[EL] Ginsburg on Racial Gerrymandering
Rick Hasen
rhasen at law.uci.edu
Wed Jul 10 13:52:13 PDT 2013
I think you are engaging in an unnatural reading of what she says,
especially since she specifically cites /Shaw /for the proposition on
segregating voters, rather than a vote dilution case. And of course
Shaw made clear that the racial gerrymandering claim there was
"analytically distinct" from a vote dilution claim.
On 7/10/13 1:48 PM, Nicholas Stephanopoulos wrote:
> 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
> <mailto: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
>> <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 <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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>> <mailto:Law-election at department-lists.uci.edu>
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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 <tel:%28773%29%20702-4226>
>> 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 <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
>
>
>
>
> --
> 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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