Journalism in the Public Interest

Will the Supreme Court Strike Down Part of the Voting Rights Act?

The court’s ruling on a Texas redistricting case could transform the nation’s approach to minority voting rights—and determine which party controls Congress.


(Brendan Smialowski/Getty Images)

As noted below, this guide has been updated. This guide was originally published on Jan. 9, 2012.

On Monday, the Supreme Court heard arguments in a Texas redistricting case that could have major implications for minority voters -- as well as determine which party is likely to control Congress after the 2012 elections.

Here's our guide to why the case matters, why it could pose a challenge to part of the Voting Rights Act, and what impact the Court's ruling could have on voters across the country.

Our update on Monday’s oral arguments is here.

How did this case end up in front of the Supreme Court?

At its most basic, the case is contesting which district maps Texas will use in the 2012 elections.

This seems like a dry question, but it's not. Thanks to population growth, Texas is gaining four seats in Congress, and how the district lines are drawn is likely to determine whether those additional seats will be won by Democrats or Republicans -- and how big an impact minority voters will have in deciding who the new representatives will be.

Because those four seats could help determine which party controls the House of Representatives, the Texas case is being closely watched across the country.

As it has done before, the Republican-dominated state legislature drew maps that heavily favor Republicans.

At least three of the four new congressional districts were drawn in a way that seemed likely to favor Anglo Republican candidates -- even though Latinos and African-Americans accounted for most of the state's population growth.

The legislature's maps immediately faced legal challenges from minority groups who argued that the lines were drawn to purposefully weaken the ballot power of Latino voters -- as well as from the Department of Justice, which argued that Texas' state house and congressional map plans are illegal because they diminish the ability of minority voters to elect the candidate of their choice.

Because the ongoing legal battle over the legislature's maps was interfering with the state's election schedule, the federal district court in San Antonio drew an alternate set of maps for the state to use.

These maps are seen as being more favorable to minority voters -- as well as much friendlier to Democrats.

Rather than use these court-drawn maps, the state of Texas appealed the case to the Supreme Court, arguing that the state court overstepped its bounds, and that, because of the time-crunch, the legislature's original plans should be used for the 2012 elections -- even though the federal government has yet to give the plans "preclearance."

The Problem with 'Preclearance'

This is where the case bumps up against the Voting Rights Act. Section 5 of the 1965 act requires that certain states with a history of racial discrimination -- including Texas -- get federal "preclearance," or approval, before implementing any laws that affect voting.

The Texas legislature's original plans haven't received preclearance yet -- and it's unlikely that they will before this year's elections.

While most states simply ask for preclearance from the Department of Justice, Texas has taken the less-common, more-expensive route of asking for approval from a panel of federal judges in Washington.

In denying summary judgment on the case, those judges have already concluded that "the State of Texas used an improper standard to determine which districts afford minority voters the ability to elect their preferred candidate of choice."

But the final ruling on preclearance is unlikely to come soon enough to get Texas' already delayed election season underway.

By asking the Supreme Court to use the state legislature's maps before they have received federal preclearance, Texas is essentially trying to perform a temporary end-run around the Voting Rights Act's "preclearance" requirement.

Texas is arguing that this move is perfectly legal, and would not affect the state's "undisputed obligation" to get federal preclearance before using its new maps "on a permanent basis."

Nina Perales, the director of litigation for the Mexican American Legal Defense and Education Fund, told the Washington Post that this move "flips Section 5 completely on its head," and argued the state was trying to squeeze in one more election cycle before having to reckon with the growing power of Latino voters.

Updated 1/10/2012: How is the Court likely to rule?

The fact that the Supreme Court decided to hear the case at all makes it seem unlikely that the justices will simply endorse the maps drawn by the federal court in San Antonio.

During oral arguments yesterday, several members of the Court suggested that the San Antonio court may have overstepped its bounds in the way it drew its interim maps -- particularly in its creation of new minority districts.

But the Court also made it fairly clear that it was not interested in overturning Section 5 of the Voting Rights Act -- at least, not at the moment.

“The constitutionality of the Voting Rights Act is not at issue here, right?” Chief Justice John Roberts, Jr. asked at one point.

Only Justice Antonin Scalia said that the San Antonio court should temporarily implement the Texas legislature's plan.

