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Supreme Court Preview: Future of the Voting Rights Act
Analysis
By Sidney S. Rosdeitcher and William J. Taylor, Jr.
Brennan Center
January 05, 2012
http://www.brennancenter.org/content/resource/supreme_court_preview_future_of_the_voting_rights_act/

	Mr. Rosdeitcher is Senior Policy Advisor at the
	Brennan Center and Of Counsel at Paul, Weiss,
	Rifkind, Wharton & Garrison LLP. Mr. Taylor is
	an associate at Paul, Weiss.

In this posting, we preview two arguments in the Supreme
Court's upcoming session beginning on January 9.

The one that has drawn the most public attention is the
argument of the consolidated Texas redistricting cases,
Perry v. Perez (No. 11-713), Perry v. Davis (No.
11-714), and Perry v. Perez (No. 11-715). These cases
have been subject to expedited briefing and argument in
light of Texas's upcoming primary elections, scheduled
for April 3. They will be argued on January 9. The
complexity of the cases and their importance may be
reflected by the separate briefs filed by four different
groups of appellees and numerous amici, including
several states and the Obama administration.

The specific issue in the case involves the role of the
federal courts in fashioning interim redistricting plans
during the pendency of proceedings to "preclear" the
redistricting plans drawn by the Texas legislature
following the 2010 Census, as required by Section 5 of
the 1965 Voting Rights Act, most recently amended and
reauthorized in 2006 ("VRA"). Under that provision,
jurisdictions like Texas with a long history of
discriminatory voting practices may not change their
voting practices or procedures without first obtaining
clearance from the U.S. Attorney General or a three-
judge district court in the District of Columbia.

Judicial proceedings to determine whether Texas's
redistricting plans may be cleared are now pending in
the District of Columbia and interim redistricting
plans, pending the outcome of the D.C. judicial
proceedings, have been issued by a different three-judge
federal court in San Antonio. The propriety of those
interim plans, which differ significantly from the plans
drawn by the Texas legislature, are in issue before the
Supreme Court.

The resolution of that issue will not only have
significant political consequences for the four Texas
congressional seats that are at the heart of this
controversy, but will affect the voting rights of
millions of Latino and other minority voters and the
future efficacy-and possibly the validity-of Section 5
of the VRA, which has been the principal vehicle for
remedying the effects of voting discrimination against
minorities.

The other case we preview is Coleman v. Maryland Court
of Appeals (No. 10-106), to be argued on January 11. The
immediate issue there is not one usually falling
directly within the Brennan Center's mission: Whether
enactment of the provision of the Family and Medical
Leave Act that entitles employees to unpaid leave to
care for their own health conditions (the "self-care"
provision)-as distinct from their families'-was within
Congress' powers under section 5 of the Fourteenth
Amendment. But the Court's resolution of that issue
could have ramifications not only for the scope of
Congress' powers under the Fourteenth Amendment, but
also under the Fifteenth Amendment-the basis for
Congress' enactment of the VRA.

Here are the details:

The Texas Redistricting Cases: Perry v. Perez, Perry v.
Davis, and Perry v. Perez

At stake in these three consolidated cases is what the
election maps in Texas will look like, for both the
state legislature and the U.S. House of Representatives,
in the upcoming 2012 elections. Specifically, the
question before the Court is which of the following
redistricting plans should apply: (i) those enacted by
the Texas state legislature, which have not obtained the
necessary "preclearance" under Section 5 of the VRA;
(ii) the interim plans adopted by a special three-judge
federal district court in San Antonio; or (iii) yet some
other redistricting plans, to be established by the
Supreme Court on review or by the San Antonio district
court on remand.

The Court's decision in these cases will, of course,
have direct and immediate effects on Texas electoral
politics. Experts have estimated that, if the plans
adopted by the three-judge court are chosen over those
enacted by the state legislature, as many as four
additional Texas congressional seats could be won by
Democrats in November. In addition, the court-drawn
election maps, unlike the ones enacted by the state
legislature, are likely to greatly increase the
opportunities for Hispanic voters in Texas to elect the
candidates of their choice

The implications of these cases also go well beyond
Texas. The Court's ruling here should, more broadly,
provide guidance concerning the power of federal courts
to review and revise state-enacted redistricting maps in
face of challenges to their validity under the VRA and
the Constitution. And, although not directly presented
here, the decision may offer insights as to the Court's
views on the constitutionality of Section 5 of the VRA
itself-an issue the Supreme Court signaled in 2009 that
it may be willing to reexamine due to the purported
burdens the provision places on state sovereignty, see
Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557
U.S. 193 (2009), and that, more recently, has been
raised in litigation by several states and is currently
percolating in the lower federal courts.

