[EL] (Extremely Delayed and Extremely Long) ELB News and Commentary 5/22/17

[Rick Hasen]

“Justices Reject 2 Gerrymandered North Carolina Districts, Citing Racial Bias”<http://electionlawblog.org/?p=92714>
Posted on May 22, 2017 12:23 pm<http://electionlawblog.org/?p=92714> by Rick Hasen<http://electionlawblog.org/?author=3>

Adam Liptak f<https://www.nytimes.com/2017/05/22/us/politics/supreme-court-north-carolina-congressional-districts.html?smid=tw-share>or the NYT:

The Supreme Court<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org> on Monday struck down<https://www.supremecourt.gov/opinions/16pdf/15-1262_db8e.pdf> two North Carolina congressional districts, ruling that lawmakers had violated the Constitution by relying too heavily on race in drawing them.

The court rejected arguments from state lawmakers that their purpose in drawing the maps was not racial discrimination but partisan advantage.

The decision was the court’s latest attempt to solve a constitutional puzzle: how to disentangle the roles of race and partisanship when black voters overwhelmingly favor Democrats. The difference matters because the Supreme Court has said that only racial gerrymandering is constitutionally suspect.

Election law experts said the ruling would make it easier to challenge voting districts based partly on partisan affiliations and partly on race.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


Justice Kagan Gained Justice Thomas in NC Racial Gerrymandering Case; How Did She Lose Justice Kennedy?<http://electionlawblog.org/?p=92707>
Posted on May 22, 2017 12:20 pm<http://electionlawblog.org/?p=92707> by Rick Hasen<http://electionlawblog.org/?author=3>

I’ve noted<http://electionlawblog.org/?p=92675> how interesting and mysterious it is that Justice Thomas signed onto Justice Kagan’s opinion in today’s racial gerrymandering case. Given Justice Thomas’s views on Section 2 of the Voting Rights Act, and his view of the clearly erroneous standard (especially as he dissented in Easley v. Cromartie), it is not that surprising that he concurred in the judgment here. What is surprising is that he joined in Justice Kagan’s opinion, giving her a fifth vote and making her opinion a majority opinion for the Court.

But also it is a surprise is that Justice Kagan did not get Justice Kennedy’s vote. Kennedy was the vote with the four liberals in the Alabama<https://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf>’s and Virginia<https://www.supremecourt.gov/opinions/16pdf/15-680_c07d.pdf>’s redistricting cases (with Thomas in the dissent). Kennedy was responsible for reviving these claims for use by liberals for a new purpose (as explained here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601459>).

Here is my guess about why Justice Kennedy did not vote with Justice Kagan on District 12 (he did, and the Court was unanimous, on District 1, finding the VRA was a pretext for what the legislature did):

It appeared before this case, that according to Easley v. Cromartie, in a racial gerrymandering case where the question is race or party, it is plaintiffs’ job to come up with an alternative redistricting plan that achieves the same political goals but with “greater racial balance.”  (I think that is a nonsensical standard from Justice Breyer in this case, but there is is.) There’s no question that in today’s case, the plaintiffs could not produce such a map. Justice Kagan dealt with this issue by essentially rereading Easley v. Cromartie to not require that plaintiffs produce such a map.

I don’t think Justice Kagan’s reading of Easley‘s requirement is the best one, and I can understand Justice Alito’s complaint that the majority threw away Easley like a disposable paper plate or napkin. Justice Kennedy could well agree with Justice Alito.

He also may agree with Justice Alito that the Kagan majority opinion waters down the race or party test. There’s language in Justice Alito’s opinion pushing the race or party point (and now I believe there is conflicting language on this from Kagan). Perhaps Justice Kennedy agreed with Alito on this point too.

This latter point seems somewhat less likely, however, because Justice Kennedy in the 2006 LULAC case seemed to endorse the proxy approach to race and party (as I explain here<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>).

So my guess remains that it is the Easley test, abandoned by Kagan, that cost Justice Kennedy.


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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


Disagreeing With Rick Hasen on the North Carolina Case<http://electionlawblog.org/?p=92706>
Posted on May 22, 2017 12:06 pm<http://electionlawblog.org/?p=92706> by Richard Pildes<http://electionlawblog.org/?author=7>

I’ve now had a chance to read Rick Hasen’s assessment of the North Carolina case and I feel obligated to note my fundamental disagreement with the most dramatic parts of his post.

Rick says there are “two bombshells” in footnotes to the case and then says “Holy cow this is a big deal” and “wow” about what is purportedly buried there.  But the principles stated in those notes are nothing new; they go back to the first cases decided in this area, in the 1990s; and there is no disagreement between the majority and the dissent about these principles.

The majority and dissent disagree about what plaintiffs should have to do to prove their case and on what the most appropriate factual findings are here.  But that’s all they disagree about.  Contrary to Rick, the majority is not holding anything like the principle that it will treat partisan-based districting (or partisanly-motivated election regulation more generally) as a proxy for race-based districting (or race-based election regulation).  Doing that certainly would be revolutionary, and would indeed trigger enormous debates within the Court.  But there are no such debates today because the Court did nothing of this sort.

