With only a few sentences into his argument, the State’s lawyer was interrupted by Justice Sotomayor (one Wise Latina) with a pointed question “does that not turn Section 5 of the Voting Rights Act (Act) on its head?” And, from there it was about an hour and half of lively and engaging oral arguments before the Supreme Court of the United States.
It was a “bucket list” item for me as a lawyer and former Judge but for all of us in Texas, it was a monumental hearing which will set the political stage for the next decade in Texas and could well have repercussions for decades to come.
I won’t dwell on how we got here except to remind us that there are many things at play. There is the Justice Department who enforces the Act and there was a lawyer there making arguments in behalf of the government. Then there is the San Antonio federal court that ordered the interim maps which are subject of this appeal by the State of Texas. The “State’s” lawyer was there and by State’s lawyer I don’t mean our Attorney General. He was there too, but not to argue though he did sit at the counsel’s table. Our State’s lawyer was a hired gun. Then there is the D.C. District Court who has jurisdiction of the redistricting case itself and has in fact scheduled a trial to begin in a couple of weeks. Now, if that is not confusing, let me make a few points about the Voting Rights Act (Act) itself.
The Act was designed to provide the opportunity for minorities to elect a candidate of their choice and to ensure the constitutional principle of “one person/one vote”. Early on it was about African American voting rights and recently, it’s about the growing Latino population. In Texas, it is about both. There are two sections of the Act which come into play: Section 2 which protects minority voters from changes that would deprive them of an effective vote for a candidate of their choice. That means no dilution of minority voting. Section 5 which prohibits changes that worsen the position of minority voters with a discriminatory purpose. That means that there can be no changes with a discriminatory purpose. I won’t pretend to try to unravel it all. I simply want to give a backdrop to what is at stake and provide a few personal impressions.
First, I was impressed that all the Justices except Justice Thomas who traditionally never asks questions, asked many questions. I didn’t expect it to be so lively, so engaging and almost to the point where Chief Justice Roberts couldn’t get a question in and at times had to sort through who was asking what as some Justices were gently interrupted. It was like watching big leagues point counterpoint.
Secondly, I was impressed that the Justices quoted transcript page numbers, talked specifically about maps, and genuinely appeared to know the case. Justice Sotomayor described the El Paso District as “antler-type district, a head and two unconnected antlers on top, nothing tying them together“. Justice Breyer quoted from transcripts to make several points. Justice Kagen quoted from the record below. I was impressed. If interested, the full transcript of the hearing is on line on the Supreme Court web page at www.supremecourt.gov. My impressions however are taken from my notes during the arguments. A side note, we had to check in all our electronics which meant no photos, no text, no tweets and no recordings. Nada.
Third, and what you probably are most interested in. What may or may not happen? I was relieved when Chief Justice Roberts noted “the Voting Rights Act is not at issue here”. Frankly, many of us feared the Court would use this case to hold the Act itself unconstitutional, another “Gore-ing”. Hearing the Chief Justice say that was good news. However, the same cannot be said with regard to Section 5 of the Act. Many of the Justices, clearly more than five and that’s all they need, had questions that would lead one to infer that they are prepared to end it, change it or set new legal standards for its application. Not good news.
Also, the Chief Justice was overly concerned about “coalition districts” and questioned whether the Act should even apply to them as the Act’s intent was to protect minority rights. As he put it, “It's one thing under the Voting Rights Act to say that this group votes as a bloc and has been discriminated against in its ability to elect representatives of its choice. It's another thing to say that two different minority groups are put together because they share some particular view so that one candidate is going to be each of theirs candidates of choice. That goes quite a step further from what we have upheld under the Voting Rights Act”. Clearly, coalition districts will get a hard look and may not receive any deference and may be eliminated when new maps are drawn. That could also be bad news.
Questions also seemed to suggest that the Justices are not overly concerned by Texas’ primary timeline. Justice Sotomayor pointedly asked, “… what's the real drop-dead date? It's not November 6th, because that's the date of the general election. What's the latest election -- primary election that any State has? June 26th? What is our drop dead deadline?’ With that and rather quickly other Justices pointed out Utah’s late primary, other states’ primaries and it was obvious that their only concern was the big deadline- November 6. 2012. Garza (challenging maps) pointed out that “The -- the critical date is 45 days from the election in order to ensure -- sending out a ballot to overseas voters, including the military. So if -- if you go back 45 days and then you give the jurisdiction sufficient time to develop a ballot, because you need a ballot to send to the -- to the soldiers, then that's about -- what they -- what the testimony was is that takes about -- 90 days, I believe is what they testified. So 45 days plus 90 days, and that's the drop-dead deadline. That would put us at about June 26.
It definitely appeared to me that the Court was more focused on what the D.C. Court will do in a few weeks than worrying about the primary time line in Texas.
Of note is that Garza (challenging maps) pointed out that “there are section 5 claims with regard to Harris County”. If the Court listened or if the San Antonio gets a remand for further review, Harris County lines may be looked at again. That could be good news.
The options then appeared to be (1) remand and ask the San Antonio Court to give deference to the Legislatively approved map and put burden on State to show it is not discriminating or (2) delay till the D.C. Court has its trial due to begin in a few weeks or worse (3) do nothing.
That is not good news. It could cause even more delays to the Primary schedule or ultimately could cause us to have two primaries- one as set in April for all but offices directly impacted by the maps-congress, Legislature and then a second probably in June for those races. Then everything gets on ballot on November 6. While the Court was reminded by all sides that the San Antonio Court’s order on the primary schedule was based on agreement by all parties, the Justices did not seem fazed by it. Justice Ginsburg said more than once it was a “complicated case” before the D.C. Court and no one can assume what they would or would not do. And, she cautioned that they may not act as swiftly as the lawyers think to keep the April primary schedule.
We will all now wait and see.
Finally, we should celebrate the whole notion of our three branches of government. The check and balance system was hard at play yesterday in that court room. As I sat with one branch of the government- members of Congress- I thought of how happy I was to be a lawyer, to be an American and to be able to say that no matter what happens “we had our opportunity to be heard”. But, as is always in politics “it is not over till it’s over" and we shall see. As a side note, I still don’t understand why the Court does not allow everyone to see what I saw on TV. Surely, CSPAN would not have interfered.
For those interested, I was not the only Texan there and while I’m sure I missed seeing someone- I was sitting in the front row with Members of Congress thanks to a reserved seat secured for me as NALEO President by Senator Leahy (D-Vermont). Others I spotted were Congresswomen Eddie Bernice Johnson and Sheila Jackson-Lee; Congressmen Al & Gene Green, John Culberson, Lamar Smith, Lloyd Doggett, Ruben Hinojosa. State Senators Wendy Davis, Rodney Ellis and Tommie Williams. State Representatives Jessica Farrar, Trey Fisher Martinez, Marc Veasey and Gary Elkins. Also, a number of lawyers from all the cases and their plaintiffs including Chad Dunn, lawyer on our Harris County redistricting case and lots of LULAC folks who also braved the cold and snow at a rally in front of the Supreme Court building.