Subject: Re: Coalitional Districts Legally Required
From: Rick Hasen
Date: 11/17/2003, 9:18 AM
To: Marty Lederman <marty.lederman@comcast.net>, election-law@majordomo.lls.edu
CC: Rick Pildes <rpildes@UMICH.EDU>

That First Circuit case, Metts v. Murphy (available at this link: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-2204.01A) is an extremely important case, in part because it examines in detail Rick Pildes's important arguments about coalitional districts in section 2 cases.  A snippet on this point from the opinion:

The confusion stems from the intersection of this type of influence claim and another type, in which a minority group constituting less than fifty percent of the electorate can elect a candidate of its choice with the help of crossover votes from voters in the majority group. See R.H. Pildes, Is Voting Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L. Rev. 1517, 1539-40 & n.60 (2002) (referring to this latter type of district as a "coalitional district"); Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L. Rev. 2208, 2209-10 & n.13 (2003). We will refer to this second type of influence claim as a "crossover district." (7) The Supreme Court has not had the opportunity to address this distinction; (8) the Court in Voinovich used the term "influence district" to describe a crossover district -- one in which minorities could, despite the inability to form a majority, "elect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes." 507 U.S. at 154. (9)

Plaintiffs, for their part, forswear any claim under the ability to influence rubric, choosing to stand or fall entirely on an ability to elect claim. However, they do so only as far as the term "influence district" describes one where a minority group is unable to elect a candidate of its choice even with crossover support. They use the term "influence district" in the complaint to describe what we label a crossover district, in which African-American voters have an ability to elect with crossover support. We consider only this type of influence claim, and not the more nebulous variety described in Barnett and disavowed by plaintiffs.

The Supreme Court has expressly held open the question of whether the Gingles preconditions should apply to influence claims. See De Grandy, 512 U.S. at 1009; Voinovich, 507 U.S. at 154; Gingles, 478 U.S. at 46 n.12. We read the language of these cases, especially Gingles and Voinovich, to profess a willingness to consider a crossover district claim such as the one plaintiffs plead. The Gingles language setting aside the question of an influence claim did not differentiate between crossover district claims and claims in which plaintiffs profess only an ability to affect, not determine, electoral outcomes. But the Court has not flatly refused to consider a crossover district despite the opportunity to do so. See Voinovich, 507 U.S. at 154.

The Supreme Court's recent opinion in Georgia v. Ashcroft, 123 S.Ct. 2498 (2003), also supports our conclusion that crossover districts should be considered in the § 2 context. Georgia interpreted § 5 of the VRA. (10) The Court has repeatedly warned that § 2 and § 5 "combat different evils and . . . impose very different duties upon the States." Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 476 (1997). Despite the differences between § 2 and § 5 analysis, the Court's treatment of influence and crossover districts in Georgia is highly instructive.


Rick

Marty Lederman wrote:
The Court today summarily affirmed the judgment in Parker, without any written opinion.   There is no indication from the docket sheet (http://www.supremecourtus.gov/docket/03-411.htm) that the First Circuit decision was ever brought to the attention of the Court.
 
If, as Rick Pildes suggests, there is a circuit split, perhaps the First Circuit case can be the vehicle for Supreme Court review, assuming the case is ripe for a certiorari petition.
----- Original Message -----
From: Marty Lederman
To: election-law@majordomo.lls.edu ; Rick Pildes
Sent: Tuesday, October 28, 2003 6:48 PM
Subject: Re: Coalitional Districts Legally Required

Apparently the question, and the lower-court conflict, is presented in the Jurisdictional Statement in Parker v. Ohio, No. 03-411 (appeal from 263 F. Supp. 2d 1100 (S.D. Ohio)), scheduled to be discussed by the Court at its November 14th Conference.

----- Original Message -----

From: "Rick Pildes" <rpildes@umich.edu>
To: <election-law@majordomo.lls.edu>
Sent: Tuesday, October 28, 2003 4:54 PM
Subject: Coalitional Districts Legally Required

> The First Circuit today decided, 2-1, that Sec. 2 of the Voting Rights Act
> requires the creation of black-white coalitional districts, in certain
> contexts, even where black voters cannot form a numerical majority of the
> district.  In this case, Rhode Island dropped the black population of one
> Senate district from 26% to 21%; the district had historically elected the
> only black state senator, with white and Hispanic crossover support.  The
> case is an important resolution of one of the issues that Georgia v.
> Ashcroft opens us, and there is now a conflict in the Courts of Appeals on
> this important question.
>
>
>
> Rick Pildes
> Professor of Law, New York University School of Law
> 40 Washington Sq. South
> Room 322-B
> New York, NY 10012-1099
> also reachable at:  rick.pildes@nyu.edu
> o:  212 998-6377
> fax:  212 995-4341
> http://www.law.nyu.edu/faculty/profiles/bios/pildesr_bio.html
>
>
>
>
> 

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org