Just two quick thoughts on Rick's interesting post. Though I think
Rick is right to believe that this signals an important fault line in the
opinion, I'm not yet ready to conclude it portends the type of dramatic
change in voting-rights doctrine that Rick suggests (like everyone,
however, I need more time to digest the opinions to come to a firm
conclusion).
(1) On the academic parlor game -- guessing what the glitch means --
there are at least two other explanations for the glitch (whether they
are more persuasive is not clear, but I think it's worth putting them out
there). The story Rick tells, as I understand it, is that Justice
Souter included the sentence because he "heard the music" of
Justice Kennedy's opinion, grasped that the true import of Kennedy's
approach would invalidate District 25, and added the sentence into his
join even though Kennedy's opinion never went that far. (Rick does
not specify the precise mechanics, but he writes, "But Justices
Souter and Ginsburg understand him to in fact, do exactly that ÷ and they
sign an opinion in which they say that District 25 does indeed violate
the VRA. How can this be? I believe Justice Souter has
rightly heard the music in Justice Kennedy's opinion, even though Justice
Souter did not recognize that Justice Kennedy did not, technically, go so
far as to hold that District 25 itself violated the VRA."). I
find this explanation a bit odd. In thinking about the mechanics of
the Supreme Court's drafting process, I think the more likely story is
that the first draft of Justice Kennedy's opinion did strike down
District 25, Souter's opinion joined it, and then for some reason Justice
Kennedy eventually trimmed back the opinion so it affected only District
23 (and because of some oversight Justice Souter never amended his to
reflect the change). If that's what happened, it suggests two other
backstories.
First, if, as Rick surmises, Justice Kennedy was trying to import a
Shaw-like community of interest requirement into the first prong
of Gingles, the first draft of the opinion struck down both
districts (and Souter's join would have included the sentence it
did). If Justice Kennedy backed off that position, it was because
he could not get enough support for that position to justify
striking down District 25, something that undermines the possibility that
the case signals a sea change in Section 2 doctrine (unless and until
Justice Kennedy can get some support from his brethren to the right, who
showed little interest here in invalidating a district under Section 2 or
in endorsing Kennedy's reading of the compactness requirement).
Second, while Rick is absolutely right that Justice Souter may be
"hearing the music" of Justice Kennedy's opinion, the reverse
may have been true. Justice Souter has repeatedly written against
the idea of "trading off" the interests of minority voters (a
position he's held at least since DeGrandy) and seems to think
that it matters where in the state a majority-minority district is
drawn. I think he's wrong on this and have repeatedly criticized
this position in print. Kennedy's opinion, however, repeatedly
sounds this theme (despite the fact that this notion is squarely in
tension with the opinion's (correct) conclusion concludes that dilution
must be measured using a statewide metric). Perhaps Justice Kennedy
was trying to win Justice Souter's vote on District 25 not through Rick's
"import-Shaw-into-Gingles" route, but with a
"no-trading-off-minority-interests-in-complying-with-Section-2"
strategy. The first draft of the opinion may have invalidated
District 25 on these grounds but, for whatever reason, it didn't get any
traction. What we see now are the vestigial remains of that
gambit.
(2) If Rick is reading the opinion correctly -- that is, if the Supreme
Court will read a community of interest requirement into the compactness
prong of Gingles going forward -- I'm still not persuaded that
this "is a statement of profound significance that reflects a
dramatic change in direction," as Rick suggest. Perhaps Rick
is merely describing the normative force of the change. But at
least as a practical matter, I'm not sure it creates a significant hurdle
to voting-rights suits in the future. Imagine you are litigating
the case and the judge says, "look, it's not enough that you show
that the voters are of the same race; the Supreme Court now requires them
to be a community of interest to satisfy Gingles." You
would respond, I suspect, that the very fact that minority voters can be
grouped into a compact district means that they are in a community
of interest. In doing so, you'd appeal to the strong,
gut-level idea that geography matters, that voters who live in the
same region (even if they are from different socio-economic backgrounds)
have something in common. In fact, if you were litigating the case,
you'd just dust off all the Shaw cases to find some useful
rhetoric about the importance of the compactness test in identifying
communities of interest. As a practical matter, while Rick's
reading of the case might generate one more expert witness or brief in a
trial, I'm not sure whether it will have a profound impact on the
ground.
