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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

A Review of the Transcript in the Texas Redistricting Case

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April 4, 2006

It is coincidental, but perhaps ironically apt, that Rep. Tom DeLay was announcing his resignation as I was preparing this commentary on his handiwork. The fox was too smart for his own good. But will his legislative map survive him?

With the transcript of the oral argument in the Texas redistricting case, LULAC v. Perry, now available, I had hoped that it might clarify some of the confusion surrounding the case after the oral argument itself. But, alas, I think we will need to wait for the opinions from the Justices, and even then there still may be less clarity than lower courts and lawyers would desire.

I focus here on the race-related claims surrounding the transfer of approximately 100,000 Latino residents in Laredo from District 23, Rep. Bonilla's district, to District 25. It was concerning these claims that the oral argument seemed the most confusing. Indeed, as Justice Breyer himself said at one point about the analysis to be employed regarding these claims, "all that is rather unclear in my mind." Tr. at 73. No one else can be faulted for being similarly perplexed.

The transcript does confirm an initial impression that, in evaluating the lawfulness of the new District 23, it is important to distinguish between the results test of the Voting Rights Act's § 2 and the intent test of the Equal Protection Clause. A review of the transcript suggests that the four so-called liberal members of the Court-Stevens, Souter, Ginsburg, and Breyer-were looking to invalidate the new District 23 under the § 2 results test, even assuming that the predominant intent of the new district's lines was political rather than racial. Despite his earlier uncertainty, Justice Breyer later was able to articulate a theory of results-based liability under § 2 that he appeared ready to embrace:

"We look at the map as drawn. We ask the question, is there a way to redraw this map so that, say, the minority group has a more significant influence for their bloc voting, et cetera, et cetera? Gingles. Answer: Of course, there is. It's the old way. And you say, well, why didn't you do it the old way? Well, the only reason you didn't do it the old way was pure politics and that isn't a sufficient justification."

Tr. at 109. Justices Stevens and Souter made similar suggestions, and Justice Ginsburg presumably would be likely to agree. Justice Kennedy, by contrast, seemed to eschew reliance on the results test of § 2 and, instead, was prepared to invalidate the new District 23 (and District 25 as well) based on impermissible race-based intent.

Conversely, the more conservative members of the Court-Chief Justice Roberts, Justice Scalia, and Justice Alito-seemed to reject the argument that District 23 was invalid under a purely results-based inquiry but they seemed also to accept the premise that the new district was motivated by politics rather than race. Representative of this views was the Chief Justice's apparent assertion that the plaintiffs had failed to establish sufficient bloc voting for a § 2 claim-"if they're 30/70 . . . it's hard to think of them as having a clear candidate of choice," Tr. at 47-as well as his subsequent comment that the movement of Latino voters from District 23 to 25 "was being done for political purposes not for ethnic purposes." Tr. at 49. This combination would indicate that the conservative Justices will vote to uphold District 23. Justice Thomas, as usual, did not ask any questions at the oral argument. Although it is possible that he might prove himself to be something of a maverick on these issues, it is probably safest to assume that he will join his conservative colleagues (at least as to their bottom-line votes, even if he writes his own distinctive opinion).

The Voting Rights Act issue regarding District 23 is a difficult but important one. It concerns, in part, whether it is enough to establish a vote dilution claim under § 2 (as opposed to a retrogression claim under § 5 of the Act) that the state took the Latino citizen voting age population down from 57.5% to 46%. It also concerns whether the state has no obligation under § 2 to maintain District 23 as a Latino-majority district as long as it creates another Latino-majority district in the same region of the state.

