[EL] Evenwel Argument

[Marty Lederman]

No, they didn't ask *Consovoy *any questions.  Which, if one didn't know
anything more, might be seen as a sign that they're inclined to vote for
him.  But I'm doubtful there are five votes for such a profound change.

On Tue, Dec 8, 2015 at 4:09 PM, Eric J Segall <esegall at gsu.edu> wrote:

> It appears from a very quick read that not one of the republicans on the
> bench asked Texas’ lawyer a question today.
>
>
>
> Really?
>
>
>
> Best,
>
>
>
> Eric
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Marty
> Lederman
> *Sent:* Tuesday, December 08, 2015 3:06 PM
> *To:* Pildes, Rick <pildesr at mercury.law.nyu.edu>
> *Cc:* edu law-election at uci. edu law-election at uci. <law-election at uci.edu>
> *Subject:* Re: [EL] Evenwel Argument
>
>
>
> 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>
> 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."
>
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