Section V is on the ropes

[krazen1211]

http://www.politico.com/story/2013/02/voting-rights-act-under-fire-at-supreme-court-88178.html

Based on their questions and statements Wednesday, Roberts, Scalia, Kennedy and Alito seemed likely to strike down the disputed part of the Voting Rights Act.





I suspect there will be some new fresh redistricting.

[True Federalist (진정한 연방 주의자)]

http://www.politico.com/story/2013/02/voting-rights-act-under-fire-at-supreme-court-88178.html

Based on their questions and statements Wednesday, Roberts, Scalia, Kennedy and Alito seemed likely to strike down the disputed part of the Voting Rights Act.

I suspect there will be some new fresh redistricting.

Doubtful there will be redistricting resulting from the case.  Section 5 only concerns preclearance. Districting would still be subject to section 2.  Also, I don't think the ultimate decision will strike down the concept of preclearance.  What Kennedy's questioning indicates is that he is troubled, and rightly so, about using antique data to determine which jurisdictions are subject to preclearance.  Hopefully, the court will give some guidance as to how recent the data used needs to be so that Congress doesn't have to play a guessing game when they revise section 4 (which specifies which jurisdictions are presumed to need to seek preclearance) to comply with what I think will be the probable ruling of the court, which is that using data from 1972 and earlier to decide which jurisdictions need be subjected to the hassle of preclearance is data that is too old to form a rational basis for determining the need for preclearance of changes undertaken now.  The court gave fair warning in Northwest Austin about its concerns over the use of old data, probably so as to give Congress a chance to amend the VRA to deal with their concerns.  Now it will do what it hinted at in that prior case since Congress failed to act.

[Smid]

My reasoning may be flawed, but I would think that any state that voted for Obama would not need to use the VRA to create African American majority-minority districts because white racists in the state are obviously outweighed by people willing to vote for a black president.

[Benj]

My reasoning may be flawed, but I would think that any state that voted for Obama would not need to use the VRA to create African American majority-minority districts because white racists in the state are obviously outweighed by people willing to vote for a black president.

Perhaps if the US used proportional representation to elect its state legislatures, but obviously not in current circumstances.

Even so, the VRA is about the preferred candidate of minority voters, not minority candidates themselves. The question is whether minority-preferred candidates can be consistently elected (and in rough proportion to minorities' population figures), not whether minorities themselves can be elected. Thus it is not a VRA violation when TN-09 consistently votes in a white representative because he's winning most of the black vote, but it is when a candidate (of any race) wins a substantially minority seat without winning some significant portion of the minority vote, and that election is more than just a fluke.[1] (Exactly what proportion is necessary to pass this threshold has been of some debate, mostly WRT Hispanic voters, who are less monolithically partisan than black voters, but that's a side issue.)

Since that's the question, you should be asking whether those states consistently elect minority-preferred candidates (and not just for President, but for other offices as well). Consistently is a key term--electing the occasional minority-preferred candidate but mostly electing candidates not receiving a significant portion of the minority vote is not enough.

Of course, none of the states in question are as a whole minority-majority, so the real issue are regions within the states.

[1]So the fact that Anh Cao could be elected while receiving very few black votes didn't mean his seat needed to be made more heavily black to comply with the VRA, as long as the seat elected the preferred black candidate most of the time, as it has.

[krazen1211]

Rick Perry is allegedly planning a special session for such redistricting.

A new formula would I suppose have to come from the US congress. In the interim S5 could be voided until such a new formula, if it comes at all.

[True Federalist (진정한 연방 주의자)]

Rick Perry is allegedly planning a special session for such redistricting.

Which the outcome of this doesn't really affect.

With Texas having to preclear, the steps that would be required to pass a redistricting plan would be:

1. Pass a plan.
2. Submit it to DoJ for preclearance.
3. If DoJ rejects the plan or sits on it, Texas files a suit.
4. Once past the DoJ hurdle, deal with the suits from various civil rights organizations, if any.

Without preclearance, what would happen is:

1. Pass a plan,
2. Deal with suits from the DoJ and/or civil rights organizations.

No matter the outcome of this case, the protections of the VRA will still be in force.  This suit is all about the process used and how much bureaucracy is kept in place. Any redistricting plan that would pass muster under one process would pass muster under the other.  What this case will actually affect are various minor election rules and regulations. that can be a burden but which no one tends to think are important enough to file suit over.  For those regulations, the removal of DoJ preclearance is potentially a problem, but I don't think it will be.   We're not in a raceless utopia by any means, but we're not stuck in the 1960s either.

[krazen1211]

Well, it makes a difference for interim plans.

The 2004 elections were held under the state passed map. Given that S2 litigation takes time, its not entirely unlikely that the 2014 elections are held under the state passed map.


