[EL] Opinion Analysis: A Small Victory for Minority Voters, or a Case with “Profound” Constitutional Implications?
Rick Hasen
rhasen at law.uci.edu
Wed Mar 25 09:28:48 PDT 2015
And in the last sentence "not" should be "now"
haste makes waste
On 3/25/15 9:24 AM, Rick Hasen wrote:
> In the second to last paragraph, the word "precinct" should be "pretext."
>
>
> On 3/25/15 9:15 AM, Rick Hasen wrote:
>>
>>
>> Opinion Analysis: A Small Victory for Minority Voters, or a Case
>> with “Profound†Constitutional Implications?
>> <http://electionlawblog.org/?p=71257>
>>
>> Posted onMarch 25, 2015 9:14 am
>> <http://electionlawblog.org/?p=71257>byRick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> /[cross-posted at SCOTUSBlog.]/
>>
>> It is easy to read the Supreme Court’s5-4 decision
>> <http://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf>in
>> /Alabama Legislative Black Caucus v. Alabama/
>> <http://www.scotusblog.com/case-files/cases/alabama-legislative-black-caucus-v-alabama/> and
>> /Alabama Democratic Conference v. Alabama/
>> <http://www.scotusblog.com/case-files/cases/alabama-democratic-conference-v-alabama/>as
>> a mostly inconsequential case giving a small, and perhaps only
>> temporary, victory for minority voters in a dispute over the
>> redrawing of Alabama’s legislative districts after the 2010 census.
>> Indeed, although the Supreme Court sent this “racial
>> gerrymandering†case back for a wide and broad rehearing before a
>> three-judge court, Alabama will be free to junk its plan and start
>> over with one that may achieve the same political ends and keep it
>> out of legal trouble. But Justice Scalia in his dissent sees the
>> majority as issuing “a sweeping holding that will have profound
>> implications for the constitutional ideal of one person, one vote,
>> for the future of the Voting Rights Act of 1965, and for the primacy
>> of the State in managing its own elections.†Time will tell if
>> Justice Scalia’s warning against the implications of what he
>> termed a “fantastical†majority opinion is more than typical
>> Scalian hyperbole. And we may know soon enough as these issues get
>> addressed in racial gerrymandering cases fromVirginia
>> <http://www.washingtonpost.com/local/virginia-politics/court-throws-out-virginia-congressional-map/2014/10/07/97fb866a-4e56-11e4-8c24-487e92bc997b_story.htm>,North
>> Carolina
>> <http://www.southerncoalition.org/north-carolina-supreme-court-upholds-racially-gerrymandered-districts/>and
>> elsewhere
>>
>> * * *
>>
>> As explained inthis case preview
>> <http://www.scotusblog.com/2014/10/argument-preview-racial-gerrymandering-partisan-politics-and-the-future-of-the-voting-rights-act/>,
>> this case concerns a challenge to state legislative districts drawn
>> by the Alabama Legislature after the 2010 census. The legislature,
>> newly controlled by Republicans, drew a redistricting plan that
>> contained the same number of majority-minority Senate districts and
>> one additional majority-minority House district compared to the 1990s
>> plan drawn by a court and the 2000s plan drawn by a Democratic
>> legislature. Because of population shifts and declines, as well as
>> the composition of the original 2001 districts, the African-American
>> districts were the most underpopulated of all the districts, meaning
>> that many voters had to be shifted into these districts to comply
>> with “one person, one vote†requirements.
>>
>> The state legislative leaders in charge of redistricting set as a
>> goal a deviation in population of no more than two percent across
>> districts. Further, the leaders instructed the consultant charged
>> with redistricting to maintain not only the same number of
>> majority-minority districts in the two state houses but also the same
>> percentage of African Americans /within/ each district. The leaders
>> and consultant indicated they kept the same percentage of
>> African-American voters in each majority-minority district in order
>> to comply with the non-retrogression principle of Section 5 of the
>> Voting Rights Act.
>>
>> The result of these two commands led to the shifting of many more
>> African Americans into these majority-minority districts. The upshot
>> of these changes in the context of Alabama was to pack more of the
>> state’s African Americans, the state’s most reliable Democratic
>> voters, into fewer districts, thereby strengthening Republican voting
>> power in districts throughout the rest of the state.
