The San Antonio court refused to allow the state to use the legislature-drawn maps for the upcoming April primary because the federal court in Washington had not yet pre-cleared them under Section 5. The judges simply ignored the political decision of Texas legislators. Without making any finding whatsoever that there was any credibility to the Section 2 violations claimed in the Texas litigation, or that there was any likelihood that LULAC and the NAACP would even prevail, the judges drew up interim maps using their own judgment of what they considered to be “neutral principles that advance the interests of the collective public good” of the citizens of Texas.
This is the very definition of activist judges. Essentially, they’re substituting their own judgment for that of the legislative branch, ignoring the choices of elected representatives. The Texas judges were slapped down by all nine justices of the Supreme Court for their actions. The Texas court, they said, had no business wholly ignoring “the State’s policies in drawing maps . . . without any reason to believe those state policies are unlawful.”
The high court remanded the case, directing the Texas court to be guided by the legislature’s plans “except to the extent those legal challenges [under Section 2] are shown to have a likelihood of success on the merits.” But the Texas court was also directed to take into account the fact that the legislative plans had not yet received “mother-may-I” pre-clearance under Section 5. The Texas court cannot use any parts of the plan “that stand a reasonable probability of failing to gain § 5 preclearance.” So Texas is now caught between the Supreme Court’s reasonable instruction to the lower court not to assume the legislature is guilty of a VRA violation, and Section 5’s unreasonable and likely unconstitutional assumption that the legislature is guilty of a violation unless it can prove otherwise.
The fundamental problem with the way Section 5 and Section 2 are being applied today is plain to see: If Texas had set out to draw new legislative districts based entirely on nondiscriminatory, neutral, traditional factors such as compactness, contiguity, and preserving the lines of local political subdivisions such as cities and counties, it would immediately face numerous claims under the VRA for not taking race into account — the very claims it is facing in the present lawsuits.
The Supreme Court said in Reno v. Shaw that race cannot be the predominant factor in redistricting, but in practical terms, the VRA today requires exactly that. Race must be one of the dominant factors used by states to prevent litigation under both provisions of the VRA by the Justice Department and racial-spoils groups such as the NAACP and LULAC.
The courts all too often grant such claims, helping to promote identity politics and leading to the racial balkanization of Congress and state legislatures. It is a sad perversion of the original intent of the law and the original goals of the civil-rights movement.
— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation, a former commissioner on the Federal Election Commission, and the former counsel to the assistant attorney general for civil rights at the Justice Department.