Perry v. Perez

On Monday, January 9th, the Court hear oral arguments in Perry v. Perez and Perry v. Davis, which consolidated a number of cases regarding the redistricting of Texas electoral maps.

The case involves questions regarding the role of the courts in implementing redistricting plans, as well as the scope of their authority. Specifically, Perry argues that the district court did not have authority to create interim electoral maps while new electoral maps drawn by the Texas Legislature based on the 2010 census results were pending before the United States District Court for the District of Columbia.

According to the United States District Court for the Western District of Texas’ supplemental opinion, which was not published along with the three-judge panel’s implementing orders because of “severe time restraints,” their interim plan was designed as a compromise between the legislature’s enacted plan and the legal challenged that were still pending prior to approval of the enacted plan.

The district court argues that it is precluded from implementing the legislature’s plan by Section 5 of the Voting Rights Act, which provides that “unless and until the [D.C. Court enters a judgment] no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice or procedure.”

Perry argues that “the drawing of ‘interim’ relief is very much an exercise of equitable and remedial discretion. Its entire legitimacy depends on it being so.”

He continues that the “straightforward and proper course [is to] treat[] the legislative maps as the presumptive ‘interim’ maps … altering them only when necessary to remedy a likely statutory or constitutional violation.”

The petitioner justifies this reliance on the argument that “The drawing of legislative districts is a core function of state government that requires a complex balancing of countless different interests, and like all actions of state officials it enjoys a presumption of good faith.”

Perry then criticizes the district court interim plan as lacking a legal basis and argues that it is only permitted to grant the form of interim relief it did after determining that the party challenging government action demonstrate a likelihood of success on the merits.

The district court argues that it need not do so. It explains that ts interim measures are not a preliminary injunction because no party has filed a motion for a preliminary injunction. Thus, the standard Perry advocates for is inapplicable.

Petitioner’s brief also claims that the district court designed its interim plan more for the practical effect of punishing Texas for delaying the preclearance process. He distinguishes this case from cases in which jurisdictions declined to seek preclearance, arguing that the delay here is a product of the challenges of redistricting. He further cautions the Court against establishing interpretations of Section 5 that will exacerbate the gamesmanship aspects of redistricting.

The brief for Perez largely mirrors the lower court’s supplemental opinion. She argues that the district court properly followed past precedent by declining to implement the legislature’s enacted plan prior to approval. And that the district court’s interim map “is an appropriate response to an enacted map that is illegal and not precleared.” Specifically, Perez argues that the enacted map violated the one-person one-vote standard, which explains the many legal challenges against it and the delays in its receiving Section 5 approval.

Besides the parties, a number of amicus briefs have been filed with the court, most notably by the Solicitor General’s office, which also spoke at oral arguments.  The United States filed a brief on behalf of neither party, in which it argued that the district court properly enjoined the unprecleared plans and drew interim plan.

It also argued that, although the district court properly exercised discretion in drawing an interim plan, it did not adequately explain the addition of new minority ability-to-elect districts, nor did it lay a sufficient foundation for the use of coalition districts. It recommended that the case should be remanded to remedy these defects. But, if exigent circumstances precluded a remand, the district court orders should be affirmed.