[EL] Ginsburg on Racial Gerrymandering
Nicholas Stephanopoulos
nicholas.stephanopoulos at gmail.com
Wed Jul 10 13:48:43 PDT 2013
I don't think this portion of Justice Ginsburg's opinion is a model of
clarity. But in the paragraph before referring to racial gerrymandering,
she correctly equates second-generation barriers with vote dilution. And
then in the relevant paragraph, the other examples she cites (at-large
elections and annexations) are, like district plans that reduce minority
voting strength, clear cases of vote dilution. Note also that it's
perfectly possible to dilute minority voting strength through plans that
"segregate" (i.e., pack) minority voters, even though that's not what the
plans at issue in the *Shaw* cases did.
Nick
On Wed, Jul 10, 2013 at 3:37 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
> 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> 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
>> >
>> >
>> > 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
>> >> http://law.uci.edu/faculty/page1_r_hasen.html
>> >> http://electionlawblog.org
>> >> _______________________________________________
>> >> Law-election mailing list
>> >> Law-election at department-lists.uci.edu
>> >> http://department-lists.uci.edu/mailman/listinfo/law-election
>> >
>> >
>>
>> --
>> 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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>>
>
>
>
> --
> Nicholas O. Stephanopoulos
> Assistant Professor of Law
> University of Chicago Law School
> 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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
>
>
--
Nicholas O. Stephanopoulos
Assistant Professor of Law
University of Chicago Law School
nsteph at uchicago.edu
(773) 702-4226
http://www.law.uchicago.edu/faculty/stephanopoulos
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