[EL] Evenwel Argument

Tue Dec 8 13:25:57 PST 2015

David Savage reads things much differently:
http://www.latimes.com/nation/la-na-supreme-court-election-districts-20151208-story.html

and Adam Liptak sees the court as closely divided:
http://www.nytimes.com/2015/12/09/us/politics/supreme-court-to-hear-arguments-on-one-person-one-vote.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news


On 12/8/2015 1:20 PM, Rick Hasen wrote:
> 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> 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."
>>>     _______________________________________________
>>>     Law-election mailing list
>>>     Law-election at department-lists.uci.edu
>>>     <mailto:Law-election at department-lists.uci.edu>
>>>     http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>
>>
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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
> 949.824.0495 - fax
> rhasen at law.uci.edu
> hhttp://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 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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