Just four months ago, D.C. District Court Judge John Bates reaffirmed that §5 of the Voting Rights Act is constitutional. Though many advocates celebrated the thorough opinion—and called particular attention to its source, a Bush II appointee—all recognized that the Supreme Court would inevitably weigh in. No appeal has yet been heard, but the Court may have opportunity to speak anyhow. On Monday, it will hear argument in consolidated Texas redistricting cases that implicate §5. Though the parties have not briefed the provision’s constitutionality below, counsel for Texas has suggested that an adverse ruling would exacerbate the constitutional concerns that surround §5 and were first articulated in Northwest Austin Municipal Utility District Number One (Namudno) v. Holder.


§5 establishes that some states and localities must submit any proposed change in election practices or procedures for federal approval. That approval can be sought from the D.C. District Court, or from the Department of Justice.  §5 applies to every jurisdiction within each of nine states, and to some jurisdictions within seven additional states. Jurisdictions were initially chosen based on a formula—enacted in §4—that was calibrated to identify areas where discrimination burdened the voting rights of minorities. In 1982 Congress recognized that a successful Voting Rights Act would diminish or dissolve that burden; To account for the act’s potential success, Congress crafted a provision allowing jurisdictions to “bail out” of coverage after satisfying six criteria enumerated in §4(a). The criteria include basic proxies for discrimination; for example, a jurisdiction may not bailout if a US court has “determined that denials or abridgments of the right to vote on account of race or color have occurred anywhere in the territory” within the previous ten years.

Though the bailout provision can prevent §5 from unduly burdening jurisdictions that have addressed prejudice, litigants have continually subjected the provision to legal attack.  Recently, the Court has appeared more willing to entertain such challenges. Dissenting in Namudno, Justice Thomas asserted that “the lack of current evidence of discrimination with respect to voting renders §5 unconstitutional.” Other Justices may have joined him, but for the availability of a convoluted constitutional avoidance rationale.

The Texas Redistricting Litigation

No facial challenge to §5 was brought in the Texas Redistricting cases. Those cases are predicated on claims that the Texas legislature violated the 14th Amendment and §2 of the Voting Rights Act when it enacted new maps for: 1) its State House; 2) its State Senate; and 2) the US House of Representatives. 14th Amendment and §2 claims, which needn’t be brought to D.C. or to DOJ, are distinct from §5 claims. A clear and thorough account of the similarities and differences is available here. Though the substance of the plaintiffs claims are interesting, the procedural history of the claims generated the controversy before the Court on Monday.

After a number of parties challenged the Texas State Legislature’s maps, claims were consolidated before a three-judge panel in the Western District of Texas. Relying on the Supreme Court’s decision in Conner v. Waller, a majority of that panel forestalled argument on the 14th Amendment and §2 claims until preclearance is resolved. Texas elected to file for preclearance in D.C. District Court, rather than pursuing the DOJ’s expedited administrative approach. That litigation is ongoing, with argument to begin January 16th.

Ordinarily, these circumstances would not prove problematic. Texas, however, had primaries scheduled for March 6th. Those primaries have since been moved to April 3rd but to no effect: the three-judge panel, with Judge Smith dissenting, adopted interim maps. In a supplemental opinion, the court reasoned that that no map could be implemented before preclearance, and that preexisting maps were inadequate because Texas had added population and so been apportioned additional congressional seats.

Texas has appealed use of the interim maps. In doing so, it has injected §5 into the litigation. Responding to the plaintiff’s claim that no map can be implemented before preclearance, the state’s reply brief asserts that is has never argued to the contrary. The state continues, maintaining that its contention is a narrow one: that the interim maps are deficient. Reasoning further, the state contends that it has a statutory right to litigate preclearance and is being unduly punished for deciding to forego the DOJ’s administrative process. If the delay effected by seeking preclearance in court bars Texas from implementing the map constructed by its elected legislators, then §5 is even more burdensome than the Court intimated in Namudno. This said, Texas does not explicitly assert that §5 is unconstitutional. Rather it concludes by deviating from its earlier position that new maps cannot be implemented absent preclearance. The state requests that the Court order the interim maps dispatched in favor of those drawn by the legislature. The argument, then, ostensibly rests on state sovereignty.


 Whether the Court will seize the occasion to speak on §5’s constitutionality is unclear. The Justices may use the litigation to clarify the role of district courts in generating remedial maps. But the Justices could grant Texas the relief it has requested. Enabling Texas to use maps before preclearance would send a strong message: even where core discrimination may exist, §5 imposes an unconstitutional burden. The real possibility that the Texas State Legislature intentionally suppressed the voting rights of minorities may give the Justices pause. Dramatic growth in the Hispanic community, and other minority communities, accounts for the additional Congressional seats that Texas received during reapportionment. But only one of the legislature’s four new districts will provide minority voters with an opportunity to elect candidates of their choice. As a result, this case may not be an ideal vehicle for attacking the Voting Rights Act. Still, many who believe that discrimination continues to encumber minority voting rights have started swimming, lest they sink in a world without §5.

Additional coverage is widely available, as at Scotusblog and the Brennan Center. Election law may come before the Court again in the Spring, if the Justices elect to review the Montana State Supreme Court’s decision to uphold a ban on corporate spending despite Citizens United.