should not have modified the legislature’s maps except where there are alleged legal problems with those maps that have a likelihood of success on the merits.

With regard to Section 5, the Supreme Court instructed the district court not to prejudge the preclearance proceedings on the merits, instead “taking guidance from a State’s policy judgment unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain § 5 preclearance.” It remains to be seen how district courts will apply this opaque formulation. In the meantime, it seems likely that the maps the San Antonio court must design on remand for use in 2012 will bear much greater resemblance to the legislature’s maps, vote dilution and all.

Those concerned with voting rights should take note that Justice Thomas penned a concurrence in which he reiterated his belief – previously noted in his dissent in Northwest Austin Municipal Util. Dist. No. One v. Holder (2009) – that Section 5 of the Voting Rights Act is unconstitutional.

By rejecting the court-drawn maps and ordering greater deference to the legislature’s maps, the Court’s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.