The Supreme Court's Recent Decision on Texas' Redistricting Plan: How It Supports Congress' Authority to Renew the Voting Rights Act

On Thursday, July 20, the Senate renewed the expiring provisions of the Voting Rights Act (VRA) with virtually unanimous consent (98-0). After extensive debate and hearings, with significant input from practitioners, advocates and scholars, Congress restored vitality and strength to Section 5 of the Act, which had been significantly weakened in the wake of recent Supreme Court rulings. (Section 5 requires that certain jurisdictions "preclear" voting changes before they are put into effect to ensure that they are not "retrogressive" -- that is, free of discriminatory purpose or effect.)

In an earlier column for this site, Laughlin McDonald argued that the VRA's renewal should easily withstand constitutional scrutiny despite federalism concerns that have arisen following the Court's ruling in City of Boerne v. Flores. After that column appeared, the Supreme Court, on June 28, issued its ruling in League of United Latin American Citizens, et al. v. Perry, a case concerning the hotly-contested and partisan-driven redistricting plan adopted for Congressional seats in the state of Texas.

In this column, I'll argue that the LULAC ruling bolsters McDonald's argument that the Court will uphold the renewed VRA if and when it faces constitutional challenge.

The Supreme Court's Recent Ruling in LULAC v. Perry

In LULAC, the Court entertained a series of challenges to the plan that raise important questions that lie at the intersection of race and politics.

One of those challenges, brought pursuant to the Fourteenth Amendment's Equal Protection Clause, contended that the plan unfairly inflated Republican power, resulting in a partisan gerrymander that denied some voters the equal protection of the law. But the Court rejected this claim, finding that there was no "manageable" standard that could be used to determine whether a violation had occurred.

Other challenges were brought pursuant to Section 2 of the VRA, which prohibits racial discrimination in voting practices and procedures.

As the Court noted in LULAC, a state violates Section 2 "if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... are not [as] equally open to ... members of [a racial group as they are to] other members of the electorate." This kind of violation is known as "vote dilution," because it reduces or eliminates the opportunity for minority groups to participate equally in the political process by making their votes, in effect, count less than others.

The Court rejected a Section 2 challenge to District 24, which incorporates significant parts of the Dallas-Forth Worth area, finding that the ability to influence a party primary was not sufficient evidence to show control over final electoral outcomes. But the Court did find a Section 2 vote dilution violation with respect to Latinos in District 23. And, most important for the purposes of this column, both the Court's summary of the facts, and its legal analysis, in LULAC support Congress' decision to renew the VRA - for a series of reasons.

How the LULAC Ruling Bolsters Congress' Renewal of the VRA

First, the successful Section 2 ruling in LULAC was based, in large part, on the Court's recognition of the fact that "severe" racially-polarized voting persists on a statewide basis in Texas. Very similar evidence convinced Congress of the need to renew the VRA. Given that this evidence factored into Congress' evaluation of the continuing need for the expiring provisions of the VRA, the Court is likely to also find such evidence persuasive in any challenge to the renewed, current VRA.

Second, the LULAC Court noted that the decision to remove Latino voters from District 23 was one that "bears the mark of intentional discrimination" -- thus acknowledging that even now, not just in the past, racially-discriminatory purpose continues to pose a threat to minority voting rights in a state with one of the highest concentrations of minority voters.

That's significant, since any challenge to the renewed VRA would likely claim that voting discrimination is largely a thing of the past -- and therefore, that Section 5's preclearance requirements have outlived their usefulness. Here, the Court recognized that race discrimination in voting is still alive and well in Texas, which happens to be a Section 5-covered jurisdiction.

In renewing Section 5, Congress made clear that the Section was intended to bar voting changes enacted with discriminatory purpose and thus, it included language in the law that makes this clear. The LULAC Court's observation that discrimination does persist underscores the point that barring the kinds of voting changes that offend the Fourteenth and Fifteenth Amendments remains important.

Third, the Court recognized that a State's need to comply with Section 5 is, in itself, a compelling state interest. This strongly suggests that the Court would look unfavorably on any future challenge to the constitutionality of Section 5, just as it has in the past. After all, could compliance with an unconstitutional law really count as a "compelling interest" justifying a State's actions?

Fourth, the Court in LULAC recognized the interaction between race and politics, and noted that the fact that a plan might advance partisan goals would not be enough to shield it from review to determine whether it negatively impacts minority voting strength. For instance, protecting incumbents, the Court made clear, "cannot justify the [negative] effect on minority voters." That partisan struggles can also be racial ones is a point that should translate over to the Section 5 context, ensuring that jurisdictions cannot justify voting changes that put minority voters in a worse position on the ground that they are designed to merely protect incumbents.

In sum, though the LULAC ruling does not speak directly to the renewed VRA, a number of important aspects of the ruling confirm that the Voting Rights Act represents an enduring and vital component of our nation's political life. In LULAC, the Court recognized that Section 5 compliance is a compelling state interest; acknowledged continuing racial discrimination against racial minorities and found extreme levels of racially polarized voting. All these findings are strong indicators as to how the Court would analyze any constitutional challenge that might come to the renewed provisions of the VRA. These aspects of the ruling also lend strong support to Congress' authority to renew Section 5 of the VRA -- which clearly has not yet outlived its utility.