[EL] more Texas

Fri Jan 20 11:26:20 PST 2012

My thought is that the shift of the burden of proof in Section 5 cases occurs in the DCDC; the words "reasonable probability" impose a lesser burden in the Texas court than the word "likelihood."  The reason for the lesser burden in Texas court is the shift of burden in DC.  Plaintiffs' claim is "not insubstantial" if there is some evidence that Texas will find it difficult to overcome its burden of proof in DC.  They need not prove a likelihood that Texas will lose.

Brian K. Landsberg
Distinguished Professor and Scholar
Pacific McGeorge School of Law
3200 Fifth Avenue, Sacramento CA 95817
916 739-7103

From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Friday, January 20, 2012 10:08 AM
To: Brian Landsberg
Cc: law-election at UCI.edu
Subject: Re: [EL] more Texas

If that were the case, there would be no need to use different standards (likelihood v. reasonable probability); rather the Court would just say who bears the burden of proof.

On 1/20/2012 10:05 AM, Brian Landsberg wrote:
Isn't the main difference that challengers of the Texas plan bear the burden of proof under Section 2, while Texas bears the burden under Section 5?

Brian K. Landsberg
Distinguished Professor and Scholar
Pacific McGeorge School of Law
3200 Fifth Avenue, Sacramento CA 95817
916 739-7103

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, January 20, 2012 9:07 AM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] more Texas

Splitting Hairs and Ducking Issues: The Supreme Court's Texas Case, Likelihood of Success, and Reasonable Probability<http://electionlawblog.org/?p=28323>
Posted on January 20, 2012 9:05 am<http://electionlawblog.org/?p=28323> by Rick Hasen<http://electionlawblog.org/?author=3>

When a court needs to give interim relief (such as issuing a preliminary injunction or granting a stay of a lower court order), it is acting where there is a risk of error.  For this reason, the standards for determining whether interim relief is warranted are necessarily probabilistic, taking into account the risk that the court will err and the harm to each side if the Court does err.  (I discuss the general Remedies standards in more detail in chapter 9 of this book<http://www.amazon.com/Remedies-Examples-Explanations-2nd/dp/0735584613/ref=ntt_at_ep_dpi_1>.)

When the Texas court issued its interim maps in the Texas redistricting case, it did not take into account how likely the Voting Rights Act challenges to those maps were likely to be.  As I explained in my earlier post<http://electionlawblog.org/?p=28312>, the Supreme Court held today that this was an error.  But from the point of view of Remedies, what's most interesting about the opinion is the splitting of hairs that the Court commands between dealing with a potential section 2 violation (a likelihood of success on the merits standard, familiar from the Supreme Court's Winter case) and a "reasonable probability" standard for Section 5 (which the Court says it puts in place because earlier caselaw says that only the Washington DC court, and not the local three-judge court crafting the interim plan, can decide whether or not a plan should be precleared). The more I look at the language, the harder it is for me to understand what the Court was trying to accomplish.

Pages 5-6 of the opinion<http://www.supremecourt.gov/opinions/11pdf/11-713.pdf> have three paragraphs on this question.  But let me highlight the language specifically on the difference between the two standards.

Likelihood of success:

Where a State's plan faces challenges under the Constitution or §2 of theVoting Rights Act, a district court should still be guided bythat plan, except to the extent those legal challenges areshown to have a likelihood of success on the merits. Plaintiffs seeking a preliminary injunction of a statute mustnormally demonstrate that they are likely to succeed onthe merits of their challenge to that law. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008).

Reasonable probability (my emphasis):

The need to avoid prejudging the merits of preclearanceis satisfied by taking guidance from a State's policy judgments unless they reflect aspects of the state plan thatstand a reasonable probability of failing to gain §5 preclearance. And by "reasonable probability" this Court means in this context that the §5 challenge is not insubstantial. That standard ensures that a district court is not deprived of important guidance provided by a state plan due to §5 challenges that have no reasonable probability of success but still respects the jurisdiction and prerogative of those responsible for the preclearance determination. And the reasonable probability standard adequately balances the unique preclearance scheme with the State's sovereignty and a district court's need for policy guidance in constructing an interim map. This Court recently noted the "serious constitutional questions" raised by §5's intrusion on state sovereignty. Northwest Austin, 557 U. S., at 204. Those concerns would only be exacerbated if §5 required a district court to wholly ignore the State's policies in drawing maps that will govern a State's elections, without any reason to believe those state policies are unlawful.

Why the splitting of hairs?  To a non-technical reader, "likelihood of success," "reasonable probability," and "not insubstantial" chance of success sound like they are the same.  Yet in the context it is clear that they are not the same standards.

