[EL] Gill and racial vote dilution

Mon Jun 18 18:47:03 PDT 2018

I’m curious to hear what others on this list think about the implications of Gill for racial vote dilution claims under Section 2 of the Voting Rights Act.

To my eye, the Gill opinions portend the death of the “rough proportionality” theory of racial vote dilution, which has been more or less ascendant since Gingles and especially De Grandy. The Court will probably embrace something like the district-specific, “normal map” theory hinted at in LULAC v. Perry, and further developed by Judge Easterbrook in Gonzalez v. City of Aurora, 535 F. 3d 594 (7th Cir 2008). Under the Gingles / De Grandy rough-proportionality theory, states must provide minority communities with the opportunity to elect a roughly proportional number of minority-preferred candidates, to the extent that that opportunity can be provided through conventional, reasonably compact single-member districts. Under the normal-map theory, the state’s much more limited obligation is not to pack and crack minority voters in manner that results in minority voters having less opportunity to elect minority-preferred candidates than they probably would have had under a “normal” (typical) map drawn without regard to racial considerations. Indeed, after Gill, liability in a Section 2 case would seem to depend not on the number of minority-opportunity districts (whether compared to a proportionality or “normal map” benchmark), but rather on whether--if districts were drawn blind to race--specific plaintiff-voters would probably have ended up in districts in which their votes have more “weight” than under the challenged map. This theory of racial vote dilution would make Section 2 dilution claims quite challenging to litigate, and largely redundant with Shaw racial sorting claims (where liability turns on whether the map-makers sorted voters by race, and race predominated over other factors in the design of specific legislative districts).

In addressing standing, the Gill plaintiffs tried very hard to distinguish Shaw racial-sorting claims from Section 2 dilution claims, arguing that only Shaw claims rest on a district-specific theory of injury. But Justice Roberts for the Court insisted that the very nature of a dilution claim is that the individual plaintiff-voter has been relegated to district in which her vote has less “weight” than it would have had in some other, hypothetically better district (e.g., a district less “packed” or “cracked” than the plaintiff’s actual district). Roberts in making this point was describing dilution as a general matter, not partisan dilution specifically. Justice Kagan expanded on Roberts’s district-specific dilution theory in her concurrence, suggesting that for purposes of a partisan vote dilution claim, a citizen’s vote has diminished “weight” insofar as the district in which the citizen must case his or her vote is uncompetitive (i.e., has a large supermajority of consistent-Republican or consistent-Democratic voters). Extended to the racial vote dilution context, Kagan’s theory would seem to require individual minority plaintiffs to show (1) that they have been placed in a “racially uncompetitive” district, one in which minority candidates of choice have no chance of winning or are virtually guaranteed to win, and (2) that under a “normal” map, the plaintiff most likely would have been placed in a racially competitive district, one in which minority candidates of choice have a shot at winning but no guarantee of victory.

Although neither Kagan nor Roberts discussed, or even cited, any Section 2 precedents, their failure to address the plaintiffs’ oft-repeated argument that racial vote dilution claims under Section 2 and racial sorting claims under Shaw rest on fundamentally different theories of injury suggests that the Justices think the injury in both kinds of cases is essentially the same.

--Chris

Christopher S. Elmendorf
Martin Luther King, Jr. Professor of Law
UC Davis School of Law

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of rick hasen <rhasen at law.uci.edu>
Date: Monday, June 18, 2018 at 10:10 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] ELB News and Commentary 6/18/18

“Justice Kennedy Still Won’t Rule on Gerrymandering”<http://electionlawblog.org/?p=99591>
Posted on June 18, 2018 10:07 am<http://electionlawblog.org/?p=99591> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/06/anthony-kennedy-wont-rule-on-gerrymandering.html> for Slate. It begins:

Justice Hamlet lives.

For years, those who’d like the Supreme Court to rein in partisan gerrymanders have been teeing up cases with various theories to try to get Justice Anthony Kennedy, the swing Justice, to agree that sometimes the drawing of district lines to favor Republicans or Democrats goes too far. In 2004, Kennedy famously wrote an opinion<https://scholar.google.com/scholar_case?case=16656282825028631654&hl=en&as_sdt=6&as_vis=1&oi=scholarr> that both kept the door open for future redistricting challenges but also rejected a variety of legal theories that had been paraded before him like beauty pageant contestants<https://www.theatlantic.com/politics/archive/2017/06/justice-kennedys-beauty-pageant/530790/> for separating permissible from impermissible consideration of political party in drawing congressional and state legislative district lines. Since then, plaintiffs have tried to get new cases before the court for Kennedy to make up his mind.