>>
>> Black and Democratic legislators, voters, and groups brought a number
>> of challenges to the state redistricting plan, including a vote
>> dilution challenge under Section 2 of the Voting Rights Act and
>> racial and partisan gerrymandering claims. A three-judge federal
>> court divided two to one
>> <https://ecf.almd.uscourts.gov/cgi-bin/show_public_doc?2012cv0691-203> on
>> the racial gerrymandering claim, the only claim currently before the
>> Supreme Court. To win on a racial gerrymandering claim
>> <http://scholar.google.com/scholar_case?case=2057233072475851470&hl=en&as_sdt=6&as_vis=1&oi=scholarr>,
>> the plaintiffs need to show that race was the “predominant
>> factor†in redistricting, more important than traditional
>> redistricting principles. If the state can show it complied with
>> traditional districting principles or even that its intention was
>> purely partisan, not racial, the state would win.
>>
>> The lower court majority sided with Alabama, stating that the
>> Republican post-2010 census plan was just partisan politics no
>> different than what the Democrats did in the 2000 round of
>> redistricting. On the specific question whether the Alabama
>> redistricting plan was an unconstitutional racial gerrymander, the
>> lower court majority held it was not: the state’s predominant
>> motive in redistricting was complying with the two-percent population
>> deviation maximum as part of the “one person, one voteâ€
>> principle, not dividing voters on the basis of race. Further, the
>> court held that any division of voters on the basis of race was
>> justified by the state’s requirement to comply with the
>> non-retrogression principle of Section 5 of the Voting Rights Act.
>>
>> The dissent disagreed on all counts, arguing that race was the
>> predominant factor in redistricting, and Section 5 did not require
>> the maintenance of the same percentage of minority voters in each
>> majority-minority district. Further, since the Supreme Court’s 2013
>> decision in /Shelby County v. Holder
>> <http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>,///holding
>> the preclearance formula unconstitutional, eliminated the
>> preclearance requirement for Alabama, compliance with Section 5 could
>> no longer be a compelling interest to justify a racial gerrymander.
>>
>> * * *
>>
>> In the Supreme Court, Justice Kennedy sided with the more liberal
>> Justices, over the objections of the four more conservative Justices,
>> to rule against Alabama and send the case back for a do-over. Much of
>> the dispute between the majority and the dissent concerned issues
>> likely to be unimportant in other voting cases: whether one of the
>> sets of plaintiffs had standing and whether a key argument of the
>> parties was preserved on appeal. Justice Breyer’s majority opinion
>> even included an appendix to show where an argument was raised in the
>> court below.
>>
>> The majority said that the lower court erred in considering whether
>> Alabama’s legislative redistricting plan/as a whole/was an
>> unconstitutional racial gerrymander. The majority sent the case back
>> to a lower court to consider the issue on
>> a/district-by-district/basis. It said that the lower court could
>> consider new evidence as well as other claims which the Supreme Court
>> did not reach, such as the one person, one vote challenge.
>>
>> But the Supreme Court majority did more than simply send the case
>> back for a new hearing. It very strongly suggested that at least some
>> of the districts were unconstitutional gerrymanders. It began by
>> taking away two of the state’s strongest arguments.
>>
>> First, the Court said Alabama was wrong to the extent it believed
>> that Section 5 of the Voting Rights Act required Alabama to pack more
>> African-American voters into districts in order to keep the same
>> percentage of African-Americans in each majority-minority district.
>> This was a misreading of what Section 5 required and such a reading
>> could actually hurt minority voters.
>>
>> Second, the Court said that Alabama could not point to its desire to
>> have more equally populated districts as its real predominant factor
>> in redistricting. In other words, the majority rejected the argument
>> that the state could not engage in racial gerrymandering if its first
>> order of the day was to maintain equally populated districts. The
>> majority took compliance with this one person, one vote out of the
>> equation, saying this was something that was a “background†rule
>> to be considered/before/determining whether race is a predominant
>> factor. It calls into mindDaniel Lowenstein’s critique
>> <http://www.jstor.org/discover/10.2307/1229324?sid=21106239815023&uid=2&uid=4>of
>> the predominant factor test from/Shaw v. Reno/as nonsensical when it
>> comes to how legislatures decide how to redistrict.
