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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.

Free & Fair

Justice Kennedy Deserves Praise

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June 29, 2006

Court, severely castigated Justice Kennedy for his fence-sitting on the issue of partisan gerrymandering in Vieth v. Jubelirer, the Pennsylvania case from 2004. There have been echoes of that criticism in the aftermath of yesterday's decision in the Texas redistricting case, League of United Latin American Citizens v. Perry ("LULAC"), as Justice Kennedy continues to sit on the fence on this important constitutional question.

In this era of instantaneous internet-based punditry (of which I am as guilty as anyone else), Justice Kennedy has also been criticized for his interpretation of the Voting Rights Act in LULAC — on behalf of a five-member Court opinion that includes Justices Stevens, Souter, Ginsburg, and Breyer — concerning the separate question of whether Latino voters in Laredo suffered unlawful racial discrimination as a result of the Texas redistricting. Several leading scholars of the Court's Voting Rights Act jurisprudence have suggested that Justice Kennedy's interpretation of the statute comes up short in comparison to Chief Justice Roberts' dissenting opinion in LULAC. In a subsequent column, I will endeavor to defend Justice Kennedy's opinion on the Voting Rights Act issue, but for now I want to focus on his treatment of the partisan gerrymandering issue in LULAC.

The constitutionality of partisan gerrymandering truly presents a Scylla and Charybdis situation. Judicial invalidation of a redistricting plan adopted by a legislature based on nothing more than the U.S. Constitution's vague guarantee of "equal protection," when the allegation is not racial discrimination in districting but instead unfair treatment of Democrats or Republicans, risks being a particularly inappropriate judicial intrusion into the legitimate workings of the democratic process. On the other hand, judicial self-restraint if and when one political party deliberately manipulates district line-drawing in order to keep itself in power, even though the voters want to switch control of the legislature to the other major party, risks being a particularly problematic abdication of the judiciary's time-tested function of protecting democracy from usurpation by a temporary legislative majority.

No wonder Justice Kennedy, or any moderate member of the Court, would want to avoid either horn of this dilemma.

Moreover, when one examines Justice Kennedy's position on this issue in LULAC from an historical perspective, one has even greater appreciation for his reluctance to take a definitive stance.

Twenty years ago, before Justice Kennedy was elevated to the Supreme Court, in a case from Indiana, Davis v. Bandemer (1986), no standard for evaluating the constitutionality of partisan gerrymanders was able to command a majority of the Court. Davis itself must be viewed against the backdrop of the Court's earlier cases involving legislative districting. Forty years before Davis, in Colegrove v. Green (1946), the Court had refused to consider any equal protection challenge to a legislative map unless a claim of race discrimination was involved. Then, two decades after Colegrove and two decades before Davis, in one of the most momentous decisions of the Court's two-hundred-year history, Reynolds v. Sims (1964), the Court interpreted the equal protection guarantee to require equally populated districts. The solidification over the next two decades of the one-person-one-vote doctrine articulated in Reynolds, and its ancillary commitment to the Court's role in protecting a citizen's equal right to participate in representative democracy, set the stage for the claim in Davis that, even if a legislative map might comply with the requirement of equally populous districts, the manipulation of district boundaries might deny citizens of their equal right to legislative representation.

But identification of a standard comparable to one-person-one-vote proved elusive in Davis and again in Vieth, when the Court considered the same question after another two decades had passed.

The problem in Vieth was that the plaintiffs there proposed too ambitious a standard. In effect, they would have had the Constitution require (at least presumptively) a form of proportional representation: in the words of Justice Kennedy, "that a majority of voters in [a state] should be able to elect a majority of the [state's legislature or] congressional delegation." There are, however, reasons other than an improper partisan power-grab why a majority of voters might not automatically translate into a majority of legislative seats. Traditional geographic districting criteria — for example, like keeping intact cities, counties, and other political subdivisions of a state — might cause a concentration of one party's voters within a relatively small number of districts, so that even if that party commands a majority of voters statewide, it might not command a majority of seats in the legislature. A legislative map premised on this traditional districting criterion, reflecting a choice to honor existing political boundaries, would not be an improper partisan gerrymander to be judicially invalidated as contrary to the U.S. Constitution.

