By David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program

Yesterday, in an unusual afternoon session, the Justices of the Supreme Court jumped right into the political thicket, debating the authority of a federal court in Texas to draw election districts for the state’s  upcoming primaries.  Texas currently has no legally enforceable district lines.  Its current districts are now badly out of step with the constitutional requirements of one person, one vote, and its new district lines have yet to be precleared, as required by Section 5 of the Voting Rights Act, one of our Nation’s most iconic and important federal civil rights statutes.  During yesterday’s 70-minute argument in Perry v. Perez, the Justices sought to figure out a solution that would permit the upcoming primary elections to go forward, consistent with the requirement of the Constitution and the Voting Rights Act.  Hovering over oral argument in Perry v. Perez was the question of the constitutionality of the Act’s preclearance requirement.  In 2009, in NAMUDNO v. Holder, the Roberts Court came dangerously close to striking down this bedrock provision of the Voting Rights Act, but yesterday, at least, the Justices showed little interest in debating the Act’s constitutionality. As Chief Justice Roberts specifically observed, “the constitutionality of the Voting Rights Act is not at issue here.”

After putting this 800-pound gorilla to the side of the courtroom, the Justices bore down on the pressing and immensely complicated problem of how to give guidance to districts courts facing the difficult and unwelcome task of drawing election districts when the state has no legally enforceable plan of its own.  Justice Antonin Scalia seemed prepared to accept the argument made by Paul Clement, representing the State of Texas, that the district court should have permitted Texas to use its unprecleared plan as an interim plan, even though Section 5 of the Voting Rights Act forbids Texas, as a covered jurisdiction, from enforcing any voting change until it has been precleared either by a three-judge court or the Department of Justice.  But the other members of the Court did not seem willing to join him.

As Justice Sonia Sotomayor countered, permitting wholesale use of an unprecleared plan would effectively turn “Section 5 of the Voting Rights Act on its head.”  Chief Justice Roberts appeared to agree, making the point that it would be wrong to presume that Texas’ new election district lines will in fact be precleared.  Other Justices raised the possibility of narrower solutions to resolving the case, such as postponing primary elections in Texas until after the three-judge court in Washington D.C. issues a final ruling on whether the new Texas district lines should be precleared, or remanding the case to give the three-judge court in Texas that drew the interim plan the opportunity to make findings on the likelihood that the new districts drawn by the Texas legislature violate the Voting Rights Act or the Constitution.  But by the end of the oral argument, the Justices seemed no closer to finding common ground on the proper role of a federal court dealing with these difficult problems.

However the Court resolves this specific case, it is likely to be a narrow ruling that does not prejudge the larger constitutional issues the Court considered in NAMUDNO.  Those issues will be debated, most likely in Shelby County v. Holder, in which an Alabama County, backed by the States of Alabama, Arizona and Georgia as amici curiae, argues that the preclearance requirement of the Voting Rights Act is unconstitutional on its face and may not enforced.  On January 19, 2012, the D.C. Circuit – often called the most important federal court after the Supreme Court – will hear oral argument in Shelby County.  A month later, the same panel of judges who will be hearing Shelby County will also hear oral argument in Laroque v. Holder, a related challenge to the Voting Rights Act. With the Justices in Perry narrowly focused on technical questions governing re-districting in Texas, Shelby County is now the case to watch.  Please check back here at Text & History next week for a comprehensive oral argument preview analyzing the issues in Shelby County.