Why Abbott lost in the D.C. district court, and why it matters
Mon December 26, 2011 5:42 am

As most people who follow redistricting know by now, the D.C. district court ruled against the state and Attorney General Abbott, denying the state's  motion for summary judgment and refusing to preclear several state maps. The D.C. Court has since issued its ruling in the case, explaining why it denied the state's motion for summary judgment:

"Although Texas's alleged failure to account for the significant increase of the Hispanic population in the State does not establish retrpgression, it is relevant to the Court's evaluation of whether the Congressional Plan was enacted with discriminatory purpose. A redistricting plan that does not increase a minority group's voting power, despite a significant increase in that group's population, may provide significant circumstantial evidence that the plan was enacted with the purpose of denying or abridging that community's right to vote." (enphasis added)

The D.C. Court has recognized the elephant in the room, which is the growth in the Hispanic population. Abbott and the Legislature have acted as if it did not exist. The D.C. Court has framed the issue. The Supreme Court can't ignore it. That doesn't mean the plaintiffs are going to win, but it does mean that the issue is going to have to be addressed.

The eagerness with which the Supreme Court snapped up this case is not a good sign for the plaintiffs. The Roberts court showed itself to be a very activist Court in the Citizens' United case, with little regard for the impact of its decisions on what might naively be called the common good. The Court favored the classes over the masses, to quote an old populist slogan. It has also grabbed other high profile cases, including the Arizona immigration case and the Obamacare case. The Court has the chance to rewrite centuries of constitutional law, and I believe Roberts has a radical agenda that includes doing away with the preclearance section of the Voting Rights Act and, quite possibly, the use of the Commerce Clause as the basis for government programs. This is going to be a momentous term for the Court, and I don't think judicial restraint is going to be its hallmark. If the Texas Legislature is allowed to implement a map that does not increase minority voting opportunities despite an enormous increase in the number of minority voters, the Court will have legislated a significant degredation of the right to vote.

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