In the absence of a sound proposal from the plaintiffs in Vieth, the Justices split badly among themselves. Four Justices (Scalia, Thomas, and two no longer on the Court: Rehnquist and O'Connor) would have ruled out forever the possibility of a constitutional standard for policing partisan power-grabs in legislative mapmaking. Four other Justices (Stevens, Souter, Ginsburg, and Breyer) offered three separate and somewhat inconsistent standards (Ginsburg joining Souter on one of these three), two of which were arguably even more ambitious than the plaintiffs' proposal (Stevens' and Souter-Ginsburg's). Only Justice Breyer purported to cabin judicial invalidation of a redistricting plan for improper partisanship to the narrow and rare circumstance in which a party is successful in manipulating district lines, without regard to legitimate traditional districting criteria, so as to entrench its majority status in the legislature even after it has lost the support of the majority of voters. (Of the three Justice-initiated standards, Justice Breyer's is the one viewed least critically by Justice Scalia's plurality opinion in Vieth, and because Justice Kennedy said he embraced Justice Scalia's critique of these three standards, we must presume he, too, viewed Justice Breyer's as least objectionable.) But Justice Breyer was vague about how to measure his distinctive concept of entrenchment — as opposed to mere underrepresentation of the new majority — and also imprecise about how to distinguish improper manipulation of district lines from legitimate traditional districting.

Moreover, because the Vieth plaintiffs had not framed their case in terms of Justice Breyer's approach, it was unclear whether they were even alleging facts that would violate his standard. It is not surprising then that Justice Kennedy would be hesitant in joining Justice Breyer to permit plaintiffs to amend their complaint along the lines his approach would suggest. Joining Justice Breyer's opinion would not have caused their (hypothetically) joint approach to command the judgment of the Court, as they would have had only two votes — no more than another competing position in the case (Souter-Ginsburg's). It is understandable, therefore, that Justice Kennedy voted to dismiss plaintiffs' complaint, thereby providing five votes for this judgment, but refusing to join the plurality's position that would have barred all constitutional claims of improper partisan gerrymandering.

It is in the context of this disposition of Vieth that one must evaluate Justice Kennedy's consideration of the particular partisan gerrymandering claim presented in LULAC.

The LULAC plaintiffs on this issue (there are separate LULAC plaintiffs in the Voting Rights Act part of the case), represented by the same attorney as the Vieth plaintiffs, sought to challenge the Texas redistricting plan in an way they thought would be attractive to Justice Kennedy, given his fence-sitting posture in Vieth. Focusing on the distinctive fact that the Texas plan was adopted mid-decade, they pitched to Kennedy (and to the four Vieth dissenters) the argument that a mid-decade map was constitutionally objectionable regardless of the particular lines it drew, either because it violated one-person-one-vote (being based on a now out-of-date census) or because, being entirely optional, it was utterly defenseless if shown to be motivated for partisan advantage. Avoiding the need to examine the map itself was a clever litigation strategy as it had the potential of forging a five-Justice coalition, bridging the disagreements among the three different Justice-initiated standards articulated in Vieth and perhaps inducing Justice Kennedy to agree that mid-decade redistricting presented a special case for judicial intervention.

The litigation strategy backfired, however, as Justice Kennedy, first at oral argument and then in his opinion, articulated a sound reason why a legislature might engage in mid-decade redistricting and why, therefore, a mid-decade map should be subjected to no more burdensome constitutional scrutiny than a conventional once-a-decade map. If a state's first operational map in a decade is drawn by a court, rather than the legislature, the basic preference for legislatively rather than judicially drawn maps is a sufficient reason for a mid-decade map. Even if that mid-decade map is motivated solely by a desire for partisan advantage, that motive alone should not invalidate the map any more than motive alone would invalidate a conventional once-a-decade map. The Constitution requires a showing of actual harm from partisan gerrymandering, not just an improper motive. Nor does a mid-decade map violate one-person-one-vote if it is based on the same decennial data as the map it replaces: until the new one-a-decade census occurs, a state is entitled to use that data to draw an otherwise valid map.