Best,
Heather
At 06:08 PM 6/28/2006, Rick Pildes wrote:
In understanding the
implications of the Texas decision for the Voting Rights Act, one
critical question is whether the Court actually holds that District 25,
the new Austin-to-Texas Hispanic district, violates the VRA. The
Court majority is clearly deeply troubled by this district, both by its
geographic spread and by the fact that it joins Hispanic voters of very
different socio-economic backgrounds, but does the Court conclude that
district is actually illegal?
Writing the opinion for the Court, Justice Kennedy's concluding paragraph
states only that "the redrawing if lines in District 23 violates
Sec. 2 of the VRA." Dist. 23 is the prior district, also a
Hispanic district, known as the Bonilla district. BUT, Justice
Souter's opinion, in which Justice Ginsburg joins, states: "I
join Part III of the principal opinion, in which the Court holds that
Plan 1374C's Districts 23 and 25 violate Sec. 2 of the VRA."
(my emphasis). The other Justices who agree with this part of the
decision, Justices Breyer and Stevens, do not appear to say anything
specific about this matter.
I will address how I think this conflict will end up getting resolved,
when the Court publishes the official version of the opinion, and why I
think this error emerged. But first let me explain why this glitch
is a revealing window into a significant issue. The view that
District 25 is troubling (leaving aside whether it's merely troubling or
actually illegal, or even unconstitutional) itself signals a significant
turning point in voting-rights law. The Latino voters in this
"area" of Texas face racially-polarized voting, as the law
defines it, and have cohesive preferences for Latino over Anglo
candidates. Under the conventional understanding of the VRA, that
would be enough to justify a legal requirement under the VRA that, if a
geographically compact district could be created in which Latino voters
would be a majority, the law would require such a district. But
Justice Kennedy finds that result troubling, at the least, because these
Latino voters do not have what we might call "coherent"
interests; that is, even though they vote for Latino candidates, they
have vastly different socio-economic backgrounds. Texas wanted to
dismantle the old Latino district and defended doing that by arguing that
the new district, Dist. 25, complied with its obligations under the
VRA. At a minimum, the Court today holds that a majority Hispanic
or Black district (by direct implication) cannot be considered a district
that satisfies the VRA unless that district groups together minority
voters with "coherent" interests ÷ meaning, it seems of similar
economic status, for example. That is, the opinion constitutes a
move away from essentializing racial identity: merely because a
district is majority minority, is geographically compact, and minority
voters cohesively prefer black candidates, the VRA is not satisfied
unless those voters also have substantive interests, such as economic
interests, that have some commonality or, as noted above, are
"coherent" in some sense. As Justice Kennedy puts it,
"We do a disservice to these important goals [of the VRA] by failing
to account for the differences between people of the same
race." To those who understand voting-rights law, that is a
statement of profound significance that reflects a dramatic change in
direction.
But in addition to that kind of essentializing being troubling, does it
actually make a district illegal? Does it make it unconstitutional,
even? The Court's opinion clearly bypasses the second
question. Based on the oral argument, I believe Justice Kennedy
would, in fact, have serious doubts about the constitutionality of such a
district, but it is unclear how many Justices would join him in that
view. But would such a district actually itself violate the
VRA? That is, if a state creates a majority Hispanic or black
district, those voters prefer a minority candidate, the district is
geographically compact, but those voters do not share common material
interests or statuses, does such a district violate the VRA?
Justice Kennedy does not go that far, legally, in this opinion. But
Justices Souter and Ginsburg understand him to in fact, do exactly that ÷
and they sign an opinion in which they say that District 25 does indeed
violate the VRA. How can this be? I believe Justice Souter
has rightly heard the music in Justice Kennedy's opinion, even though
Justice Souter did not recognize that Justice Kennedy did not,
technically, go so far as to hold that District 25 itself violated the
VRA. But more on why this glitch emerged, and how I expect the
Court to correct it, in another post. For now, I simply wanted to
alert readers to the error and what is at stake in the issue.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377