[EL] SCOTUS order in NC case
Rick Hasen
rhasen at law.uci.edu
Fri Feb 19 19:39:59 PST 2016
I'm having doubts about my point about the partisan gerrymandering. I
guess it depends on how we would count Justice Kennedy's vote in such a
case. Probably more likely it would be a 4-4. Do others see it this way?
On 2/19/16 10:20 PM, Rick Hasen wrote:
>
>
> Breaking: SCOTUS, Without Noted Dissent, Denies Stay in NC
> Redistricting Case. What Does It Mean?
> <http://electionlawblog.org/?p=80149>
>
> Posted onFebruary 19, 2016 7:08 pm
> <http://electionlawblog.org/?p=80149>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> (I knew this would happen while I was (1) on a plane and (2) just
> finished my ELB blogging for the night.)
>
> The Supreme Court, without noted dissent, hasdenied the stay
> <https://twitter.com/chrisgeidner/status/700876916623073280/photo/1>in
> the North Carolina redistricting case. What does this mean?
>
> 1. Before the death of Justice Scalia, I had thought the Court would
> grant the stay, not because there would be a majority of Justices
> who would necessarily agree on the merits, but because there were
> likely at least 5 who would see the problem with changing the
> rules so close to the election (absentee ballots had already been
> voted in some races). (This is the “Purcell principle.” If the
> Court divided 5-4 before Scalia, it could now be evenly divided
> without Scalia. Because the Court isso opaque
> <http://electionlawblog.org/?p=79942>, especially on its ‘shadow
> docket,” we don’t know what the vote count is. It could be 4-4, it
> could be 3-5 or 0-8. Justice Scalia’s absence might have been
> decisive here.
> 2. What a mess in North Carolina. The state has passed a new
> redistricting law which not only changes all of the congressional
> districts; it also changes the timing of elections and eliminates
> a runoff primary. It is certainly a partisan gerrymander. What
> happens if the new plan is challenged as a partisan gerrymander?
> In Vieth the Court divided 4-1-4. Now with Scalia is is
> presumably (we’re not sure because of some new Justices) 4
> Justices that believe such claims raise constitutional problems, 1
> (Kennedy) who is not sure, and 3 (from 4, now minus Scalia) who
> believe such claims are non-justiciable. Is there a new majority
> to police partisan gerrymandering?
> 3. And it is quite possible that there could be a Voting Rights Act
> violation now. The problem with the last plan was that North
> Carolina took race /too much/into account. But now perhaps NC did
> not take race /enough /into account to assure that the districts
> comply with Section 2 of the Act, which requires the creation of
> majority opportunity districts under certain circumstances.
> 4. It is quite possible that the 3-judge court then, seeing these
> potential problems, rejects the maps submitted by the state and
> orders its own maps. That would take some time, but with the
> primary now potentially put off until June there is time.
> 5. Now of course virtually none of this would have happened if the
> Supreme Court had not ruled in /Shelby County /to strike down the
> trigger for the preclearance provisions of the VRA. North Carolina
> would have had to submit any new maps to DOJ, which then could
> have withheld preclearance if they made protected minority voters
> worse off.
> 6. There’s a lot of confusion on the ground, and I expect that the
> three-judge court will quickly hold a hearing and figure out what
> the heck comes next. Wow!
>
> [This post has been updated.]
>
> Share
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D80149&title=Breaking%3A%20SCOTUS%2C%20Without%20Noted%20Dissent%2C%20Denies%20Stay%20in%20NC%20Redistricting%20Case.%20What%20Does%20It%20Mean%3F&description=>
> Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme
> Court <http://electionlawblog.org/?cat=29>
>
> --
> 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
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