1.Ever since the mid-1990s, the Court has been clear that sorting voters by race – for any reason – triggers strict scrutiny. More technically, when sorting voters by race is the predominant reason for a district’s design, the district must survive strict scrutiny.  That has always meant that race cannot be used as a proxy for likely political voting patterns.  The footnotes Rick references say nothing more than that.

2. Thus, in Bush v. Vera, 517 US 952, 969 (1996), the Court held Texas districts unconstitutional because “political gerrymandering was accomplished in large part by the use of race as a proxy.” Similarly, that opinion also said that race could not be used “as a proxy” for political voting patterns or anything else.  The Court condemned “the misuse of race as a proxy” for incumbent protection or partisan advantage seeking.  The State may not “use race as a proxy to serve other interests.”  And very directly, the Court held:  “District 30 also involved the illicit use of race as a proxy when legislators shifted blocs of African-American voters to districts of incumbent Democrats in order to promote partisan interests.”  Again, the passages Rick fixates on say nothing more than what the Court has always said about this, since the racial gerrymandering cases began.  Indeed, the very footnotes Rick references explicitly, and accurately, cite these cases from the mid-1990s.  There is simply nothing new here.

3.  In other words, the North Carolina case (regarding CD 12) remains within the standard mold of trying to decide whether voters were sorted by race or by party. If voters are moved as Democrats or as Republicans, that is fine, as long as the Court does not put constraints on partisan gerrymandering.  But if they are moved as black or white citizens, that can trigger strict scrutiny.  Again, there is nothing new about that (however much sense it does or doesn’t make).

4.  For just these reasons, there is nothing surprising about the fact that neither Justice Thomas nor the dissenting Justices took issue with the footnotes that Rick considers “bombshells.”Thus, one cannot conclude from today’s opinion, as Rick suggests, that the decision “means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting.” Yes, it would be doctrinally radical for the Court to conclude that partisan gerrymandering is equivalent to racial gerrymandering.  But that’s not at all what the Court did.

5.  In fact, the entire fight between the majority and the dissent would have taken very different form in that event – the dissent argues that partisanship best explained CD 12, but if the majority really was establishing the principle Rick suggests, then the majority could have said it doesn’t matter if that’s why NC did it, because “discriminating on the basis of party [here] is equivalent to making race the predominant factor.”   But instead, the majority’s position was that voters were sorted by race and that’s why strict scrutiny is required.

6.  Since this is closely related, I’ll mention that I also don’t agree with point 10 in Rick’s post, discussing the 4th Circuit voting-rights case, also from NC. Once again, the crucial fact there is that the NC legislature was found to have acted with an unconstitutional racial purpose because it used racial data to choose which voting regulations to enact, and it chose those that the court concluded disadvantaged black voters – and chose them for that reason.  This is a case of race-based discriminatory treatment, pure and simple.

7.  It’s much too fast and loose to suggest, as Rick does, that these cases treat “race and party as proxies for one another.” Racial classifications and racial sorting have for many years been uniquely suspect.  They cannot be engaged in without meeting the standards of strict scrutiny. And a defense cannot be that we were looking to gain partisan advantage by doing so.

But that’s quite different from saying the court will treat party – and partisan-advantage seeking – as a proxy for race, where the two correlate.  Nothing in today’s decision does that or changes the law on the relationship between race and party in these cases.

UPDATE:  After posting this, I saw that Justin Levitt posted a quite similar critique of Rick Hasen’s discussion.  Looks to me like I agree with Justin on what the Court’s opinion actually did and with his rejection of Rick Hasen’s discussion of the decision.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>


“Remove the President? Read This First”<http://electionlawblog.org/?p=92704>
Posted on May 22, 2017 11:53 am<http://electionlawblog.org/?p=92704> by Rick Hasen<http://electionlawblog.org/?author=3>

Jerry Goldfeder column.<http://www.stroock.com/siteFiles/Publications/NYLJMay18Goldfeder.pdf>
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NC redistricting, from someone not named Rick<http://electionlawblog.org/?p=92700>
Posted on May 22, 2017 11:44 am<http://electionlawblog.org/?p=92700> by Justin Levitt<http://electionlawblog.org/?author=4>

Rick Hasen<http://electionlawblog.org/?p=92675> and Rick Pildes<http://electionlawblog.org/?p=92694> have already weighed in on the NC redistricting case<https://www.supremecourt.gov/opinions/16pdf/15-1262_db8e.pdf> this morning.

I agree with much of the Ricks’ analysis, and their assessment that this was utimately a win for voting rights plaintiffs.  But I have to disagree with Hasen’s “holy cow” conclusion.  The Court did not just treat race and party as proxies for each other.  Indeed, I think that represents a version of the overly blunt approach that just got North Carolina smacked down.

[Full disclosure: I was involved with this case as an amicus — and the Court seems to have agreed with much of the brief I worked on.]

First, the agreement (and the good news).  As both Rick H.<http://electionlawblog.org/?p=92675> and Rick P.<http://electionlawblog.org/?p=92694> have said, the Court today rejected a legislature’s attempt to hide unconstitutional behavior under the pretext of compliance with the Voting Rights Act, when real VRA compliance was not really an issue.  I’ve written about<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426> the danger in letting recitations of VRA compliance become simple pretext — to drain the statute of meaning by letting legislatures use it merely as political cover while subverting its substance.  Rick H. says that this part of the case is “relatively uncontroversial.”  If that’s true, that’s reason alone to celebrate.