In its 9-0 opinion the Supreme Court clearly dictated that any S2 litigation requires the court to adhere to the state passed map, rather than go rogue and completely draw a fresh map like C220.

When Texas Republicans pass a fresh map that resembles C185 they will probably capture the 33rd district and a handful of legislative seats. Alternatively, a deal might be cut to provide a Hispanic dominated CD-33 and cut Veasey out of the seat. Garcia has already said he wants the district before Veasey took it without the support of the Hispanic population.

[True Federalist (진정한 연방 주의자)]

Is the existing map legislative-drawn or court-drawn?  If they are replacing an existing legislative-drawn map, I think it is quite possible an injunction to use the old map could be issued as part of any case that might be brought against a new map if it has a chance of succeeding.  Also, if Texas times the passage of their map to intentionally hold an election before an S2 case can be resolved, then I could easily see that being used as a justification to change the law so that S2 cases could provide the same level of procedural delay as S5 preclearance does now.

Preclearance is a burden I would like to see gone, but if it struck on either a temporary or permanent basis, then yahoos trying to game the system could well see it being brought back, with their shenanigans being the evidence used to prove there is a rational basis that it is still needed.  Preclearance was included in the VRA precisely because previous civil rights legislation had been playing whack-a-mole.  One abuse would be dealt with and another would be inserted in its place.

[jimrtex]

Is the existing map legislative-drawn or court-drawn?  If they are replacing an existing legislative-drawn map, I think it is quite possible an injunction to use the old map could be issued as part of any case that might be brought against a new map if it has a chance of succeeding.  Also, if Texas times the passage of their map to intentionally hold an election before an S2 case can be resolved, then I could easily see that being used as a justification to change the law so that S2 cases could provide the same level of procedural delay as S5 preclearance does now.

Preclearance is a burden I would like to see gone, but if it struck on either a temporary or permanent basis, then yahoos trying to game the system could well see it being brought back, with their shenanigans being the evidence used to prove there is a rational basis that it is still needed.  Preclearance was included in the VRA precisely because previous civil rights legislation had been playing whack-a-mole.  One abuse would be dealt with and another would be inserted in its place.

Krazen was talking about the maps drawn by the legislature in 2003.

In 2000, Texas was sued as soon it was announced that Texas would gain two congressional seats (there are 4 federal districts in Texas, and the Democrats were forum shopping).  The federal court ruled that the case was not yet ripe.  The legislature failed to draw congressional maps in 2001, and so a state district court took over (the federal court and state court held join hearings).  The state district court, despite being in Travis County, drew a reasonable map.  Then the judge said he was going to make a few tweaks at the behest of House Speaker Pete Laney.  He did a major redo, and the Texas Supreme Court overturned him as violating due process.

The federal district court then stepped in, and said that it didn't look like Texas would draw a map, and drew an interim map.  If the state court had drawn the map, it would have had to be precleared.   But a federal court does not - though supposedly they are to take cognizance of the VRA.

In 2003, the legislature drew a congressional map.  This was the first map drawn by Texas during the decade.  It was pre-cleared by the USDOJ, and approved by the federal district court, which retained jurisdiction.  They actually did so twice.  The first time, the Supreme Court was considering an appeal was in 2004.  After sitting on the case for months, they sent it back to the district court, and told them to consider its decision in Jubelirer.  So the 2004 election was held using the map drawn by the legislature, pre-cleared by the USDOJ, and approved by the federal district court.

Eventually, the Supreme Court ruled that a district that stretched from McAllen to Austin was not a VRA district - though districts drawn from McAllen to almost Austin are.  So the federal court redrew the South Texas districts, but left the rest of the legislative map in place.
In 2011, the legislature drew a map.  They were sued in a different federal district court over section 2, and won out on venue over the Republicans who wanted a different district.  Texas also had to get preclearance, and rather going to a partisan USDOJ, they sued in the DC District Court.  The San Antonio court (Texas Western District) heard the case, but because the DC District had not heard the preclearance suit, could not issue their opinion (A state may not put a new election procedure into place without preclearance, so the other court has nothing to enjoin).

The district court then drew interim maps for congress and both houses of the legislature.  They went whole hog drawing new districts - unlike in 2001, where the court had deferred to the 1990s Democrat gerrymander.

In effect, the district court was drawing what they regarded a remedial map without ever having ruled on the case.  After interim maps were issued, the DC court delayed its hearings, say that since these new maps were in place there was no reason to bother with expeditiously hearing the case.

The Supreme Court stepped in and squashed the district court maps.  While the San Antonio district court was decided what to do next, someone suggested that they call the DC court to see if they could get any idea when the DC court would issue its ruling.   They called a recess, and trooped out of the courtroom, and apparently called Washington.  After they came back, they again left the room, after the DC court called back.