As a general matter, Section 5 of the VRA-which is at
the center of these consolidated cases before the
Supreme Court-prohibits covered jurisdictions (i.e.,
those, like Texas, with a history of discriminatory
voting practices) from implementing changes in "any
voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting"
without first obtaining either judicial or
administrative preclearance of those changes. 42 U.S.C.
 1973c(a). Administrative preclearance is obtained
through a petition to the U.S. Attorney General. Id.
Judicial preclearance may be obtained through a
declaratory-judgment action before a three-judge
district court in the District of Columbia. Id. Under
either route, the covered jurisdiction has the burden of
demonstrating that the voting change at issue "neither
has the purpose nor will have the effect of denying or
abridging the right to vote on account of" a prohibited
ground, such as race, color, or membership in a language
minority. Id.

Here, Texas-which has been covered by Section 5 since
1975, and which the Supreme Court recently noted "has a
long, well-documented history of discrimination that has
touched upon the rights of African-Americans and
Hispanics to register, to vote, or to participate
otherwise in the electoral process," LULAC v. Perry, 548
U.S. 399, 439 (2006)-was required by population changes
to redraw both its state legislative and U.S.
congressional districts for the 2012 elections.
Specifically, the 2010 Census showed that Texas's
population had increased by nearly 4.3 million since
2000, with this growth overwhelmingly attributable to an
increase in the state's Latino population.[1] Because of
its enormous population expansion, Texas is now entitled
to four additional congressional seats, and both its
state and federal legislative districts have to be
adjusted to comply with the constitutional rule of "one
person, one vote." Under Section 5 of the VRA, before
any of these required changes to Texas's election maps
can be implemented, they have to be "precleared" by the
federal government.

After receiving the necessary census data in February
2011, the Texas legislature passed a redistricting plan
for the state House on May 2, 2011, and a plan for the
state Senate on May 17, 2011. On June 17, 2011, Governor
Perry signed both bills. Then, on June 24, 2011, the
legislature passed a redistricting plan for Texas's
congressional districts, which the Governor signed on
July 18, 2011.

On July 19, 2011, Texas submitted all three plans for
preclearance under Section 5. Despite looming elections
deadlines, and unlike numerous others states that have
had to submit redistricting plans for preclearance this
year, Texas opted not to avail itself of the more
"expeditious alternative" of administrative preclearance
before the U.S. Attorney General. Morris v. Gressette,
432 U.S. 491, 504 (1977). Instead, Texas sought judicial
preclearance from a three-judge district court in the
District of Columbia.

On September 19, 2011, the United States, through the
Justice Department, answered Texas's complaint in that
action, asserting that the State was entitled to
preclearance of the state Senate plan, but opposing
preclearance of the state House and congressional plans.
Additional private-party defendants intervened, some of
whom opposed preclearance of the state Senate plan.

Forgoing an expedited trial, on September 14, 2011 (five
days before the United States even answered the
complaint), Texas filed a motion for summary judgment as
to each of its three redistricting plans. On November 8,
2011, the three-judge D.C. district court unanimously
denied Texas's motion, finding that the State had used
an improper methodology to determine which districts
afford minority voters the ability to elect their
candidates of choice, and that "Texas ha[d] failed to
demonstrate" that any of the three plans "do not have
the purpose of `denying or abridging the right to vote
on account of race or color.'" See Texas v. United
States, No. 11-cv-1303, 2011 WL 64406, at *12-15, *21-22
(D.D.C. Dec. 22, 2011). Trial in the preclearance action
is scheduled to begin on January 17, 2012, with closing
arguments on February 3, 2012.

