[EL] Gonzalez v. Arizona and Section 2

Fri Apr 20 07:40:55 PDT 2012

I'm not sure that the tension here is as significant as Chris, Jim, and Rick suggest.  I think it's important not to take courts' broad statements of the law in isolation from the factual contexts in which they are made.  Farrakhan and Salt River arose in contexts where it's legitimately hard to figure out how the Section 2 results test is supposed to work -- felon disenfranchisement and defining the electorate in special purpose districts, respectively -- so it's not surprising that he court would apply a narrower understanding of that test to those sorts of cases than to the more "traditional" Section 2 contexts of at-large elections and poll worker decisionmaking presented by Blaine County and Gonzalez, respectively.  And of course the Gonzalez court ultimately rejected the Section 2 claim, which suggests that its understanding of Section 2 may not be as capacious as Chris suggests.

None of which is to endorse the Section 2 holdings or the analysis in any of these cases.  (When I was at DOJ, I argued Gonzalez en banc for the US as amicus, but we participated only on the NVRA issue, not on the Section 2 one.) But I am always skeptical of claims of tension between very factually different cases where those claims are based on broad statements in those cases.

Sent from my iPad

On Apr 20, 2012, at 10:14 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> Ironically, and without mentioning the serious tension Chris flags, the Ninth Circuit addressed the issue of deference to panel decisions in fn 4 in Gonzalez:
> 
> 4Under the law of the case doctrine, a court will generally refuse to
> reconsider an issue that has already been decided by the same court or a
> higher court in the same case. See Jeffries v. Wood, 114 F.3d 1484,
> 1488-89 (9th Cir. 1997) (en banc). We have recognized exceptions to the
> law of the case doctrine, however, where “(1) the decision is clearly erroneous
> and its enforcement would work a manifest injustice, (2) intervening
> controlling authority makes reconsideration appropriate, or (3)
> substantially different evidence was adduced at a subsequent trial.” Id. at
> 1489 (footnote omitted) (quoting Caldwell v. Unified Capital Corp. (In re
> Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir. 1996)) (internal quotation
> marks omitted). Some of our cases indicated that a three-judge panel
> could rely on these exceptions to overrule the law of an earlier published
> opinion, so long as no subsequent panel had yet relied on it. See id. at
> 1492-93; see also Mendenhall v. NTSB, 213 F.3d 464, 469 n.3 (9th Cir.
> 2000); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,
> 216 F.3d 764, 786-88 (9th Cir. 2000).
> We now hold that the exceptions to the law of the case doctrine are not
> exceptions to our general “law of the circuit” rule, i.e., the rule that a pub-lished decision of this court constitutes binding authority which “must be
> followed unless and until overruled by a body competent to do so,” Hart
> v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). To the extent that our
> prior cases suggested otherwise, see Jeffries, 114 F.3d at 1492-93; Mendenhall,
> 213 F.3d at 469 n.3; Tahoe-Sierra Pres. Council, Inc., 216 F.3d
> at 786-88, they are overruled. This determination, however, does not affect
> other recognized exceptions to the law of the circuit rule. See Miller v.
> Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that where
> “the relevant court of last resort” has “undercut the theory or reasoning
> underlying the prior circuit precedent in such a way that the cases are
> clearly irreconcilable,” then “a three-judge panel of this court and district
> courts should consider themselves bound by the intervening higher authority
> and reject the prior opinion of this court as having been effectively
> overruled”); see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
> Servs., 545 U.S. 967, 982 (2005) (holding that a “court’s prior judicial
> construction of a statute trumps an agency construction otherwise entitled
> to Chevron deference only if the prior court decision holds that its construction
> follows from the unambiguous terms of the statute and thus
> leaves no room for agency discretion”).
> 
