[EL] Did the Court already tip its hand in Harris v. AIRC?

[Rick Hasen]

This is a very interesting point, but doesn't it say more about the 
majority attacking the Chief's characterization of the lower court 
decision than any indication of the merits of the issue addressed by the 
lower court?


On 7/3/15 11:38 AM, Noah Bokat-Lindell wrote:
> Hello all,
>
> As a mere law student, I normally wouldn't post on this listserv. 
> (After all, I'm still just a learner!) But I thought I'd bring 
> something to your attention that's relevant to the new Arizona 
> redistricting case, just in case you hadn't already noticed it.
>
> There's a passage in the /Arizona State Legislature v. AIRC /opinion 
> from Monday that addresses the /Harris /case, and it doesn't seem very 
> favorable to the plaintiffs, at least in atmospherics. Chief Justice 
> Roberts' dissent criticized independent redistricting commissions 
> generally and the AIRC specifically, saying that they are plagued by 
> partisanship in spite of their supposedly non-partisan nature, and 
> cited /Harris /for support. On p. 32 of the slip opinion, the majority 
> says the following:
>
> THE CHIEF JUSTICE, in dissent, suggests that independent commissions 
> established by initiative are a high-minded experiment that has 
> failed. /Post/, at 26–27. For this assessment, THE CHIEF JUSTICE cites 
> a three-judge Federal District Court opinion, /Harris /v. /Arizona 
> Independent Redistricting Comm’n/, 993 F. Supp. 2d 1042 (Ariz. 2014). 
> That opinion, he asserts, “detail[s] the partisanship that has 
> affected the Commission.” /Post/, at 26. No careful reader could so 
> conclude.
>
> The report of the decision in /Harris /comprises a /per curiam 
> /opinion, an opinion concurring in the judgment by Judge Silver, and a 
> dissenting opinion by Judge Wake. The /per curiam /opinion found “in 
> favor of the Commission.” 993 F. Supp. 2d, at 1080. Deviations from 
> the one-person, one-vote principle, the /per curiam /opinion explained 
> at length, were “small” and, in the main, could not be attributed to 
> partisanship. /Ibid. /While partisanship “may have played some role,” 
> the /per curium /opinion stated, deviations were “predominantly a 
> result of the Commission’s good-faith efforts to achieve preclearance 
> under the Voting Rights Act.” /Id./, at 1060. Judge Silver, although 
> she joined the /per curiam /opinion, made clear at the very outset of 
> that opinion her finding that “partisanship did not play a role.” 
> /Id./, at 1046, n. 1. In her concurring opinion, she repeated her 
> finding that the evidence did not show partisanship at work, /id./, at 
> 1087; instead, she found, the evidence “[was] overwhelming [that] the 
> final map was a product of the commissioners’s consideration of 
> appropriate redistricting criteria.” /Id./, at 1088. To describe 
> /Harris /as a decision criticizing the Commission for pervasive 
> partisanship, /post/, at 26, THE CHIEF JUSTICE could rely only upon 
> the dissenting opinion, which expressed views the majority roundly 
> rejected.
>
>
> This obviously does not directly answer the questions presented in the 
> appeal, but it does seem to give a window into what five of the 
> Justice at least initially think about the case. After all, to be this 
> dismissive of the Chief Justice's claims of partisanship, the majority 
> has to be giving more credence to the views of the two judges who 
> formed the majority ruling for the AIRC below than to the one 
> dissenting judge. It's true that all the majority here is saying is 
> that the district court opinion itself does not support the Chief 
> Justice's claim. Still, it seems like it could be revealing of their 
> thoughts, and thereby potentially relevant to their later review of 
> /Harris /itself. At the least, if the Court remains this willing to 
> defer to the lower court's finding that partisanship was not a large 
> part of map-drawing process, then it seems the first question 
> presented becomes less relevant. The action would be mainly on the 
> question of whether it was constitutional to rely on Section 5 (which 
> one would think would have been fine in 2010-11, even if the Court 
> says it isn't going forward b/c of /Shelby County/). Only if they 
> answer that question in the negative do we get back to the issue of 
> whether this was more based on partisanship or on "traditional 
> redistricting criteria," as Judge Silver put it--including the state 
> constitutional requirement to try to make the districts more competitive.
>
> Sorry if someone else has already brought up this passage; I've been 
> following the discussions of the case on this listserv but I may have 
> missed someone talking about this.
>
> Have a Happy Fourth everyone!
> *
> *
> *Noah B. Lindell*
> *J.D. Candidate, Yale Law School*
> (973) 801-4627
> noah.lindell at yale.edu <mailto:noah.lindell at yale.edu>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election

-- 
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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150705/e7656db9/attachment.html>