The Texas legislature seemed to be moving on from the fight over its 2011 redistricting maps. The Supreme Court mooted the case against its maps in Shelby v. Holder by invalidating section 4 of the Voting Rights Act this past summer. The San Antonio court litigation considering additional claims against the maps from several plaintiffs, has stalled in the wake of the Shelby decision, but not before arranging the creation of new, temporary redistricting maps used for the 2012 election.
The temporary maps became permanent after the Texas legislature and governor enacted the court-sanctioned maps. Texas officials would have liked this to be the end of the redistricting controversy in their state, but with no luck. The Department of Justice and a slew of plaintiffs in the San Antonio litigation filed requests with the court to consider bailing-in the state on the basis of those of 2011 maps. Naturally, Texas in its reply brief argued no harm, no foul since the maps in question are not in use. Moreover, a three-judge federal district court panel signed off on the 2013 maps.
The truth is more nuanced however. The court issued an order on Tuesday accepting the Dept. of Justice as an intervener in the case, and has refused to dismiss the possibility of subjecting Texas to court-initiated preclearance under the bail-in procedures of section 3(c) of the Act. Most notable in the order is the court’s decisive dismissal of Texas’ claim that there is no longer any controversy to provide bail-in relief since the maps under litigation are no longer Texas’ official redistricting maps. The court however, read section 3(c)’s bail-in language to apply to past discriminatory actions; an assessment of which would determine whether or not bail-in was warranted.
“The mere cessation of unlawful activity concerning voting rights does not render a case moot.”
The San Antonio court found Texas’ “unlawful activity” regarding the 2011 maps to be especially discriminatory, noting the D.C. court’s assertion that there was more discriminatory intent than the court has “space or need to address.”
The San Antonio court is therefore poised to make a pivotal decision as to whether Texas should be bailed-in under section 3 of the Voting Rights Act. The Department of Justice has requested the court preclear all of the state’s voting changes for the next ten years in light of its unbridled history of discriminatory voting laws and practices. The details of these allegedly discriminatory practices would be touched upon in oral argument, which most insiders predict will happen later this year although a scheduling order has not been released yet.
A decision by the court on bail-in is very likely to go to the Supreme Court on direct appeal, setting the stage for more voting rights jurisprudence as early as next term.