> This was somewhat of a bone to Chief Judge Kozinski, who raised this issue in his earlier dissent to the panel decision and now joined the majority opinion en banc (both opinions written by Judge Ikuta, a former Kozinski clerk----and both sat on the original panel with Justice O'Connor for whom Kozinski (and if memory serves, also O'Connor) clerked).
> 
> 
> 
> On 4/20/2012 6:53 AM, JBoppjr at aol.com wrote:
>> 
>> Great analysis.
>>  
>> I have argued over a dozen cases in the 9th Circuit and I have always wondered what weight each panel actually gives to prior precedent. A similar analysis could be made in other areas of the law. I really wonder if the problem is not that they are struggling with this but actually that each panel is just coming to their own conclusion of the right result without much regard to prior precedent.  Jim Bopp
>>  
>> In a message dated 4/20/2012 1:09:40 A.M. Eastern Daylight Time, cselmendorf at ucdavis.edu writes:
>> On Wednesday, Rick commented on his blog that the en banc decision in Gonzalez v. Arizona is very important because, among other things, “it contains a major statement of what plaintiffs would need to show if they want to prove that a voter identification law violates section 2 of the Voting Rights Act.”  What Rick did not point out is that the Gonzalez Court’s “major statement” is in serious tension with the last “major statement” from the same court on what plaintiffs must prove in Section 2 cases.  
>> 
>> 
>> In Farrakhan v. Gregoire, the en banc Ninth Circuit held that plaintiffs challenging a felon disenfranchisement law under Section 2 must prove that “the [state’s] criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.”  As Justin Levitt commented at the time, Farrakhan seemed to raise the bar for proving intentional discrimination above the already high mark set by the U.S. Supreme Court in Arlington Heights (an equal protection case). 
>> 
>> 
>>  
>> 
>> Yet Gonzalez indicates that plaintiffs challenging a voter ID requirement under Section 2 need only establish a “statistical disparity between minorities and whites” that is “caused” by the ID requirement.  The opinion recites some platitudes about the Senate Report factors, but it does not say that plaintiffs must trace the disparate impact of a voter ID requirement (assuming it be proved) to current or past intentional discrimination by state actors, let alone that plaintiffs must prove intentional discrimination with a highdegree of certainty.  Oddly, Judge Kozinski’s concurring opinion does not even remark on the majority’s treatment of Section 2, even though Kozinski was a leading voice for requiring proof of intentional discrimination in Farrakhan.   
>> 
>>  
>> 
>> The zigzag from Farrakhan to Gonzalez is just the latest in the 9th Circuit’s struggle to make sense of the place of intentional or subjective discrimination in Section 2 litigation.  In a 1997 case, Smith v. Salt River                         Project, the Circuit rejected a Section 2 challenge to landownership qualifications for voting in certain special district elections because plaintiffs failed to show that the qualifications were established for discriminatory reasons, or gave electoral effect to intentional discrimination by other public or private actors.  By contrast, in U.S. v. Blaine County (2004), the Ninth Circuit held that at-large electoral arrangements that prevent a minority community from electing its candidates of choice (given race-correlated voting patterns) violate Section 2 irrespective of whether the district map was adopted for discriminatory reasons, and whether the race-correlated voting patterns owe to racial prejudices. 
>> 
>>  
>> 
>> Intentionally or inadvertently, Gonzalez moves the ball back towards Blaine County.  But because Gonzalez does mention Salt River and the Senate Report factors in passing, it leaves enough wiggle room for a future panel to change course yet again.  
>> 
>> 
>> (For my own efforts to steer a middle course on the role of subjective discrimination under Section 2, see Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377 (2012).)
>> 
>> 
>> Best,
>> 
>> 
>> Chris
>> 
>> 
>> Christopher S. Elmendorf
>> Professor of Law
>> UC Davis School of Law
>> 400 Mrak Hall Drive
>> Davis, CA 95616 
>> 530.752.5756
>> 
>> 
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> 
> -- 
> Rick Hasen
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> UC Irvine School of Law
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