[EL] Ginsburg on Racial Gerrymandering
Rick Hasen
rhasen at law.uci.edu
Wed Jul 10 13:37:43 PDT 2013
From the context of her Shelby dissent, it is clear Justice Ginsburg is
not confusing the two. She quotes from Shaw, discusses efforts to
"segregate" voters on the basis of race, and then talks of dilution as a
DISTINCT "second-generation barrier." See the excerpt from her dissent:
On 7/10/13 1:29 PM, Nicholas Stephanopoulos wrote:
> The plaintiffs in /LULAC/ challenged Texas's districts under /both/
> the VRA and a /Shaw v. Reno /racial gerrymandering theory. The Court
> only addressed the VRA claim, but Justice Scalia reached the /Shaw/
> claim in his separate opinion. He concluded that one of the Texas
> districts had been drawn with race as the predominant factor, but that
> the district survived strict scrutiny because its creation was
> necessary to comply with section 5 of the VRA. Ironically, in light of
> /Shelby County/, Justice Scalia noted that "we long ago upheld the
> constitutionality of section 5 as a proper exercise of Congress's
> authority," and referred to the "compelling nature of the State's
> interest in section 5 compliance."
>
> As for Justice Ginsburg's dissent, I think Joey is right that she
> (perhaps sloppily) used the term "racial gerrymandering" to refer to
> district plans that are intended to /reduce /minority voting strength
> -- i.e., what most of us would call racial vote dilution. Prior to the
> /Shaw/ cases, racial gerrymandering and racial vote dilution were
> often used interchangeably, so her choice of words is understandable
> (if confusing). And there's no doubt that section 5 deterred racial
> vote dilution, even as it may have simultaneously encouraged racial
> gerrymandering (in the /Shaw/ sense).
>
> Nick
>
>
> On Wed, Jul 10, 2013 at 2:05 PM, Rick Hasen <rhasen at law.uci.edu
> <mailto:rhasen at law.uci.edu>> wrote:
>
> I didn't develop the point more in my APSA paper because it was really
> tangential to my argument about the dissent. But if memory serves me
> correctly (I haven't gone back to verify), Ginsburg and the other
> Court
> liberals dissented in the series of cases in the 1990s which followed
> Shaw, including Miller v. Johnson and Bush v. Vera. She concurred
> with
> J. Breyer's opinion in Easley, which accepted Shaw for purposes of
> argument but held that race was not the predominant factor in that
> North
> Carolina redistricting. Then there was a lull in these cases for
> reasons Rick Pildes, I and other have debated. Next came Justice
> Stevens' opinion (I think) in Veith, which I thought was wholly
> disingenuous, trying to apply Shaw to political gerrymandering
> claims. I
> thinking J. Ginsburg signed that. And finally there was LULAC v.
> Perry,
> in which the 4 liberals and Justice Kennedy found a VRA violation of
> District 23 in the Texas congressional redistricting that seemed
> to meld
> or mix a Shaw claim and a vote dilution claim.
> In all, it is an oddly murky picture.
> But the key point of the fn is to reject the idea that racial
> gerrymandering claims were DETERRED by section 5. The irony is
> that they
> were CREATED by (the DOJ's interpretation of) section 5.
>
>
>
>
> On 7/10/13 11:50 AM, Joey Fishkin wrote:
> > That comment by Justice Ginsburg stuck out to me as well. But
> in the same passage, she defines second-generation barriers as
> "efforts to reduce the impact of minority votes." So she is
> categorizing "racial gerrymandering" as one such type of "effort."
> >
> > We all generally understand (and teach) racial vote dilution and
> racial gerrymandering as conceptually "distinct injuries," as Rick
> says. In the 1990s cases that invented and developed this
> doctrine, that was unquestionably the case. But it sounds to me
> as though Justice Ginsburg may have made her peace with the Shaw
> cases by re-imagining racial gerrymandering as something a little
> different -- as one type of "effort to reduce the impact of
> minority votes." And maybe this isn't as far-out as it sounds.
