[EL] SCOTUS takes Alabama redistricting cases.
Justin Levitt
levittj at lls.edu
Mon Jun 2 11:19:04 PDT 2014
I think it _is_ a first run at a new line of /Shaw/ cases (there
are/were others this cycle, most prominently in North Carolina and South
Carolina) ... but I don't know that I agree with the rest of the
assumptions. Though this case includes the argument that section 5 no
longer justifies districts created to comply with section 5, that's not
the centerpiece of the case. (If you want to see that claim, see Page
v. Virginia State Board of Elections
<http://redistricting.lls.edu/cases-VA.php#VA>, still working it's way
through the trial court.)
The main crux of the plaintiffs' argument in AL is that the districts in
question _weren't_ justified by section 5 -- the defendants claim that
section 5 required the districts in question, and the plaintiffs claim
that that was merely pretext, and an expansion beyond what the statute
actually required. If section 5 didn't require the districts in
question, then the case is far more like the first round of /Shaw/ --
districts drawn based on race without sufficient statutory
justification. The twist is that this round asks to take /Shaw
/seriously not just for racial majorities, as in the first round, but
also for racial minorities, who are alleging that their voting power has
been diluted through unnecessary packing.
Justin
--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
On 6/2/2014 10:56 AM, Juan Carlos Ibarra wrote:
> Should we consider this a first run at a new line of "/Shaw/ 3.0" cases?
>
> If the first /Shaw/ cases defeated minority-maximization policies and
> the post-/Cromartie/ line provided new leeway for districts to avoid
> strict scrutiny, then this seems like a new period under which
> districts drawn to comply with Section 5 are no longer justified.
> Thoughts?
>
> Also, since incumbency protection provides a basis to avoid strict
> scrutiny analysis (before getting to strict scrutiny), yet ensuring
> preclearance under Section 5 is no longer a compelling government
> interest (once we get to strict scrutiny), then doesn't that create a
> situation where districts that were once created to comply with
> Section 5 requirements (and avoid Section 2 liability) are stuck?
>
> In other words, /Shaw/ 3.0 cases will continue to prevent the use of
> race in new districts as the "predominate factor" while incumbency
> protection will protect the status quo where race was used to draw
> particular boundaries under the old standards.
>
> It is ironic that in /Shelby/ the Court struck down a coverage formula
> because it was based on the past with the consequence of locking our
> future political boundaries into the present.
>
> - Juan Carlos
>
>
>
> On Mon, Jun 2, 2014 at 9:16 AM, Justin Levitt <levittj at lls.edu
> <mailto:levittj at lls.edu>> wrote:
>
> The more significant filings below, including the case's first
> trip up to SCOTUS, are (of course) collected here
> <http://redistricting.lls.edu/cases.php#AL>.
>
> Justin
>
>
> On 6/2/2014 7:29 AM, Rick Hasen wrote:
>>
>> UPDATE: SCOTUSBlog page for 13-1138
>> <http://www.scotusblog.com/case-files/cases/alabama-democratic-conference-v-alabama/>;
>> opinion
>> <http://www2.bloomberglaw.com/public/desktop/document/Ala_Legislative_Black_Caucus_v_Alabama_CASE_NO_212CV691_ThreeJudg>.
>>
>> SCOTUSBlog case page for 13-895
>> <http://www.scotusblog.com/case-files/cases/alabama-legislative-black-caucus-v-alabama/>;
>> (same opinion).
>>
>> On 6/2/14, 7:19 AM, Rick Hasen wrote:
>>>
>>>
>>> “Supreme Court to hear Ala. redistricting challenge”
>>> <http://electionlawblog.org/?p=61943>
>>>
>>> Posted on June 2, 2014 7:13 am
>>> <http://electionlawblog.org/?p=61943>by Rick Hasen
>>> <http://electionlawblog.org/?author=3>
>>>
>>> AP
>>> <http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_ALABAMA_REDISTRICTING?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>:
>>> “The Supreme Court said Monday it will consider a challenge from
>>> Alabama Democrats who say a Republican-drawn legislative map
>>> intentionally packs black Democrats into a few voting districts,
>>> giving them too little influence in the Legislature.”
>>>
>>> This will mark the first time since the /LULAC /decision that
>>> the Court will consider the unconstitutional racial
>>> gerrymandering cause of action. The last significant look at
>>> that question was Easley v. Cromartie
>>> <http://supreme.justia.com/cases/federal/us/532/234/>, when
>>> Justice O’Connor, whose views were so central to this cause of
>>> action, was still on the Court. (In /Cromartie /Justice
>>> O’Connor joined the liberals in rejecting a racial
>>> gerrymandering claim, after a number of cases, beginning with
>>> Shaw v. Reno
>>> <http://scholar.google.com/scholar_case?case=2057233072475851470&hl=en&as_sdt=6&as_vis=1&oi=scholarr>,
>>> where she recognized it but differed from the other Justices
>>> about how to prove it.)
>>>
>>> It will be interesting to see what the Chief and Justice Alito
>>> think about this.
>>>
>>> The grants were limited, as Marty Lederman explains:
>>>
>>> Alabama Democratic Conference v. Alabama, No. 13-1138
>>> (limited to question one — Whether Alabama’s effort to
>>> redraw the lines of each majority-black district to have the
>>> same black population as it would have using 2010 census
>>> data as applied to the former district lines, when combined
>>> with the state’s new goal of significantly reducing
>>> population deviation among districts, amounted to an
>>> unconstitutional racial quota and racial gerrymandering that
>>> is subject to strict scrutiny and that was not justified by
>>> the putative interest of complying with the
>>> non-retrogression aspect of Section 5 of the Voting Rights
>>> Act; and whether these plaintiffs have standing to bring
>>> such a constitutional claim;), and
>>>
>>> Alabama Legislative Black Caucus v. Alabama, No. 13-895
>>> (limited to question two — whether Alabama’s legislative
>>> redistricting plans unconstitutionally classify black voters
>>> by race by intentionally packing them in districts designed
>>> to maintain supermajority percentages produced when 2010
>>> census data are applied to the 2001 majority-black districts).
>>>
>>> Share
>>> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D61943&title=%E2%80%9CSupreme%20Court%20to%20hear%20Ala.%20redistricting%20challenge%E2%80%9D&description=>
>>> Posted in redistricting <http://electionlawblog.org/?cat=6>,
>>> Supreme Court <http://electionlawblog.org/?cat=29>, Voting
>>> Rights Act <http://electionlawblog.org/?cat=15>
>>> --
>>> 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://www.law.uci.edu/faculty/full-time/hasen/
>>> 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://www.law.uci.edu/faculty/full-time/hasen/
>> http://electionlawblog.org
>>
>>
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> --
> */Juan Carlos Ibarra/*
>
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