[EL] SCOTUS takes Alabama redistricting cases.

Tue Jun 3 07:28:47 PDT 2014

Isn’t there at least some non-zero possibility that the Court could use this case to exit from racial gerrymandering doctrine entirely?  To the extent that one views the “successful” racial gerrymandering cases of the 1990s as a check on DOJs interpretation of Section 5, and with DOJ now out of the mix, and with there seeming to be little stomach in LULAC to utilize racial gerrymandering doctrine (even though Kennedy might have liked to—at least as I recollect how the oral argument went), is it possible the four liberals join either Alito or Roberts to put a nail in the coffin of this doctrine that seemed to be on life support after Easley anyway?  Thoughts?

Best,
Mike

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On Jun 2, 2014, at 2:19 PM, Justin Levitt <levittj at lls.edu<mailto:levittj at lls.edu>> wrote:

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

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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).

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