But there’s one part of Rick H.’s analysis — his “holy cow” conclusion — that I respectfully but vehemently disagree with.  He says that Justice Kagan “attempts to solve the race or party problem by moving the Court much closer to the position of treating race and party as proxies for one another in the American South.”  He says that Justice Kagan’s opinion essentially treats race and party as if they weren’t really discrete categories.  He says this was also the basis for the 4th Circuit’s opinion in the North Carolina voting-procedures case, and calls the combined impact a bombshell.  I don’t buy it.

In Rick H.’s telling, the Court this morning treated race and party as if they were interchangeable.  I think there are three separate problems with such an approach, and I don’t think it’s what the Court actually did this morning.  Both the political reality and the Court’s decision are — appropriately and thankfully — far more nuanced.
1.      First, the Court did not address race and party in the “American South.”  For decades, political scientists have recognized a difference between the “deep South” and the “rim South” with respect to black-white relations.  Among other distinctions, there’s more Anglo crossover voting for candidates preferred by the black community in states like Virginia and North Carolina.  (Anglo-Latino voting in the rim South also doesn’t always follow the same pattern as Anglo-black voting.)  Voting patterns are different locally, and those differences matter in redistricting (see fn 5).  Justice Kagan’s opinion discusses the evidence put forward in specific parts of North Carolina.  It’s a mistake to assume that the same voting patterns apply elsewhere in North Carolina, much less in Alabama.
2.      Second, the Court did not say that race and party were proxies for each other.  It’s true that the vast majority of African-Americans in North Carolina currently favor the Democratic party (exit polls say about 90% voted for Clinton).  But the exit polls also show that only about 63% of Anglo voters in North Carolina voted for the Republican party.  As Rick Pildes notes today<http://electionlawblog.org/?p=92694>, that’s a big difference.  And it means that even if you assume that an African-American voter is a Democrat, it’s not a very reliable assumption that an Anglo voter is a Republican.  (And again, the Latino vote in North Carolina is more complicated still.)

That difference is significant, because it allows courts to make sensible distinctions between action taken because of race and those taken because of party.  Where there is a significant population of Anglo Democrats, does it appear that African-American Democratic voters were targeted while Anglo Democratic voters were left alone?  Maybe the reason is that decisions were made far more about race than party.  (It may also be possible to tell the difference based on where the lines are drawn: since electoral returns are reported by precinct, and racial data is reported by census block, lines that regularly split precincts along racial lines to follow particular census blocks and not others may show that it’s really not party driving the results.)
3.      Third, it’s not news that the predominant use of race, even to achieve other goals, is constitutionally questionable.  Rick H. highlights two footnotes (1 and 7) that critique the intentional and predominant use of race, even when the “real” underlying reason may have been party politics.  That approach doesn’t conflate the two.  And it’s not new.   Legal intent always turns on the means to accomplish some ultimate goal.  Even if it’s entirely lawful to try to get rich, it’s not lawful to intentionally steal from someone else in order to do so.  Similarly, even if it’s lawful to draw lines for partisan advantage (stay tuned on that front), it’s not lawful to intentionally move voters predominantly based on their race in order to do so.  (Or, in the 4th Circuit decision, even if it’s lawful to change election rules for partisan advantage — again, stay tuned — it’s not lawful to target minority voters in order to do so.)

Judge Alex Kozinski clearly explained the distinction in a slightly different context almost three decades ago<https://scholar.google.com/scholar_case?case=8330447326088275072>: “Assume you are an anglo homeowner who lives in an all-white neighborhood. Suppose, also, that you harbor no ill feelings toward minorities. Suppose further, however, that some of your neighbors persuade you that having an integrated neighborhood would lower property values and that you stand to lose a lot of money on your home. On the basis of that belief, you join a pact not to sell your house to minorities. Have you engaged in intentional racial and ethnic discrimination? Of course you have.”  The ultimate goal — not to lose money — doesn’t change the fact that the hypothetical homeowner intentionally treated minority buyers differently.

So if the Court didn’t broadly conflate race and party, what did it do?

Actually, the opinion is pretty narrow.  It recognized that the evidence presented below was enough to let a court conclude that NC legislators moved people into or out of districts predominantly based on race, and without any good reason.  (It also recognized that that was a really close call, particularly with respect to district 12, and that courts could – and did – reasonably disagree.  There’s a lot in the opinion about the standard of review.  Courts don’t establish truth — they test whether particular litigants have made their case or not.)

The court also recognized that despite citing the VRA, NC legislators didn’t do their homework in figuring out whether the VRA really required packing minorities into two districts — perhaps because they weren’t actually interested in figuring out whether the VRA really required what they did.  As I’ve written before<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426>, this is a trend that ties North Carolina to Alabama and Virginia … and several other states this cycle.