They then decided to issue an interim map, which was consistent with the legislature drawn map, and guessed what the DC court might rule with regard to Section 5.   But they have never issued their opinion.

If they had, then that could have been appealed.  In addition, they would have taken briefs on a remedial plan.  In a Section 5 case, there is no remedial plan.  All the USDOJ or the DC Appeals Court can do is say Yes or No, and hint at what they might preclear.  Texas would be free to draw a plan that would win preclearance.

The DC court did not issue their preclearance ruling until August 2012, too late to do anything before the 2012 election.  That decision is on appeal to the US Supreme Court, which has apparently decided not to take the case until they decide on Shelby County.

The federal court in San Antonio has never issued its opinion.  It can't (or won't) until the appeal of the preclearance case is finished.

This is a poster child for why preclearance is unworkable.  Without it, the SA Court would have issued its ruling, and it would be well into the appeals process.

[BigSkyBob]

My reasoning may be flawed, but I would think that any state that voted for Obama would not need to use the VRA to create African American majority-minority districts because white racists in the state are obviously outweighed by people willing to vote for a black president.

Perhaps if the US used proportional representation to elect its state legislatures, but obviously not in current circumstances.

Even so, the VRA is about the preferred candidate of minority voters, not minority candidates themselves.

No, that is 100% opposite of the underlying facts in the case.  The government chose to sanction states where it was perceived that either White voters in Democratic primaries voted in mass to defeat Black candidates, or Blacks were denied an equal opportunity to register and vote as Whites. White candidates were nominated all the time with either the support of a majority of both races, or due solely to leading among Black voters. It was suggested that Blacks being represented by their preferred White candidate was a hollow right, and, therefore, the law ought to grant Black candidates a realistic chance to win in at least some districts.

[○∙◄☻¥tπ[╪AV┼cVê└]

This court is pretty awful. It seems likely they will fully gut the campaign finance laws this year. And they just upheld FISA by a partisan 5-4 vote.

[krazen1211]

Is the existing map legislative-drawn or court-drawn?  If they are replacing an existing legislative-drawn map, I think it is quite possible an injunction to use the old map could be issued as part of any case that might be brought against a new map if it has a chance of succeeding.  Also, if Texas times the passage of their map to intentionally hold an election before an S2 case can be resolved, then I could easily see that being used as a justification to change the law so that S2 cases could provide the same level of procedural delay as S5 preclearance does now.

Preclearance is a burden I would like to see gone, but if it struck on either a temporary or permanent basis, then yahoos trying to game the system could well see it being brought back, with their shenanigans being the evidence used to prove there is a rational basis that it is still needed.  Preclearance was included in the VRA precisely because previous civil rights legislation had been playing whack-a-mole.  One abuse would be dealt with and another would be inserted in its place.

The existing map is based off the state's plan, C-185, with the following provisions.



This Court has observed before that "faced with the necessity of drawing district lines by judicial order, a court, as a  general rule, should be guided by the legislative policies underlying" a state plan-even one that was itself unenforceable-"to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act."

Where a State's  plan faces challenges under the Constitution or §2 of the Voting Rights Act, a district court should still be guided by that plan, except to the extent those legal challenges are shown to have a likelihood of success on the merits.

The court’s order suggests that it may have intentionally drawn District 33 as a “minority coalition opportunity district” in which the court expected two different minority
groups to band together to form an electoral majority. If the District Court did set out to create a minority coalition district, rather than drawing a district that simply reflected population growth, it had no basis for doing so.




The additional criteria is of course the S5 guesswork. Given the following criteria, the Congressional maps ended up pretty similar except that CD-33 was created and the surrounding districts altered.

[krazen1211]

This is a poster child for why preclearance is unworkable.  Without it, the SA Court would have issued its ruling, and it would be well into the appeals process.

Scott Walker signed redistricting in August 2011. Certain organizations complained that the Hispanic population had been fractured into 2 assembly districts rather than packed into a single district.

In March 2012, the court agreed, redrew the 2 districts at hand, and the process was over.


Rick Perry on the other hand signed redistricting in May 2011 (3 months before Walker did in terms of the 2 year election cycle). It's hardly as if they waited until weeks before the election to spring a last second map.

[Skill and Chance]

My reasoning may be flawed, but I would think that any state that voted for Obama would not need to use the VRA to create African American majority-minority districts because white racists in the state are obviously outweighed by people willing to vote for a black president.

Perhaps if the US used proportional representation to elect its state legislatures, but obviously not in current circumstances.

Even so, the VRA is about the preferred candidate of minority voters, not minority candidates themselves.

