[EL] Ginsburg on Racial Gerrymandering
Nicholas Stephanopoulos
nicholas.stephanopoulos at gmail.com
Wed Jul 10 14:05:24 PDT 2013
I agree it's not the most natural reading -- I just think it's the only way
to save that small portion of the opinion from incoherence. It would make
no sense for a strong supporter of the VRA, and a dissenter in the
*Shaw*cases, to deem "racial gerrymandering" carried out in order to
comply with
the VRA a second-generation barrier that the VRA was meant to dismantle.
On Wed, Jul 10, 2013 at 3:52 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
> 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> 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
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>
>>
>>
>> --
>> Nicholas O. Stephanopoulos
>> Assistant Professor of Law
>> University of Chicago Law School
>> nsteph at uchicago.edu
>> (773) 702-4226 <%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 92697-8000949.824.3072 - 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
>
>
> --
> 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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