In 2011, the Texas Legislature adopted a new congressional districting plan and new district team maps for the two houses of the State Legislature to account for population growth shown in the 2010 census. In order to comply with the Equal Protection Clause, the Fourteenth Amendment forbids “racial gerrymandering,” that is, intentionally assigning citizens to a district on the basis of race without sufficient justification. Shaw v. Reno, 509 U.S. 630, 641.
The Court stated that other legal requirements tend to require that state legislatures consider race in drawing districts. Like all states, Texas is subject to ¶2 of the Voting Rights Act of 1965 (VRA), which is violated when a state districting plan provides “less opportunity for racial minorities “to elect representatives of their choice,” League of United Latin American Citizens v. Perry, 548 U.S. 399 (425).
At the time, Texas was also subject to ¶5, which barred it from making any districting changes unless it could prove that they did not result in retrogression with respect to the ability of racial minorities to elect the candidates of their choice. Alabama Legislative Black Caucus v. Alabama, 575 U.S. ____, _____.
In an effort to harmonize these conflicting demands, the Court has assumed that compliance with the VRA is a compelling State interest for Fourteenth Amendment purposes, see e.g., Bethune-Hill v. Virginia State Board of Elections, 580 U.S. ___, ___; and a State’s consideration of race in making a districting decision is narrowly tailored if the State has “good reasons” for believing that its decision is necessary in order to comply with the VRA, Cooper v. Harris, 581 U.S. ___, ___.
The Texas Legislature’s 2011 plans were immediately tied up in litigation and never used. The Texas court drew up interim plans for the State’s rapidly approaching primaries, getting no deference to the Legislature’s plans. Texas challenged the court-ordered plans of this Court, which reversed and remanded with instructions for the Texas court to start with the Texas Legislature’s 2011 plans, but to make adjustments as required by the Constitution and the VRA.
The Texas court adopted new interim plans. After the D.C. court denied pre-clearance of the 2011 plans, Texas used the Texas court’s interim plans for the 2012 elections. In 2013, the Legislature repealed the 2011 plans and enacted the Texas court’s plans (with minor modifications).
After Shelby County v. Holder, 570 U.S. 529, was decided, Texas was no longer covered by ¶5 of the VRA, obtained a vacatur of the D.C. court’s pre-clearance order. But the Texas court did not dismiss the case against the 2011 plans as moot. Instead it allowed the plaintiffs to amend their complaint to challenge the 2013 plans and held that their challenges to the 2011 plans were live. Although Texas held elections in 2014 and 2016 under the 2013 plans, in 2017, the Texas court found defects in several of the districts in the 2011 federal congressional and State House plans (the State Senate plan is not at issue here).
The 5-4 decision by the Supreme Court reversed and remanded the case back to the district court. There was a lengthy and persuasive dissent filed by Justice Sotomayor.
The majority found that except with respect to one Texas House district, the Court held that the district court erred in effectively enjoining the use of the districting maps adopted by the Legislature in 2013. Accordingly, the Supreme Court reversed with respect to the district court’s finding in part and affirmed in part with as to other issues, remanding the case for further proceedings consistent with the opinion.
In concurring, Justices Thomas and Gorsuch joined by stating that ¶2 of the Voting Rights Act of 1965 does not apply to redistricting. Thus, ¶2 cannot provide a basis for validating any district, and it cannot provide a justification for the racial gerrymander in House District 90.
The dissenting justices of the Court stated that the majority went out of its way to permit the State of Texas to use maps that the three-judge District Court unanimously found or adopted for the purpose of preserving the racial discrimination that tainted its previous maps. The dissent set out three fundamental errors that the majority committed.
Abbott, et al. v. Perez, et al., No. 17-586 (Supreme Court of the United States, decided June 25, 2018).
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