Thus, assuming there are four votes on either side of this § 2 question, Justice Kennedy's view of the matter becomes critical, even if he would prefer to resolve the case using the intent-based standard of the Equal Protection Clause, rather than the results-based test of § 2. It is possible that Justice Kennedy ultimately could go along with the four liberals to invalidate District 23 on § 2 grounds, even though he writes separately to say that he believes it also violates the Equal Protection Clause. It is possible, on the other hand, that Justice Kennedy joins the four conservatives to reject the results-based § 2 claim, but then votes separately to invalidate District 23 on intent-based Equal Protection grounds. Or it is conceivable, also, that Justice Kennedy simply refuses to address the Voting Rights Act question, saying that his vote to invalidate the district on intent-based Equal Protection Clause is enough for him to decide the case. This last option, of course, would deprive the country of an opinion from the Court on the important Voting Rights Act issue, but it would hardly be the first time that the Justices were fractured and indecisive in a major redistricting case.

One searches the transcript in vain for any indication as to which of these three options Justice Kennedy is likely to choose. The strongest expression of his views came during a question he asked of the Texas Solicitor General, Ted Cruz:

"And as to [District] 23, do you want this Court to say that it's constitutionally permissible to take away a number of minority voters from the district, but leave just enough so that it looks like a minority? Is that a permissible use of race? It-it seems to me that's an affront and an insult."

Tr. at 76. But those views concern the intent-based standard of the Equal Protection Clause and don't reveal his position on the exclusively results-based inquiry under § 2.

Likewise, Justice Kennedy's first question of Ms. Nina Perales, the attorney representing the Latino plaintiffs, concerned the State's motive for transferring the Latino residents of Laredo from one district to the other:

"Focus for a minute just on . . . what we can call the removal, the drawing lines to exclude some Latino voters. . . . The district court found that this was for political reasons, no racial reasons, even though it was a largely racial group that was removed. Do you attack that finding as clearly erroneous?"

Tr. at 40-41. Ms. Perales answered "yes" unambiguously, and Justice Kennedy seemed to accept her view of the facts when later, in questioning General Cruz, he invoked the point, which she had repeatedly made, that the state intentionally kept a bare majority of Latino voting age population (although not majority of citizen voting age population) to make it appear that Rep. Bonilla was elected with the support of the Latino community. In Justice Kennedy's words, "50 percent were kept to . . . make it look good." Tr. at 76.

Justice Kennedy did ask Ms. Perales why she thought it was permissible for the state to consider race to comply with the Voting Rights Act but not to protect an incumbent-"how can race be used not to protect an incumbent but to all the group to choose the representative of its choice and then reelect him every year?" (Tr. at 50)-but this question seemed to imply more of a concern with the potential constitutionality of the Voting Rights Act rather than an indication that Justice Kennedy was prepared to invalidate District 23 based on the results test of § 2. In any event, I wouldn't want to read too much into this single question.

The rest of Justice Kennedy's questioning concerning District 23 focused on its relationship to District 25 and his belief that this latter district was an unconstitutional racial gerrymander under the doctrine of Shaw v. Reno. For example, in addressing General Cruz, Justice Kennedy stated that District 25 "is a serious Shaw violation . . . and the two are really linked, 23 and 25, in this respect because it was by virtue of what it did in 23, that the State claims a right to do what it did in 25." Tr. at 74. Earlier, Justice Kennedy made the same point: "It seems to me the State creates the very problem that it claims that it must use race to settle." Tr. at 13.

Based on the transcript, it may be that Justice Kennedy is the only one of the nine who believes that District 25 violates the Shaw doctrine. The rest seem to accept the state's assertion that it has a sufficiently political rather than racial motivation for how it drew this new district. If that is the case, it will be interesting to see how Justices Scalia and Thomas square their views in the Texas case with their dissenting votes in the last of the Shaw line, Easley v. Cromartie, where they saw the line-drawing as racially rather than politically motivated.

Be that as it may, however, it doesn't answer the question of what Justice Kennedy will do on the Voting Rights Act issue. Whether he is alone or not on the existence of a Shaw violation regarding District 25, observers who are following this case still want to know whether the removal of Latino voters from District 23, by splitting Laredo in two, creates a vote dilution claim under § 2. On this significant matter, the transcript sheds little light, and we all will need to wait patiently another few months.

Let us hope that we get an answer at least then-and that Justice Kennedy does not make us wait for a whole new case, by relying exclusively on his view of the intent-based Equal Protection claim.