On Monday, the Supreme Court ducked the issue again, after years of plaintiffs litigating cases in Wisconsin and Maryland in hopes of prompting a larger ruling. The court sent Gill v. Whitford<https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf>, the Wisconsin case, back for partisan gerrymandering challenges to be litigated on a district-by-district, rather than statewide, basis. According to the opinion, plaintiffs had no “standing” to assert a statewide injury. The court also said preliminary relief was not proper in Benisek v. Lamone<https://www.supremecourt.gov/opinions/17pdf/17-333_b97c.pdf>, the Maryland case, sending it back to the lower court to determine whether relief is warranted when the case is fully complete.

Although people will focus on the court’s ducking of the issue, what’s really going on is that two of the court’s savviest justices on the right and left, Chief Justice John Roberts and Justice Elena Kagan, are continuing a battle for the soul of Justice Kennedy on the question of politics in redistricting, and Kennedy, who apparently is not leaving the court anytime soon, watches, broods, and stays silent.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>

University of Memphis Law Review Call for Papers for Election Law Symposium<http://electionlawblog.org/?p=99589>
Posted on June 18, 2018 10:04 am<http://electionlawblog.org/?p=99589> by Rick Hasen<http://electionlawblog.org/?author=3>

The following announcement came via email:

Barriers at the Ballot Box: Protecting or Limiting the Core of the American Identity?

The right to vote for a representative government is at the core of the American identity.  However, even after the passage of the Voting Rights Act and its amendments barring discriminatory practices and the enactment of provisions making it easier for individuals to exercise their right, barriers still exist at the ballot box for many.  Is there a need for these barriers today or are these barriers part of modern era disenfranchisement?

The University of Memphis Law Review invites manuscripts for publication in Volume 49, Number 4 and presentation at its March 2019 Symposium, “Barriers at the Ballot Box: Protecting or Limiting the Core of the American Identity?”  The Symposium will welcome a wide array of scholarship for a critical analysis of current legal issues dealing with voting rights, whether our electoral institution is working as intended, and the convergence of these issues on the individual voter and the electorate as a whole.

For consideration and inclusion in the 2019 Memphis Law Symposium, please submit a manuscript or abstract to Symposium Editor Sean O’Brien at memphislawarticles at gmail.com with “Barriers at the Ballot Box Symposium” in the subject line.  The deadline for submission of a manuscript or abstract is October 1, 2018.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Purcell Principle Bolstered in Today’s Benisek Opinion<http://electionlawblog.org/?p=99587>
Posted on June 18, 2018 7:39 am<http://electionlawblog.org/?p=99587> by Rick Hasen<http://electionlawblog.org/?author=3>
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Rick Hasen<https://twitter.com/rickhasen>
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2h<https://twitter.com/rickhasen/status/1008719502568116224>
Replying to @rickhasen<https://twitter.com/_/status/1008719164842827776>

I'll be writing about Gill and Benisek for @Slate<https://twitter.com/Slate> today, so stay tuned as I dive in.
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

Purcell Principle (courts should not make changes in election rules during period close to elections) gets bolstered in today's Benisek opinon (cc: @HHHElections<https://twitter.com/HHHElections>) pic.twitter.com/TKr5OOLe75<https://t.co/TKr5OOLe75>
7:38 AM - Jun 18, 2018<https://twitter.com/rickhasen/status/1008720663643688960>
[View image on Twitter]<https://twitter.com/rickhasen/status/1008720663643688960/photo/1>

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Breaking: Supreme Court Sends Gill Back on Standing Grounds; Dismisses Benisek on Preliminary Injunction Grounds<http://electionlawblog.org/?p=99583>
Posted on June 18, 2018 7:18 am<http://electionlawblog.org/?p=99583> by Rick Hasen<http://electionlawblog.org/?author=3>
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Rick Hasen<https://twitter.com/rickhasen>
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SCOTUS dismisses partisan gerrymandering case Gill for lack of standing: https://www.supremecourt.gov/opinions/17pdf/16-1161_dc8f.pdf …<https://t.co/ro7DiQlmuY>
See earlier post: http://electionlawblog.org/?p=98408 <https://t.co/Kzn6RRTKXK>  After the Maryland Redistricting Argument at the Supreme Court, Will the Effort to Rein In Partisan Gerrymandering End with a Whimper?
7:17 AM - Jun 18, 2018<https://twitter.com/rickhasen/status/1008715399116943361>

23<https://twitter.com/intent/like?tweet_id=1008715399116943361>

48 people are talking about this<https://twitter.com/rickhasen/status/1008715399116943361>
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More coming
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Rick Hasen<https://twitter.com/rickhasen>
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2h<https://twitter.com/rickhasen/status/1008716537618825216>
Replying to @rickhasen<https://twitter.com/_/status/1008716224279150594>