There’s also two more helpful nuggets that Rick P.<http://electionlawblog.org/?p=92694> pointed out: the Court explained that alternative maps can serve as evidence of a violation, but need not be produced in every case.  If the question is really about the intent of the legislature, that seems unquestionably right.  And the Court confirmed (p. 16) that crossover districts could satisfy the VRA: just because a plaintiff needs to be able to draw a majority-minority district to come into court doesn’t mean that majority-minority districts are the only available remedy.   I’ve also written about<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2487426> why that’s precisely right — and in keeping with the VRA’s focus on facts rather than assumptions.

This is, to me, good news.  Just good news for different reasons than Rick H.’s assessment.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Analysis of the Supreme Court’s North Carolina Racial Redistricting Case<http://electionlawblog.org/?p=92694>
Posted on May 22, 2017 10:17 am<http://electionlawblog.org/?p=92694> by Richard Pildes<http://electionlawblog.org/?author=7>

[This post will soon also appear at the SCOTUS blog]

The main take-away from today’s decision is that the Supreme Court is continuing the project of winding down unnecessary racial redistricting.  The decision reflects the Court’s effort to modernize the Voting Rights Act (VRA) and ensure it adapts to the changing dynamics of race and politics, in some parts of the country, in the many decades since the Act first was passed.  The crucial fact in today’s decision is that 30-40% of white voters in parts of North Carolina are willing to cross-over and vote for the same candidates that African American voters prefer – and that application of the VRA and the Constitution must recognize these changing realities.

The Court today shored up the constitutional constraints limiting the use of race in redistricting, which has been the main development in the law of redistricting this decade.  That development began with the Alabama cases, Alabama Legislative Black Caucus v. Alabama, and has now been extended to Virginia and North Carolina.  And the Court also opened up a new avenue of constraint by holding that if white voters now vote for candidates black voters prefer at high enough rates, the intentional creation of majority-black districts is no longer required – and indeed, is unconstitutional.

Let me situate today’s decision, before turning to its specifics, in the broader context of the VRA and how race came to play the role it currently does in the modern era of redistricting.

The regime of VRA-required racial redistricting began in the 1990s, in the wake of Congress’ 1982 Amendments to the VRA and the Supreme Court’s 1986 decision in Thornburg v. Gingles.  But almost immediately after the start of that regime, beginning with the Shaw v. Reno line of cases, the Court has been struggling to cabin in and constrain VRA-required race-based districting to circumstances in which it is truly necessary.  In an opinion by Justice Souter back in 1994, Johnson v. DeGrandy, the Court wrote that race-based districting under the VRA relies “on a quintessentially race-conscious calculus aptly described as the ‘politics of the second best.’”  A majority of the Court – confirmed by the parts of today’s opinion that are unanimous – has acted on that view ever since.   If the VRA truly requires race-based districting in certain circumstances, that is fine.  But the Court has been extremely wary of extending the regime of race-based districting anywhere beyond those circumstances.

Thus, over the last 30 years, the Court has held that the VRA does not require maximizing the number of minority districts, but only ensuring that minority voters have an equal opportunity to elect their candidates of choice; it has held that the VRA does not require (and the Constitution prohibits) using irregular district shapes to create “minority opportunity” districts; it has held that the VRA does not apply if minorities cannot be made into the majority  in a district.  And with ever more force – as in today’s decision – the Court has held that the Constitution is violated if jurisdictions use the VRA to engage in race-based districting unless it is clear that the VRA clearly requires doing so.  I sensed developments moving in this direction back in a 2007 article, The Decline of Legally Mandated Representation,<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1028607> and since then, the Court’s efforts to constrain unnecessary race-based districting have become only more pronounced.

The most important aspect of today’s decision is the Court’s unanimous conclusion that Congressional District 1 (CD 1) is an unconstitutional racial gerrymander.  It would be easy to miss that this part of the opinion is unanimous, because the Court divided 5-3 on a second district at stake, CD 12.  But I have always said<https://electionlawblog.org/?p=92393> the most important issue in the NC case was that involving CD 1, and there, the Court agreed in unison.

With respect to CD 1, the critical point is that the Court rejected North Carolina’s argument that the VRA required it to create a majority-black district to make sure black voters had equal political opportunity.  More specifically, the Court concluded that voting in this area was not racially polarized enough to require the remedy of a majority-black district.

What does it mean for voting to be racially polarized (RPV)?  This has been a key concept under the VRA, yet the Court has given the concept almost no significant attention – with today’s decision being the Court’s first and thus most significant opening up of questions about this concept.

When RPV first entered this area of the law, the idea was simple: if 90% of blacks vote for one candidate and 90% of whites vote for the opposing candidate (especially when the former candidate is black), there is a clear pattern of RPV.  But what happens when – as in North Carolina today – roughly 30-40% of whites are willing to vote for minority candidates?  Since the VRA is only triggered in the redistricting area when voting is racially polarized, should RPV still be considered to exist in NC when there is this level of white cross-over voting support?  If the VRA still applies, how does it apply when we no longer have in NC the extreme and stark racial polarization of earlier decades?

Here is how the Court resolves these issues as they come to bear in CD 1:  for the last twenty or so years, white cross-over voting support has been strong enough that, even though the district had a black population of only 46-48%, it overwhelmingly and repeated elected a black member of Congress – typically, with 70% of the vote.  Yet North Carolina took the view that the VRA required it to pump up the black population above 50% to be sure the district was “safe” in ensuring for black voters an equal opportunity.  But the Court held that voting cannot be considered racially polarized when enough white cross-over support exists that black candidates are being elected from districts that are less than 50% black.

