On Monday, the Supreme Court will hear argument in the consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis, in which the voting rights of the African-American and Latino citizens of Texas are at stake.
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 the Voting Rights Act of 1965, Texas is one of a number of jurisdictions 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 the act 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 path through the Attorney General is generally more expeditious.
While Texas’ preclearance application was pending before the federal court in DC, voters and advocacy groups filed a series of suits in federal court, alleging that the changes violate the Fourteenth Amendment, as well as a section of the Voting Rights Act which prohibits any state from adopting electoral procedures that undermine minority voting rights. The federal court 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 another court. However, the 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 Texas court designed interim maps to be used until the preclearance issue is resolved.
The question before the Supreme Court is whether the federal court erred by creating such interim maps, and whether the court was required to adopt the legislature’s maps as the interim maps, despite the fact that they have not yet received the required preclearance. Additionally, in its reply brief, Texas has raised questions about the constitutionality of a section of the Voting Rights Act for the first time in this litigation.
If the Supreme Court sides with Texas, the voting rights of minority citizens will be significantly impaired. At best, if the Court approves the use of the legislatively-drawn maps while preclearance is pending, the Court will be allowing Texas to dilute minority voting rights during the 2012 elections. Even more devastating to minority rights, the Court could render a final decision that the legislatively-drawn maps are legitimate and do not violate the Voting Rights Act or the Constitution.
However, it is conceivable that the Court could go even further, and invalidate Section 5 of the Voting Rights Act altogether, even though that possibility was never suggested in this litigation until Texas submitted its reply brief. These harms are a matter of degree, but in any of the above scenarios, the voting rights of African-American and Latino citizens will suffer greatly if the Court sides with Texas.