While the preclearance action was pending in the
District of Columbia, these consolidated cases now
before the Supreme Court were separately brought before
a different three-judge district court in San Antonio,
in the Western District of Texas. In these cases,
numerous Texas voters, elected officials, and citizen
groups challenge the legislature's redistricting plans
under both Section 2 of the VRA, which can provide an
independent bar even if preclearance is obtained under
Section 5, and the U.S. Constitution. Like Section 5,
Section 2 bars voting practices and procedures that
result in the denial or abridgement of the right to vote
on the basis of race, color, or membership in specified
language minority groups.

In September 2011, the Texas district court held a two-
week bench trial on these Section 2 and constitutional
claims, but it has stated that, consistent with Supreme
Court authority, it will not render a decision on these
claims while the redistricting plans remain
unprecleared. In the meantime, in accordance with
Section 5, the court has enjoined Texas from
implementing its legislatively-enacted plans "unless and
until" those plans are precleared. 42 U.S.C.  1973c.

On October 4, 2011, anticipating the possibility that
Texas might fail to obtain preclearance and aiming to
keep Texas's statutory election schedule on track, the
Texas district court ordered the parties to submit
proposals for interim redistricting plans, which would
go into effect if no state-enacted plans were precleared
in time. Texas responded by urging the court to simply
adopt its unprecleared plans, unmodified, on an interim
basis. Plaintiffs and numerous intervenors submitted
their own proposals and also argued that, while the
legislature's plans remained unprecleared, the State's
suggestion to adopt those plans wholesale was
impermissible under the Supreme Court's precedents and
the plain terms of Section 5.

After conducting extensive hearings on the proposed
interim plans, and receiving comments from the parties
on its own draft proposals, the three-judge Texas
district court adopted interim, judicially-drawn
redistricting plans for the Texas House and Senate on
November 23, 2011, and an interim congressional plan on
November 26, 2011. Approval of the state Senate plan was
unanimous. One judge (Fifth Circuit Judge Jerry Smith)
dissented from the ruling on the state House and
congressional plans.

Among other things, the court-drawn plans adopted by the
Texas district court increase the number of districts in
which minority voters will likely be able to control
election outcomes ("ability-to-elect" districts). This
is in stark contrast to the plans enacted by the Texas
state legislature, which, despite the massive growth in
the state's Latino and minority population over the last
ten years, actually reduce such minority "ability-to-
elect" districts.

On November 28 and 30, 2011, the State filed a motion in
the Supreme Court to stay the Texas district court's
three interim redistricting plans. On December 9, the
Supreme Court granted the State's motion. It also
granted the State's request to hear its appeal of the
cases themselves and issue a prompt ruling, ordering
expedited briefing and setting oral argument for January
9, 2012.

In their briefs to the Supreme Court, Texas officials,
represented by former Bush Solicitor General Paul
Clement, continue to argue that the legislature's
unprecleared redistricting plans should be adopted "as
the interim plans while preclearance is pending."

The State asserts that "Texas' legislatively enacted
map, which is entitled to a presumption of good faith,
must be used as the `interim' map while preclearance is
pending, unless the court makes a finding that some
aspect of that plan is likely to violate the VRA or the
Constitution." The State contends that by failing to
follow this course and instead "refusing to grant any
deference to Texas' legislatively enacted districting
maps," the interim plans adopted by the district court
"disregard core principles of state sovereignty and
equitable jurisdiction, exceed the properly restrained
role of the judiciary, punish Texas for delays in
another judicial proceeding [i.e., the D.C. judicial
preclearance proceeding] that are beyond its control,
and open the door to gamesmanship by opponents of
legislatively enacted districting plans." Accordingly,
the State contends, vacatur of the Texas district
court's interim maps is required here.

Moreover, the State argues, there is not time enough
"for a remand for the Texas court to apply the proper
remedial standard and to craft yet another batch of
interim maps for the upcoming elections." Instead, the
State contends that to allow the already-delayed Texas
primary elections to take place as scheduled on April 3,
the Supreme Court should vacate the judicially-drawn
interim plans immediately and remand to the district
court with specific instructions to impose Texas's
legislatively enacted maps as the interim plans while
preclearance is pending. Nothing in such an order, the
State asserts, "would relieve Texas of its undisputed
burden to obtain preclearance before implementing its
new maps on a permanent basis."

