Here's a response to Rick's question that others might
find useful; by
the way I share Bob Bauer's sentiment that the Texas case was
exceptionally well-argued by all attorneys yesterday. It really was
a pleasure to watch such superb advocacy--an especially impressive feat
given the two-hour duration. finally, on the topic of trying to
predict results, I recall the sentiment of many leaving the Courtroom
after McConnell that the soft-money provisions likely would be
invalidated and the electioneering communication provisions definitely
would be. I, for one, was certainly surprised with the
McConnell results, especially on the latter part of the
case. So we could be in for some surprises here as well --
Ned
So, from my reading of the
second hand reports, it sounds like the Justices were leaning in the
following directions:
1. No majority to find a partisan gerrymander (under equal protection,
First Amendment, or any other clause of the Constitution) ---apparently
this leaves Vieth in place, because it does not appear that Justice
Kennedy was signalling he's ready to vote for nonjusticiablity
DISTIGUISH BETWEEN STATEWIDE GERRYMANDER CLAIM THAT JACKSON PLAINTIFFS
MADE, COMPARED TO DISTRICT-SPECIFIC PARTISAN GERRYMANDER CLAIMS THAT
STEVENS WISHED TO PURSUE; FOR MORE ON THIS, SEE MY SECOND SUBMISSION ON
THE ARGUMENT:
http://moritzlaw.osu.edu/electionlaw/etable06/060302-foley01.php
2. No majority to hold that mid-decade redistricting violates one
person,
one vote because of the failure to use updated census data AGREE.
3. No majority to find a Shaw violation (maybe that gets only Justice
Kennedy's vote) AGREE, ALTHOUGH THOMAS'S SILENCE IS INTRIGUING;
GINSBURG
AND ALITO ALSO SILENT ON THIS, BUT SEEMS UNLIKELY GINSBURG WOULD BE
SYMPATHETIC. IT'S POSSIBLE THAT THE CHIEF MIGHT BE INTERESTED; HE
RAISED SOME QUESTIONS ON THIS, WITHOUT INDICATING EITHER ENTHUSIASM OR
ADVERSAL
4. A possible majority to hold that one or two districts violates
section
2 of the Voting Rights Act, but no majority to hold that coalitional or
influence disticts count for section 2 purposes (and a possible
majority
to affirmatively reject that stand). DISTINGUISH BETWEEN
EFFECT-BASED SECTION 2 CLAIMS FROM INTENT-BASED DILUTION
CLAIMS. MORES DETAIL IN SECOND SUBMSSION REFERENCED
ABOVE.
Is is how those who attend the oral argument see things as going?
HOPE THIS HELPS. -- NED
Rick
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 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
Edward B. Foley
Director, Election Law @ Moritz, and
Robert M. Duncan/Jones Day Designated Professor of Law
The Ohio State University, Moritz College of Law
phone: (614) 292-4288; e-mail: foley.33@osu.edu
http://moritzlaw.osu.edu/electionlaw/
Edward B. Foley
Director, Election Law @ Moritz, and
Robert M. Duncan/Jones Day Designated Professor of Law
The Ohio State University, Moritz College of Law
phone: (614) 292-4288; e-mail: foley.33@osu.edu
http://moritzlaw.osu.edu/electionlaw/