On Friday, the Supreme Court issued a ruling blocking a lower federal courts decision in an important Texas redistricting case. The Supreme Court, in an unsigned decision, argued that the lower court did not properly defer to the state legislature.
In this instance, the Supreme Court missed an opportunity to move away from the principle of deference to state legislatures, especially when its intent is so clearly designed to reduce minority political participation.
This is wrong. Federal courts should not have to defer to state legislatures in these decisions.
For instance, in Baker v. Carr (1962) the Supreme Court correctly ruled that redistricting is a justiciable issue – meaning the courts had a right to intervene and decide reapportionment cases.
At the heart of this case is Section 5 of the 1965 Voting Rights Act.
Section 5 is what’s called the pre-clearance section. This section was included in the VRA because many states had such long and tortured histories of minority vote dilution and suppression that the federal government knew without the pre-clearance provision some states (mostly southern) would retrogress into racist voting practices. Basically, a state like Texas can’t just redraw their legislative district maps; they have to wait for a nod from the feds before going any further, just to make sure nothing shady happens.
Certain political jurisdictions must have the federal Justice Department approve changes to local voting laws and procedures before those laws take effect. Historically, and even as late as 2006, these jurisdictions had a demonstrated tendency to engage in practices that had the effect of diluting minority voting strength. In fact, it was just in 2006 that Congress, citing the continued need for Justice Department oversight, reauthorized the Voting Rights Act through 2032.
However, the problem began before today. In Veith v. Jubelirer (2004), the Supreme Court backed away from its smart precedent. There, the Supreme Court erroneously ruled that partisan gerrymandering was constitutional. This decision led to the unfortunate result of continuing to allow state legislators to pick their own voters by drawing their own districts and those for congressional districts in an overtly partisan manner. In dissent, Stephen Breyer, author of Active Liberty, argued that the “use of purely political boundary-drawing factors can amount to a serious, and remediable, abuse, namely the unjustified use of political factors to entrench a minority in power.”
Unfortunately, Supreme Court justices John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas prefer extreme deference to the legislature even when it results in diluted minority voting strength.
Despite this history of a demonstrated need for voting protections, Justice Clarence Thomas reiterated in the Texas cases his belief that Section 5 is unconstitutional. To believe this is to place partisanship, which is not in the Constitution last we checked, over and above the individual’s ability to participate freely and fairly in voting.
MARVIN KING received his Ph.D. in Political Science from the University of North Texas and is now an Associate Professor of Political Science with a joint appointment in the African American Studies Program at the University of Mississippi. He conducts research into how political institutions affect African American politics. Marvin is available for public speaking engagements and you can follow him on Twitter @kingpolitics