Having heard oral arguments on Monday, the Supreme Court is now considering whether to nullify redistricting maps in Texas which critics contend have been drawn to favor Republican candidates and weaken the electoral power of racial minorities — particularly Latinos and African Americans.
As ProPublica reports, the case will determine which district maps Texas will use in the 2012 elections, and could help ultimately determine which party controls the U.S. House of Representatives following the November election. Because of a 20.6% population increase, Texas is gaining four seats in Congress, and how the district lines are drawn is likely to determine whether those additional seats will be won by Democrats or Republicans — and how big an impact minority votes will have in deciding who the new representatives will be.
The Republican-dominated state legislature drew maps that heavily favor Republicans, with at least three of the four new congressional districts drawn in a way that seemed likely to diminish the impact of minority votes, even though Latinos and African-Americans accounted for 89% of the state’s population growth.
This is where Texas finds itself in possible violation of the law. Section 5 of the 1965 Voting Rights Act requires that Texas and other states with a history of racial discrimination get federal “preclearance” before implementing any laws that affect voting.
Texas had sought summary judgment on the case in federal court, but the judges ruled in November “that the State of Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice.”
In its Supreme Court filing on Monday, the Department of Justice argued that the proposed map is illegal because it diminishes the ability of minority voters to elect the candidate of their choice.
Texas is now asking the Supreme Court to use the state legislature’s maps before they have received federal preclearance, essentially trying to temporarily thwart the Voting Rights Act’s preclearance requirement.
There is speculation that the Court could use the case as an opportunity to address the constitutionality of Section 5 of the Voting Rights Act. As Lyle Denniston of SCOTUSblog put it, the implications of the case “raise fundamental questions about the division of power between state legislatures and federal courts in the crafting of new districts following each ten-year federal census, and about how far federal courts may go in that process to assure election opportunities for minority races or ethnic groups.”
“This dispute,” he says, “is a fundamental test of historic questions about federalism — that is, the roles of federal vs. state governments in managing election processes.”
While considering the important constitutional questions of the case, the Supreme Court would also do well to take into account the United States’ international obligations on elections, as laid out in the 1990 Copenhagen Document of the Organization for Security and Cooperation in Europe (OSCE), of which the U.S. is one of 56 participating states.
As a signatory to the Copenhagen Document, the United States has agreed to certain election-related commitments, specifically:
To ensure that the will of the people serves as the basis of the authority of government, the participating States will
— hold free elections at reasonable intervals, as established by law;
— permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote;
— guarantee universal and equal suffrage to adult citizens
In its observations of U.S. elections, the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) has repeatedly criticized the practice of partisan congressional districting (as recently carried out by the Texas state legislature), noting that it too often prevents genuine competition in congressional elections. ODIHR’s final report on the 2010 midterm elections concluded:
Delimitation of congressional districts is a fundamental element of the election process to ensure respect of the equality of the vote. While electoral districts for Senators comprise entire states, boundaries of electoral districts’ for House of Representatives (congressional districts) are updated every ten years, following a decennial census. The results of the ongoing 2010 decennial census will lead to a reapportionment of the 435 House of Representatives seats and redistricting of the existing congressional districts, on the basis of the new population figures.
Historically, districting has been based on a number of principles including that districts should have equal population, be compact and contiguous, respect administrative territorial divisions and preserve “communities of interest”. It is also noted that because redistricting plans are typically drafted by elected governors and state legislatures, they may often reflect political realities in a manner that takes into account voters’ political preferences. As a result of this process, some districts have very unusual shapes, which could indicate that “gerrymandering” has occurred in order to favour one partisan interest. In some cases, however, strange boundaries can emerge as a result of local geographic conditions or the taking into account of minority voting rights.
Nevertheless, there is a broad perception that a significant number of congressional districts are non-competitive as the outcome of the election could be predicted with a high degree of probability. In these mid-term elections, one senator and 27 candidates for members of the House were elected unopposed.
The OSCE/ODIHR reiterated its recommendation contained in the final report on the 2006 mid-term elections: “With a view to ensuring genuine electoral competition in congressional districts, consideration could be given to introducing procedures for drawing district boundaries that will be based on criteria other than voters’ voting histories and perceived future voting intentions.”
In response to fraudulent parliamentary elections in Russia just last month, Secretary of State Hillary Clinton stated, “We hope in particular that the Russian authorities will take action on the recommendations that come forward from observer missions like the OSCE in its final report and their own electoral observers, who are making recommendations about how to improve the process.”
As the U.S. frequently cites OSCE obligations in criticizing other countries’ elections, perhaps it’s time that the U.S. starts heeding its own advice and takes seriously the OSCE’s recommendations on how to improve the electoral process in this country rather than just geopolitical rivals like Russia. Ensuring genuinely competitive elections by drawing congressional districts fairly would be good start.