[EL] Breaking: #SCOTUS Will Hear Virginia Redistricting Case
Rick Hasen
rhasen at law.uci.edu
Fri Nov 13 11:37:50 PST 2015
Breaking: #SCOTUS Will Hear Virginia Redistricting Case
<http://electionlawblog.org/?p=77536>
Posted onNovember 13, 2015 11:35 am
<http://electionlawblog.org/?p=77536>byRick Hasen
<http://electionlawblog.org/?author=3>
There will be a lot of attention (for good reason) to the Court’s
decision to hear a Texas abortion case
<http://www.nytimes.com/2015/11/14/us/politics/supreme-court-accepts-texas-abortion-law-case.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news>,
but the Court will also hold a hearing on Wittman v. Personhuballah
<http://www.scotusblog.com/case-files/cases/wittman-v-personhuballah/>,
a Virginiaredistricting case
<http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-1504.htm>.
(This case involves congressional redistricting and I’ve writtenabout
it here <http://electionlawblog.org/?p=73232>; there’s another Virginia
case involving Virginia state house redistricting
<http://electionlawblog.org/?p=76966>which has also beenappealed
<http://electionlawblog.org/?p=77092>to the Supreme Court.)
Here are the questions presented:
1) Whether the court below erred in failing to make the required
finding that race rather than politics predominated in District 3,
where there is no dispute that politics explains the Enacted Plan;
(2) whether the court below erred in relieving plaintiffs of their
burden to show an alternative plan that achieves the General
Assembly’s political goals, is comparably consistent with
traditional districting principles, and brings about greater racial
balance than the Enacted Plan; (3) whether, regardless of any other
error, the finding of a/Shaw
<https://www.law.cornell.edu/supct/html/92-357.ZS.html> /violation
by the court below was based on clearly erroneous fact-finding; (4)
whether the majority erred in holding that the Enacted Plan fails
strict scrutiny because it increased District 3’s black voting-age
population percentage above the benchmark percentage, when the
undisputed evidence establishes that the increase better complies
with neutral principles than would reducing the percentage and no
racial bloc voting analysis would support a reduction capable of
realistically securing Section 5 preclearance.
But theCourt in its order
<http://www.supremecourt.gov/orders/courtorders/111315zr1_8mjp.pdf>has
also added a standing question:
Further consideration of the question of jurisdiction is postponed
to the hearing of the case on the merits. In addition to the
questions presented by the jurisdictional statement, the parties are
directed to brief and argue the following question: Whether
appellants lack standing because none reside in or represent the
only congressional district whose constitutionality is at issue in
this case.
This case is a follow on to the Alabama redistricting case decided last
year. I’ve done a detailed analysis of that case, in a paper,Racial
Gerrymandering’s Questionable Revival
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601459>, about to
be published in the /Alabama Law Review/‘s symposium on the 50th
anniversary of the Voting Rights Act. You can find the near final draft
on SSRN. Here is the abstract:
Like history, the racial gerrymandering cause of action has repeated
itself, the first time as tragedy, the second time as farce.
In the 1990s, conservative members of the Supreme Court recognized a
new cause of action, grounded in the Fourteenth Amendment’s Equal
Protection Clause, of an “unconstitutional racial gerrymander.” The
claim was not one, long recognized, for the intentional dilution of
black votes through the manipulative drawing of district lines.
Instead, it was a shaky, ephemeral claim based solely on
appearances. Racial gerrymandering is an “expressive harm,” aimed at
preventing jurisdictions from sending an impermissible “message” by
separating voters on the basis of race without adequate
justification. In practice, the cause of action helped limit
attempts by the U.S. Department of Justice to force jurisdictions
then covered by Section 5 of the Voting Rights Act to create more
majority-minority voting districts which tended to vote Democratic.
Sometimes doing so helped Democrats; at other times the
concentration of reliable Democratic voters helped Republicans.
Within a decade, however, racial gerrymandering claims seemed to
wither away, as the Court used other methods to stop the Department
from reading the Act too broadly.
In 2015, the Supreme Court revived racial gerrymandering claims. In
Alabama Legislative Black Caucus v. Alabama, the four liberals on
the Court and Justice Kennedy agreed with Democrats and minority
voters that the state of Alabama engaged in an unconstitutional
racial gerrymander when it passed a legislative districting plan
which over-concentrated black voters in majority-minority districts
in ostensible compliance with the Voting Rights Act. There was great
irony in the use of the racial gerrymandering cause of action by
minority voters who had rejected it in the 1990s, in its acceptance
by liberal justices, and in the defense of race-based redistricting
by Alabama Republicans and some conservative Supreme Court justices.
While racial gerrymandering has for now become a useful tool for
Democrats and minority plaintiffs to fight certain Republican
gerrymanders, it is no more coherent or justified now than it was
the first time the Court recognized it in the 1990s.
This Essay, written for an Alabama Law Review symposium on the 50th
anniversary of the Voting Rights Act, proceeds in three parts. Part
I briefly describes the emergence of the racial gerrymandering cause
of action in the 1990s and the critiques made of it. Part II briefly
describes the circumstances leading up to the 2015 Alabama case and
Court’s questionable revival of the racial gerrymandering claim.
Part III argues that the racial gerrymandering claim is no more
defensible when used by Democrats or minority voters than by
conservatives or Republicans. No doubt the Alabama legislature used
compliance with the Voting Rights Act as a pretext to pack more
reliable Democratic voters into a smaller number of districts to
help Republicans in the state overall. But that behavior should be
policed as either a form of impermissible racial vote dilution or as
inappropriate partisan behavior. In the end, the Supreme Court has
relied upon the incoherent racial gerrymandering claim because lacks
the right tools to police certain political conduct which might be
impermissibly racist, partisan, or both. Liberal and conservative
scholars have long recognized that the Voting Rights Act’s
enforcement and interpretation can have partisan implications and
motivations. The same is now true for racial gerrymandering claims,
especially given the great overlap of race and party categories in
the South.
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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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