Posted by AzBlueMeanie:
Keep in mind is that this is an appeal from the maps drafted by a panel of federal judges in Texas for use in the 2012 election. The Voting Rights Act clearance challenge to Texas' redistricting is in the federal district court for the District of Columbia and has yet to go to trial. That is the case in which a challenge to Section 5 preclearance under the Voting Rights Act is most likely.
In one of its filings, Texas has said that “the only real question” before the Court at this time is “what to do now that the need for an ‘interim’ map to govern the 2012 elections has become exigent.” The issue of Section 5′s constitutional validity has been made at least a potential issue in these appeals by other parties, however.
Lyle Denniston writes at SCOTUSblog, Argument preview: Texas, the courts, and minority voters:
The three cases under review are Perry v. Perez (11-713), on redistricting the state house, Perry v. Davis (11-714), on redistricting the state senate, and Perry v. Perez (11-715), on redistricting of seats in the U.S. House, expanded for Texas this year from 32 to 36 to account for expanded population in the state since 2000, especially among Hispanics. The dispute revolves around new districts that the state legislature fashioned earlier this year — in May for the two houses of the state legislature, and in June for the U.S. House seats.
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The Section 5 issue arises because Texas, with a prior history of discrimination in voting based on race, is required by that section to get official clearance in Washington for any change it makes in any voting method or procedure — and that includes new districting maps — either from the U.S. Justice Department or from a special three-judge District Court in the nation’s capital. Texas, in fact, has an ongoing procedure in that District Court, at a trial starting later this month, seeking clearance of the three redistricting maps drawn by its legislature. Either process is actually called “preclearance,” because a state or local government covered by Section 5 is not supposed to put any election change into actual effect without that official seal of approval.
Most if not all of the state and local governments now covered by Section 5 — that is, some or all of 16 states — are chafing under their Section 5 obligations. That resentment has been encouraged by the Supreme Court’s decision in 2009, in the case of Northwest Austin Municipal Utility District No. 1 v. Holder, in which Section 5 barely averted a sweeping constitutional challenge while not escaping some sharp criticism within the Court about how far the Section goes to intrude upon the covered states’ sovereign powers and how much out of date its coverage rules may be.
Texas has not questioned — at least not directly to this point — its obligation to seek the “preclearance” that Section 5 requires for its new districting plans, although its lawyers have recently begun intimating in filings in the cases that the constitutional problems the state sees with that provision are definitely lurking in the background of this dispute. The Court, of course, is free to ignore those intimations, since the cases now before the Court do not directly involve Section 5′s constitutionality.
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Texas has said that “the only real question” before the Court at this time is “what to do now that the need for an ‘interim’ map to govern the 2012 elections has become exigent.”
Assuming, however, that the Court confines its inquiry to that one “real question,” how did that question develop?