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Here in Washington, the U.S. Supreme Court today will hear arguments in a tangle of Texas redistricting cases with repercussions well beyond the Lone Star State.
NPR legal affairs correspondent Nina Totenberg reports on what's being dubbed the three-court puzzle.
NINA TOTENBERG, BYLINE: The constitution mandates that every 10 years the states must redraw their legislative and congressional district lines to reflect population shifts documented in the decennial census. Texas is one of the big beneficiaries this year, gaining four additional congressional seats. The reason is the state's booming population, fueled largely by Latinos. Of the four million new state residents, an astounding two-thirds-plus are Hispanic.
Now, legislative redistricting is almost always an ugly process, stoked by partisanship and self-interest. But one thing that redistricting cannot do under the Voting Rights Act is to dilute minority voting power. That requirement extends to every state. But those states, like Texas, with a demonstrated history of racial and ethnic discrimination, must submit their redistricting plans in advance for pre-clearance to the Justice Department, or to a three-judge federal district court in Washington, D.C.
This, however, is the first redistricting year since the voting rights law was enacted in 1965 when the White House and Justice Department are in the hands of Democrats. And Republican-controlled Texas for the first time has entirely bypassed the quick, 60-day pre-clearance mechanism provided for at Justice.
Instead, the state opted to seek pre-clearance from the federal court in Washington, a more open-ended procedure that was made longer when Texas rejected an early trial date and sought to win outright without a trial.
That didn't work out well for the state. In November, the three-judge court ruled unanimously that the state had failed to show its plan was not discriminatory, and it ordered a trial to determine the facts.
With the Texas primary elections then just three months away and no redistricting map in place, the D.C. court also took an unusual step. It gave the green light to a different three-judge federal court in Texas to come up with an interim map.
The Texas court rejected the state plan, which would likely have resulted in three out of four new congressional seats going to the GOP, and it redrew the lines to more reflect Latino voting power, the result being that three of the four seats would now likely go to the Democrats.
The state then went to the U.S. Supreme Court, seeking to block the interim plan. The legal dilemma facing the Supreme Court is this: It can't default to the old legislative map. Because of the huge population growth, that map violates the one person, one vote principle.
But the new map drawn by the Texas legislature hasn't been pre-cleared yet under the Voting Rights Act and there are strong hints from the Washington, D.C. pre-clearance court that the state plan illegally minimizes minority voting power.
That leaves the interim plan, but the state contends that's no good either, because the court in Texas, quote, "substituted its judgment" for the legislature's without any finding of legal violations. Former Bush administration Solicitor General Paul Clement represents the state.
PAUL CLEMENT: Do you just have the courts start drawing from scratch or - we would suggest, you start with the legislative map and you only start redrawing it if you have a finding of a likely constitutional or statutory violation.
TOTENBERG: The state is asking the Supreme Court to void the interim plan and put in place the state's proposed redistricting plan for now, while pre-clearance is pending. The state notes that with primaries now scheduled for early April that the state and candidates are in dire need of a map for the 2012 election.
But minority groups, backed by the Obama administration, reply that whatever pickle the state finds itself in is of its own making, since it has long known the timetable. They note that the state chose to bypass the quick Justice Department pre-clearance mechanism. And they maintain that the state has deliberately dragged out the court pre-clearance process. Stanford law professor Pam Karlan is one of the lawyers challenging the state plan.
PAM KARLAN: Texas' claim that this process has bogged down and therefore it should somehow be excused is a little bit reminiscent of the claim of somebody who kills his parents and then throws himself on the mercy of the court because he's an orphan.
TOTENBERG: Indeed, Karlan observes that the state has redrawn a district that the Supreme Court threw out just five years ago for minimizing Latino voting power. While Texas claims that the state legislature's map is entitled to the presumption of good faith, those challenging the map contend that to allow Texas to use a plan that has not been pre-cleared would be an end run that effectively nullifies the minority voter protections in the voting rights law.
Nina Totenberg, NPR News, Washington.