> Although it's not what the Shaw court had in mind, it seems to me
> closer to the Shaw injury that, for instance, Justice Kennedy
> recognized in LULAC v. Perry. That was something closer to an
> "effort to reduce the impact of minority votes." This
> understanding could have the virtue of being less nonsensical than
> a lot of other ways of understanding the Shaw cases.
> >
> > Rick, you mention that the liberal Justices have "continued to
> dissent from this line of cases," but as far as I know, they
> haven't had a lot of chances to do so -- have there been any
> successful Shaw challenges of the old 1990s type since the 1990s?
> Perhaps the trajectory of the Shaw doctrine looks different from
> where Justice Ginsburg is sitting than from where most of us are
> sitting.
> >
> > Joey
> >
> > Joseph Fishkin
> > Assistant Professor
> > University of Texas School of Law
> > 727 E. Dean Keeton St., Austin, TX 78705
> > jfishkin at law.utexas.edu <mailto:jfishkin at law.utexas.edu>
> >
> >
> > On Jul 10, 2013, at 10:41 AM, Rick Hasen wrote:
> >
> >> Justice Ginsburg’s Odd Racial Gerrymandering Statement in the
> Shelby County Decision
> >>
> >> Posted on July 10, 2013 8:39 am by Rick Hasen
> >> Over the next week or so, I plan to highlight some interesting
> but less obvious points about the Supreme Court’s
> decision in the Shelby County case. I briefly mention these points
> in my just-posted APSA draft, Shelby County and the Illusion of
> Minimalism. Today’s post concerns something odd I saw in Justice
> Ginsburg’s dissent. From my draft at fn. 140:
> >>
> >> The dissenting opinion also contains a major irony. Justice
> Ginsburg explains that with “first generation barriers” to the
> right to vote (such as literacy tests) eliminated, Section 5 now
> protects against “second generation barriers,” such as the use of
> at-large elections rather than legislative districts to dilute
> minority voting strengths. Yet the first of these
> second-generation barriers Justice Ginsburg lists is “racial
> gerrymandering.” Shelby County, at *22 (dissenting opinion)
> (“Second-generation barriers come in various forms. One of the
> blockages is racial gerrymandering, the redrawing of legislative
> districts in an ‘effort to segregate the races for purposes of
> voting.’”). Shaw v. Reno, 509 US 630 (1993) first recognized the
> racial gerrymander cause of action as an equal protection claim
> distinct from a vote dilution claim. Justice Ginsburg and the
> other liberals dissented in Shaw, and they have continued to
> dissent from this line of cases. Adding to the irony, in these
> cases it appears that covered jurisdictions drew lines which
> constituted “racial gerrymanders” precisely to comply with the
> Department of Justice’s objections under a strong reading of
> section 5 of the VRA. See Daniel Hays Lowenstein, You Don’t Have
> to Be a Liberal to Hate the Racial Gerrymandering Cases, 50 Stan L
> Rev 779 (1998). Whatever one can say of the merits of Section 5,
> it is hard to believe that its continuation would minimize the
> number of successful racial gerrymandering claims.
> >>
> >> <share_save_171_16.png>
> >> Posted in Supreme Court, Voting Rights Act | Comments Off
> >> “Gay Couples Could Face Different Campaign Money Rules Across
> States”
> >>
> >> Posted on July 10, 2013 8:30 am by Rick Hasen
> >> Roll Call reports.
> >>
> >> <share_save_171_16.png>
> >> Posted in campaign finance | Comments Off
> >> “Pro-Hillary super PAC signs up top Obama aides”
> >>
> >> Posted on July 10, 2013 8:24 am by Rick Hasen
> >> WaPo reports.
> >>
> >> <share_save_171_16.png>
> >> Posted in campaign finance | Comments Off
> >> “McDonnell’s corporation, wife allegedly benefited from
> $120,000 more from donor”
> >>
> >> Posted on July 9, 2013 8:13 pm by Rick Hasen
> >> Oh boy.