Justices Sonia Sotomayor and Elena Kagan emphasized that Section 5 banned the use of a plan that had not received federal approval, and Chief Justice Roberts seemed to agree, noting, “You cannot assume that the legislature’s plan should be treated as if it were precleared.”

But the consensus of the court seemed to be that it was just as problematic for the San Antonio court to assume that the legislature's map was an illegal gerrymander, and then redraw the map on the assumption that all of the minority groups concerns were legitimate.

Justice Samuel Alito suggested that the judicial branch had no business getting involved in making policy via map lines. "To say they are going to apply neutral districting principles is a subterfuge,” he said. “There is no such thing.”

Justice Alito suggested that the best solution might simply be to wait for the Washington, D.C., court to either grant or deny preclearance on the Texas legislative maps -- and to delay Texas' primary schedule again in the meantime.

Justice Kagan suggested a compromise plan, in which Texas’ court-drawn interim maps would more closely resemble the maps drawn by the legislature.

Attorneys for both sides said this plan would be preferable to simply implementing their opponents’ maps.

As the Washington Post’s Aaron Blake noted last month, such a compromise would still set a new precedent. “Currently, court-drawn maps are drawn with deference to the last constitutionally-approved map available (i.e. the existing map). Changing the standard would give state legislatures greater power over the final product, even in the event that their maps are invalidated,” he wrote.

Updated 1/10/12: Earlier Speculation on the Court and the Voting Rights Act

At minimum, the Supreme Court will have to rule on what maps Texas should use in its upcoming election.

As Lyle Denniston of SCOTUSblog put it, "The Court must either draft maps of its own, accept -- even grudgingly -- something that already exists, or find a streamlined way to get the District Court in San Antonio to craft a plan that minimally alters the state's maps."

But there's been speculation that the Court could also use the case as an opportunity to address the constitutionality of Section 5 of the Voting Rights Act, the part that requires certain states to obtain preclearance of plans that affect minority voters.

The Washington Post's Aaron Blake called this "the Nuclear Option." One of the key elements of preclearance is that it places the burden of proof on the state governments to prove that their plans are not discriminatory, rather than requiring minority groups to organize and pay for expensive legal challenges. By invalidating the Section 5 preclearance requirement, the Supreme Court "would allow these states greater freedom to draw their maps and increase the burden on minority groups and others who may fight the maps in court," Blake wrote.

The Supreme Court seemed to come close to overturning Section 5 two years ago, in another case from Texas. That decision made it clear that the Court had serious reservations about the limits the Voting Rights Act places on a state's sovereignty.

In that ruling, Chief Justice John Roberts Jr. wrote that "the Act now raises serious constitutional concerns," and that it "differentiates between the States in ways that may no longer be justified."

This time around, the conservative Cato Institute has submitted an amicus brief to the Texas case asking the Court to review the constitutionality of the Voting Rights Act, arguing that the statute "no longer serves its original purpose."

But some experts doubt that the Supreme Court will tackle Section 5's constitutionality in the Texas case.

Richard Pildes, a New York University law professor, told MSNBC, "The court recognizes that it must act more quickly than usual, given the time pressures involved with primary elections looming shortly down the road. For all those reasons, the court is likely to focus on the narrowest issues needed to resolve the particular legal issues presented."

Cato isn't alone in its opposition of the Voting Rights Act. Georgia Congressman Lynn Westmoreland, the Republicans' point man for congressional redistricting, has long opposed the act, calling it "outdated, unfair and unconstitutional." In a speech opposing the extension of the act in 2006, Westmoreland argued that Georgia's record of voter equality "can stand up to any other state in the nation" and that the Voting Rights Act's renewal would "keep my state in the penalty box for 25 more years based on the actions of people who are now dead."

But the Voting Rights Act also has strong, bipartisan support. President George W. Bush gave it high praise. Executives from Wal-Mart, AT&T, Pfizer, Coca-Cola, Disney and other large corporations wrote to Bush urging him to reauthorize the law and describing it as a cornerstone of American society. The Senate ultimately approved the 2006 extension of the act 98-0, and the House 390-33.

Although the Supreme Court may have decided not to tackle the constitutionality of the Voting Rights Act in the Texas case, it may soon have other opportunities to address the issue.

A case in which a county in Alabama is challenging the constitutionality of Section 5 of the Voting Rights Act is scheduled for oral arguments in the U.S. Court of Appeals on January 19.

