November 18, 2011
My election law professor once suggested that an entire voting rights class could be taught using only cases from North Carolina and Texas. This past week was an excellent example of why.
The bigger story comes from Texas. Under the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that must get the Department of Justice to approve any change in its election laws, to ensure that the changes do not have the effect of disenfranchising voters on the basis of race (the approval process is called ‘preclearance.’) Changes to where district lines are drawn are one of the many election related functions requiring preclearance. Most jurisdictions requiring preclearance are in the South, but the list includes states as far north as Alaska (a full list can be found at 28 C.F.R. Pt. 51, App.)
This year, Texas did not receive preclearance from the Department of Justice for its newly adopted map, so it filed suit in the District of the District of Columbia seeking declaratory judgment that the new map did not abridge voting rights on the basis of race. On Tuesday, a three judge panel denied Texas’s Motion for Summary Judgment, and noted that a second panel, in the Western District of Texas, will have to draw new maps for use next year. The docket for the D.C. case can be found on WestlawNext at Docket Number 1:11-cv-01303; the order denying summary judgment can be found at Docket Entry No. 106. It’s not clear how long it will take to draw new maps, but when they are available, I expect them to be available on WestlawNext in W.D. Tex. Docket 5:11-cv-00360.
Meanwhile, in North Carolina, a set of maps that had already been pre-cleared had to be redrawn. Apparently, a small mistake in a computer program used to aid the state’s redistricting efforts left half a million North Carolinians living outside of any legislative district. For more on this, try the following search in North Carolina News in WestlawNext:
advanced:(re-district! & 500,000 (half /3 million) glitch error) & DA(after 11-01-2011).
I retrieved 23 stories but that number is likely to go up over time.
While the North Carolina Legislature instituted a fix that ensures everyone in the state has representation, which should in theory be the end of this embarrassing episode, some opponents say that the change runs afoul of a North Carolina requirements that districts be drawn only once every ten years. A search in the North Carolina Statutes for “Apportion! /s unalter!” returns the two provisions at issue.
A quick WestlawNext search across all dockets for “advanced:KNOS(110.50) & DA(after 01-01-2011)” reveals 148 voting rights cases filed since the beginning of this year, and more are likely to be filed in the coming weeks. There’s no way of knowing which will end with a bang, and which with a whimper, but in every decade since the Voting Rights Act passed, at least one state’s maps have been debated in the U.S. Supreme Court.