I agree that the most novel part of the case is Kennedy's
assertion that the
new District 25 did not satisfy Section 2. In addition to the
usual notion
that a district has to be geographically compact, he has added the
requirement that it be "socially compact" as well, to coin a
phrase. Unless
the minority residents within the district are sufficiently
homogeneous,they will henceforth not qualify as a single
"community of interest" and
hence will flunk the first Gingles prong.
One way to interpret this standard is to say that although the
district had
a majority of Latino voters, the two groups had preferences that
were so
disparate that they could not unity behind a single candidate. On
this,then, does anyone know the story behind Lloyd Doggett's
victory in the new
25th in 2004? Did he appeal to both Latino communities? Did he
have a Latino
challenger? The opinion glides over this issue entirely.
Kennedy tries mightily to limit this ruling, saying that "We
emphasize it is
the enormous geographical distance separating the Austin and
Mexican-border
communities, coupled with the disparate needs and interests of these
populationsÑnot either factor aloneÑthat renders District 25
noncompact for
¤2 purposes." I think he intends this to be a one-off ruling,
since the
changes to the 23rd district really bugged him and he didn't like
the shape
or the theory behind the new 25th.
But how successful is this? Surely a Section 2 violation cannot
rest on
differences in latitude alone. Why can't this standard be applied to
districts like the one in Georgia, uniting black populations from
Atlantaand adjacent rural areas? Or even populations that live
quite close to each
other, but are socioeconomically distinct and, say, rarely mix
with each
other? If taken seriously, this standard would come heavily into
play with
every single minority opportunity district drawn from now on.
Another question is whether this is a step back or forwards for
the desired
movement to a system where race matters less. Roberts clearly
thinks that
it's a step backwards. In a quote destined to be a classic, echoing
O'Connor's earlier reference to "political apartheid", he states
"I do not
believe it is our role to make judgments about which mixes of minority
voters should count for purposes of forming a majority in an electoral
district, in the face of factual findings that the district is an
effectivemajority-minority district. It is a sordid business, this
divvying us up by
race." (emphasis in original)
But there is an opposite view, which says that by recognizing
differenceswithin the minority community, the Court is moving away
from a view of
society in which monolithic minority voters are opposed by an equally
homogeneous white majority. The implication is that the Latino
voters in the
new 25th that live near the border would share some common
interests with
other low-income voters, while Latinos in and around Austin could make
common cause with others from that area. As the line from "The
Incredibles"goes, "When everyone's special, nobody is."
On 6/29/06, Rick Pildes <PILDESR@juris.law.nyu.edu> wrote:
I feel obliged to respond to Heather Gerken, which I can do quite
briefly, regarding Justice Kennedy's views in the Texas case and
the future
of the VRA. To my mind, nose-counting and speculation about
opinion drafts
miss the essential point I mean to convey. We all assume
Justice Kennedy
defines the center Ñ is the defining Justice Ñ in closely
contested VRA
cases before the Court. And the central theme of "the music"
played in his
opinion is that, as he puts it in one passage: "We do a
disservice to these
important goals [of the VRA] by failing to account for the
differences> between people of the same race." In this case, he
does not address
whether failing to do so might violate the Constitution; he
comes close to
saying it violates the VRA (whether he did so conclude in an
earlier draft
is also not particularly significant, in my view), but does not
actually so
hold. But the precise legal resolution is not important.
What's important
is the principle or viewpoint expressed in that passage and
similar ones.
That viewpoint is going to have ramifications* throughout* the
Court's> interpretation and application of the VRA, not just on
the narrow issue of
whether districts must be "coherent" as well as "compact."
Sometimes, this
viewpoint will get expressed in terms of how racially-polarized
voting> should be defined, the conventional definition of which I
believe will come
under increasing pressure; sometimes I believe it will come in
through how
the "totality of the circumstances" is analyzed; sometimes it
will emerge
through Kennedy's application of Shaw; sometimes, through how
Section 2 is
interpreted in other ways. The viewpoint essential to his
opinion in Texas
will find various specific legal expression, not all of which
can be
anticipated at this stage. But this is not a throwaway view in this
particular case. It's a foundational principle.
As long as Justice Kennedy remains at the center of the Court on VRA
issues, that is why I believe this decision is pregnant with
profound> implications. I do agree with Heather that if Justice
Kennedy turns out not
be at the center of the Court Ñ if, for example, Justice Scalia
turns out to
be more receptive to maintaining prior interpretations of the
VRA than does
Justice Kennedy, then of course, all bets are off.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377
--
**************************************
David Epstein
Professor of Political Science
Columbia University
New York, NY 10027
212-854-7566
http://www.columbia.edu/~de11
**************************************