The Department of Justice’s move to strike down South Carolina’s Voter ID law under Section 5 of the Voting Rights Act may also spark a case that could make its way to the Supreme Court.

I’m not a lawyer, as will redily become apparent, However….
From the article:  “By asking the Supreme Court to use the state legislature’s maps before they have received federal preclearance, Texas is essentially trying to perform a temporary end-run around the Voting Rights Act’s “preclearance” requirement.

Texas is arguing that this move is perfectly legal [13], and would not affect the state’s “undisputed obligation” to get federal preclearance before using its new maps “on a permanent basis.”

Texas bypassed the Executive Branch (Department of Justice) and probably expected the panel of federal judges at the lower court to disapprove their redistricting plan so that they could take their case to the politically user-friendly Court.  They know they have four votes going in, and just need one swing vote.

And this is what the conservatives on the USSC really want, in my opinion:  - article: “But there’s been speculation that the Court could also use the case as an opportunity to address the constitutionality of Section 5 of the Voting Rights Act, the part that requires certain states to obtain preclearance of plans that affect minority voters.”

It’s a shame that the Voting Rights Act took that approach, which does appear to discriminate.  While I don’t enjoy the idea of handing powers to Washington it doesn’t absolutely need, it seems like it would have been far better to require preclearance for ALL states.  The Census Bureau collects and distributes the data, so the same people should arguably be in charge of ensuring that the data was used in the resulting maps.

The very fact that Texas is actively trying to avoid the law without suggesting it’s a bad law, though, proves that it’s needed.  I mean, I wouldn’t mind if they did this openly as resisting a prejudicial law penalizing Texans today for the sins of their fathers, but acknowledging the right thing to do and then actively avoiding it?  Well, clearly you’re in the wrong.

But I guess that’s Monday-morning quarterbacking, as they say, and obviously not a position the Court is able to take.

The court should rule on the laws of the land - not on ‘end runs’. The lawful fact is the end run is legal. If you don’t like it then talk to your representative and change the law. We don’t need Judges to change overturn laws of the land, because they don’t like them.

The voting rights act is a sham and needs to be destoryed. We in California have been screwed for decades by special destricts and voting rights bullshit that is so out of date with the population - whole communities/cities are being disenfranchised due to constraints on redistricting.

I think is a great that Texas is using the LAW to point out the resultant “reverse racism”  of the Voting rights act.

Go Texas

I noticed that the Hispanic population grew by 42% over the last decade.

I wonder where they all came from ?

It doesn’t matter what the precedent is, despite Roberts and Alito falling all over themselves claiming their strict adherence to stare decisis - what a joke these two are.

It doesn’t matter what the Constitution says.

The only guide these justices know is what helps the Republicans and what helps the Corporations.

We already know how this is going to turn out. We no longer have a Supreme Court, we have nothing but a Whore Court.

What they seem to forget is when they stomp on the principles of jurisprudence as envisioned by the founding fathers, and the laws of the land, they are the ones that make this a lawless country.

In re the comments above:
1. State legislatures, not the federal government, design districts. If you don’t like the way the lines are drawn, get involved at the state legislative level.
2. A state’s laws cannot trump either the Federal Constitution or Federal law.
3. Preclearance is required only for state plans where there is a history of past discrimination by that state.
4. There’s a difference between an argument and law. Texas is making an argument about the law; that argument is not itself law.
5. This article assumes a bit too much on the part of the readers, apparently.
6. Just my opinion, but I doubt the Court would invalidate Section 5 on this set of facts; playing fast and loose with the law is not a good foundation for new opinion-making.

About 150 years ago the Civil War began largely over the issue of slavery within the greater context of state’s rights.  The confederacy argued that the Federal Government could not prohibit slavery within its own borders.  That indeed was the argument during the Nullification Crisis between the Feds and South Carolina in the 1830’s.
In my view and I’ve read and taught about these issues as a high school social studies teacher, Texas, and others are trying to ‘nullify’ the Voting Rights Act of nearly 50 years ago, this time substituting Latino for black, to use the terminology of the time.  Those in power do not want to lose their grip on that power, which is one of essential functions of politics, not government, but politics.
Given the increasingly conservative bent of the Court, vis-a-vis numerous 5-4 rulings, in would seem this is a slam dunk for those wanting to approve the Texas maps as written by the Legislature.  Me thinx what it is going to come down to is the Court saying that voting and voting rights is a state issue.  One of the champions of the Act was President Lyndon Johnson, a good ol’ boy from Texas.

