Friday, January 06, 2012

Texas redistricting case hinges on legal precedent

The case is as cut and dried as the beef jerky at Buccee's.

The U.S. Supreme Court would have to close its eyes to precedent if it agrees with the state of Texas regarding disputed redistricting maps, a voting rights expert said Thursday.

The court will hear arguments Monday on efforts by the state of Texas to stop interim maps drawn by a federal court in San Antonio. The state wants to use maps drawn by the Republican controlled Legislature, which minority and civil rights groups contend discriminate against minorities.

The legislative-drawn maps have not been cleared by the Department of Justice or, alternatively, by a federal court in the District of Columbia. Because the state’s map has not been pre-cleared, it can’t be used for the 2012 election, said Pamela S. Karlan, co-director of the Supreme Court Litigation Clinic at the Stanford Law School. She also made the short list of candidates to replace Supreme Court Justice David Souter when he retired.


“This case, as a sheer matter of law, is such a straightforward case under the Supreme Court’s existing precedent,” Karlan said in a conference call with reporters. “It’s pretty clear what they have to do here.”

We already know that this Court has a fondness for disregarding precedent, between Bush v. Gore and Citizens United.

The state’s map also has a serious flaw in the congressional district (No. 23) stretching from south San Antonio into far west Texas. The court struck down the drawing of that district in a 2006 ruling when (Supreme Court Justice Anthony) Kennedy said it denied Latinos an opportunity to elect a candidate of their choice.

An expert witness for the state conceded during a trial last fall that the 23rd Congressional district was not a minority-opportunity district, which the law required.

“This time around the state has gone back and done it again – in exactly the same district,” Karlan said, suggesting the replay could have a powerful effect on the court.

“The Supreme Court, for all the other things it doesn’t like, one of the things they really don’t like is when states disregard the Supreme Court’s own decision,” she said. “And the Supreme Court’s decision was Texas had denied Latinos on the border an opportunity to elect candidates of their choice, and now we see Texas doing it again.”

Let's back up in the article and pull out the specific legal precedent the SCOTUS -- more specifically Justice Kennedy -- would have to overturn:

In a 1991 redistricting case (Clark v. Roemer) Kennedy, writing for a unanimous court*, said: “Section 5 requires States to obtain either judicial or administrative preclearance before implementing a voting change… Failure to obtain either judicial or administrative preclearance 'renders the change unenforceable.'”

Simply stated, the State of Texas, Attorney General Greg Abbott, and his hired gun Paul Clement do not have a case ... unless Anthony Kennedy has changed his mind 180 degrees from Clark v. Roemer twenty years ago. *Note in that link that even Justice Antonin Scalia voted in favor. For many reasons, this one among them, it wouldn't be hard to imagine that either man would reverse himself.

And on the chance that Kennedy has changed his mind, that would represent the epitome of a flip-flopping judicial activist. And the only good thing about that outcome is that we won't have to endure Republicans' cries of agony if Kennedy decides to put on the robe emblazoned "I busted up the Voting Rights Act".

Their confidence in this outcome may have been tipped by Abbott's taking a few days off last week from preparing for the case and rolling up to Iowa to campaign for Governor Oops.

The trial begins Monday and will conclude before the end of the month, with a swift decision expected, possibly by January 31st.

Update: Via Michael Li, from Facebook...

The State of Texas keeps hinting in various courts that there are constitutionality problems with section 5 of the Voting Rights Act (the so-called preclearance provisions). However, in Gov. Perry's Virginia ballot access suit, he argues that Virginia's ballot access rules are not legal because (wait for it) they have not been pre-cleared under the Voting Rights Act.

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