This conclusion is of great significance in further unwinding unnecessary racial redistricting.  It means that the mechanical creation of majority-minority districts will no longer be constitutionally tolerated.  If a cohesive black community can get its preferred candidates elected in districts that are, perhaps, only 35-40% black, then pumping those districts up to more than 50% black – on the view that the VRA requires it – will be unconstitutional.  This opens up much more space for the creation of what I have called coalitional or cross-over districts<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=304587>, in which black and white political coalitions unite behind the same candidates.  Indeed, as the Court today recognized, it would turn the VRA on its head if the law actually required – as North Carolina insisted it did – that these kind of effective coalitional districts had to be turned into majority-black districts, just to ensure they are sufficiently “safe.”

Put in other terms, the decision confirms that States must adhere to the view that the intentional creation of majority-minority districts is a “second best” remedial device, to be used only where clearly required.  Indeed, important parts of the opinion further emphasize that States must have a strong record in support if they engage in race-based districting:  States must do a thorough job of demonstrating that doing so is necessary – “the State must carefully evaluate” whether the facts support race-based districting, and the State must engage in a “meaningful legislative inquiry” about whether doing so is necessary.

There are other aspects of today’s decision that will also be important in enforcing constitutional constraints on the excessive and unjustified use of race in redistricting.  The Court said, once again, that  the setting of “a racial target” that has a direct impact on the design of a district means that strict scrutiny is triggered and the district can survive only if the VRA requires it.

Once again, the Court confirmed that if the State intentionally sorts voters by race into districts, the State cannot hide behind the argument that its ultimate goal was to pursue an effective partisan gerrymander.  To the extent partisan gerrymandering is constitutional, States can sort voters by their voting patterns, but not by their race.  As the Court has said before, race cannot be used as a “proxy” for political voting preferences.  To be sure, this can create a quagmire for the lower courts if a State does not directly and obviously use race to sort voters; the courts then have to disentangle whether it was “really” race or partisan factors that drove the district’s design (I have long argued that it makes little sense for the Court to impose constitutional constraints on racial gerrymandering, but not partisan gerrymandering).

There is still more in today’s decision:  The Court held that plaintiffs in these Alabama cases do not have provide their own alternative map (which can be a costly and time consuming venture) in order to be able to prove that a jurisdiction has engaged in race-based districting.  And there had been a confusing couple of sentences in an earlier case, also from North Carolina, that had befuddled the lower courts; the Court today confines those sentences to the particular facts of that one case, as Justice Thomas, who joined the majority, pointed out.  That will clarify the law further and make successful challenges alleging race-based districting more likely.

In each and every respect of today’s decision today, then, the Court built on the Alabama line of cases further and made it all the more clear that the Court will aggressively police the role of race in redistricting, not permit the VRA to become a vehicle for excessively packing black voters into districts, and will continue the project of unwinding unnecessary race-based districting.

Disclosure:  I argued one of the Alabama cases and continue to represent plaintiffs in that case, which remains pending in the lower courts.
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Breaking and Analysis: Supreme Court on 5-3 Vote Affirms NC Racial Gerrymandering Case, with Thomas in Majority and Roberts in Dissent<http://electionlawblog.org/?p=92675>
Posted on May 22, 2017 7:06 am<http://electionlawblog.org/?p=92675> by Rick Hasen<http://electionlawblog.org/?author=3>

The Supreme Court has issued this 5-3 opinion<http://electionlawblog.org/wp-content/uploads/cooper-v-harris.pdf> in Cooper v. Harris. Justice Kagan wrote the opinion for the Court, with Justice Thomas making the fifth vote for affirmance. Chief Justice Robert and Justices Alito and Kennedy dissented. That is an interesting lineup, to be sure.

There is a lot of detail but here is my bottom line: This decision by Justice Kagan is a major victory for voting rights plaintiffs, who have succeeded in turning the racial gerrymandering cause of action into an effective tool to go after partisan gerrymanders in Southern states. That Justice Kagan got Justice Thomas not only to vote this way but to sign onto the opinion (giving it precedential value) is a really big deal. Despite what is written in the text of the opinion, Justice Kagan, in a couple of footnotes (footnotes 1 and 7), attempts to solve the race or party problem by moving the Court much closer to the position of treating race and party as proxies for one another in the American South. Points 8 -10 below explains this in detail.

Justice Alito, in his partial dissent for himself, the Chief Justice, and Justice Kennedy, is incensed at the decision, seeing it as inconsistent with the Court’s earlier decision in Easley v. Cromartie. He begins his dissent with: “A precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash. But that is what the Court does today in its decision regarding NorthCarolina’s 12th Congressional District: The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district.”

