Options for States Seeking Section 5 Preclearance Texas' Choice of the D.C. Courts over the DOJ
Every ten years, after U.S. Census data is released, each state across the country must redraw electoral districts. For some states, including Texas, redistricting is an especially controversial process filled with rounds of litigation. This month, Texas Gov. Rick Perry signed into law the state's new congressional redistricting maps. On July 19, 2011, the State of Texas decided to move forward with its new redistricting plans by filing a Complaint for Declaratory Judgment with the D.C. District Court's three-judge panel.  Under Section 5 of the Voting Rights Act (VRA), states are allowed to choose between either the courts or the U.S. Department of Justice (DOJ) to review its new political maps; however, this is the first time since the VRA was passed in 1965 that Texas has chosen the courts over the DOJ.
When Section 5 of the VRA was passed in 1965, those states with voter turnout less than 50 percent of the voting age population in 1960 and/or 1964, were established as states covered by Section 5. When covered by Section 5, a state is required to seek preclearance from the DOJ or the D.C. court before any alteration of "any voting qualification or prerequisite to voting, or standard, practice, or procedure" to ensure that these changes are not "retrogressive" - meaning that a minority group has not been made worse off by the proposed change. The DOJ today pre-clears about 99% of such changes, but the fact that jurisdictions know that their changes will be reviewed is understood to be a check on potential abuses.
Among the changes requiring preclearance are the redistricting plans created by state legislatures after each ten-year census. Thus, before Texas' new redistricting plan may be implemented within the state, it must first obtain federal preclearance.
Over 99 percent of the changes that affect voting are reviewed administratively by the DOJ, rather than the courts, likely because of the relative simplicity of the process and the significant cost savings over litigation. By choosing the courts over the DOJ, Texas, represented by its Attorney General, must now argue before a three-judge panel against attorneys from the Voting Section of the Civil Rights Division of the DOJ. Appeals from decisions of the three-judge district court go directly to the United States Supreme Court.
The DOJ preclearance apparatus still will be the entity making recommendations on the plan. So why would Texas choose the much costlier route of seeking preclearance for its redistricting plans from the courts over the DOJ? For one, Texas leaders may believe that the DOJ, under the Obama Administration, may be less inclined to look favorably to Texas' new redistricting plans. The state's Republican-controlled legislature passed the new redistricting plans, and Gov. Rick Perry signed off on the new political maps shortly thereafter, with strong Democratic opposition. Texas may believe it has a better chance to obtain preclearance from the courts, rather than face a DOJ run by an appointee of a Democratic president.
Texas bears the burden of proving that changes in its redistricting maps will not make minority voters worse off than they were under the state's most recent federally approved redistricting maps. Critics of Texas' newly drawn congressional and legislative districts say they fail to account for the surge in the state's Hispanic population between 2000 and 2010, thus diminishing the voting power of minorities in violation of the VRA.  Much of the arguments are based on the fact that only one of the four new congressional districts granted to Texas appears likely to result in the election of Hispanic voters' candidate of choice.
Section 5 preclearance is far from the only challenge facing the new Texas maps. This year, at least 12 lawsuits have already been filed in response to Texas' new redistricting plans, with some of these lawsuits scheduled to begin in San Antonio in September. Several of the lawsuits echo the concerns of those who are urging denial of preclearance of the Texas plan. It seems that once again, after litigation-filled, highly controversial rounds of redistricting in 1991, 2001 and 2003, our courts will once again ultimately decide Texas' redistricting plans.