[EL] SCOTUS order in NC case

Sun Feb 21 05:47:50 PST 2016

Rick point here is interesting and worthy of additional comment;

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.

I have a hard time understanding and justifying how we have got to the  
point that there is some fine line between taking "race too much into account"  
and not "raking race enough into account."  This may indeed currently be  
the law but it demonstrates that the law is hopeless arbitrary and vague.   
How in the world can any legislature be expected to know where that line is? 

Further, the inevitable chaos, partisan maneuvering, etc ,that Rick  points 
to, leads to gross disruption of the election and the public's accurate  
perception that the outcomes of the election are simply the result of lawyers  
and judges manipulating the election boundaries.

The heart of the problem, it seems to me, is that we have to take race into 
 account at all now.  Isn't it time to finally realize Martin Luther  
King's dream.  Jim Bopp

In a message dated 2/20/2016 2:19:09 P.M. Eastern Standard Time,  
rhasen at law.uci.edu writes:

_Breaking: SCOTUS,  Without Noted Dissent, Denies Stay in NC Redistricting 
Case. What Does It  Mean?_ (http://electionlawblog.org/?p=80149) 

Posted  on _February 19, 2016 7:08  pm_ 
(http://electionlawblog.org/?p=80149)  by _Rick  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, has _denied  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 is _so 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.] 

(https://www.addtoany.com/share#url=http://electionlawblog.org/?p=80149&title=Breaking:%20SCOTUS,%20Without%20Noted%20Dissent,%20Denies%20Stay%20in%20N
C%20Redistricting%20Case.%20What%20Does%20It%20Mean?&description=) 

Posted  in _redistricting_ (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_ (mailto:rhasen at law.uci.edu) 

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

_http://electionlawblog.org_ (http://electionlawblog.org/) 

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