[EL] Unanimous decision on three-judge-court requirement in Shapiro v. McManus

[Allen Dickerson]

That short version reads the (unanimous) decision too narrowly. The Court quoted extensively from its prior rulings, and noted that "constitutional insubstantiality [for purposes of a three-judge court] has been equated with such concepts as 'essentially fictitious,' 'wholly insubstantial,' 'obviously frivolous,' and 'obviously without merit.' And the adverbs are no mere throwaways; 'the limiting words 'wholly' and 'obviously' have cogent legal significance.'" (page 7; punctuation altered).

Whether a Justice has embraced the plaintiff's theory isn't the standard. It's merely an example of claims "easily" clearing this "low bar."

Short version: assuming the federal courts have jurisdiction, three-judge courts should be convened to hear the merits of redistricting (and, by implication, certain campaign finance) challenges as a matter of course.

Allen Dickerson
Legal Director | Center for Competitive Politics
124 S. West Street | Suite 201 | Alexandria, VA 22314
O: 703.894.6800 | F: 703.894.6811
adickerson at campaignfreedom.org<mailto:adickerson at campaignfreedom.org>


From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Tuesday, December 08, 2015 11:36 AM
To: Marty Lederman <lederman.marty at gmail.com>; edu law-election at uci. edu law-election at uci. <law-election at uci.edu>
Subject: Re: [EL] Unanimous decision on three-judge-court requirement in Shapiro v. McManus

"Short version:  A redistricting challenge is not "wholly insubstantial"--and thus must be heard by a three-judge court--if it is based on a theory that Justice Kennedy a Justice of the Supreme Court has endorsed (at least so long as a majority of the Court has not rejected it)."

-- Fixed it for you.


Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu] on behalf of Marty Lederman [lederman.marty at gmail.com]
Sent: Tuesday, December 08, 2015 10:42 AM
To: edu law-election at uci. edu law-election at uci.
Subject: [EL] Unanimous decision on three-judge-court requirement in Shapiro v. McManus
http://www.supremecourt.gov/opinions/15pdf/14-990_10n2.pdf

Short version:  A redistricting challenge is not "wholly insubstantial"--and thus must be heard by a three-judge court--if it is based on a theory that Justice Kennedy has endorsed (at least so long as a majority of the Court has not rejected it).
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