I had one or two thoughts to add to the section 2 discussion as the dust continues to settle in the wake of LULAC.  

While Districts 23 and 25 have drawn the most attention, the discussions of District 24 (the district previously held by Martin Frost) by Kennedy and Souter have some important implications for future challenges to district maps.  The Court left open the possibility that litigants will be able to bring section 2 claims based on the dilution of a coalitional district, despite the fact that a majority of the Court agreed with the three-judge court that no such dilution occurred in the case of District 24.

Kennedy (joined by Roberts and Alito) chose to assume for the purposes of the case that it is possible under Gingles to state a section 2 claim when the bloc is less than 50%, an assumption the Court has preserved for 20 years.  As lower courts have enforced the 50% barrier more rigidly, at some future point that preservation itself may have concrete significance.  Regardless, the Kennedy opinion did not delve into this assumption, instead dealing predominantly with the facts of District 24.  Kennedy found the new metric of voting strength proposed by the Jackson appellantsÑwhether the minority bloc comprised a majority of the primary electorate and its candidates of choice were consistently victorious in the general electionÑproblematic on these facts because he found the evidence conflicting as to whether the African-American bloc was in fact selecting Frost as its candidate of choice.  (Frost had not faced opposition in the Democratic primary for many years.)  But the fac!
 t that the control of the primary threshold was found wanting on the facts of the case and not unsound altogether as a limiting principle suggests that coalitional district section 2 claims are not foreclosed by LULAC.  Indeed, the language of the Kennedy opinion at slip op. 39-40 appears to separate claims by coalitional districts from those pressed by influence districts, such that he would look more favorably on a more decisive indication that the bloc determined the party nominee as opposed to having ratified it.  

All this goes to say that while the section 2 challenge to District 24 was unavailing, the Jackson appellants appear to have had some success in pressing their view of section 2, Gingles, and De Grandy.  Two Justices, Alito and Roberts, join Kennedy in leaving the possibility open, and Souter (joined by Ginsburg), and Stevens (fn 16) confront the 50% requirement and find it lacking.  While the consequences of altering Gingles in this way were not directly addressed, in another case a bloc unable to form a compact majority of a district may be able to obtain relief under section 2 despite the first Gingles prong.  This has implications not only for the vindication of genuine vote dilution claims but for the tools available for challenges to district maps in the absence of a Court-adopted judicially manageable standard for policing partisan gerrymanders.  And lastly, allowing coalitional districts section 2 protection may fold such districts into the compactness discussion if !
 they would more easily satisfy the requirement of reasonable compactness.

Luke McLoughlin
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