//  2/14/19  //  Commentary

Last August, the three-judge district court overseeing the Texas redistricting litigation issued a briefing order on whether the State of Texas should be “bailed-in” under Section 3(c) of the Voting Rights Act for its unconstitutional conduct during the 2011 redistricting cycle. Earlier this week, that briefing was finally completed. In a previous series of posts, I argued in favor of bailing-in Texas. Building off those posts, here’s the major takeaways from the briefs.

1. Targeted and Temporally Limited Bail-in Requests

At the outset, there are two sets of plaintiffs’ briefs. All plaintiffs limit their bail-in request to redistricting plans, following the approach of previous targeted bail-ins like New Mexico. The “joint plaintiffs’ brief” filed by nearly all the plaintiffs asks for bail-in to last “no less than five years.” By contrast, the plaintiffs represented by MALDEF (“the MALDEF plaintiffs”) expressly request that bail-in last through 2030. To be sure, a longer bail-in is more vulnerable to challenge, but a twelve-year bail-in is well-within the historical norm and is sensible given Texas’s brazen and discriminatory mid-decade redistricting in the 2000s. This targeted, temporally limited bail-in is statutorily sound, constitutionally appropriate, and strategically prudent.

2. The United States Now Opposes Bail-in

As Justin Levitt has highlighted, the United States changed its position in this litigation and now opposes bail-in. Given the Trump DOJ’s prior actions in the Texas voter ID case, this development is not surprising, just disappointing. The DOJ’s brief is a toned-down version of Texas’s argument and invokes an intervening Fifth Circuit decision as an excuse for its about-face. Nevertheless, I expect the Solicitor General to get tough questions about this reversal if the case reaches the Supreme Court.

3. The Threshold Arguments against Bail-in

Pointing out that its 2011 redistricting plans were never used for an election, Texas asserts that bail-in cannot be premised on those plans. Although masquerading under different labels like ripeness and mootness, Texas’s argument boils down to a “no harm, no foul” mantra. In a related vein, Texas and the United States invoke the Fifth Circuit’s recent decision in Veasey v. Abbott to argue that the enactment of the 2013 redistricting plans precludes bail-in based on the 2011 plans. Recall that in Veasey the Fifth Circuit concluded that bail-in was unwarranted because Texas had passed a less stringent voter ID law.

These threshold arguments are unavailing for four reasons. First, the district court has already rejected Texas’s mootness argument because the plaintiffs can still obtain some relief, namely bail-in. Second, as the joint plaintiffs’ reply brief aptly notes, Texas’s “no harm, no foul” argument would preclude equitable relief whenever a preliminary injunction is granted. Such a result would be absurd. Third, Texas didn’t just sit on its hands in the run-up to the 2012 election. Texas relentlessly sought to use its intentionally discriminatory 2011 redistricting plans. But for the ancien preclearance regime and this ongoing litigation, Texas would have used those plans. Texas, moreover, would have never enacted the 2013 redistricting plans but for this litigation. Texas’s invocation of the VRA’s deterrent effect to preclude bail-in is simply bewildering. Finally and as I argued previously, the situation here differs from Veasey because the Fifth Circuit presumed that the revised voter ID law would apply for the foreseeable future whereas Texas must enact new redistricting plans after the 2020 census.

4. The Statutory Standard for Bail-in

Unsurprisingly, the parties disagree on the appropriate statutory standard for bail-in. The plaintiffs rely on a list of equitable considerations first identified in Jeffers v. Clinton, a 1990 decision bailing-in the State of Arkansas. The Jeffers Court looked to the persistence, frequency, and recency of constitutional violations and whether those violations were likely to recur but for preclearance. On this front, the plaintiffs convincingly canvas Texas’s lengthy and recent history of enacting racially discriminatory redistricting plans and focus on the sheer scale of constitutional violations in the 2011 plans.

