[EL] Breaking: Supreme Court, on 5-4 vote, holds partisan gerrymandering cases nonjusticiable

[Adam Bonin]

I'm not sure that's even an option.  District court already determined that
Commerce had never offered other reasons, and remanded just to confirm that
Commerce had general jurisdiction to run the Census.  See pp 266-70.
https://www.brennancenter.org/sites/default/files/legal-work/2019-01-15-574-Findings%20Of%20Fact.pdf

in short, wrote Judge Furman:

Remand, meanwhile, is appropriate as well, in recognition of the fact that
Congress delegated its authority over administration of the census to the
Secretary of Commerce, not to this Court. That is not to say that
Defendants can or would be able to remedy the defects in Secretary Ross’s
decision that this Court has found in time for the 2020 census. But to the
extent that a “remand” is even necessary to make clear that the Secretary
of Commerce retains authority to make decisions about the census, so long
as they are consistent with law and this Court’s Opinion, a remand is
appropriate.

The parties’ respective arguments for an alternative remedy are
unpersuasive. For their part, Defendants contend that remand without
vacatur is “the only potentially appropriate remedy.” Defs.’ Post-Trial Br.
83-85, ¶¶ 80-85. Putting aside whether such a remedy is consistent with the
plain language of the APA, it is inappropriate here. Courts authorizing
remand without vacatur have done so where the agency shows “at least a
serious possibility that [it] will be able to substantiate its decision on
remand” and that “the consequences of vacating may be quite disruptive.”
Allied-Signal, Inc., 988 F.2d at 151. Defendants have done neither here.
The problem with Secretary Ross’s decision was not that it was inadequately
explained, but rather that it was substantively arbitrary and capricious
and “not in accordance” with statutes that constrain his discretion. And as
Plaintiffs correctly point out, “the Secretary has never suggested an
alternative basis for his decision.” Pls.’ Proposed Conclusions ¶ 456.
Notably, Defendants offer nothing more than a bare conclusory assertion
that “there is a non-trivial likelihood that the agency will be able to
state a valid legal basis for its decision” on remand. Defs.’ Post-Trial
Br. 84, ¶ 83 (internal quotation marks and alterations omitted). Nothing in
either the Administrative Record or the trial record even remotely suggests
such a “likelihood.”



Adam C. Bonin
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On Thu, Jun 27, 2019 at 10:41 AM Rick Hasen <rhasen at law.uci.edu> wrote:

> Here’s the link to the opinion:
>
> https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf
>
>
>
> Question is whether agency can come up with another explanation in time
>
>
>
>
>
> *From: *Pamela S Karlan <pkarlan at stanford.edu>
> *Date: *Thursday, June 27, 2019 at 7:38 AM
> *To: *Rick Hasen <rhasen at law.uci.edu>
> *Cc: *Election Law Listserv <law-election at uci.edu>
> *Subject: *Re: [EL] Breaking: Supreme Court, on 5-4 vote, holds partisan
> gerrymandering cases nonjusticiable
>
>
>
> Census case got remanded on the grounds that the VRA enforcement rationale
> can’t support the decision to ask the citizenship question.
>
> Pam Karlan
>
> Stanford Law School
>
> karlan at stanford.edu
>
> 650.725.4851
>
>
> On Jun 27, 2019, at 7:12 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> https://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf
>
>
>
>
>
>
>
> --
>
> 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
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
> <image001.png>
>
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