Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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Law Review 1205

LAW REVIEW 1205

January 2012

Military Voting and Redistricting

By Captain Samuel F. Wright, JAGC, USN (Ret.)

7.0—Military Voting Rights

On January 9, 2012 the Supreme Court conducted oral argument in the case of Perry v. Perez, No. 11-713.  I had the honor to witness the argument firsthand.

Because of massive population growth between the 2000 Census and the 2010 Census, Texas gained four seats in the United States House of Representatives, going from 32 districts to 36.  The Texas Legislature drew new lines for Texas’ 36 congressional districts and also new lines for the Texas Senate and Texas House of Representatives. 

Under the Voting Rights Act (VRA) of 1965, Texas and several other states (mostly in the South) must get “pre-clearance” before implementing any change in voting procedures, including redistricting.  The VRA provides two alternative means for obtaining pre-clearance—from the United States Department of Justice (DOJ) or from a 3-judge federal court in our nation’s capital.  Texas chose to bring suit in the 3-judge court, seeking pre-clearance.  The trial is ongoing now, and the decision is expected in early February but may be delayed.

Texas’ primary was scheduled for March but has been postponed until April.  The primary and general election cannot proceed until the shape of the districts has been finalized.  A federal district court in Texas held a trial and granted emergency relief, establishing congressional and state legislative lines for 2012 only—subject to final determination of lines by the 3-judge court here in DC.  The Texas judge came up with lines that were considerably different from the lines that passed the Texas Senate and House of Representatives and were signed into law by Governor Rick Perry.

Texas appealed, and the Supreme Court agreed to hear the case on an emergency basis, bypassing the United States Court of Appeals for the 5th Circuit, the federal appellate court in New Orleans that hears appeals from district courts in Texas, Louisiana, and Mississippi.  The Supreme Court stayed (delayed) the application of the Texas court’s decision and scheduled oral argument for January 9, 2012. 

Texas’ primary has already been delayed from March to April.  It seems to me, from listening to the oral argument, that all parties seemed to assume that the primary will need to be delayed again.  Chief Justice Roberts asked the Solicitor General of the United States (representing the United States in this case) how much the primary could be delayed.

The Solicitor General pointed out that under the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) absentee ballots for the general election must go out by 45 days before Election Day, or by September 22, 2012.  The Solicitor General told the Supreme Court that Texas needs approximately 90 days after the primary to print and start mailing out general election ballots.  Thus, the primary must be held not later than late June.

I am pleased that the needs of overseas military voters have been brought to the attention of our nation’s highest court.  We will keep the readers informed of developments in this important and fascinating case.