Here’s more detail.
1.      The key question in these racial gerrymandering cases has been to consider if race is the legislature’s predominant motive in drawing district lines. If it is, the district is subject to strict scrutiny and the state has to come forward with a compelling reason for making race the predominant factor.
2.      The harm in the racial gerrymandering cases is not vote dilution (which is separately considered under the Voting Rights Act and Constitution). The harm has been conceived of as an expressive one of sending the message that voters have been separated on the basis of race without adequate justification. It is a theory J. O’Connor invented in the 1993 Shaw v. Reno case. Liberals used to hate the theory, till this decade, when they started using the theory to attack Republican gerrymanders that Republican legislatures justified as compelled by the Voting Rights Act. I’ve been critical of the cause of action whether used by conservatives or liberals.  See this paper, Racial Gerrymandering’s Questionable Revival.<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601459>
3.      In today’s case, Cooper v. Harris, the Court considered a federal court finding related to two congressional districts, District 1 and District 12, both found to be racial gerrymanders by a federal three judge court. The court quickly disposed of the question of how to treat a contrary state court ruling related to these districts, finding the state case presented evidence to consider but did not preclude the findings in the federal case.
4.      As to District 1, the state tried to justify its drawing of the lines as required by the Voting Rights Act. The court disagreed, finding that the Voting Rights Act did not require drawing of the districts. This ruling is like the Court’s recent rulings in cases from Alabama and Virginia, where the Republican legislatures used supposed compliance with the Voting Rights Act to justify packing minority voters into a smaller number of districts (but not enough to create a viable vote dilution claim under the Voting Rights Act). This part of today’s case is relatively uncontroversial.
5.      The controversy comes from the analysis of District 12. That district raises the question whether race or party predominated in redistricting. This is a particularly difficult question in the American South, because of “conjoined polarization,” race and party overlap to a great extent, so the question of which predominates is somewhat nonsensical. I make that case extensively in a forthcoming essay, Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912403>.
6.      The district court held that race predominated in drawing the district lines. Justice Kagan tries to make her analysis seem routine and perfunctory: a district court’s finding on this is entitled to significant deference, and is reviewed only for clear error. There was enough evidence to support the finding that race predominated, and we must defer.
7.      Kagan has to deal, however, with a holding in an earlier race or party case from the same North Carolina district, Easley v. Cromartie (Cromartie II). In that case, Justice Breyer said that in cases “such as this one,” a plaintiff challenging a district as a racial gerrymander has to show by producing an alternative map that the state could have achieved its same political objectives with a map showing greater racial balance. Justice Kagan demoted this rule from Cromartie II to just a factor to consider, and not necessary to win in this case. This is what makes Justice Alito so apoplectic in his dissent. (He dissented only on District 12.) Reviewing the evidence under that standard, he says the trial court committed clear error.
8.      Despite Justice Kagan’s attempt to explain this as a ho-hum deference to a judicial finding of fact, there are two bombshells in footnotes in the case. Recall that with District 12 the question is race or party, as though these are two separate categories. And in the body of the decision Justice Kagan says it will defer to the trial court’s decision that it is race and not party. (This conforms, using the terms of my draft Essay, to the “race or party” approach.) But in Footnotes 1 and 7, the Court explains that in places where race and party overlap so much they can be treated as proxies for one another. (This conforms, using the terms of my essay, to the “race as party” proxy approach.) Here’s part of Footnote 1: “A plaintiff succeeds at this stage even if the evidence reveals that a legislature elevated race to the predominant criterion in order to advance other goals, including political ones.” And here is Footnote 7: “As earlier noted, that inquiry is satisfied when legislators have“place[d] a significant number of voters within or without” a district predominantly because of their race, regardless of their ultimate objective in taking that step. See supra, at 2, and n. 1. So, for example, if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests—perhaps thinkingthat a proposed district is more “sellable” as a race-based VRA compliance measure than as a political gerrymander and will accomplish much the same thing—their action still triggers strict scrutiny. See Vera, 517 U. S., at 968–970 (plurality opinion). In other words, the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political)characteristics. See Miller, 515 U. S., at 914.” (My emphasis)
9.      Holy cow this is a big deal. It means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting. This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts. (Why Justice Thomas went along with all of this is a mystery to me. He joined in the opinion, and his separate opinion expresses no disagreement with these footnotes.)
10.  This race and party as proxies for one another, as I explain in my essay, was also the theory used by the 4th Circuit in holding that North Carolina passed its strict voting law with racially discriminatory intent. That’s not the same question as the predominance question in racial gerrymandering cases, but it is parallel, and it shows the race and party as proxies issue working its way into the law. This is a much more realistic approach to political regulation, and I am glad to see it being elevated in contrast to “race or party” (though I make clear in the essay I prefer a different approach).
11.  Now that we have this ruling, the Court will have to confront a partisan gerrymandering case directly out of North Carolina. In response to the lower court ruling in this case, North Carolina passed a new plan, and it went out of its way to call it a partisan gerrymander. Explicitly and on the record. The three judge court said it could not police the partisan gerrymander under the 2004 Vieth case, and plaintiffs filed an appeal from that too, which has been sitting at the Court and will now need to be acted upon.
12.  And there’s also a finding of racial gerrymanders in NC general assembly races, which is pending before the court. A lower court had ordered special elections in 2017, which had been put on hold by the Court. Perhaps plaintiffs will now try to get that hold put aside by the Court.
13.  Wow.

