Texas Wins One for Judicial Restraint?
by Justin Shubow
Posted January 26, 2012, 7:15 PM
Writing for The American Spectator, Jack Park, an attorney at Strickland Brockington Lewis, comments on the Supreme Court's decision in Perry v. Perez:
On January 20, the Supreme Court unanimously reversed the decision of a three-judge federal court in Texas in a case that shows the Voting Rights Act at its most unworkable. The Court's ruling highlights the importance of a state's legislative policy judgments in redistricting work and, in so doing, reinforces the importance of judicial restraint.
In Perry v. Perez, the Court had to decide which of two three-judge federal district courts get to do what with statewide redistricting plans the Texas Legislature adopted. Right now, one court in Washington, D.C. is in the middle of a trial to determine whether those legislatively enacted Texas plans can be put in effect, while the other court in Texas largely ignored them because the court in Washington, D.C. wasn't done with its work.
The Supreme Court told the Texas court to give greater respect to the legislature's work. As the Court explained, that's as it should be, given that redistricting involves the making of "policy judgments" that courts are "at best, ill suited" to make.
The circus began because Texas is subject to Section 5 of the Voting Rights Act. As a result, it needs permission, called preclearance, from either the Washington D.C. court or U.S. Department of Justice(USDOJ), before it can use its new congressional, state house, and state senate redistricting plans. Section 5 was enacted in 1965 as emergency legislation, but Congress keeps extending and tightening it up even though the targeted Southern states have demonstrated continued improvement in the rate of minority participation in registration and voting and in the number of minority elected officials. In 2006, though, Congress said that Section 5 is not just directed at backsliding but can be used to sniff out "any discriminatory purpose" on the part of a covered jurisdiction.
When Texas sought preclearance from the court in Washington, D.C., USDOJ balked, and it was joined by Democratic-leaning individuals and groups. USDOJ was OK with the state senate plan, but the interveners weren't. Moreover, USDOJ and the interveners had specific objections to different districts, and both suggested that the plans were the product of discriminatory motives. Now, Texas has to go through a trial to prove that its plans don't have the purpose or effect of "denying or abridging the right to vote on account of race or color."