Here's a mention of Benisek in Kagan concurrence in Gill pic.twitter.com/KK48ARBWK1<https://t.co/KK48ARBWK1>
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Rick Hasen<https://twitter.com/rickhasen>
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Ruling in Benisek, a unananimous opinion ducking the merits: https://www.supremecourt.gov/opinions/17pdf/17-333_b97c.pdf …<https://t.co/ybQPxqpLbG>
Again here's my earlier post: After the Maryland Redistricting Argument at the Supreme Court, Will the Effort to Rein In Partisan Gerrymandering End with a Whimper? http://electionlawblog.org/?p=98408 <https://t.co/Kzn6RRTKXK>
7:25 AM - Jun 18, 2018<https://twitter.com/rickhasen/status/1008717395102273536>

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Supreme Court Without Noted Dissent Denies Cert. in Puerto Rico Disenfranchisement Case<http://electionlawblog.org/?p=99581>
Posted on June 18, 2018 6:36 am<http://electionlawblog.org/?p=99581> by Rick Hasen<http://electionlawblog.org/?author=3>

The Court’s order denying cert. in Igartua v. Trump is here<https://www.supremecourt.gov/orders/courtorders/061818zor_m6io.pdf>. Background at Harvard Law Review<https://harvardlawreview.org/2018/02/igartua-v-trump/>.
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Will the Justice Department Investigate the Trump Foundation?”<http://electionlawblog.org/?p=99578>
Posted on June 17, 2018 8:38 am<http://electionlawblog.org/?p=99578> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/06/15/us/politics/trump-foundation-fec-charges.html>

Election law experts from across the political spectrum largely agreed that the New York attorney general made a compelling case this week that President Trump’s campaign and his charitable foundation violated federal campaign finance laws during the 2016 election.

What they could not agree on, though, was whether any federal investigators will pick up the case.

The allegations were detailed in filings released Thursday by the attorney general, Barbara D. Underwood, as part of a lawsuit her office brought<https://www.nytimes.com/2018/06/14/nyregion/trump-foundation-lawsuit-attorney-general.html> in state court accusing Mr. Trump and his three oldest children of using the Donald J. Trump Foundation for political and business purposes. That constituted a violation of New York State laws governing charities, as well as federal tax and election laws, the lawsuit charged.

But Ms. Underwood’s office lacks the authority to prosecute federal matters. So, when she filed the lawsuit, she simultaneously sent letters<https://int.nyt.com/data/documenthelper/36-trump-foundation-lawsuit-referral-letters-irs-fec/0afe57fdd3466789a5f7/optimized/full.pdf> to the Internal Revenue Service and the Federal Election Commission asking those agencies to investigate the alleged violations of federal tax laws and campaign finance laws, respectively.

And, for good measure, on the letter to the F.E.C., she copied two top officials from the Justice Department’s Public Integrity Section, which is charged with investigating and prosecuting criminal violations of election laws.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Bloomberg BNA Suddenly Cancels Its Daily Money in Politics Report<http://electionlawblog.org/?p=99575>
Posted on June 15, 2018 4:50 pm<http://electionlawblog.org/?p=99575> by Rick Hasen<http://electionlawblog.org/?author=3>

Every work day I rely on the excellent work of Ken Doyle.  So I find this notice in today’s report very distressing:

Notice to Subscribers<http://news.bna.com/mpdm/display/link_res.adp?linktype=email&fname=0000016404b4d3a8a1ede4bd73af0002&emc=mpdm:4&service_acronym=MPR>
Bloomberg BNA will cease publishing Money & Politics Report with the issue dated June 29, 2018. Customers who subscribe to this product, if eligible, will receive a pro-rated credit for the remainder of their subscription term. Thank you for being a valued Bloomberg BNA subscriber and if you have any questions, please contact Bloomberg BNA’s Customer Contact Center…

I hope Ken will be continuing his work in this area, either at Bloomberg or elsewhere.

UPDATE from Ken:
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Rick Hasen<https://twitter.com/rickhasen>
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15 Jun<https://twitter.com/rickhasen/status/1007772520106242048>

#ELB<https://twitter.com/hashtag/ELB?src=hash>: Bloomberg BNA Suddenly Cancels Its Daily Money in Politics Report http://electionlawblog.org/?p=99575 <https://t.co/ajb2HPvd0l>  Every work day I rely on the excellent work of @KenDoyle16<https://twitter.com/KenDoyle16>. So I find this notice in today’s report very distressing
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Ken Doyle at KenDoyle16<https://twitter.com/KenDoyle16>

Thanks so much for your kind words, Rick. I will still be on the Money & Politics beat, and my stories will be available to Bloomberg Government subscribers and on the Bloomberg Terminal.
5:14 PM - Jun 15, 2018<https://twitter.com/KenDoyle16/status/1007778459702255617>

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Posted in election law biz<http://electionlawblog.org/?cat=51>

