[EL] SCOTUS takes Alabama redistricting cases.
Justin Levitt
levittj at lls.edu
Tue Jun 3 09:40:31 PDT 2014
"Exit," as in permit? Which means neither /Gomillion/ nor /Shaw/?
/Easley/ already recognized the evidentiary difficulties of such a claim
-- there's no need to take another case to say again that meeting the
burden of proof will be a challenge in the normal course, particularly
when the court below rejected the plaintiffs' challenge. And I don't
get the sense (see, e.g., /Fisher/) that this Court is eager to stop
policing what it feels to be inappropriate considerations of race.
Justin
On 6/3/2014 7:28 AM, Pitts, Michael Jude wrote:
> 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
>
> Michael Pitts
> Professor of Law & Dean's Fellow
> Chair, Faculty Recruitment Committee
> Indiana University Robert H. McKinney
> School of Law
> 530 West New York Street
> Indianapolis, IN 46202
> 317-278-9155
> mjpitts at iupui.edu <mailto:mjpitts at iupui.edu>
>
>
> 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
>> --
>> 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 <http://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).
>>>>>
>>>>> <Mail Attachment.png>
>>>>> <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 <http://electionlawblog.org/>
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Law-election mailing list
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>>>>> 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 <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 <http://electionlawblog.org/>
>>>>
>>>>
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>>>
>>>
>>> --
>>> */Juan Carlos Ibarra/*
>>>
>>
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