For its part, Texas declines to engage with the Jeffers factors. Instead, Texas argues that preclearance is justified only to combat the flagrant gamesmanship of the 1960s. After reading Texas’s brief, one could be forgiven for thinking that the coverage formula was enacted in 1965, upheld in 1966, and then invalidated in 2013. Texas’s narrative, however, skips some important history. Texas seems blissfully unaware that the Court upheld the coverage formula’s 1970 re-authorization in 1973, its 1975 re-authorization in 1980, and its 1982 re-authorization in 1999. Blatant defiance of federal court decrees was no longer the norm for these latter reauthorizations, as covered jurisdictions had shifted to more subtle means of disempowering minority voters. Preclearance, therefore, is not contingent on Jim Crow-style gamesmanship.

5. Constitutional Violations that Qualify for Bail-in

Another flashpoint is what types of constitutional violations count under Section 3(c). Here, all parties agree that Section 3(c) encompasses intentional racial vote dilution, though the severity and frequency of those violations that trigger bail-in is hotly contested.

Most prominently, the parties dispute whether Shaw violations can trigger bail-in. This issue is important because the sole constitutional violation in the 2013 redistricting plans was a Shaw violation. But that Shaw violation occurred because Latino voters were added to a district in response to a complaint made by one of the MALDEF plaintiffs—who now argue that the Shaw violation mandates bail-in. It’s not hard to imagine the Roberts Court viewing a bail-in request based on that fact pattern skeptically.

Preclearance and Shaw, moreover, employ diametrically opposed methods of inquiry. Preclearance injects race into the decision-making process whereas Shaw seeks to root it out. As both Texas and the United States correctly note, these divergent approaches are reflected in the Section 5 regulations, which never authorized objections based on a Shaw violation. The Shaw line of cases and Section 2’s discriminatory-effects test have long been viewed as on a collision course; Section 3(c) should not be pushed onto the same path.

Another point of contention is whether violations of the one-person, one-vote principle qualify for bail-in. The plaintiffs don’t push this argument too hard, but they strongly imply that these findings are relevant because race often lurks just beneath the surface in those cases. That may well be true, but bail-in should not be premised on malapportionment violations. Indeed, in Blackmoon v. Charles Mix County, a district judge in South Dakota reasoned that granting Section 3(c) relief based on such violations would be “nonsensical” because it imposed a race-conscious remedy without a predicate finding of intentional racial discrimination.

The plaintiffs also identify the recent bail-in of the City of Pasadena, Texas, as additional evidence favoring bail-in. As the plaintiffs explain, Section 3(c)’s plain text looks to whether the relevant constitutional violations “occurred within the territory of such State.” Given this language, the fact that a jurisdiction within Texas has violated the Fourteenth Amendment is persuasive evidence that the district court should consider in balancing the equities and the likelihood that future constitutional violations will occur, even if Pasadena’s bail-in does not itself require that Texas should also be bailed-in.

Put simply, Texas is a poster child for bail-in. Given the number of times that Texas engaged in intentional racial vote dilution in the 2011 redistricting plans, the district court need not overreach by relying on Shaw and one-person, one-vote violations to justify bail-in. And because any bail-in of Texas will almost certainly be reviewed by the Supreme Court, the decision should be bulletproof and not create an easy target for reversal.

6. No Constitutional Challenge to Bail-in

As I predicted, Texas did not raise a facial challenge to Section 3(c). Rather, Texas’s strategy appears to be a redux of Northwest Austin—invoke constitutional-avoidance concerns to implausibly re-write the statute. But as discussed above, Texas’s attempt to limit preclearance to Jim Crow-era gamesmanship is a grave misreading of Section 3(c) and the Court’s precedent.

7. Looking Ahead

There’s currently no indication on the district court’s docket whether there will be a bail-in hearing, so we don’t have a reliable timeline as to when a decision will be issued. Given this litigation’s history, I expect a split decision bailing-in Texas, along with a vociferous dissent from Judge Smith. But at the end of the day, a Lone Star bail-in will almost certainly be resolved by the Supreme Court.


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