[EL] Evenwel Argument

[Eric J Segall]

Right that is what I meant. Thanks Marry.

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On Dec 8, 2015, at 4:25 PM, "Marty Lederman" <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

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<mailto: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> [mailto: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<mailto:pildesr at mercury.law.nyu.edu>>
Cc: edu law-election at uci. edu law-election at uci. <law-election at uci.edu<mailto: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<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.




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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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