> >>
> >> <share_save_171_16.png>
> >> Posted in conflict of interest laws, ethics investigations |
> Comments Off
> >> Revisiting Reuters Opinion Series on “If the Court Strikes
> Section 5″
> >>
> >> Posted on July 9, 2013 4:22 pm by Rick Hasen
> >> Back in February I organized an online symposium on what
> Congress should do if the Court struck section 5. It struck
> section 4, not 5 (though that’s a distinction without a difference
> these days). In any case, here are links to the various pieces,
> now that Congress is in the position to respond to the Shelby
> County cecision:
> >>
> >> If the court strikes down Section 5
> >>
> >> Richard Hasen says that if the Supreme Court kills Section 5,
> which insures that states or jurisdictions with a history of
> voting discrimination need federal approval for any changes in
> election law, the big question will be: What comes next? Reuters
> has invited leading academics who focus on voting rights and
> election law to participate in a forum on this important issue
> Commentary
> >>
> >> Who controls Voting Rights?
> >>
> >> Richard Hasen asks why the decision on Section 5 is for the
> Supreme Court to make and not the political branches of
> government. Commentary
> >>
> >> Making sure race is considered
> >>
> >> Janai S. Nelson says that Section 5 makes sure that race, the
> elephant in the room for much of U.S. election law, is discussed
> openly and thoroughly. Commentary
> >>
> >> The partisan politics of election laws
> >>
> >> Guy-Uriel E. Charles and Luis Fuentes-Rohwer say that If the
> court does strike down Section 5 it will give Congress an
> opportunity to update the act for the 21st century. Commentary
> >>
> >> The strong case for keeping Section 5
> >>
> >> Morgan Kousser writes that five-sixths or more of the cases of
> proven election discrimination from 1957 through 2013 have taken
> place in jurisdictions subject to Section 5 oversight. Commentary
> >>
> >> What of congressional power over voting?
> >>
> >> Franita Tolson says that if the Supreme Court invalidates
> Section 5 it would be a clear rejection of broad congressional
> authority to regulate state and federal elections. Commentary
> >>
> >> Watch out in the covered jurisdictions
> >>
> >> Michael Pitts says that on the local level, there could be
> widespread retrogression – from redistricting plans that end
> ‘safe’ districts to cities annexing suburban white populations to
> reduce minority voters’ influence. Commentary
> >>
> >> A signal it’s time to change the court
> >>
> >> Justin Levitt believes that Section 5 does not demand utopia.
> It asks only that new laws not make things worse. Commentary
> >>
> >> Opting into the Voting Rights Act
> >>
> >> Heather Gerken says that other voting protections against
> racial discrimination are too costly and cumbersome to protect
> minorities from tactics that Section 5 now deters. Commentary
> >>
> >> Why Section 5 survives
> >>
> >> Abigail Thernstrom wonders if Justice Anthony Kennedy, the
> pivotal vote, wants banner headlines that read, “Court declares
> Voting Rights Act unconstitutional”? Commentary
> >>
> >> The next Voting Rights Act
> >>
> >> Spencer Overton says that we need new protections. The U.S. is
> near the bottom of advanced democracies in voter participation.
> Commentary
> >>
> >> Reform the oversight formula
> >>
> >> Christopher Elmendorf says that the Justice Department or a new
> panel should be responsible for deciding which states are subject
> to review. Commentary
> >>
> >> Focus on new legislative approach
> >>
> >> Richard Pildes says that stepping outside the Section 5
> template and embracing a model with universal protections for the
> right to vote may be far more effective. Commentary
> >>
> >> <share_save_171_16.png>
> >> Posted in Supreme Court, Voting Rights Act | Comments Off
> >> Congressman Frank Wolf, Who Voted for 2006 Voting Rights
> Reauthorization, Happy with End of Preclearance for Virginia
> >>
> >> Posted on July 9, 2013 4:12 pm by Rick Hasen
> >> Sun Gazette:
> >>
> >> But Wolf, who said he was the only member of Virginia’s
> delegation to vote for reauthorizing the act in 1982, said the
> United States has changed in the intervening decades.
> >>
> >> “I don’t think there’s discrimination now in state of
> Virginia,” Wolf said. “I think in the areas I represent,
> it’s totally honest and ethical. It’s more open and honest than
> in many areas of the country, including some big cities. I think
> the act has been successful.”
> >>
> >> Virginia localities now will not have to undergo unnecessary
> steps when making minor election-related decisions, Wolf said.