>>
>> In the end, the majority all but instructed the lower court to find
>> that at least some of the districts were unconstitutional racial
>> gerrymanders: “For example, once the legislature’s ‘equal
>> population’ objectives are put to the side—i.e., seen as a
>> background principle—then there is strong, perhaps overwhelming
>> evidence that race did predominate as a factor when the legislature
>> drew the boundaries of Senate District 26, the one district the
>> parties have discussed here in depth.â€
>>
>> The Court then left open the question whether compliance with Section
>> 5 could be a compelling interest to justify what would be an
>> otherwise unconstitutional racial gerrymander and, no doubt at the
>> urging of Justice Kennedy, added this sentence: “Finally, we note
>> that our discussion in this section is limited to correcting the
>> District Court’s misapplication of the ‘predominance’ test for
>> strict scrutiny discussed in/Miller/, 515 U. S., at 916. It does not
>> express a view on the question of whether the intentional use of race
>> in redisÂtricting, even in the absence of proof that traditional
>> districting principles were subordinated to race, triggers strict
>> scrutiny. See/Vera/, 517 U. S., at 996 (KENNEDY, J., concurring).â€
>>
>> * * *
>>
>> Justice Scalia, who wrote the principal dissent, argued mostly on the
>> question of standing and on whether the district-by-district issue
>> was preserved on appeal. He believed that the case was not properly
>> litigated or the issues preserved: “This disposition is based, it
>> seems, on the implicit premise that plaintiffs only plead legally
>> correct theories. That is a silly premise. We should not reward the
>> practice of litigation by obfuscation, especially when we are dealing
>> with a well-established legal claim that numerous plaintiffs have
>> successfully brought in the past.†Despite his opening hyperbolic
>> statement, Justice Scalia offered very little to explain what parade
>> of horribles would result from the interpretation of the racial
>> gerrymandering claim in this way. Justice Thomas, while joining
>> (along with the Chief Justice and Justice Alito) in Justice
>> Scalia’s dissent, dissented separately as well, to express his
>> disagreement more broadly with Voting Rights Act jurisprudence and
>> the permissible consideration of race in redistricting.
>>
>> * * *
>>
>> What is the significance of today’s/Alabama/ruling? It seems likely
>> on remand that at least some of Alabama’s districts will be found
>> to be racial gerrymanders. This means that some of these districts
>> will have to be redrawn to “unpack†some minority voters from
>> these districts. But do not be surprised if Alabama preempts the
>> lawsuit by drawing new districts which are less racially conscious
>> but still constitute a partisan gerrymander which helps the
>> Republicans have greater control over the Alabama legislative
>> districts. As I have noted, lurking in the background of this case is
>> the “race or party
>> <http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>â€
>> problem: with most Democrats in Alabama being African Americans and
>> most Republicans being white, how does one determine
>> <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/alabama_redistricting_supreme_court_did_legislators_redraw_district_lines.html>whether
>> a predominant factor in gerrymandering is race or party?
>>
>> On that score, the case may have somewhat broader implications even
>> if not the earthshattering ones promised by Justice Scalia. Although
>> Republican states which pack minority voters into districts can no
>> longer claim to do so to comply with Section 5 of the Voting Rights
>> Act (thanks to the/Shelby County/case), they still may claim to do so
>> to comply with Section 2 of the Act. Indeed, asProfessor Justin
>> Levitt has shown
>> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426>,
>> minority packing and reliance on the Voting Rights Act has become a
>> familiar tool for Republican legislatures looking to gain advantage
>> by packing likely Democratic voters into a smaller number of
>> districts. Many Democrats and minority voters have challenged such
>> plans as unconstitutional racial gerrymanders.
>>
>> Today’s/Alabama/decision gives these challengers a new tool, making
>> it harder for states to use compliance with the Voting Rights Act as
>> a precinct to secure partisan advantage. All in all, this may help
>> stop some egregious gerrymanders, but there will still be plenty of
>> ways for states to draw district lines for partisan advantage without
>> running afoul of the Voting Rights Act. And depending upon how the
>> Court decidesthe Arizona redistricting case
>> <http://www.scotusblog.com/case-files/cases/arizona-state-legislature-v-arizona-independent-redistricting-commission/?wpmp_switcher=desktop>later
>> this term, states may have even a freer hand to draw lines for
>> nakedly political purposes.
>>
>> So chalk this up as a small, albeit real, victory not only for
>> minority voters but also for irony. The “racial gerrymanderâ€
>> cause of action, which was the basis for conservatives to challenge
>> the creation of extra majority-minority districts under the Voting
>> Rights Act, has not become a tool by those who hate the cause of
>> action to protect minority voting rights.
>>
>> Share
>> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71257&title=Opinion%20Analysis%3A%20A%20Small%20Victory%20for%20Minority%20Voters%2C%20or%20a%20Case%20with%20%E2%80%9CProfound%E2%80%9D%20Constitutional%20Implications%3F&description=>
>> Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme
>> Court <http://electionlawblog.org/?cat=29>,Voting Rights Act
>> <http://electionlawblog.org/?cat=15>
>>
>> --
>> 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
>>
>>
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>
> --
> 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
>
>
> _______________________________________________
> Law-election mailing list
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--
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
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