Texas redistricting expert Michael Li is reporting on a new twist on the redistricting case in federal court in San Antonio.
According to Li, the federal court yesterday ordered that the United States Department of Justice be allowed to intervene in the redistricting case.
DOJ had sought to intervene in the redistricting case because the 2011 Texas redistricting plans “were enacted with discriminatory intent and had a discriminatory impact” in violation of the Voting Rights Act. The need for DOJ to intervene arose when DOJ's other enforcement option, preclearance, was taken away by the Supreme Court this summer in its Shelby County decision.
To read the court's reasons, read below the jump. In the Shelby County decision, the U.S. Supreme Court did not strike down Section 5 of the Voting Rights Act which required certain states, such as Texas, to seek preclearance from DOJ before implementing changes to voting and election laws. However, the Supreme Court did strike down Section 4 of the Act, which set out the formula determining which states – such as Texas – were required to seek preclearance. As a result, no state could be required to seek preclearance because there was no longer any constitutional method to determine who fell under the law.
However, Section 3 of the Act permits states or other jurisdictions to be “bailed in” to the preclearance requirement and thus still have to seek DOJ approval before implementing changes to voting and election laws.
The United States, through DOJ, is now seeking this relief under Section 3 in the San Antonio redistricting case because it feels that the evidence of discrimination that had been assembled against Texas before the Supreme Court decision would be sufficient for it to prevail.
In its ruling, the San Antonio court held that the claims of the United States were not moot. More importantly, however, it held that DOJ made a timely motion, contrary to the arguments made by the State of Texas. The San Antonio court first reasoned that vindication of rights under the Act is in the public interest. It then reminded the parties that DOJ (or the U.S. Attorney General) is the party responsible for vindicating those rights under the Act, even if they are brought under Section 3, rather than through the previously more common Section 5 path of preclearance.
The Court then addressed the arguments of timeliness, stressing that context was important and that DOJ had met the requirement of seeking to intervene in a timely manner based on the length of time the intervenor knew or should have known of the interest sought to be vindicated. Thought the case began in 2011, the court made clear that DOJ could not have known of a need to prosecute its claims under Section 3 of the Act. The court specifically cited the Shelby County decision, arguing that while the case itself commenced in 2011, DOJ's route under Section 3 arose only three months ago.