Finally, the State argues that, even if the Supreme
Court vacates and remands without specifically ordering
the use of Texas's legislatively enacted plans on an
interim basis, the Court should "provide additional
guidance to the district court so that the court does
not repeat the same errors on remand." Among other
things, the State asks the Supreme Court to rule that
"nothing in the VRA requires proportional representation
on the basis of race, and that a State's failure to
maximize the strength of minority groups does not
violate the VRA"; to rule that "nothing in the VRA
requires a State to draw `coalition districts,' in which
multiple minority groups are a combined majority of the
population"; to make clear that the federal courts "may
not depart from traditional districting principles,"
such as Texas's rule not to break county lines, "unless
that departure is the only way to address an actual or
likely violation of law"; and to "clarify that the
district court cannot seek to equalize population among
state legislative districts unless the population
deviations in the legislatively enacted map violate the
law."

 In response to Texas's appeal, plaintiffs and
 intervenors in the Western District of Texas action
 filed briefs as appellees in the Supreme Court arguing
 that the district court's interim redistricting plans
 should be affirmed in their entirety. These parties
 argue that siding with the State and allowing it to use
 the legislature's maps before they have been precleared
 would violate the plain language of Section 5 and is
 impermissible under the Supreme Court's clear
 precedents. Indeed, the Texas plaintiffs and
 intervenors contend that because the State's
 legislatively-enacted plans have not obtained
 preclearance, the Texas district court "was precluded"
 by Supreme Court case law "from assessing any other
 deficiencies in the map and was required to adopt an
 interim plan." And, contrary to the State, they argue
 that "the district court proceeded exactly as it should
 have . . . , carefully drawing an interim plan that
 respected the most recent plan to obtain preclearance
 and even respecting the Legislature's proposed plan to
 the extent it could without violating federal law." To
 now reverse the district court, the appellees contend,
 would "effectively . . . overrule" the Supreme Court's
 "longstanding approach to Section 5" and "reward Texas
 for its delay in seeking preclearance."

The Obama Administration has also weighed in here,
filing an amicus brief late last week in which it urges
the Supreme Court not to permit Texas to use the
unprecleared redistricting plans enacted by the state
legislature. Like the appellees, the Administration
submits that the use of these plans before preclearance,
even on an interim basis, is barred by the terms of
Section 5 and Supreme Court precedent.

Unlike the appellees, however, the Obama Administration
does not argue simply for affirmance of the Texas
district court's interim plans. Instead, the
Administration asserts that, "[w]hile the plans in
substantial measure are justified by the need to avoid
violations of the VRA while respecting State districting
principles, the court should have further explained
certain aspects of its interim House and congressional
plans." As to the state House plan, the Administration
contends that the Texas district court should have given
more explanation for its decision to add three new
districts in which minority voters have an ability to
elect candidates of their choice. As to the
congressional plan, the Administration states that the
district court "should have given additional explanation
for drawing two of the State's four new seats as
[minority] ability-to-elect districts while also
restoring all of the preexisting ability-to-elect
districts." In addition, while acknowledging that the
creation of "coalition districts" (i.e., districts in
which two or more racial-minority groups together form a
numerical majority) may be protected under the VRA, the
Administration argues that the Texas district court
failed to lay a sufficient foundation for the use of
such districts here. To address all of these issues, the
Administration argues that vacatur of the interim state
House and federal congressional plans and remand to the
district court would be appropriate.[2]

Finally, and to the extent the Supreme Court decides
that time or other factors require it to decide now
between the state legislature's unprecleared plans and
the interim plans drawn by the Texas district court, the
Administration urges the Court to select the latter. As
the Administration states in its brief, "[e]ven if the
court-drawn plans may-pending further explanation-
insufficiently adhere to state redistricting principles
in certain respects, those plans are preferable to ones
whose very use would contravene Section 5's preclearance
regime and whose content violates Section 5 in purpose
and effect."

As noted, the Supreme Court is resolving these Texas
redistricting cases on a very expedited schedule.
Briefing was completed just this week. Oral argument
will take place next Monday. And a final decision on the
merits-with all the implications it will have both for
Texas and for federal election law more generally-is
expected shortly after that. The Brennan Center will, of
course, be closely monitoring any developments.