No, that is 100% opposite of the underlying facts in the case.  The government chose to sanction states where it was perceived that either White voters in Democratic primaries voted in mass to defeat Black candidates, or Blacks were denied an equal opportunity to register and vote as Whites. White candidates were nominated all the time with either the support of a majority of both races, or due solely to leading among Black voters. It was suggested that Blacks being represented by their preferred White candidate was a hollow right, and, therefore, the law ought to grant Black candidates a realistic chance to win in at least some districts.

In the country I'm living in, a black candidate just won nationwide, twice in a row.  There are plenty of white 2X Obama voters out there too.  Exit polls also show that a small number of black people preferred Romney and McCain over Obama.  Your point?

[Obamanation]

Horrible justices are horrible.

[Antonio the Sixth]

If the Supreme Court dares to strike it down, this will be the Dred Scott of 21st Century.

[Benj]

My reasoning may be flawed, but I would think that any state that voted for Obama would not need to use the VRA to create African American majority-minority districts because white racists in the state are obviously outweighed by people willing to vote for a black president.

Perhaps if the US used proportional representation to elect its state legislatures, but obviously not in current circumstances.

Even so, the VRA is about the preferred candidate of minority voters, not minority candidates themselves.

No, that is 100% opposite of the underlying facts in the case.  The government chose to sanction states where it was perceived that either White voters in Democratic primaries voted in mass to defeat Black candidates, or Blacks were denied an equal opportunity to register and vote as Whites. White candidates were nominated all the time with either the support of a majority of both races, or due solely to leading among Black voters. It was suggested that Blacks being represented by their preferred White candidate was a hollow right, and, therefore, the law ought to grant Black candidates a realistic chance to win in at least some districts.

Err... No, and this definitely is not the existing jurisprudence interpreting the VRA. Read Gingles.

[Gamecock]

Congress heard the warning shot in 2009, this shouldn't have been unexpected.

[True Federalist (진정한 연방 주의자)]

If the Supreme Court dares to strike it down, this will be the Dred Scott of 21st Century.

Excessive hyperbole?

I seriously doubt the Court will strike down preclearance altogether.  What they will do is like they did with the death penalty in Furman v. Georgia rule that Section 5's implementation is flawed, most particularly in its use of forty-year-old data to determine which jurisdictions are subject to preclearance.  The Court warned Congress about their concerns in Northwest Austin, but Congress ignored them. Once Congress passes a revision to the VRA to use more recent data, I expect Section 5 to be back in business after a brief blip.

[memphis]

All the soothsaying based upon the questions asked is silly. Remember the healthcare case and everybody was oh so sure the mandate would be struck down based upon the questions asked? Just wait until the decision is announced. It won't be that long.

[traininthedistance]

Once Congress passes a revision to the VRA to use more recent data, I expect Section 5 to be back in business after a brief blip.

That's funny, expecting this Congress to pass something having to do with voting rights.

[Antonio the Sixth]

If the Supreme Court dares to strike it down, this will be the Dred Scott of 21st Century.

Excessive hyperbole?

Not really. Of course Dred Scott is much worse on an absolute level, but with regard to the context of the time, the parallel is prefect.

[True Federalist (진정한 연방 주의자)]

Once Congress passes a revision to the VRA to use more recent data, I expect Section 5 to be back in business after a brief blip.

That's funny, expecting this Congress to pass something having to do with voting rights.

The VRA is a reasonably popular law and the GOP will not let the Democrats use it as a cudgel to paint them as racist by blocking a fix if the court indicates one can be done.  If the court rules as I expect, that requiring preclearance is fine, but basing the requirement on four decade old data is not, then I expect them to quickly revise section 4 so that instead of using data from 1964, 1968, and 1972, it uses data from 2004, 2008, and 2012.  It's not in the GOP's political interest to block a fix.

[Indy Texas]

My reasoning may be flawed, but I would think that any state that voted for Obama would not need to use the VRA to create African American majority-minority districts because white racists in the state are obviously outweighed by people willing to vote for a black president.

Well Obama didn't win any of the states that are fully required to obtain preclearance for redistricting except Virginia (Florida only requires preclearance for part of the state). And considering their reactionary state legislature just attempted to gerrymander its electoral vote apportionment, I'm not sure we can trust them to their own devices.

One thing I've never understood is why Arizona is required to pre-clear. There are barely any black people there to disenfranchise, and there certainly weren't any when the law was passed. Was there some sort of discrimination against Hispanics going on there?

[Mr.Phips]

Rick Perry is allegedly planning a special session for such redistricting.

A new formula would I suppose have to come from the US congress. In the interim S5 could be voided until such a new formula, if it comes at all.

You just watch the uproar that would come from the Hispanic community if the legislature and governor try to take away their representation(and do it mid-decade at that).  That is what this is, pure and simple.