[EL] Supreme Court decides Harris case
Rick Hasen
rhasen at law.uci.edu
Wed Apr 20 07:37:50 PDT 2016
Breaking: #SCOTUS Unanimously Rejects AZ Redistricting Challenge:
Analysis <http://electionlawblog.org/?p=82027>
Posted onApril 20, 2016 7:07 am
<http://electionlawblog.org/?p=82027>byRick Hasen
<http://electionlawblog.org/?author=3>
The Supreme Court in ashort, unanimous opinion b
<http://www.supremecourt.gov/opinions/15pdf/14-232_ihdj.pdf>y Justice
Breyer, has rejected challenges to Arizona’s state redistricting done by
commission. The Court held that it is permissible to deviate from
perfect population in drawing state legislative district lines
(generally by up to 10 percent) and that the commission did not engage
in a partisan gerrymander. This is the second time within a year the
Court has addressed something to do with the commission; last year (in
Arizona Legislature v. Arizona Independent Redistricting commission) the
Court held it was permissible for the Commission to draw congressional
district lines in a procedure approved by voter initiative even though
the Constitution gives the state “legislature” the right to pick the
rules for congressional elections.
Today’s opinion in/Harris v. Arizona Independent
Redistricting Commission /is significant in a few ways: First, it mostly
restores the 10 percent safe harbor, which gives those drawing districts
greater flexibility in drawing district lines (and, though the Court
doesn’t say it, more opportunity to play partisan games with under- and
over-population). Only in unusual, egregious cases will this amount of
deviation giving rise to a successful constitutional lawsuit. Second,
the Court almost holds that compliance with the Voting Rights Act’s
section provides a good reason to deviate from perfect equality. Third,
by writing a minimal opinion that decided only what was necessary, the
Court was able to avoid a 4-4 split even though there are some great
disagreements on larger issues among the Justices. (Justice Thomas, for
example, does not even believe the Voting Rights Act should apply to
section 2 vote dilution claims, and Justices Roberts, Alito, and Kennedy
have been very skeptical of strong readings of the Voting Rights Act.)
The question of deviation from perfect numerical equality in drawing
district lines had seemed until the 2000s like it was set at a 10
percent safe harbor, with more if there was a good reason. But many read
the summary affirmance in the 2004 Larios decision as not allowing for
deviations even within the 10 percent safe harbor when it is done for
partisan purposes. In today’s/Harris v. Arizona Independent
Redistricting Commission/case, the Court distinguished, but did not
overrule, Larios:
Second, the appellants point to Cox v. Larios, 542 U. S. 947 (2004),
in which we summarily affirmed a district court’s judgment that
Georgia’s reapportionment of representatives to state legislative
districts violated the Equal Protection Clause, even though the
total population deviation was less than 10%. In Cox, however,
unlike the present case, the district court found that those
attacking the plan had shown that it was more probable than not that
the use of illegitimate factors significantly explained deviations
from numerical equality among districts. The district court produced
many examples showing that population deviation as well as the shape
of many districts “did not result from any attempt to create
districts that were compact or contiguous, or to keep counties
whole, or to preserve the cores of prior districts.” Id., at 949. No
legitimate purposes could explain them. It is appellants’ inability
to show that the present plan’s deviations and boundary shapes
result from the predominance of similarly illegitimate factors that
makes Cox inapposite here. Even assuming, without deciding, that
partisanship is an illegitimate redistricting factor, appellants
have not carried their burden.
The Court also came close to holding it is permissible to deviate from
perfect mathematical equality to comply with the Voting Rights Act. It
noted in the past that some Justices have held underpopulation is
allowed in drawing districts to ensure under section 2 of the Act that
minority voters have an equal opportunity to participate in the
political process and to elect representatives of their choice. (It
doesn’t look like the Court directly holds that in this case, as it is
not necessary to the decision.) And it held that Arizona could have
deviated from perfect equality to comply with Section 5 of the Act,
which the Court later gutted in the 2013 Shelby County case. It rejected
the idea that because of the later Shelby case, reliance on Section 5
becomes suspect.
Finally, the Court rejected the idea that this was a partisan
gerrymander, obliquely recognizing therace or party question
<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/>.
Sure it was Democratic districts that were underpopulated, but that was
because minority voters in Arizona tend to vote for Democrats:
The appellants make three additional arguments. First, they support
their claim that the plan reflects unreasonable use of partisan
considerations by pointing to the fact that almost all the
Democratic-leaning districts are somewhat underpopulated and almost
all the Republican-leaning districts are somewhat overpopulated.
That is likely true. See 993 F. Supp. 2d, at 1049 (providing a chart
with percentage deviation figures by district). But that fact may
well reflect the tendency of minority populations in Arizona in 2010
to vote disproportionately for Democrats. If so, the variations are
explained by the Commission’s efforts to maintain at least 10
ability-to-elect districts. The Commission may have relied on data
from its statisticians and Voting Rights Act expert to create
districts tailored to achieve preclearance in which minority voters
were a larger percentage of the district population. That might have
necessitated moving other voters out of those districts, thereby
leaving them slightly underpopulated. The appellants point to
nothing in the record to suggest the contrary.
Finally, the Court imposed a difficult to meet test for showing when
deviation from the 10 percent safe harbor is impermissible:
In sum, in a case like this one, those attacking a state-approved
plan must show that it is more probable than not that a deviation of
less than 10% reflects the predominance of illegitimate
reapportionment factors rather than the “legitimate considerations”
to which we have referred in Reynolds and later cases. Given the
inherent difficulty of measuring and comparing factors that may
legitimately account for small deviations from strict mathematical
equality, we believe that attacks on deviations under 10% will
succeed only rarely, in unusual cases. And we are not surprised that
the appellants have failed to meet their burden here.
[This post has been updated.]
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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
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http://electionlawblog.org
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