Texas Metastatic

If the U.S. Supreme Court agrees that the Texas primary election schedule doesn’t allow time for the Justice Department or a federal district court to preclear the state’s reapportionment plan, a roadmap around the Voting Rights Act will be written into case law. Other states will follow suit.

The Texas redistricting fight argued on the first day of the Supreme Court’s 2012 session actually began in 2003, when then–House Majority Leader Tom DeLay decided to reredistrict the state’s U.S. House seats. “I’m the majority leader and I want more seats,” DeLay said.

Texas provided the five new U.S. House seats Republicans picked up the following year. The DeLay maps weren’t finalized until 2006, when the Supreme Court upheld the redrawing of several U.S. House districts that DeLay had gerrymandered in 2003. The most egregious was a 350-mile-long “fajita strip” that extended from Austin to the Mexican border in a calculated attempt to unseat Democratic liberal Lloyd Doggett.

The Supreme Court’s 2006 Texas ruling quoted the district court judge who tried the case: “Texas has a long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process.”

That history earned Texas a place among the states “covered” by the Voting Rights Act, which in part explains how Texas ended up in two U.S. District Courts and the United States Supreme Court — all at the same time.

The state filed in D.C. Federal District Court for approval, or “Section 5 preclearance,” of its maps, as required of “covered” states. Texas could have gone to the Department of Justice for preclearance, but what the Legislature had done to minority voters would never pass the smell test at the Obama DOJ.

Democratic members of Congress, state legislators, and individual plaintiffs filed suit in San Antonio, claiming that the Legislature gerrymandered districts to dilute the Hispanic and African-American vote. A three-judge panel agreed (with one judge dissenting) and drew a new set of maps. Texas appealed to the Supreme Court.

At the Supreme Court, Texas sought permission to use the maps the Legislature drew in 2011 — although the D.C. and San Antonio district courts had ruled that a number of the districts fail to meet the standards of the Voting Rights Act.

The parties who sued in San Antonio want to use the maps drawn by the federal judges, who awarded three of the states’ four new congressional districts to the minority plaintiffs.

The Supreme Court could have refused to take up the Texas appeal and avoided ruling on the case. Here is where the Texas redistricting fight gets bigger than Texas.

The Voting Rights Act was signed into law by Lyndon Johnson to remove the obstacles Southern states placed between African-Americans and the voting booth. When Congress extended the act by 25 years in 2006, the vote was 98–0 in the Senate and 390–32 in the House. Yet nothing quickens the pulse of a conservative quite so much as the prospect of doing away with the Voting Rights Act. And there are signs that the Roberts Court might deliver. Consider.

• Chief Justice Roberts wrote in a 2009 opinion involving a Texas water district: “The historic accomplishments of the Voting Rights are undeniable, but the Act now raises serious constitutional concerns.”

• Texas Attorney General Greg Abbott included a challenge to the Voting Rights Act in a brief he submitted to the Court.

• During oral arguments in the current Texas case, Justice Antonin Scalia said that the Legislature’s un-precleared maps should be used in the 2012 elections. The preclearance requirement, Scalia said, “is no longer an absolute rule.”

• Paul Clement, the former George W. Bush solicitor general representing the state of Texas, told the justices that the minority groups challenging the 2011 maps are pushing the argument “closer to the constitutional edge” defined by the Court in 2009.

It is assumed that four justices—Roberts, Scalia, Clarence Thomas, and Samuel Alito — are preparing to push the Voting Rights Act across that constitutional edge. Thomas, the only African-American on the court, has argued that there is “a lack of current evidence of intentional discrimination with respect to voting.”

“The constitutionality of the Voting Rights Act is not an issue here,” said Roberts on January 9. But Texas might be a prelude. Two direct challenges to the Voting Rights Act—from Kinston in North Carolina and from Shelby County in Alabama — are on the fast track to appeal in the D.C. Circuit. Kinston’s attorneys argue that the act discriminates against white Americans.

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