Breaking: FEC Refuses to Act on Complaint Donald Trump Used Campaign Resources for Personal Use<http://electionlawblog.org/?p=99573>
Posted on June 15, 2018 12:30 pm<http://electionlawblog.org/?p=99573> by Rick Hasen<http://electionlawblog.org/?author=3>

Statement<https://www.fec.gov/files/legal/murs/7100/MUR7100_1.pdf> from dissenting FEC Commissioner Weintraub:

Trump hotels, Trump steaks, Trump water, Trump golf courses, Trump wine. The Complaint in this matter cites to an unprecedented catalog of candidate-branded products and properties used along the 2016 campaign trail. According to the Complaint, Donald J. Trump, his campaign committee, and his businesses used campaign funds and campaign events to promote the candidate’s businesses and enrich Trump’s personal interests, in violation of the law’s prohibition on converting campaign funds to personal use.

The Complaint alleges serious violations that merited investigation. For example, on September 16, 2016, Trump held a press conference at his newly opened hotel that was ostensibly a campaign event, but, the Complaint alleges, appeared more like an infomercial for his personal business venture. The Complaint contends that this campaign event, and several others, may have been used to promote Trump’s financial interests, suggesting a potential conversion of campaign funds to personal use.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, federal election commission<http://electionlawblog.org/?cat=24>

“Why the I.R.S. Should Go After Trump”<http://electionlawblog.org/?p=99571>
Posted on June 15, 2018 11:54 am<http://electionlawblog.org/?p=99571> by Rick Hasen<http://electionlawblog.org/?author=3>

Philip Hackney NYT oped:<https://www.nytimes.com/2018/06/15/opinion/trump-foundation-new-york-attorney-general.html?smtyp=cur&smid=tw-nytopinion>

The New York State attorney general yesterday filed a lawsuit<https://int.nyt.com/data/documenthelper/38-lawsuit-against-the-trump-foundation/5e54a6bfd23e7b94fbad/optimized/full.pdf#page=1> against the Donald J. Trump Foundation and its directors, accusing the charity and the Trump family of violating campaign finance laws, self-dealing and illegal coordination with the presidential campaign. It asks that Mr. Trump pay restitution and be prohibited from leading a nonprofit in New York for 10 years.

As a former attorney for the chief counsel of the I.R.S. who specialized in nonprofit organizations, I believe Mr. Trump is also criminally liable for his actions. If I were still at the I.R.S., based on the lawsuit, I would make a criminal referral, on charges of tax evasion or false statements on a tax return, or both.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, tax law and election law<http://electionlawblog.org/?cat=22>

“The Curious Campaign Role of Donald Trump’s Foundation”<http://electionlawblog.org/?p=99569>
Posted on June 15, 2018 11:35 am<http://electionlawblog.org/?p=99569> by Rick Hasen<http://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy blogs.<https://www.brennancenter.org/blog/curious-campaign-role-donald-trumps-foundation>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, tax law and election law<http://electionlawblog.org/?cat=22>

CAC Files Brief on Behalf of Current and Former Members of Congress in Citizenship Question Census Case<http://electionlawblog.org/?p=99567>
Posted on June 15, 2018 10:25 am<http://electionlawblog.org/?p=99567> by Rick Hasen<http://electionlawblog.org/?author=3>

Read it here.<https://www.theusconstitution.org/wp-content/uploads/2018/06/NY-v-Dept-of-Commerce-Brief-FINAL.pdf>
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Posted in redistricting<http://electionlawblog.org/?cat=6>

“Maine’s election shows that ranked-choice voting is hot right now. But we have been here before.”<http://electionlawblog.org/?p=99565>
Posted on June 15, 2018 10:15 am<http://electionlawblog.org/?p=99565> by Rick Hasen<http://electionlawblog.org/?author=3>

Jack Santucci blogs.<http://blogs.lse.ac.uk/usappblog/2018/06/15/maines-election-shows-that-ranked-choice-voting-is-hot-right-now-but-we-have-been-here-before/>
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Posted in alternative voting systems<http://electionlawblog.org/?cat=63>

D.C. Circuit, in 2-1 Votes, Makes It Much Harder to Challenge Decisions by Republican FEC Commissioners Not to Enforce Federal Campaign Finance Laws<http://electionlawblog.org/?p=99563>
Posted on June 15, 2018 9:35 am<http://electionlawblog.org/?p=99563> by Rick Hasen<http://electionlawblog.org/?author=3>

This opinion<https://www.cadc.uscourts.gov/internet/opinions.nsf/A0A7C6C35F1863B3852582AD0054B275/$file/17-5049-1736010.pdf> by Senior Judge Randolph, joined by Judge Kavanaugh is most unfortunate. As Judge Pillard suggests in her dissent, the opinion insulates FEC Commissioners’  refusal to enforce certain campaign finance laws from judicial review under the guise of “prosecutorial discretion.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>

--
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