In her report about the recent oral arguments in a Texas redistricting plan that was created by a panel of three federal judges, Dahlia Lithwick noted a compromise floated by Justice Kagan:
Clement and Garza seem almost to agree on a Kagan-suggested compromise whereby the lower court starts again with the new Texas map, but Texas bears a burden of proof to show that each district isn’t unconstitutional. Garza says that if it keeps the burden of proof on Texas it would be “far more preferable.” Clement seems to concede that it’s better than the court-drawn maps.
As it turns out, the Supreme Court has done something along these lines in its decision today. In a unanimous, per curiam (that is, unsigned by any single member of the Court) opinion, the Supreme Court rejected the redistricting plan created by the panel without fully reinstating the plan drawn up by the Texas legislature. The Court's opinion outlined a new set of standards for the panel to follow which, according to election law guru Rick Hasen, is likely to result in a redistricting very close to the one initially drawn up by the legislature. In turn, this is likely to help Republicans keep control the House in 2012. Looking to the future, the most interesting aspect of this case is that Justice Clarence Thomas wrote a concurring opinion to reiterate his belief that the crucial Section 5 of the Voting Rights Act—which requires states with a history of disenfranchisement to "pre-clear" changes to their election laws with the federal government, to prevent the states from following their historical practice of developing new, creative ways to disenfranchise voters—violates the Constitution. If he can persuade four of his colleagues to go along, this would be a political earthquake.