Be too tough for Texas’ Republicans to just be fair, right?  Rather than give the people of Texas - the voters - control of their state’s destiny, the Republicans just have to draw maps that make it easier for the Republican power structure to manipulate all of their citizens by breaking them apart and packaging them into a more easily manipulated product.

How does it feel to be ground chuck, Texas?  Do you still think you’re special - too “independent” to be within reach of the Republican strategy of “Divide, and conquer.”????

I thought this was a federal government, so the Supreme Court shouldn’t be getting involved in this dispute of maps for the reason it was asked to, should it? This is a state decision, not a Supreme Court one. The fact that the state government threw out the first map is good enough reason to suspect that sins of the fathers got carried to the sons when it comes down to racial injustice, which is why preclearance was enacted for Texas. In that way, the federal government should get involved, I hope the Supreme Court makes the right decision.

History, both past and present, has shown us that those who wield the real power behind partisan politics from Sacramento to San Antonio are quite willing and determined to exercise that power in a manner that fails totally to reflect the will or intent of the voters who they purportedly represent. The Supreme Court is the last line of defense in reigning in the self-serving motivations of these many wayward politicians, many who by all rights should be in jail rather than in elected office. Many of them gained their position in office primarily through the underhanded shenanigans of their self-serving predecessors.

@David Marsh:  Hence the appointments of Roberts, Alito, Thomas, and Roberts, and Scalia (collectively known as RATS to a…number…of we Independents) to the Supreme Court by the aforementioned “self-serving politicians”.

lolll…that was Freudian…got Roberts in there twice.

Sadly, Any ruling made by the supreme court of this country will favour a republican or the republican party.
A note, I’m not a democrat or republican and no longer an independant. not sure what I am if any..but facts or just plan facts.
thanks for reading

We all know conservatives always play fair and don’t need a head start

yup where else can you buy an election by paying off the supreme court justices as the repubs have for the last 12 yrs. but its been that way IN TEXAS because in TX., justice is for sale to the highest bidders, so wealthy business or corp. interests only have to shove a small pile of money, because they already threw A REALLY BIG PILE TO GET their criminal elements elected, so now they work for business interests for tips, till election cycles, but hey you cant even imagine the size and scopes of those tips and we cant even score a job to support our families!

Walter D. Shutter, Jr.

Jan. 10, 2012, 8:02 p.m.

It was less than a month ago that Propublica ran a similar story, i.e., how the Democrat party in California suckered a “non-partisan” comission charged with redrawing Congressional district boundaries in that state.

Now Texas must take it’s turn in the Propublica barrel.

With respect to redistricting, there is only one essential difference between California and Texas:  Texas is subject to Section 5 of the Voting Rights Act and California is not.

Cynthia McKinney. Read up on that redistricting fiasco in GA. Stop crying foul on Republicans like they don’t all do this. Instead, be productive at the local and state level where this concern belongs. Dems want their votes, too, and are no less shy about or apt to work the system in this manner. Don’t like it? First, aim your measuring stick both ways. Then, run for office and dare to be different. Or, of course, move…and deal with it elsewhere!

If Republicans manage to gut the voting rights act there will be a protest that will rock the halls of the elite right wing. The Supreme Court needs to respect the rights of all Americans. If those that are in power consolidate their power through BLATANT discrimination, there will be a new movement in America led by those that have been crapped upon by the politicians. If there is a return to the “good old days” of closed doors and real disenfranchisement, then the 99% will rise to defend the right to be fairly represented in this great Democracy.I will enjoy watching it on CNN.

Voting system now may become very simple, no fund raising will be needed if votes can be casted electronically using the social medias such as Facebook. The virtual President (US) of the World should be elected each year in most economic and accurate ways in the near future and that ‘New Model’ to be followed by all the Sub-governments and municipalities in the World under a truly humanitarian UN power headed by less-greedy individuals such as Writers like me and you in ProPublica, Mr. Gorvachev. Mr. Obama etc.and never again by animal-like selfish and money hungry businessmen of War machines, guns, drugs and Oil.