[This post has been edited, and will likely continue to be edited today.]
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


Breaking: #SCOTUS Declines Soft Money Case; Thomas and Gorsuch Would Vote to Hear<http://electionlawblog.org/?p=92665>
Posted on May 22, 2017 6:32 am<http://electionlawblog.org/?p=92665> by Rick Hasen<http://electionlawblog.org/?author=3>

Today’s order list <https://www.supremecourt.gov/orders/courtorders/052217zor_4gd5.pdf> contains this summary disposition:

16-865 REPUBLICAN PARTY OF LA, ET AL. V. FEC The judgment is affirmed. Justice Thomas and Justice Gorsuch would note probable jurisdiction and set the case for oral argument.

This is a surprise to me. Because this case came up on appeal from a three judge court, I thought it was pretty likely<http://electionlawblog.org/?p=92651> the Court would take the case. A decision to affirm means the lower court got it right on the bottom line, even if the reasoning was incorrect.

If my count is correct, this is Jim Bopp’s fourth attempt to get the Court to hear a soft money case to overturn one of the two main pillars of the McCain-Feingold campaign finance law (the Court overturned the other in Citizens United.) In one of those earlier attempts, Justices Kennedy, Scalia, and Thomas dissented from the Court’s refusal to hear the case.  And the Chief Justice has said that he feels an obligation to take appeals that come up through three judge courts. And we know that Justice Gorsuch expressed skepticism of campaign finance laws when he was a Tenth Circuit judge.

So what explains the Court refusing to take a case which could have been used to further deregulate campaign financing, by extending the narrow views of corruption and strong reading of the First Amendment that the Supreme Court put forward in Citizens United and McCutcheon? And why did it take only one Court conference to reach this conclusion, when the Court has been taking so long with many other cases (in part as J. Gorsuch got up to speed on the Court’s cases)?

This suggests to me that the Court has really no appetite to get back into this area right now—perhaps they want to save their capital in ruling on other high profile cases coming down the line. Perhaps there was something about Bopp’s petition that made the Court believe the issue of overturning the Supreme Court’s decision in McConnell v. FEC (upholding the soft money ban) not properly presented to it.

This also tells us something about Justice Gorsuch. He was not shy at all — not only about being willing to wade into this very controversial area, but about announcing publicly his vote to hear the case (something he did not need to do). It could well be that he will be as conservative as Justice Thomas is in these cases. (Justice Thomas believes all campaign finance laws—including disclosure—should be subject to strict scrutiny and are likely unconstitutional.) I expect that unlike most Justices J. Gorsuch may not begin his first few terms cautiously, and then work his way up to his full Supreme Court voice.

And that does this mean for campaign finance law? In one sense, this is a victory for campaign finance reformers, because the soft money ban lives for another day. This also means that the Court does not use this case as an opportunity to call other campaign contribution limits into question–so that’s a good thing from reformers’ point of view.

On the other hand, we now have a situation where political parties (especially state and local political parties, the subject of Bopp’s petition) are limited in what they can do, while Super PACs and non-disclosing 501c4s can operate without limit, and in the case of c4s, without adequate disclosure. This further weakens the political parties, which many political scientists and election law scholars leads to further polarization and political dysfunction.

Perhaps there would be room for some bipartisan reform in this area, if Mitch McConnell were not so difficult here. How about a trade?  Loosen the limits on party fundraising, and in exchange provide for greater campaign finance disclosure by all major players in elections, whether or not they choose to register as a c4.  I doubt McConnell would go for the trade but it would be a good deal all around.



[This post has been updated.]
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, political parties<http://electionlawblog.org/?cat=25>, Supreme Court<http://electionlawblog.org/?cat=29>
“Facebook could tell us how Russia interfered in our elections. Why won’t it?”<http://electionlawblog.org/?p=92663>
Posted on May 22, 2017 6:11 am<http://electionlawblog.org/?p=92663> by Rick Hasen<http://electionlawblog.org/?author=3>

Phillip Howard and Robert Gorwa WaPo oped<https://www.washingtonpost.com/opinions/facebook-could-tell-us-how-russia-interfered-in-our-elections-why-wont-it/2017/05/19/c061a606-3b21-11e7-8854-21f359183e8c_story.html?tid=ss_tw&utm_term=.95155626c4ed> (that I missed last week):

This month, one of the most important intelligence documents about Russian interference in the U.S. election emerged. But it didn’t come from the National Security Agency or the House Intelligence Committee. It was published by Facebook.

Facebook’s report <https://fbnewsroomus.files.wordpress.com/2017/04/facebook-and-information-operations-v1.pdf> on “Information Operations” was the company’s first public acknowledgment that political actors have been influencing public opinion through the social networking platform. The company says it will work to combat these information operations, and it has taken some positive steps. It removed some 30,000 fake accounts<http://www.reuters.com/article/us-france-security-facebook-idUSKBN17F25G> before the French election last month. It has purged thousands more<https://www.engadget.com/2017/05/08/facebook-fake-news-accounts-uk-election/> ahead of the upcoming British election.

But more important, the report reveals that while we are all talking about “fake news,” we should also be talking about the algorithms and fake accounts that push bad information around….

The company argues that fake accounts have been participating in only a small amount of the overall activity around politics and public life in the United States. But even a small percentage of total Facebook activity, if concentrated strategically, could be influential. Was the activity mostly in swing states? Did it occur in the months of the Republican primaries and originate with accounts seeded from Russia? Or did fake-news and fake- account activity peak in the three days before the election?

