So the Supreme Court in Perry v. Perez remands to let the district court get another crack at a job which, at best, they are “ill suited” at. Not much of a vote of confidence, eh?
To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth.This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policiesunderlying” a state plan—even one that was itself unenforceable—“to the extent those policies do not lead toviolations of the Constitution or the Voting Rights Act.”
Section 5 prevents a state plan from being implemented if it has not been precleared. But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing aninterim plan. On the contrary, the state plan serves as a starting point for the district court. It provides importantguidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act,without displacing legitimate state policy judgments withthe court’s own preferences.
A district court making such use of a State’s plan must, of course, take care not to incorporate into the interimplan any legal defects in the state plan.
So apply the state’s map, unless the state’s map violates the VRA (a decision for the D.C. District Court, really).
The calculus with respect to §5 challenges is somewhatdifferent. Where a State has sought preclearance in the District Court for the District of Columbia, §5 allows only that court to determine whether the state plan complieswith §5. Consistent with that design, we have made clear that other district courts may not address the merits of §5 challenges. See, e.g., Perkins v. Matthews, 400 U. S. 379, 385 (1971). The local district court drafting an interimplan must therefore be careful not to prejudge the merits of the preclearance proceedings. The court should presume neither that a State’s effort to preclear its plan willsucceed nor that it will fail.’
So what should the Texas court do, in order not to prejudge what D.C. will find:
The need to avoid prejudging the merits of preclearanceis satisfied by taking guidance from a State’s policy judgments unless they reflect aspects of the state plan thatstand a reasonable probability of failing to gain §5 preclearance. And by “reasonable probability” this Court means in this context that the §5 challenge is not insubstantial. That standard ensures that a district court is not deprived of important guidance provided by a state plan due to §5 challenges that have no reasonable probability of success but still respects the jurisdiction and prerogativeof those responsible for the preclearance determination. And the reasonable probability standard adequately balances the unique preclearance scheme with the State’ssovereignty and a district court’s need for policy guidance in constructing an interim map. This Court recently notedthe “serious constitutional questions” raised by §5’s intrusion on state sovereignty. Northwest Austin, 557 U. S., at 204. Those concerns would only be exacerbated if §5required a district court to wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.
You got that? Reasonable probability means not insubstantial.
This is the Court’s benchslap of the district court:
To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own conceptof “the collective public good” for the Texas Legislature’sdetermination of which policies serve “the interests of the citizens of Texas,” the court erred. . . .
Because the District Court here had the benefit of a recently enacted plan to assist it, thecourt had neither the need nor the license to cast aside that vital aid. . . .
The District Court was thus correct to take guidance from the State’s plan indrawing the interim map for those regions. But the court then altered those districts to achieve de minimis population variations—even though there was no claim that thepopulation variations in those districts were unlawful. Id., at 171, and n. 8. In the absence of any legal flaw inthis respect in the State’s plan, the District Court had no basis to modify that plan. . . .
The District Court was apparently motivated by a wellintentioned desire to save Texas the time and expense of reconfiguring precincts, and to ensure that the court’s interim plan could be implemented in time for the upcoming election. Id., at 90, 102–103, 109. But the State’s planaccepted the costs of splitting precincts in order to accomplish other goals, and Texas law expressly allows recastingprecincts when redistricting. See Tex. Elec. Code Ann. §42.032 (West 2010). If a State has chosen to accept the burden of changing its precincts, and its decision to do sois otherwise lawful, there is no warrant for a district court to ignore the State’s decision. Of course, in this case it may well be that Texas will reexamine this issue in light of the exigencies caused by the impending election. . . .
The District Court also appears to have unnecessarily ignored the State’s plans in drawing certain individualdistricts. Without such a determination, the District Court had no basis for drawing a district that doesnot resemble any legislatively enacted plan.
Update: More from Rick Pildes about how two courts need to address the same issue!
Until today’s decision, there was at least one clear rule when we have dueling federal courts dealing with redistricting plans that have to be evaluated under both Section 5 of the Voting Rights Act and Section 2 of the VRA and the Constitution: only the pre-clearance court in D.C. could address the Section 5 issues, while the second federal court (here, in San Antonio) was the only court that could address the Section 2 and constitutional issues. Now, the Supreme Court has decided that the second federal court should also become a second court for looking at the Section 5 issues as well – thus putting two federal courts in the position of addressing the identical issue, with the possibility that those courts could come out differently on the question. The Court has held that the San Antonio court has to make the predictive judgment of whether there is a “reasonable probability” that the state’s plan will fail to gain preclearance in the otherfederal court – the preclearance court in DC. So the court in Texas has been given added legal responsibilities in which it is already under enormous time pressure to come up with an emergency, temporary and interim redistricting plan – it now has to address the Section 5 issues, in addition to the Section 2 and constitutional issues. This solution is going to proliferate litigation complexities and create even more confusion, rather than reduce the uncertainties.