Subject: message from Ethan Leib re: Larios
From: Rick Hasen
Date: 7/1/2004, 10:07 AM
To: "election-law@majordomo.lls.edu" <election-law@majordomo.lls.edu>
CC: Ethan_Leib@ca2.uscourts.gov
Reply-to:
rick.hasen@mail.lls.edu



-------- Original Message --------
Subject: Larios
Date: Thu, 01 Jul 2004 11:35:46 -0400
From: Ethan_Leib@ca2.uscourts.gov
To: rick.hasen@lls.edu
CC: rick.pildes@nyu.edu, jj.gass@nyu.edu, ed@votelaw.com, marty.lederman@comcast.net, tgoldstein@goldsteinhowe.com



I agree with you that Rick Pildes overreads the summary affirmance in Larios.  It makes me wonder whether Pildes actually read the lower court's opinion in Larios.  There, it becomes clear that the lower court's decision (and by implication, the Supreme Court's) has little to do with partisan gerrymandering; it is no accident that Justice Stevens' opinion, utlizing partisan gerrymandering analysis, was joined only by one other Justice.  The lower court case turned on a "regional discrimination" claim and the discriminatory application of the criterion of avoiding incumbent pairings (usually a permissible redistricting factor) -- something correlated with partisan identification (just like race!) -- but different, to be sure.  Indeed, regional favoritism was the principal concern of Reynolds; so reading Larios as a partisan gerrymandering case is surely a stretch.  The lower court in Larios twice indicated that it was not entertaining a partisan gerrymandering claim and that the plaintiffs could not make such a claim.  I'm not naive: I realize that regional favoritism and partisan gerrymandering can be related.  But Larios purposefully focused on Reynolds' regionalism analysis.

So what does Larios mean?  The lower court held -- consistent with the way most courts treat the "ten-percent" rule -- that a deviation of less than ten percent is not a safe harbor.  The rule was always meant to be a burden shifting regime, not a safe harbor.  See, e.g., Rodriguez
, 308 F.Supp.2d. 346 (SDNY 2004).  Deviations less than ten percent receive a rebuttable presumption of constitutionality, but are not immune from judicial review.  In Larios, the plaintiffs sustained their burden to make a prima facie case -- and the defendants could not show that they used traditional districting criteria in a non-arbirtrary and non-discriminatory way.  Indeed, the lower court found that the state did not offer "any legitimate, consistently-applied state interes ts."  Larios, at 1352.  None of this is dramatic:  "[I]f the plaintiff can present compelling evidence that the drafters of the plan ignored all the legitimate reasons for population disparities and created the deviations solely to benefit certain regions at the expense of others, a one-person, one-vote action will lie even with deviations below ten percent."  Rodriguez, at 365 (internal quotation marks and citations omitted).  
To be sure, some courts have gotten this burden-shifting scheme wrong and the Court's summary affirmance only signals to the minority of courts that treat the "ten percent" rule as a safe harbor that this is error.  

The Larios affirmance does not, however, indicate, as you (Rick Hasen) argue, that "the state needs to come up with some good reasons for deviating from perfect equality even for state and local districts."  Under Larios, the state still only needs to do this in the case of either (1) a deviation of more than ten percent or (2) a deviation of less than ten percent, where the plaintiffs meet their burden to bring prima facie evidence of arbitrariness or discrimination.  I can't see how anyone could read any more than this into the affirmance; and most lower courts follow this rule anyway.


Ethan J Leib


NB Check out my "Ugly White Districts" on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=559526



  
-- 
Professor Rick Hasen 
Loyola Law School 
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