En banc order in First Circuit Voting Rights Case
On October 28, I blogged here about
an important case under the Voting Rights Act, Metts
v. Murphy. The First Circuit has now granted en banc review and
issued a very specific order about what is to be briefed:
ORDER. Chief Judge Michael Boudin, Judge Juan R. Torruella,
Judge Bruce M. Selya, Judge Sandra L. Lynch, Judge Kermit V. Lipez,
Judge Jeffrey R. Howard, and Senior Judge Norman H. Stahl. The petition
for rehearing en banc is granted. The panel opinion of this Court dated
October 28, 2003 is withdrawn and the judgment of this Court of the
same date is vacated. Oral argument is scheduled for February 4, 2004,
at 2:30 pm. The parties are directed to file simultaneous supplementary
briefs not to exceed twenty pages in length. The briefs should assume
the familiarity of the en banc Court with the briefs already filed on
this appeal and need not repeat arguments addressed therein. The
supplementary brief for the defendants shall, at a minimum, address the
following question: Given that Gingles preconditions were conceived
primarily to address a different problem (multi-member districts) and
that subsequent opinions have referred to the need to avoid applying
the preconditions mechanically, why is the decision on the
applicability of Gingles not better made after the plaintiffs have been
allowed to develop a record both on this issue and on the totality of
the circumstances test? The supplementary brief for the plaintiffs
shall, at a minimum, address the following question: Recognizing that
the Supreme Court has said that the Gingles preconditions are only a
threshold requirement and that success also requires proof under the
totality of the circumstances test, what facts do you expect to elicit
through discovery or what lines of inquiry do you propose to pursue to
satisfy this latter test? The parties are directed to file 15 copies of
their respective briefs on or before January 5, 2004. Each side may
also file a reply brief, not to exceed five pages, due on or before
January 20, 2004. The attention of counsel is drawn to the requirements
of Local Rule 32 as to the filing of briefs in disk form. The Court
would welcome the filing of briefs amicus curiae, pursuant to the
applicable local rules.
As this case is in conflict with at least one case from another
circuit, the issue here is one to watch for eventual Supreme Court
review. Thanks to Bill McGeveran for passing along the order.
Wall Street Journal article on Vieth
case
See Gerrymandering
Gets Focus. Thanks to Steven Sholk for the pointer.
--
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