If there was collusion between the Trump campaign and Russian influence operations, Facebook may be able to spot that, too. In many ways, massive coordinated propaganda campaigns are just another form of election interference. If Facebook has data on this, it needs to share it. The House Intelligence Committee should call Facebook to testify as part of its investigation.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, social media and social protests<http://electionlawblog.org/?cat=58>


“White House Moves to Block Ethics Inquiry Into Ex-Lobbyists on Payroll”<http://electionlawblog.org/?p=92661>
Posted on May 22, 2017 5:58 am<http://electionlawblog.org/?p=92661> by Rick Hasen<http://electionlawblog.org/?author=3>

Eric Lipton for the NYT:<https://www.nytimes.com/2017/05/22/us/politics/trump-white-house-government-ethics-lobbyists.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>

The Trump administration, in a significant escalation of its clash with the government’s top ethics watchdog, has moved to block an effort to disclose the names of former lobbyists who have been granted waivers to work in the White House or federal agencies.

The latest conflict came in recent days when the White House, in a highly unusual move, sent a letter to Walter M. Shaub Jr., the head of the Office of Government Ethics, asking him to withdraw a request he had sent to every federal agency for copies of the waivers. In the letter, the administration challenged his legal authority to demand the information.

Dozens of former lobbyists and industry lawyers are working in the Trump administration, which has hired them at a much higher rate than the previous administration. Keeping the waivers confidential would make it impossible to know whether any such officials are violating federal ethics rules or have been given a pass to ignore them.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


“Brian Svoboda on the Ends of Congressional Ethics Enforcement”<http://electionlawblog.org/?p=92659>
Posted on May 22, 2017 5:47 am<http://electionlawblog.org/?p=92659> by Rick Hasen<http://electionlawblog.org/?author=3>

Important guest post <http://www.moresoftmoneyhardlaw.com/2017/05/brian-svoboda-ends-congressional-ethics-enforcement/> from Brian Svoboda<https://twitter.com/BrianSvoboda> over at Bob Bauer’s blog. Bob’s intro:

My colleague Brian Svoboda, an expert in congressional ethics, has written an insightful commentary on how we might think about the ends and design of effective congressional ethics regulation. This is a complex and important question to which altogether too little attention has been devoted. Brian’s extensive experience with these issues in private practice, coupled with his grasp on the broad policy and constitutional issues, enable him to effectively frame the issues for the discussion–and reforms-that are needed. He also tweets periodically on these issues at https://twitter.com/BrianSvoboda.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>, legislation and legislatures<http://electionlawblog.org/?cat=27>


“Effort to overhaul Texas voter ID rules survives — for now”<http://electionlawblog.org/?p=92657>
Posted on May 22, 2017 5:41 am<http://electionlawblog.org/?p=92657> by Rick Hasen<http://electionlawblog.org/?author=3>

Jim Malewitz <https://www.texastribune.org/2017/05/21/effort-overhaul-texas-voter-id-rules-survives-now/> for the Texas Tribune:

A flurry of legislative activity Sunday night gave life to efforts to overhaul Texas’ voter identification rules — legislation Republicans call crucial to the state’s arguments in a high-profile legal battle over whether the state disenfranchised minority voters.

After clearing the Senate in March, Sen. Joan Huffman<https://www.texastribune.org/directory/joan-huffman/>’s Senate Bill 5<http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=85R&Bill=SB5>, which in some ways would soften current photo ID rules, had languished in the House. But just an hour before the latest in a series of bill-killing deadlines, an emergency declaration by Gov. Greg Abbott<https://www.texastribune.org/directory/greg-abbott/> helped push the legislation onto the House’s calendar. The bill will be eligible for a vote on Tuesday, the deadline for the House to approve Senate bills….

Republican leaders fear a failure <https://www.texastribune.org/2017/05/21/texas-republicans-fear-federal-oversight-voter-id-overhaul-stalls/> to enact Senate Bill 5 — in whichever form — would dramatically boost the odds Texas will return to the list of governments required to seek federal approval before changing their election laws, following a federal judge’s ruling in April that Texas lawmakers intentionally discriminated against minority voters by enacting one of the nation’s strictest voter identification laws in 2011
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>


“Despite high court’s decision on N.C. voting law, activists worry about chief justice”<http://electionlawblog.org/?p=92655>
Posted on May 21, 2017 7:41 pm<http://electionlawblog.org/?p=92655> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Barnes<https://www.washingtonpost.com/politics/courts_law/despite-high-courts-decision-on-nc-voting-law-activists-worry-about-chief-justice/2017/05/19/2ef705bc-3ca7-11e7-9e48-c4f199710b69_story.html?utm_term=.389ee707c0b7&wpmk=MK0000200> for WaPo:

The big win for voting rights activists at the Supreme Court last week came with an equally big asterisk, and provided new reason for jittery liberals and civil rights groups to continue to fret about Chief Justice John G. Roberts Jr….

It seems telling that Roberts puts aside his usual reluctance to comment on the court’s decisions on this issue. “He looks at voting rights differently than he does other things,” Hebert said.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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