[EL] Evenwel Argument

Tue Dec 8 13:36:16 PST 2015

There are other paths the justices could take that aren't voting for him
that would have substantial political consequences.

On Tue, Dec 8, 2015 at 4:29 PM, Eric J Segall <esegall at gsu.edu> wrote:

> Right that is what I meant. Thanks Marry.
>
> Sent from my iPhone
>
> On Dec 8, 2015, at 4:25 PM, "Marty Lederman" <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> 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."
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 

Dr. Carl Klarner

Academic / Political Consultant

Klarnerpolitics.com

Former Associate Professor of Political Science

Carl.Klarner at gmail.com

Cell: 812-514-9060
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20151208/fe4c4d59/attachment.html>