Coleman v. Maryland Court of Appeals

In its 2003 decision in Nevada Department of Human
Resources v. Hibbs, 538 U.S. 721 (2003), the Supreme
Court held that Eleventh Amendment state sovereign
immunity does not bar private damage suits against
states for violating the "family leave" provision of the
Family and Medical Leave Act (the "FMLA"). Under that
provision employers (including state governments) are
required to provide their employees with up to 12 weeks
of unpaid, job-protected leave in order to care for a
seriously ill family member. This decision, in turn,
rested on the Court's ruling that in enacting those
provisions, Congress properly exercised its powers under
section 5 of the Fourteenth Amendment to enforce the
Amendment's protections against gender discrimination
and to abrogate state sovereign immunity against private
damage suits like the one brought by Hibbs.

 The issue before the Supreme Court in Coleman v.
 Maryland Court of Appeals, which will be argued on
 January 11, is whether this same rule applies to permit
 suits against states under the FMLA's "self-care"
 provision, which requires employers to provide their
 employees with temporary medical leave to care for
 their own serious illnesses. More specifically, the
 Court must decide in Coleman whether Congress acted
 appropriately pursuant to its Fourteenth Amendment
 enforcement authority to prevent gender discrimination
 and to abrogate states' sovereign immunity when it
 enacted the FMLA's self-care provision, as Hibbs found
 it did when enacting the family-leave provision.

Perhaps even more important than the Supreme Court's
resolution of that specific question, however, are the
ramifications that the decision here may have on the
scope of Congress's enforcement powers-not only under
the Fourteenth Amendment, but also with respect to
Congress's parallel power to enforce the provisions of
the Fifteenth Amendment in order to combat
discrimination in voting.

The facts of the Coleman case are relatively
straightforward: From 2001 to 2007, petitioner Daniel
Coleman was employed by the State of Maryland, serving
as the executive director of procurement and contract
administration for the Maryland Court of Appeals. On
August 2, 2007, Coleman, suffering from an unspecified
illness, sent his supervisor at the state court a
request for sick leave. That request was denied, and
Coleman was terminated the following day. Coleman then
filed suit in Maryland federal court to challenge his
termination, alleging, among other things, that the
State's refusal to grant his request for leave violated
the self-care provision of the FMLA and seeking money
damages.

Both the district court and the Fourth Circuit on appeal
dismissed Coleman's FMLA claim on Eleventh Amendment
grounds, holding that Congress did not validly abrogate
states' sovereign immunity in enacting the self-care
provision. This decision, as both courts below
recognized, was in accord with the decisions of every
federal court of appeals to consider the question,
including post-Hibbs rulings by the Fifth, Sixth,
Seventh, Eighth, and Tenth Circuits. All of these
courts, including the Fourth Circuit in this case, have
determined that, unlike the family-care provision at
issue in Hibbs, the FMLA's self-care provision was not
enacted in response to a record of gender discrimination
by states, but was instead motivated by economic policy
objectives that are distinct from the substantive rights
guaranteed by the Fourteenth Amendment. In the Fourth
Circuit's view, the legislative record in Congress
simply did not establish that "states as employers [had
been] discriminating on the basis of gender in granting
leave for personal reasons." Without such evidence, the
Fourth Circuit concluded, the self-care provision
"cannot pass the congruence-and-proportionality test"
that the Supreme Court established in City of Boerne v.
Flores, 521 U.S. 507 (1997), for assessing whether
legislation is a proper exercise of Congress's
enforcement powers under Section 5 of the Fourteenth
Amendment.[3] Accordingly, the court of appeals held
that Congress has not validly abrogated the states'
sovereign immunity from private damages claims based on
the self-care provision, and that Coleman's FMLA claim
against the State must, therefore, be dismissed.

Relying primarily on Hibbs, Coleman now asks the Supreme
Court to reverse the Fourth Circuit's decision, reject
the rulings of the other federal courts of appeals to
consider this question, and hold that, when it enacted
the FMLA's self-care provision, Congress was validly
exercising its powers under Section 5 of the Fourteenth
Amendment to eradicate gender stereotypes that resulted
in discrimination against women and thus properly
abrogated the states' Eleventh Amendment sovereign
immunity. As Coleman puts it in his brief, "[t]he Hibbs
decision . . . provides all the guidance necessary for
this Court to find that the self-care provision is a
valid abrogation of Eleventh Amendment immunity."

