"Rodriguez Smells 304 Ballot Rats"

The Hill offers this report, which begins: "The hotly contested March 9 Democratic primary between incumbent Rep. Ciro Rodriguez (D-Texas) and Laredo lawyer Henry Cuellar, which is the subject of an ongoing recount, took a dramatic turn yesterday when Zapata County found an additional 304 ballots."

First Circuit En Banc Decides Metts v. Murphy case, allowing Section 2 Coalitional District Case to Go Forward

I have posted the en banc opinion here. It was a 5-2 decision. As the dissent notes, the tone of the majority opinion is "measured," but it does recognize the possibility of a minority group bringing a coalitional district claim under Section 2 of the Voting Rights Act. From the majority opinion:

We are thus unwilling at the complaint stage to foreclose the possibility that a section 2 claim can ever be made out where the African-American population of a single member district is reduced in redistricting legislation from 26 to 21 percent. Yes, one would ordinarily expect the consequences to be small, but not always, and arguably not here (based on past history). At this point we know practically nothing about the motive for the change in district or the selection of the present configuration, the contours of the district chosen or the feasible alternatives, the impact of alternative districts on other minorities, or anything
else that would help gauge how mechanically or flexibly the Gingles factors should be applied.
On the other hand, the plaintiffs cannot prevail merely by showing that an alternative plan gives them a greater opportunity to win the election, DeGrandy, 512 U.S. at 1017 ("Failure to maximize cannot be the measure of § 2."), or that an otherwise justified boundary change happened to cost African-Americans a seat. This would convert section 2's all-circumstances test into the far more stringent "anti-retrogression" test of section 5, which imposes rigorous pre-clearance requirements on covered states to prevent redistricting plans with retrogressive consequences for African-American voters. Compare 42 U.S.C. § 1973(a)-(b) (2000), with 42 U.S.C. § 1973c (2000). See generally Beer v. United States, 425 U.S. 130, 141 (1976) (anti-retrogression test); Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 476-80 (1997) (discussing differences between sections 2 and 5). Rhode Island is not a covered state.
As the district court correctly pointed out, there is tension in this case for plaintiffs in any effort to satisfy both the first and third prong of Gingles. To the extent that African- American voters have to rely on cross-over voting to prove they have the "ability to elect" a candidate of their choosing, their argument that the majority votes as a bloc against their preferred candidate is undercut. But it is not clear on the pleadings alone how many cross-over votes are needed to win an election--unlike in Gingles, Rhode Island law allows a candidate to win with less than an absolute majority, see R.I. Const. art. IV, § 2 (general elections); R.I. Gen. Laws § 17-15-29 (2002) (primary elections)--nor do we have any evidence at this stage about how vigorously the majority votes as a bloc over time, nor the impact of the fact that the "majority" here is made up of both Hispanics and whites. Gingles itself warned that "there is no simple doctrinal test for the existence of legally significant racial bloc voting," 478 U.S. at 58, a further warning against deciding such issues in the abstract.
The burden of inquiry is on the plaintiffs--they are the ones challenging the redistricting plan--but in this case they are entitled (within ordinary limits) to develop the evidence that they think might help them. Whether a full-scale trial is needed is an entirely different matter; perhaps summary judgment will suffice
depending on how the evidence develops and the ultimate theory or theories offered by both sides--theories that hopefully will go beyond dueling claims as to what Gingles means. In all events, it is premature to close the door now.

-- 
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