> >>
> >> “The last couple of years, it’s been a work product for
> lawyers,” he said of the extra federal oversight. “It’s been
> costly and there’s been a lot of delay.”
> >>
> >> Makes me wonder why he voted for it in 2006. Or not.
> >>
> >> <share_save_171_16.png>
> >> Posted in Supreme Court, Voting Rights Act | Comments Off
> >> “Vital Statistics on Congress” Now Online
> >>
> >> Posted on July 9, 2013 2:43 pm by Rick Hasen
> >> Kudos to Brookings and AEI for this. Free to boot!
> >>
> >> <share_save_171_16.png>
> >> Posted in legislation and legislatures, pedagogy | Comments Off
> >> “Will Eliot Spitzer Even Get on the Ballot?”
> >>
> >> Posted on July 9, 2013 1:40 pm by Rick Hasen
> >> BuzzFeed reports.
> >>
> >> <share_save_171_16.png>
> >> Posted in ballot access, petition signature gathering |
> Comments Off
> >> “The Supreme Court vs. the Voter: In past decade, it has turned
> its back on protecting the franchise, especially for the poor,
> minorities.”
> >>
> >> Posted on July 9, 2013 1:28 pm by Rick Hasen
> >> Leon Friedman has written this NLJ oped.
> >>
> >> <share_save_171_16.png>
> >> Posted in Supreme Court, Voting Rights Act | Comments Off
> >> If You Want to Follow ELB on Facebook….
> >>
> >> Posted on July 9, 2013 12:45 pm by Rick Hasen
> >> I have now fixed it so that the first 140 characters of ELB
> blog posts will appear on Facebook for further clicking through if
> desired. I had not realized this was disabled for the last year!
> (I’m not a regular Facebook user)
> >>
> >> You can also find me on Twitter.
> >>
> >> Thanks for reading!
> >>
> >> <share_save_171_16.png>
> >> Posted in Uncategorized | Comments Off
> >> “Watchdogs Urge FEC to Reject Democratic Governors Association
> Proposal to Violate Soft Money Ban”
> >>
> >> Posted on July 9, 2013 11:46 am by Rick Hasen
> >> CLC press release.
> >>
> >> <share_save_171_16.png>
> >> Posted in campaign finance | Comments Off
> >> Registration Now Open for UCI Law Supreme Court Term in Review
> >>
> >> Posted on July 9, 2013 10:18 am by Rick Hasen
> >> [Bumping to the top]
> >>
> >> Here:
> >>
> >> 3rd Annual
> >> Supreme Court Term
> >> in Review
> >>
> >>
> >> Friday, July 19, 2013 • 12:00 – 1:30 P.M.
> >>
> >> UCI Student Center, Crystal Cove Auditorium (Map)
> >>
> >> This exciting and entertaining program reviews the Supreme
> Court’s key cases decided in the October 2012 term, with an
> all-star panel of Supreme Court journalists and academics.
> >>
> >> Panelists
> >>
> >> • Mario Barnes, UCI Law
> >> • Joan Biskupic, Reuters
> >> • Erwin Chemerinsky, UCI Law
> >> • Miguel Estrada, Gibson Dunn (DC office)
> >> • Adam Liptak, New York Times
> >> • Doug NeJaime, UCI Law (beginning July 1)
> >> • Moderated by Rick Hasen, UCI Law
> >> CLE credit will be available. The event will also be webcast,
> with viewers able to submit questions via Twitter, using the hash
> tag #ucilawscotus at the end of your question.
> >>
> >> Registration is now open. Click here to register.
> >>
> >> <share_save_171_16.png>
> >> Posted in Supreme Court | 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
> >> _______________________________________________
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> >
> >
>
> --
> 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 <tel:949.824.3072> - office
> 949.824.0495 <tel: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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>
>
>
> --
> Nicholas O. Stephanopoulos
> Assistant Professor of Law
> University of Chicago Law School
> nsteph at uchicago.edu <mailto:nsteph at uchicago.edu>
> (773) 702-4226
> http://www.law.uchicago.edu/faculty/stephanopoulos
--
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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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