D.C. panel issues decision defining preclearance standards

From Michael Li:

Late Thursday evening, the D.C. panel issued its long-awaited opinion defining the standards for preclearance under section 5 of the Voting Rights Act and further explaining why the court had earlier rejected the State of Texas’ request for summary judgment.

The opinion, authored by Judge Rosemary Collyer, was unanimous.

Initial reaction from many observers is that the decision is a pretty significant win for the Justice Department- though, as in past Texas redistricting cycles, the case is likely to end up in Supreme Court. The opinion, though, also hands the DOJ and redistricting plaintiffs a few losses.

With more briefing due January 3 in the interim map appeal before the Supreme Court, it’s likely the D.C. court’s opinion could make a cameo appearance in that case as well – especially since some of the things the state says the San Antonio court got wrong, the D.C. court says Texas got wrong.

Li highlights the key aspects of the ruling, which you can read here, so go read the whole thing; he has more at BOR as well. Even on the key area where the court disagreed with the DOJ and the redistricting plaintiffs, that not adding any Hispanic opportunity districts among the four new Congressional seats was not necessarily retrogression because it reduced the proportion of Hispanic representation, they still concluded that it might be evidence of discriminatory intent on the state’s part. Here’s the Quorum Report, via email from Allen Jamail:

The Court said, “Although Texas’ alleged failure to account for the significant increase of the Hispanic population in the State does not establish retrogression, it is relevant to the Court’s evaluation of whether the Congressional Plan was enacted with discriminatory purpose.

A redistricting plan that does not increase a minority group’s voting power, despite a significant growth in that minority group’s population, may provide significant circumstantial evidence that the plan was enacted with the purpose of denying or abridging that community’s right to vote.

The Court also wrote:

“Summary judgment is also not appropriate because Texas has failed to demonstrate that the Plans do not have the purpose of “denying or abridging the right to vote on account of race or color, or [membership in a language minority group].” . . . We conclude that there are genuine issues of material fact regarding whether the Plans were enacted with discriminatory intent.

The net effect appears to be that the burden on the State of Texas to illustrate that the Texas legislative maps were not intentionally discriminatory designed to deny a political voice to a protected group has just been elevated.

We are still reviewing the decision. And it is true, the full litigation in DC in late January could provide a different outcome, but first blush analysis that the burden on the State of Texas substantially increased and that the legislatively drawn maps are in jeopardy.

The unanimous DC ruling also suggests that the Interim maps by the three judge panel in San Antonio could have legal legs.

My impression of this is that if the state, on the urging of AG Greg Abbott, thought they were going to get a better deal from the DC court than from the Justice Department, they have another think coming. More importantly, Rick Hasen believes this opinion may influence SCOTUS when it makes its ruling on the San Antonio court’s maps:

[T]he opinion provides strong reasons to think that Texas will not be able to obtain preclearance of its plans (though the issues will depend upon how the judges resolve contested facts at trial), and that fact could be relevant to the Supreme Court’s forthcoming hearing and decision on the interim plan. If the opinion convinces Justice Kennedy (and the Court liberals) that Texas’s proposed plans likely should not be precleared, then that is good reason these plans should not be deferred to by the courts in crafting an interim plan. Texas in its brief filed [Wednesday] conceded there should not be deference to a proposed (but unprecleared) plan when it is likely to believe the plan should not be precleared. The opinion today will be thrown back in Texas’s face in the second round of briefing before the Supreme Court.

I should hope so. Texas Politics has more.

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