On February 17, the 5th circuit revived the lawsuit LULAC of Texas v Texas Democratic Party, 08-50581. A group of Mexican-American voters had challenged the apportionment of delegates to Texas presidential caucuses, which are awarded on how many votes are cast in each district, rather than population. The Texas Democratic Party adopted that system in 1988 and never cleared it with the Voting Rights Section of the U.S. Justice Department. Texas is a covered state for section 5 of the Voting Rights Act, and even political parties in covered areas must get permission to change their rules. The U.S. District Court had dismissed the case, but the 5th circuit said that such lawsuits require a 3-judge U.S. District Court. Therefore, the case returns to U.S. District Court to be re-done with 3 judges instead of just one. The voters had also sued the state of Texas, but the 5th circuit voted 2-1 that only the Democratic Party is a necessary defendant, and dropped the state from the case.
The decision of the 5th circuit is here.
http://www.ca5.uscourts.gov/opinions%5Cunpub%5C08/08-50581.0.wpd.pdf
Here is a recording of the oral arguments before the 5th circuit.
http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx?prid=43670
In it, one of the judges compares the lawyer for the State of Texas to Justice Scalia. She was arguing that for the State of Texas to review the rules of the Texas Democratic Party would would be an unwarranted intrusion and interference with the political association rights of the Democratic Party. Under Texas law, the political parties are required to file their rules with the Secretary of State, but it would not be the responsibility of the state to submit them to the USDOJ for Section 5 pre-clearance.
The Texas Democratic Party apportions delegates on the basis of the previous (2006) Democratic gubernatorial vote. This is done at several levels, but the specific complaint appears to be the apportionment of delegates to senate districts for the national convention. Delegates in each district are allocated on the results of the primary.
At the time the District Court had decided the case (just before the state convention in 2008), the NAACP had sought to intervene on the side of the Democratic Party. They might do so again.
Something to think about. Does the VRA outlaw the use of at-large elections for multi-member districts, especially when voting is done by voting for a slate rather than individual candidates, such as is used for determining the appointment of presidential electors?
Does the NVP plan require Section 5 pre-clearance? Even though the 4 states that have approved the plan so far are not covered, they may potentially enter into a compact with covered states. Non-covered states have 276 electoral votes. But it would be strange if essentially all non-covered states could enter into an agreement that could potentially cause the covered states to be effectively excluded from the election.