| Subject: What Will the Supreme Court Do with the Texas Redistricting Case? |
| From: Rick Hasen |
| Date: 1/6/2004, 1:41 PM |
| To: "election-law@majordomo.lls.edu" <election-law@majordomo.lls.edu> |
Reply-to: rick.hasen@mail.lls.edu |
Democrats have already suggested that they will appeal the three-judge decision in Session v. Perry rejecting challenges to Texas's re-redistricting of Congressional districts. The rhetorical focus (from the press release I have seen) is on potential violations of the Voting Rights Act (From the DCCC chair: "Top Republicans - from Tom DeLay to the Bush White House - have sacrificed Hispanics and African Americans to strengthen the right-wing of the Republican Party. Now, it's up to the U.S. Supreme Court to decide whether to dismantle the Voting Rights Act and roll back more than 40 years of progress.").
What will the Supreme Court do? Because this will be an appeal from a three-judge court rather than a petition for certiorari, the Court will have to take some action, even if it is just a summary affirmance. The three-judge court rejected a number of challenges (many of which I viewed as very weak, such as the argument that the Constitution's Election's Clause prohibits mid-decade re-redistricting). I see two possible bases upon which the Court might take the Texas case seriously.
1. The three-judge court itself notes that this case might come out differently if the Supreme Court gives teeth to partisan gerrymandering (currently toothless under Davis v. Bandemer) in Vieth v. Jubelirer, currently before the Supreme Court, arising out of Pennsylvania's redistricting. The three-judge court almost invites the Court to give partisan gerrymandering cases some teeth, endorsing the analogy to antitrust law put forward by Sam Issacharoff in his Gerrymandering and Political Cartels piece in the Harvard Law Review. The Supreme Court could potentially hold this case for resolution of Vieth.
2. The case raises some interesting and unresolved Voting Rights Act issues. On some of these claims, the three-judge court split 2-1. One of the main issues here is how to read the Supreme Court's decision in Georgia v. Ashcroft last term, and particularly the question (not resolved in that case) whether a protected minority group may raise a successful claim under Section 2 of the Voting Rights Act when it is too small be placed in a majority-minority district but large enough to be put in an "influence" district where minority members have some voting power. The issue is dividing the lower courts (the First Circuit recently granted an en banc hearing in the Metts v. Murphy case raising a similar issue) and requires some Supreme Court resolution.-- Professor Rick Hasen Loyola Law School 919 South Albany Street Los Angeles, CA 90015-0019 (213)736-1466 - voice (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org