It seems, as Michael Li suggests<http://txredistricting.org/post/16172837585/scotus-rules-sends-case-back-to-san-antonio-court-for>, that this language was some kind of political compromise.  From the Supreme Court oral argument<http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-713.pdf>, it was clear that Justice Sotomayor did not believe the Texas court could give any deference to the Texas maps while the preclearance case was pending.  It was also clear that Justice Kennedy was concerned about how this interim map (and section 5 generally) infringed on Texas's sovereignty.  Was this language crafted to fudge the issue, so that some can claim the "not insubstantial" is a tougher standard than likelihood of success on the merits (admittedly my first read of the language) and others suggesting that is an easier standard (as in, "not insubstantial" means "not frivolous").

The more I read the language the less sure I am I know whether reasonable probability is meant to be greater or lesser than the likelihood standard.  It is even worse, because the Court instructs that the three judge court "should presume neither that a State's efforts to preclear its plan will succeed nor that it will fail."

I'll be interested in hearing from others about the meaning of these two standards.

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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
The Texas Redistricting Decision<http://electionlawblog.org/?p=28318>
Posted on January 20, 2012 9:03 am<http://electionlawblog.org/?p=28318> by Richard Pildes<http://electionlawblog.org/?author=7>

Today's Supreme Court decision in the Texas redistricting case is largely a win for the State of Texas, for reasons I explained<http://electionlawblog.org/?p=28086> in advance of the decision.  But the Court forged a "compromise" solution that was not raised or discussed at all at the oral argument in the case, nor one raised in the briefs.  It is actually not the "compromise" solution that Justice Kagan raised at the argument, but a somewhat different one the Court apparently came up with during its internal deliberations in the case.  And I fear that this compromise is going to make an already complex situation even more unwieldy when these situations arise in the future.

Until today's decision, there was at least one clear rule when we have dueling federal courts dealing with redistricting plans that have to be evaluated under both Section 5 of the Voting Rights Act and Section 2 of the VRA and the Constitution:  only the pre-clearance court in D.C. could address the Section 5 issues, while the second federal court (here, in San Antonio) was the only court that could address the Section 2 and constitutional issues.  Now, the Supreme Court has decided that the second federal court should also become a second court for looking at the Section 5 issues as well - thus putting two federal courts in the position of addressing the identical issue, with the possibility that those courts could come out differently on the question.  The Court has held that the San Antonio court has to make the predictive judgment of whether there is a "reasonable probability" that the state's plan will fail to gain preclearance in the other federal court - the preclearance court in DC.  So the court in Texas has been given added legal responsibilities in which it is already under enormous time pressure to come up with an emergency, temporary and interim redistricting plan - it now has to address the Section 5 issues, in addition to the Section 2 and constitutional issues.  This solution is going to proliferate litigation complexities and create even more confusion, rather than reduce the uncertainties.

There are at least two better solutions to this trainwreck situation of two different federal courts both reviewing the same redistricting plan.  First, the Court could have said that if the case is one in which the Department of Justice has already taken the legal position in the pre-clearance court that the plan does have Section 5 violations, the Texas court should be obligated to accept those objections, if there is a reasonable legal basis for them, and cure them when it creates an interim plan.  Indeed, DOJ has done exactly that in this case.  Yet one of the oddities of the Court's opinion is that there is no mention of this fact, let alone any discussion of its relevance. I am puzzled as to why the Court said nothing about the relevance of the already-existing DOJ Section 5 objections to Texas' plans, although the argument did not flag this issue clearly for the Court.  So the situation now is that even if DOJ has not yet taken a position on whether a plan complies with Section 5, the second court still has to make its own inquiry into that question.

If the second court is going to be instructed to reach Section 5 issues, it would be better to have its inquiry anchored in a firm baseline, such as whether DOJ has argued that Section 5 is indeed violated.  Instead, the Court's decision instructs the second court to engage in essentially a general, wide-ranging Section 5 analysis.

The even better solution to this problem, which is not one the Court itself was asked to adopt in this case, is for the system to find a way to consolidate the two actions in a single court, which would be the pre-clearance court in D.C.  It makes little sense to have two courts addressing the same redistricting plan, in the midst of uncertainty about how the other court will act, and under tremendous time pressures.  This consolidation could be accomplished either by a statutory enactment, if necessary, or possibly by the pre-clearance court exercising powers under the All Writs Act to transfer the merits case to its jurisdiction if a pre-clearance action had already been filed.  That would be a much more creative solution than any court has yet undertaken or any litigant proposed, and courts might be reluctant to exercise such powers.  But either through statutory amendment or such use of judicial power, we would be far better off with these issues all consolidated in front of one three-judge federal court to avoid the kind of trainwreck this case represents.

And Rick Hasen has indeed sneaked in under the wire on the last day and earned the right to have me buy him a beer, which I will gladly do!
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Dept. of Understatement<http://electionlawblog.org/?p=28319>
Posted on January 20, 2012 8:33 am<http://electionlawblog.org/?p=28319> by Rick Hasen<http://electionlawblog.org/?author=3>

"In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment."

-Supreme Court, Perry v. Perez.<http://www.supremecourt.gov/opinions/11pdf/11-713.pdf>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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