[EL] Evenwel Argument

Tue Dec 8 13:50:13 PST 2015

There are at least four possible outcomes:

1.  Rough CVAP equality (i.e., within 10%) is *required* (Consovoy/Evenwel).

2.  Rough residency equality is *required* (I think there's an amicus or
two to this effect).

3.  Strong reaffirmation of *Burns *dictum that states have *broad
discretion* to choose theories of representation--in particular, to decide
whether children, aliens, felons, prisoners, students, etc., should be
counted (Texas's view)--excluding only, perhaps, registration or actual
voting numbers, since those can be so easily manipulated for partisan ends
(per *Burns*).

4.  A modest holding that rough residency equality is *permissible* --
saving for another, more concrete case (a case in which a legislature has
actually deviated from the uniform practice of the past 50 or so years) the
question of whether it's *required* (the USG view).

and, perhaps, I suppose, a possible fifth resolution, as hinted in AMK's
question before he backed off . . .

5. . . . to the effect that states must somehow take both voter-equality
and resident-equality into account, and not disproportionately shortchange
one or the other.

Of these, I think No. 3 is by far the most likely; No. 4 is quite possible;
Nos. 1 and 5 are remotely possible; and No. 2 is not going to attract any
votes at all.

(It's also possible that one or more Justices -- Scalia, in particular --
will write separately to say that *Reynolds *was wrongly decided, and that
the Constitution only prohibits irrational or invidious line-drawing.)

But please take all of this with a heaping dose of salt--my track record on
predicting such high-profile cases is less-than-reassuring.

On Tue, Dec 8, 2015 at 4:36 PM, Carl Klarner <carl.klarner at gmail.com> wrote:

> 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
>>>
>>>
>>>
>>
>>
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>
>
>
> --
>
> Dr. Carl Klarner
>
> Academic / Political Consultant
>
> Klarnerpolitics.com
>
> Former Associate Professor of Political Science
>
> Carl.Klarner at gmail.com
>
> Cell: 812-514-9060
>
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