The Justice Department is not a party to the San Antonio case and, until now, it hasn’t been involved in the interim map appeal before the Supreme Court.
However, given the possible impact that a Supreme Court ruling could have on operation of section 5 of the Voting Rights Act, legal observers widely expected the DOJ to weigh in with a brief – and, on Wednesday, it did.
The gist can be summed up as “section 5 says what it meant and meant it said” (to paraphrase Dr. Seuss).
What that boils down to, very simply, is that the DOJ is saying “better a somewhat imperfect court-drawn interim map than an illegal legislatively-drawn one”, which puts them in agreement with the plaintiffs. SCOTUSBlog goes into more detail:
When Texas filed its opening brief in the Supreme Court a week ago, it said there was no time to draw up new redistricting boundaries, so the Court should order into effect for next year’s elections the maps drafted by the state legislature earlier this year, even though those have not gained any approval — as federal voting rights law requires — in Washington. The Administration’s brief directly opposed that request, arguing that a state such as Texas, required to get preclearance in Washington for any change in any election method, may not use any change until it has gained clearance. (The preclearance requirement is imposed on a number of states, mostly in the South, that formerly had a history of racial bias in their voting laws. Texas has been covered by the Voting Rights Act’s Section 5 since 1975.)
When a federal District Court outside of Washington has a challenge before it to an election change from a state such as Texas, the Solicitor General contended, that court does not examine its validity but rather has to block its use if it has not been precleared either by a federal District Court in Washington or by the Justice Department. Thus, the brief argued, a three-judge District Court in San Antonio — faced with six lawsuits challenging the legality of the Texas maps under another part of the Voting Rights Act (Section 2) — properly barred Texas from using the new redistricting plans until they have official approval, and then drew up its own “interim” maps.
Texas should not be allowed to use its own maps in 2012, the Administration contended, even on an interim basis. “There is no basis,” it argued, “for allowing any temporary circumvention of the preclearance requirement, much less one of the magnitude [that Texas] seek[s].”
If the Court were to find that it must choose between the maps created by the Texas legislature and the “interim” maps drawn by the San Antonio court, the new brief said, it should choose the court-ordered plans. “Even if the court-drawn plans may — pending further explanation — insufficiently adhere to state redistricting principles in certain respects, those plans are preferable to ones whose very use would contravene Section 5′s preclearance regime and whose content violates Section 5 in purpose and effect.”
I think we’re all clear on what the stakes are here. The DOJ’s recommendation is that SCOTUS remand the case back to the San Antonio court to fix a few minor issues with the maps (Congressional and State House only; they took no issue with the Senate map), or if there really is no time for further line-drawing, to use the already-existing interim maps and to sort it all out later as the cases go to trial. SCOTUS takes up oral arguments on January 9.