More on the meaning of the summary affirmance in Larios

Over on the election law listserv, Rick Pildes argues here that we should read "Larios as holding that systematic partisan gerrymandering is an impremissible purpose under the Equal Protection Clause, pure and simple." Rick further reads into the summary affirmance a view of Vieth at odds with what the Court actually did in the case a mere two months ago. Rick writes: "What does this suggest about Vieth? Most obviously, if partisan gerrymandering is not a legitimate purpose or rational basis here, it is also not one in the normal context in which plaintiffs bring affirmative challenges to districting plans. To the extent Vieth left this unclear, it now seems that most of the Court takes systematic partisan gerrymandering to be not just illegitimate and unconstitutional, but a serious constitutional problem; the difficulty in the Vieth context really is one of managable remedies, not a debate about whether partisan gerrymandering is unconstitutional. "

I think that Rick reads too much into the summary affirmance. (And J.J. Gass agrees: see here, noting that if Rick is right, the Texas case should be reversed rather easily.)

In Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173 (1979), the Court explained the reach of a summary affirmance (internal citations omitted):

[T]he precedential effect of a summary affirmance can extend no farther than "the precise issues presented and necessarily decided by those actions." A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment. Questions which "merely lurk in the record" are not resolved, and no resolution of them may be inferred.

In this case, the only issue necessarily decided here was that the 10% deviation was too much under the facts of the case. The Court may now simply agree, consistent with other lower court cases as well, such as the 4th Circuit's Daly v. Hunt, that the state needs to come up with some good reasons for deviating from perfect equality even for state and local districts.

If Rick is right about the meaning of the summary affirmance, we would have expected the Chief Justices and Justices O'Connor and Thomas to joint Justice Scalia in dissent. Their failure to do so suggests that they do not see Larios as implicitly overruling Vieth, at least in those cases where there is a manageable rule to control partisan gerrymandering. (Of course, while one person, one vote is a manageable rule, I don't concede that it is a manageable rule to control partisan gerrymandering).

Prof. Pildes's analysis suggests a reversal in the Texas re-redistricting cases, and a pretty easy one at that.  You have the defendants saying, and the lower court finding, that partisan advantage was "110%" of the motivation for the exercise.  The remedy is straightforward as well:  go back to the legal districts that were used in the 2002 election.

 

But if it's really as easy as that in the eyes of five justices, why did the Court fail to grant a stay/injunction pending appeal?  Unlike other redistricting controversies, the Texas cases present a perfect ideal-type of the kind of action that Prof. Pildes suggests is prohibited after Larios, since there was no need to redistrict to correct malapportionment as in regular decennial redistricting (including Georgia's).

 

I'm hoping Prof. Pildes's analysis is right--he is ascribing to the Court essentially the very argument we made in our amicus  brief supporting the stay application in the Texas cases.  In any event, as others have observed since Vieth  came down, if Justice Kennedy isn't wiling to reverse in the Texas cases, it's hard to see his attempt to keep alive the possiblity of a partisan gerrymandering claim as anything more than illusory.

 

J. J. Gass
Associate Counsel, Democracy Program
212-998-6281
jj.gass@nyu.edu

 

Brennan Center for Justice at NYU School of Law
161 Avenue of the Americas, 12th Floor
fax 212-995-4550
www.brennancenter.org


>>> Rick Hasen <Rick.Hasen@lls.edu> 06/30/04 03:21PM >>>
Rick Pildes writes:

I read Larios as holding that systematic partisan gerrymandering is an
impermissible purpose under the Equal Protection clause, pure and
simple.  Whenever the state has to provide an explanation for its
districting plans, it cannot offer pursuit of partisan advantage as the
only reason.  Note that Larios is not a strict scrutiny context; the plan
has less than a 10% population deviation and the state's burden is only to
offer some legitimate reason for the deviation (thus, deviations designed
to comply with the VRA are surely acceptable ones at the state and local
level).  But even under a legitimate purpose or rational-basis like test,
partisan advantage is not an acceptable explanation.  That's certainly what
the three-judge court said, more or less directly, and while summary
affirmances do not technically affirm the reasoning below, in this context
it's hard to see how the summary affirmance could not entail agreement with
that principle.  The difference between Larios  and Vieth is that in the
former, there are obvious managable remedial standards for the Court to
employ in response to the constitutional violation.  On Justice Scalia's
view, the Court should not even set the case for argument, it should
summarily reverse; he thinks pure pursuit of partisan advantage is not an
impermissible purpose.  But he's so much on the defensive here, he can only
go so far as to urge full consideration on the merits.

What does this suggest about Vieth?  Most obviously, if partisan
gerrymandering is not a legitimate purpose or rational basis here, it is
also not one in the normal context in which plaintiffs bring affirmative
challenges to districting plans. To the extent Vieth left this unclear, it
now seems that most of the Court takes systematic partisan gerrymandering
to be not just illegitimate and unconstitutional, but a serious
constitutional problem; the difficulty in the Vieth context really is one
of managable remedies, not a debate about whether partisan gerrymandering
is unconstitutional.  That suggests in any context in which a managable
remedy for a partisan gerrymandering can be constructed, the Court is
likely to require such a remedy -- for example, systematic and selective
pairing of incumbents, which can be undone in a managable way (Larios deals
only with the partisan gerrymander, not the bipartisan one).  For another
thing, the dissenters reflect the view that this remains a very live issue
within the Court and that they are not resigned to having lost on the
issue.  In addition, it suggests to me that Justice Kennedy's opinion in
Vieth, rather than being a half-hearted gesture at not closing the door
altogether, is genuinely a temporizing opinion, a vote based on
uncertainty, in a case without great facts.



Rick Pildes
An-Bryce Professor of Law, New York University School of Law
Visiting Professor of Law, Harvard Law School (Jan.-May 04)
Griswold Hall Room 507
Cambridge, MA 02138
office:  617-495-9083
home:  617-491-0489
fax:  617-496-5156

-- 
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
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