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Austin Impact of Supreme Court Decision

Ruling on Section 5 of Voting Rights Act ends
need for federal approval of council districts

by Steve Bickerstaff
© The Austin Bulldog
Posted Tuesday June 25, 2013 5:50pm

President Lyndon Johnson signs the Voting Rights Act of 1965President Lyndon Johnson signs the Voting Rights Act of 1965Today, the United States Supreme Court by a vote of 5-4 effectively struck down Section 5 of the Voting Rights Act of 1965. For Austin, that means that federal approval of the 10 council districts being drawn by the Independent Citizens Redistricting Commission will not be needed.

Technically, the Court left Section 5 in place, but unusable. The Court directly struck down the formula in Section 4(b) of the Act that determined which states and local jurisdictions nationwide were covered by the requirement of Section 5 that changes in election procedures and practices by those covered jurisdictions had to be submitted for preclearance. Section 5 was effectively left dangling inapplicable to any jurisdiction.

Contrary to some preconceptions, the Voting Rights Act of 1965 never actually named certain states or jurisdictions to which Section 5 applied. Instead, the Act established a coverage formula [Section 4(b) of the Act] based on the presence in the jurisdiction in 1964 of a test or device (e.g. literacy tests) limiting voting and a low total voter registration or turnout in the 1964 presidential election. Only certain jurisdictions nationwide were covered by this formula. Other jurisdictions (including Texas) were added in 1970 and 1975 by amendments supplementing the coverage formula, but also tying coverage to circumstances existing when the amendments were adopted.

Today’s opinion for the Supreme Court (written by Chief Justice John Roberts) found that the coverage formula was unconstitutionally outdated. In his opinion, Chief Justice Roberts explained, “Congress could have updated the coverage formula ..., but did not do so. Its failure to act leaves us today with no choice but to declare Section 4(b) unconstitutional.”

It is unclear whether the Department of Justice may be more aggressive in the future in trying to utilize other parts of the Act not tied to this coverage formula.

Impact on Austin’s 2014 election

In terms of the City of Austin process for drawing 10 new election districts, which will be achieved through the work of the recently established Independent Citizens Redistricting Commission, there are three identifiable results of today’s ruling:

First, Section 2 of the Voting Rights Act remains in effect nationwide and bans racial discrimination in voting procedures and practices, including redistricting. Thus, the city’s Independent Citizens Redistricting Commission remains subject to a firm federal legal requirement that it must not discriminate against minority voters (Black or Hispanic) during redistricting.

Second, any final redistricting plan adopted by the Commission will take effect immediately on adoption without preclearance under the Voting Rights Act. As a result, the Commission can plan its schedule without allowing time for obtaining preclearance.

Third, although the ban on discrimination remains applicable, the burden of showing discrimination in a legal proceeding has changed. Under the preclearance requirement of Section 5, the covered jurisdiction had the burden of showing that the redistricting did not discriminate against minority voters. If the covered jurisdiction failed to carry this burden, the election change (e.g. redistricting) was rejected and could not take effect. Now, with the Supreme Court ruling, an election change takes effect when enacted and the burden is on the minority plaintiff (under Section 2) to demonstrate that the redistricting is illegally discriminatory.

For many observers (including myself) the outcome of the Supreme Court decision is regrettable. At the state level in Texas, the absence of the preclearance requirement clearly shifts power to the legislative majority and places a greater burden on minority plaintiffs in court. Challenges to the state legislative redistricting are likely to continue, but now under Section 2 of the Act.

In Austin, however, I expect the independent redistricting commission to draw our 10 districts without discriminating against minority voters. If my expectation is accurate, the lack of preclearance should not be a factor in the final shape of the city’s districts.

Attorney Steve Bickerstaff has represented more than 100 jurisdictions on redistricting matters, including during the redistricting process, or before the U.S. Department of Justice, or in state or federal courts. Bickerstaff drafted the initial plan for using an Independent Citizens Redistricting Commission (ICRC) to draw Austin’s council districts. He based the ICRC plan on a model used by the State of California. Austinites for Geographic Representation used Bickerstaff’s draft, as tweaked by attorney Fred Lewis, to meet local concerns, and made it part of the 10-1 plan that was adopted by voters in November 2012 election as an amendment to the Austin City Charter. You may contact Steve at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .



0 #1 ATXObserver 2013-06-25 21:05
So how long do they have to draw the districts? Like till Jan? Feb?

Also, does this not mean they can take an extra month or two to get the right counsel and mapping consultant?
0 #2 Editor 2013-06-25 22:21
Re: #1 ATX Observer: To answer your questions:

Regarding how long the Independent Citizens Redistricting Commission (ICRC) has to draw council districts, the overarching goal is for the process to be done in such a way as to allow anyone who wants to run for City Council to conduct a viable campaign. The City Charter prohibits raising money until six months before the election. That would be around May 1, 2014.

So the idea was to shoot for getting preclearance for the district maps by no later than May 1. To do that, the goal had been to complete the district maps by the end of this year and get them to the DOJ, so that it would have four months to process and approve the maps.

Now that preclerance is no longer necessary, theoretically the ICRC has until as late as May 1 to complete and approve the maps. Since the City Council has no authority to alter the maps, they would be effective immediately.

As a practical matter, however, it would be desirable to complete the maps as soon as the process can be done thoroughly and make the maps as good as humanly possible. This would give potential candidates more time to assess their chances of getting elected and run a viable campaign.

We should not forget, however, that although preclearance is no longer required, any African American or Latino who is an Austin resident and who believes the adopted maps are somehow discriminatory would have standing to sue in an attempt to change or overturn the maps. (No other minority groups are protected classes under the Act, e.g., Asian Americans and therefore do not have standing to sue.)

Given the possibility of litigation, the sooner the maps are completed and adopted, the sooner any litigation that might be filed can be settled and not pose a problem for a November 2014 election.
0 #3 Clint Smith 2013-06-26 08:40
Many thanks for the on-the-mark 'instant replay' report by 'The Austin Bulldog' to the local Publicon this key point - as well as the very helpful responses by the Editor to clarify critical issues. Current fast-moving regressive trends at levels of SCOTUS and in TX Legislature makes this information even more vital to the Local Public in efforts to assess ways & means of exerting any/whatever grassroots influence while we still can!-
0 #4 Linda Curtis 2013-06-26 10:22
Thanks to Ken and Steve for sharing your understanding so quickly.

What occurs to me is that citizens commissions are going to become more critical now that preclearance is dead.

I speak for me, not AGR on this point, as a longtime independent. I think something good can come out of this court ruling. Citizens are now, more than ever, required to step up to the plate to "takeover" the redistricting process and to disarm the parties who will never get it right.

Citizens redistricting needs to be front and center in the upcoming 2014 state elections. We already got it right in Austin, so we can be a model.
0 #5 Editor 2013-06-26 10:39
Re: #4 Linda Curtis: You wrote:

"Citizens redistricting needs to be front and center in the upcoming 2014 state elections.”

Please elaborate on how you envision "citizens redistricting" affecting these elections.

Given that we do not have initiative and referendum at the state level in Texas, are you suggesting a litmus test for candidates on the issue of legislative action to establish independent citizens redistricting?

As you know, legislative bills that would have accomplished that goal have been introduced in the past and they never got traction.

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