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The Supreme Court today tried to untangle a three-court knot in a Texas redistricting case. The case tests the allocation of four new congressional seats that were created largely because of the state's booming Latino population. But it could have nationwide repercussions.
As NPR legal affairs correspondent Nina Totenberg reports, the Texas case pits the rights of minority voters under the Voting Rights Act against the powers of the state legislature.
NINA TOTENBERG, BYLINE: The Voting Rights Act requires that states with a demonstrated history of racial and ethnic discrimination, like Texas, get pre-clearance, in advance, before putting into effect a new redistricting plan. The fastest way to do that is under the Justice Department's 60-day pre-clearance system.
But amazingly, this is the first year since the 1965 Voting Rights Law was enacted that the decennial redistricting has occurred when a Democrat was president and Democrats were running the Justice Department. Perhaps because of that the Republican-controlled Texas legislature took the alternative and longer pre-clearance route, seeking approval from a three-judge court here in Washington, D.C.
So far, however, that has not worked out well for the state. It's not won pre-clearance to date. And now, it's challenging an interim plan drawn up by a federal court in Texas. The interim plan gives greater weight to the state's exploding Latino population. But the result is that three out of four new congressional seats would likely go to Democrats, as opposed to the GOP plan, which would likely result in three out of four seats going to the Republicans.
The state says its map should be assumed valid pending pre-clearance. But on the steps of the Supreme Court today, Domingo Garcia, representing a coalition of Hispanic groups, said the Texas redistricting shows why the Voting Rights Act bars adoption of a plan that has no yet been pre-cleared.
DOMINGO GARCIA: What we've seen the Texas legislature do is they gerrymandered and divided Latino communities all over the state of Texas in order to maintain political control.
TOTENBERG: Inside the Supreme Court chamber, the state's lawyer, Paul Clement, was first up. He contended that the Texas court should have deferred to the state legislature for an interim plan.
Justice Sotomayor, the court's only Hispanic justice, interrupted: Doesn't that turn the Voting Rights Act on its head? Instead of the state having to show its plan is not discriminatory, minorities would have the burden of proving it is discriminatory.
Justice Ginsburg then noted that the trial on the Texas pre-clearance application is set to begin next week and end February 3rd. And Justice Alito questioned how the state could hold its scheduled primaries in April. Texas has one of the earliest congressional primaries in the nation, he observed, why can't it be pushed back?
Lawyer Clement replied that the Supreme Court should send a message to the Texas court and others drawing interim plans that when pre-clearance is pending, the state legislature's plan should be presumed valid unless there are violations of the law.
But Justice Kagan noted that the Supreme Court has ruled repeatedly that only the Justice Department or D.C. court can find such a violation. And Justice Sotomayor asked why the courts should defer to a state legislative map that drew an antler-shaped district - in her words - in El Paso that was challenged for allegedly minimizing the Latino vote.
Next up was the Obama administration's Deputy Solicitor General Sri Srinivasan, who asserted that the interim plan was drawn up based on neutral principles. Justice Alito suggested that the idea of neutral principles is a fiction, given the fact that many political principles, such as incumbent protection, are permissible.
The last lawyer to argue was Jose Garza representing minority groups. He noted that the pre-clearance court here in Washington has already written a preliminary opinion, saying that Texas does not even dispute some allegations of discriminatory purpose in its redistricting plan.
Several justices asked how fast they could expect a decision on pre-clearance from the D.C. court with the trial set to end February 3rd. Garza replied that he expected a decision within 30 days. Chief Justice Roberts, puckishly: And how soon would you expect our decision on the appeal from that ruling? Garza, tongue firmly in cheek: Later this afternoon, Your Honor. Nina Totenberg, NPR News, Washington.