Whatever the Supreme Court decides here with respect to
the question of state sovereign immunity under the
FMLA's self-care provision (and, given the unanimity in
the circuits, a decision for Coleman appears to be
something of an uphill battle), Coleman has potentially
much more far-reaching implications. Indeed, as the
first case in which the Roberts Court will interpret and
apply Section 5 of the Fourteenth Amendment, Coleman may
provide significant insights into how this set of
Justices will assess the scope of Congress's enforcement
powers-and, in particular, how they will apply Boerne's
congruence-and-proportionality test.

 In Hibbs, and then subsequently in its 2004 decision in
 Tennessee v. Lane, 541 U.S. 509 (2004), which involved
 the fundamental right of access to the courts, the
 Supreme Court, under Chief Justice Rehnquist, held that
 the test under Section 5 of the Fourteenth Amendment
 for whether a congressional statute is congruent and
 proportional to the constitutional violation being
 redressed was more easily met when the legislation at
 issue seeks to protect rights subject to heightened
 judicial scrutiny. In such circumstances, the Court
 made clear, Congress's decision to exercise its Section
 5 powers is entitled to substantial deference. See
 Hibbs, 538 U.S. at 735-36; Lane, 541 U.S. at 528-29.

But the decisions in Hibbs and Lane were divided ones
that turned on votes for the majority from Justices
(Chief Justice Rehnquist in Hibbs; Justice O'Connor in
both Hibbs and Lane) who are no longer on the Court and
whose successors (Chief Justice Roberts and Justice
Alito) may have more conservative views particularly on
issues of Federalism and state sovereignty.

Coleman should provide no occasion for any revision of
Hibbs or Lane, given the fact that appellee's in their
briefs do not question Hibbs's authority but merely
argue that it is inapplicable to this case, involving
different provisions of the FMLA. Nevertheless, given
that the Supreme Court granted certiorari here despite
the absence of any conflict among the six federal courts
of appeals that have decided the legal issue presented
by Coleman's petition, one might speculate whether it
might have done so to address some larger issues of
Section 5 jurisprudence or to reevaluate the bounds of
the current doctrine, as set forth in Hibbs and Lane.

With such potentially large ramifications-not only for
Congress's powers under Section 5 of the Fourteenth
Amendment, but, as noted, also for its powers to enforce
the Fifteenth Amendment's protections of the right to
vote-the Brennan Center will be following Coleman
closely.

[1] As the Obama Administration notes in its amicus
brief to the Supreme Court, the Census showed that, from
2000 to 2010, the Latino population in Texas had
increased by 2,791,255, the African-American population
by 522,570, and the white population by fewer than
465,000. See Brief for the United States as Amicus
Curiae Supporting Affirmance in Part and Vacatur in Part
at 4.

[2] The Administration does not ask for remand to the
district court with respect to the interim state Senate
plan. Because, as to the Senate plan, the State
"raise[s] no specific challenges except [its]
overarching argument for deference to an unprecleared
plan," the Administration argues that straight
affirmance is appropriate.

[3] In Boerne and a series of cases in the years that
followed, the Supreme Court under Chief Justice
Rehnquist's leadership held that state sovereign
immunity barred private damage suits against the states
for violations of a variety of federal laws, including
anti-discrimination provisions of the American with
Disabilities Act, the age discrimination law, the
copyright laws, the bankruptcy laws, and the Fair Labor
Standards Act. It found in each of these cases that
Congress did not have sufficient evidence that the
remedy it purported to enact under Section 5 of the
Fourteenth Amendment was "congruent and proportional" to
the enforcement of a right guaranteed by the Fourteenth
Amendment, as established by prior Supreme Court
precedent. This principle was intended to prevent
Congress from creating new constitutional rights beyond
those established by the Supreme Court in its
interpretations of the Fourteenth Amendment. While these
laws were also validly enacted under the Commerce
Clause, the Commerce Clause power, unlike the Section 5
power, was held to be inadequate to authorize Congress
to abrogate state sovereign immunity under the Eleventh
Amendment. Hibbs, in upholding Congress' authority to
enact the family leave provisions under Section 5 of the
Fourteenth Amendment, broke this trend of decisions.

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