Because the LULAC plaintiffs focused exclusively on their specific claim regarding the mid-decade feature of the Texas redistricting plan, they did not offer Justice Kennedy or other members of the Court any basis for invalidating the map because of its particular lines and its effect on the representational rights of Texas citizens. Therefore, having rejected the plaintiffs' distinctive mid-decade argument, it was appropriate that Justice Kennedy refused to speculate whether a future case would solve the problem left unresolved by Vieth, namely whether it is possible to identify a constitutional standard for invalidating a map on the ground of improper partisan gerrymandering.

That Justices Stevens and Breyer in LULAC would have invalidated the Texas map based on a consideration of its effects as well as its intent does not change this conclusion. In effect, Justice Stevens and Breyer chose to entertain a claim that the plaintiffs themselves did not make. Although it was not necessarily wrong for them to do so, it was also not required — or even to be expected — that Justice Kennedy would join them in this discretionary endeavor.

It is noteworthy that Justice Kennedy's opinion in LULAC never undertakes a debate with Justices Stevens and Breyer on the merits of their effects-based inquiry. This silence is in sharp contrast to the part of Justice Kennedy's LULAC opinion on the Voting Rights Act opinion, which specifically responds point-by-point to Chief Justice Roberts' dissent on that issue. The reason is that Justice Kennedy and Chief Justice Roberts were on opposite sides of a claim squarely before the Court, and thus Justice Kennedy felt compelled to answer the Chief Justice's counterarguments. But Justices Stevens and Breyer were taking on an issue not necessary for disposition of the plaintiffs' appeal, and thus Justice Kennedy legitimately could sidestep that issue, leaving it for another day — as did four other Justices in LULAC: Roberts, Souter, Ginsburg, and Alito.

The most that Justice Kennedy was willing to entertain concerning an effects-based challenge to a deliberately partisan map was to address the so-called "symmetry" standard offered in an amicus brief. Here, Justice Kennedy helpfully observes that inconsistency with the "symmetry" standard is not enough to demonstrate a constitutionally cognizable harm, thereby putting future plaintiffs on notice that they would need to prove more. Equally helpful, however, is his further observation that inconsistency with the "symmetry" standard is not necessarily irrelevant to establishing a constitutional standard, thereby suggesting that a constitutional claim would have to demonstrate something like the entrenchment articulated in Justice Breyer's Vieth opinion albeit with further precision than provided there.

Thus, although Justice Kennedy justifiably remains on the fence after disposing of the specific mid-decade challenge in LULAC, his opinion actually begins to set the stage for the next phase in the development of constitutional law concerning partisan gerrymanders. The key will be for future plaintiffs to avoid the pitfalls that beset their counterparts in Vieth and LULAC. They will need to frame a narrow role for judicial intervention, one which is triggered only when measurable deviations from traditional districting criteria cause a party to suffer, not merely a loss of seats compared to what they otherwise would have had, but an entrenched minority status that can be defined by the severity of the impediment that the manipulation of district lines has imposed. Plaintiffs may need to wait patiently for a case that presents especially compelling facts in terms of the demonstrable harm to the entrenched minority party as a result of the other party's power grab.

That patient wait may even require another twenty years, making the gap between that case and LULAC the same as between Colegrove and Reynolds, Reynolds and Davis, Davis and LULAC. Justice Kennedy may not still be on the Court by the time that the right case comes along. Nonetheless, from the perspective of history, Justice Kennedy's fence-sitting in the first decade of the twenty-first century may ultimately prove to pave the way for the development of a constitutional standard that maintains an appropriate middle ground between the Scylla of judicial intrusiveness into legitimate partisan politics and the Charydbis of judicial abandonment of the Court's constitutional responsibility to protect democracy itself.