Catching up department: Metts v. Murphy en banc oral argument

On February 4, the First Circuit held an en banc oral argument in a very important case under section 2 of the Voting Rights Act. The Providence Journal article on the argument is here. A reader also sent along the following comments:

[T]he argument was not too enlightening for someone who read the panel opinion and briefs. Judges Lynch and Selya were active questioners, promoting the disparate views they expressed in the panel opinions. The other judges were much less involved. So it’s hard to predict what will happen based on oral argument.

There are six active judges in the First Circuit. Judge Stahl, who is a senior judge, also sat on the bench as a member of the original panel, but my understanding is that he does not have a vote. Judges Torruella and Howard asked no questions.

There were quite a few fact-related questions, most of which I won’t repeat. There were, though, some interesting lines of back and forth questioning of defendants from Stahl, Selya, and Lynch focusing on the fact that the city as a whole is over 50% minority (combined 12.7% black, 30% Hispanic, and 5.9% Asian, as against 45.8% white), but only one minority candidate (a Hispanic) was elected to the Senate out of six districts. Selya pointed out that four of those six districts were majority-minority, but all of them were mixed minority – that is, none had a majority of either black or Hispanic voters Defendants said that it was mathematically impossible to draw any more than one such district (which would be Hispanic), and that they thought it was better to have several with Hispanic populations over 40% than one packed district. Judge Lynch responded by saying that plaintiffs had alleged a plan with a majority-Hispanic district, a black ability-to-elect district, and a Hispanic ability-to-elect district, so that plans were available which did not remove blacks’ opportunity to elect as the adopted plan did. Defendants responded that the issue of this case is not whether there could be a better plan, but whether this plan is good enough.

Judges Lipez and Boudin each had one main question that they asked of each side.
Lipez asked each party about the connection between the first and third prong, and the fact that greater crossover voting reduced bloc voting. Plaintiffs responded that the first prong is related to the illustrative district, while prong 3 is about the district that was actually drawn. Judge Selya seemed to me to scoff at this. Lipez asked defendants about it and seemed skeptical too, but maybe that was just rhetorical. Defendants said this interpretation was mistaken, but in any event in this case, where 20-24% of the voters have to cross over, it was irrelevant, because even on plaintiffs’ theory their claim should fail. On rebuttal, plaintiffs returned to the point and made the argument that unless their interpretation is correct “logically you could never have a VRA Section 2 claim because you would have to prove simultaneously that you both can and can’t be elected.”

Judge Boudin asked about how the totality of the circumstances analysis would work if plaintiffs got past the Gingles preconditions. Plaintiffs reeled off some facts that they would show as part of this analysis, including the process by which the lines were drawn, socioeconomic factors, past official discrimination, etc. Defendants tried not to answer, but Boudin pinned them down (Boudin: “Congress wrote [totality of the circumstances] in the statute, we shouldn’t treat that as something amazing!”). Defendants then ran through the Senate factors.

The other interesting points of contention were the role of evidence concerning intentional discrimination and past African-American electoral success. Judge Selya wanted to know how intentional discrimination fit into the plaintiffs’ case and pointed to what he said was an absence of a pleading of intentional discrimination. Plaintiffs argued that facts showing intent were probative of the Section 2 claim, and that they made no 14th Amendment claim. Plaintiffs also argued that the past record of African-American electoral success and the fact that there was still a significant African-American population made their case different from some others dismissed on 12(b)(6). Judge Lynch also pointed out that this history is easier to demonstrate at the pleading stage in a single-member scenario than in multiple-member cases, and plaintiffs added that this helps distinguish Valdestino & Perez. On the history, Judge Lynch pressed defendants as to why pleading that 26% black district with a historically proven ability to elect was not enough to pass 12(b)(6). Defendants referred to the change in district sizes that happened at the same time as redistricting, but mostly adhered to the “26% is just not enough” theme.

The last point of interest was something that wasn't discussed. No questioner took up the plaintiffs' suggestions from their brief that the court could order a prudential remand without deciding the legal question. I thought this was the type of thing the First Circuit might jump at -- it is a somewhat conflict-averse court. Part of the problem may be that there is a pending case in the District of Massachusetts that turns on the same legal issues as Metts, with trial complete, and Judge Selya is on the three-judge panel there. So there may be an effort to settle the question in Metts so that the Massachusetts case can go forward.

-- 
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
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rick.hasen@lls.edu
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