With a decade-long empty US government coffer (negative balance sheet for credits) a benevolent dictator could now make better adjustment of the Left and Right things. Lots of regulations need to be modified and not by malfunctionning old heads but by the sprit and opinions of today’s younger generations using inexpensive, easy and accurately precise digital tools.

A rational decision of simply waiting for preclearance certainly wasn’t what I was expecting…



a government BY the People FOR the people, one person/one vote AND no taxation without representation principles , JUST LIKE OUR CONSTITUTION INTENDED.

Section 5 pre-clearance was supposed to sunset in 5 years in the 1965 bill. It was extended many times and then in 2006, four decades after the original passage of the Voting Rights Act, it was again extended again, this time for a quarter century, using anachronistic criteria, as if Jim Crow conditions had never left. Why was this done? It was done because the actual current situation regarding civil rights didn’t matter and the promoters of re-authorization didn’t want it considered. The re-authorization became all about the symbolism of the original Voting Rights Act and legislators voting against the re-authorization understood they would be seen as denying the legitimate purpose of the original act. Trying to make current factual truth take precedence over the feeling politics of symbolism was a fools errand considering they were up against world where those working as “journalists” regularly disregard the primary place of truth in journalism in favor of their political agendas.

By the way, while California as a state isn’t subject to pre-clearance, some counties in it are. And that inclusion had nothing to do with a history of discriminatory action and everything to do with how the statistical methods used by the act interacted with the military base populations in those counties.

Some ivisible hands in the Yahoo is acting unscrupulously when I am trying to write here and receiving emails of appreciation for my unselfish works. Can’t use edit feature now to add something.

The framers of the constitution left it to the states to determine how elections would be conducted. The 14th amendment did nothing to change that. Based on that I would defer to the Texas legislature’s maps unless they unduly benefit one party over the other.Sotomayor’s compromise would probably be the most logical way to go, keeping the state’s maps with minor changes.
I agree with others here who have no faith in the integrity of the current SCOTUS. The Citizens United case was basically a constitutional amendment without allowing for ratification by the states, judicial activism if ever there was activism.

In all the states rights vs. federal regulation vs. the “will of the voters” comments, something that should be noted about that “will of the voters” part: Texas Republicans were only able to do this because of a supermajority in the state house caused by a couple of Democats jumping party immediately AFTER they got elected.

Also, These [bleep] think they are accountable to no one, hence the thumbing thier nose at the “preclearance” statute of the Voting Rights Act to begin with. This move is designed to give the SCOTUS a whirl at striking down the voting right act.

Stay classy, Texas.

Darryl Lynn Jones

Jan. 14, 2012, 8:35 p.m.

Along with that, adhoc committees stripped automatic civil rights reinstatement for ex-felons who were convicted, sentenced, and served time for non-violent and non-sexually-oriented misdeeds. The clandestine committees took place in Governors’ offices with less than five people present; including the Governor! Specifically, Florida added an additional five year waiting period after sentences are completely served, which includes follow-up probation and/or parole time before an application for civil rights reinstatement would be considered. In addition, the process is one that takes years to complete due to fiscal constraints that keep state government offices understaffed. In short, history delineates that oppressed people tend to behest federal government intervention; due to regional bias toward acceptance of unfair treatment. Amalgams of insidiously heinous acts are fueled by lack of tolerance for ethnic uniqueness. Therefore expect that those who get civil rights reinstated will vote for a liberal or independent candidate while the entities orchestrating the impingements to automatic civil rights reinstatement, which includes the right to vote, are conservatives. Any additional attempts to dilute the strength of the Voting Rights Act will cripple the burgeoning political presence of diverse historically underrpresented groups of zealous Americans and our descendants.

Malik Singleton

Jan. 20, 2012, 12:41 p.m.

Looks like this ongoing story needs another update as of Friday morning 1/20.

This good topic has lots of rooms for further discussions.

This article is part of an ongoing investigation:

Redistricting: How Powerful Interests Are Drawing You Out of a Vote

How secret money and power interests are drawing you out of a vote.

The Story So Far

Redistricting should be a way of ensuring your vote counts. If all districts have roughly the same number of people in them and are drawn to respect natural communities—neighborhoods where people share a heritage, work in the same industry, or just generally feel tied to their neighbors—voters have a chance to be represented by politicians who represent their areas’ collective interests.

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