[EL] Evenwel Argument

[Rick Hasen]

I think Marty's reading is correct, and it is echoed by Lyle's analysis:
*http://www.scotusblog.com/2015/12/argument-analysis-the-choice-be-bold-or-practical/

*I'll be writing more on this later.


On 12/8/2015 12:05 PM, Marty Lederman wrote:
> I noticed that, Rick.  Just from reading the transcript, however, it 
> seemed that AMK might have been persuaded that any version of "you 
> must honor both" would be a practical nightmare.  When Keller said this:
>
>     "If the Court were to try to go down the road
>     of requiring States to equalize within 10 percent of a
>     deviation, both total and voter population, States would
>     inevitably have to disregard many other traditional
>     redistricting factors, like compactness, continuity,
>     keeping communities together.  And that would be the
>     opposite of what the Court has said that States have in
>     this context, which is the leeway to structure their
>      elections as part of the core function of their sovereignty."
>
> Kennedy responded:  "That sounds highly probable to me."  And he was 
> quiet, I think, when the Deputy SG made the same point.  (Gershengorn 
> also reiterated the argument from the SG brief that equalizing total 
> population /protects /voters' equal rights, by ensuring that the 
> representative that Voter X votes for must represent, and be 
> responsive to and solicitous of, the same number of constituents as 
> Voter Y.  The other counsel tried to characterize this as a form of 
> "access" equality, but I don't think that's right.)
>
> I can't recall a recent case of this importance in which the Justices 
> were so subdued.  Scalia asked /no /questions.
>
> On Tue, Dec 8, 2015 at 2:35 PM, Pildes, Rick 
> <pildesr at mercury.law.nyu.edu <mailto:pildesr at mercury.law.nyu.edu>> wrote:
>
>     I attended the argument this morning.  My impression is that
>     Justice Kennedy appears drawn to the view that states have to at
>     least consider voter equality as one factor to take into account. 
>     He consistently returned to this question.  That would be slicing
>     the issues pretty thinly between the two sides.  If this view
>     prevails, it would impose a process-oriented obligation:  this is
>     a factor that must be "considered."  But this would stop far short
>     of requiring that states equalize voter population, rather than
>     total population.
>
>     If the Court comes out this way, it will look like a victory for
>     the appellants.  But it would be a win on the most minimal
>     grounds.  If states have to take voter equality "into account" as
>     "a factor," what would that mean on the ground?  The key question
>     would then become:  how much weight do states have to give this
>     factor, compared to total population, once they start "taking it
>     into account?"  The Court is not likely to answer that question
>     and it will likely take years of litigation to sort it out.  But I
>     think the most the Court would ultimately hold is that if states
>     can do more to promote voter equality, while not allowing their
>     districts to vary in total population by more than 10% and while
>     not violating traditional districting principles, then within
>     those constraints, states would need to avoid unnecessary
>     diminishments of voter equality.
>
>     As a practical matter, where this would all end up, then, is with
>     very modest changes to redistricting that would not have anything
>     like the dramatic consequences that would follow from a
>     requirement that states use voter equality as their baseline for
>     redistricting.
>
>     The more dramatic issue is whether this whole litigation will
>     become a catalyst for some states to choose of their own accord to
>     start districting based on voter equality, rather than total
>     population.  I do not think anything in the Court's opinion is
>     likely to shut down that option, as a matter of doctrine.  The
>     Court is not likely to address this option until some state
>     actually goes ahead and moves in this direction, if any state does so.
>
>
>
>
>     Sent from my iPad
>
>     Sent from my iPad
>
>     Sent from my iPad
>
>     On Dec 8, 2015, at 1:35 PM, Marty Lederman
>     <lederman.marty at gmail.com <mailto:lederman.marty at gmail.com>> wrote:
>
>>     http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-232_c0ne.pdf
>>
>>
>>     Tip for Supreme Court advocates (and other lawyers):  You're not
>>     doing yourself or your clients any favors by referring to the
>>     "Democrat Party" and "Democrat members" of a commission or
>>     legislature.  Notwithstanding what you might hear in the echo
>>     chamber, the proper adjective is "Democratic."
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>
>
>
>
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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 - office
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rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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