Still No Standard for Unconstitutional Partisan Gerrymanders and Two Rulings on Voting Rights Act Challenges

On Wednesday, June 28, 2006, the Supreme Court issued a fractured opinion in League of United Latin American Citizens v. Perry (LULAC v. Perry). [1] The Court rejected the appellants' claim that Texas' 2003 redistricting plan was an unconstitutional partisan gerrymander, [2] and the claim that the redistricting of District 24, affecting African-Americans in the Dallas area, was a violation of § 2 of the Voting Rights Act. [3] The Court did, however, hold that the redistricting of District 23, affecting Latino voters in the Laredo area, constituted a violation of § 2 of the Voting Rights Act. [4] Texas will have to redraw the districts in the south and west portions of the state to remedy the violation. [5] Justice Kennedy wrote the lead opinion, but there were six opinions issued.

Background

The Texas redistricting saga of 2003 is a rare instance where the normally mundane legislative redistricting process captured national headlines. In 2001, when Texas was supposed to redraw its legislative map using census figures from the 2000 U.S. census, the Republicans controlled the state Senate and the Governor's mansion, but the Democrats controlled the state House of Representatives. [6] The legislature could not agree on a new redistricting plan during regular session and Governor Rick Perry did not call a special session to resolve the disagreement. [7] Consequently, litigation forced a Federal District Court to draw a new plan. [8] Texas had thirty seats in Congress, but population increases, based on the 2000 census, granted the state two additional seats. [9] The court incorporated the two new seats in the areas of growth then drew the remaining thirty seats applying neutral redistricting criteria such as compactness, contiguity, and respect for county and municipal boundaries. [10] One expert testified that the court drawn map (Plan 1151C) may have been slightly biased in favor of the Republicans. [11] The Republicans, however, only captured 15 of the 32 seats in the 2002 congressional elections. [12] By this time though, the Republicans had gained control over the Texas House of Representatives, the state Senate, and the office of Governor, thus setting the stage for the redistricting of 2003. [13]

The Texas legislature produced Plan 1374C, which spawned the litigation that produced the Supreme Court's fractured opinion. There is abundant evidence that Republican desire for political gain fueled the decision to redistrict in 2003. [14] The 2003 redistricting process featured Democratic members of both the Texas House and Senate leaving the state to deny the Republicans the quorum necessary to pass a new plan. [15] Both chambers of the Texas legislature passed maps that left Districts 23 and 24 untouched out of concerns over Voting Rights Act violations. [16] Despite these concerns, the conference committee produced Plan 1374C that significantly altered both of those districts. [17] Numerous parties responded by filing suit and initiating litigation that resulted in LULAC v. Perry. [18]

The account of the 2003 Texas redistricting saga would be incomplete without noting the long history of Democratic dominance in Texas prior to the 21st century. [19] From Reconstruction to 1978 the Democratic Party had a stranglehold on Texas politics, and Texans elected only one Republican Senator and Republicans never held more than four congressional seats at one time. [20] In 1978, Texas elected its first Republican Governor since 1874, and the Republicans gained strength throughout the 1980's so that by 1990 they had almost half the statewide vote. [21] Using the 1990 census data, Texas Democrats thwarted the surging Republicans by enacting a redistricting plan that has been referred to as the "shrewdest gerrymander of the 1990s." [22] In the 2000 congressional elections, using the legislative map from the 1990 census, the Republicans carried 59% of the vote, but only won 13 of Texas ' 30 congressional seats. [23] Against this extraordinary backdrop, the Texas legislature began its highly contentious 21st century redistricting process that culminated in LULAC v. Perry.

Mid-Decade Redistricting

Justice Kennedy, writing for a five-Justice majority (which also included Justices Stevens, Souter, Ginsburg, and Breyer) in a very short but nonetheless significant section (Part II.A), reaffirmed that claims of unconstitutional partisan gerrymandering are "justiciable," meaning that they are subject to judicial consideration for a ruling on their merits. [24] After the Court in Davis v. Bandemer ruled such challenges justiciable without articulating the applicable standard, [25] the plurality in Vieth v. Jubelirer would have ruled them nonjusticiable, but was out-voted by four dissenters and Justice Kennedy concurring in the judgment, who declined to rule partisan gerrymander claims nonjusticiable and consequently foreclose all future claims. [26] In LULAC v. Perry, the Court did not address the justiciability holding, meaning that these claims remain subject to judicial evaluation of their merits, and thus Justice Kennedy proceeded to examine "whether appellants' claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution." [27]

In his analysis of the appellants' partisan gerrymander claim, Justice Kennedy emphasized that the States have the primary responsibility of congressional district apportionment, and that there is no explicit prohibition on "mid-decade redistricting to change districts drawn earlier in conformance with a decennial census." [28] Furthermore, just because federal courts sometimes have to perform the task of legislative redistricting, the states retain the primary responsibility. [29] And when a legislature replaces a court-drawn map with one of its own, there is "no presumption of impropriety," [30] because preferring a court-drawn map "would be contrary to the.proper operation of the political process." [31] This judicial deference, however, does not justify a legislature's use of improper criteria when redistricting. [32]

Kennedy rejected the appellants' arguments that "mid-decennial redistricting, when solely motivated by partisan objectives, violates equal protection and the First Amendment because it serves no legitimate public purpose and burdens one group because of its political opinions and affiliation," [33] and that "[t]he mid-decennial nature of the redistricting.reveals the legislature's sole motivation." [34] Kennedy stated that there was evidence that partisan gain was not the "sole" motive for replacing Plan 1151C with Plan 1374C, such as certain lines drawn at the request of Democratic state legislators and other lines drawn based on local interests. [35] This evidence suggested mixed motives of the legislature. [36] Kennedy declined to evaluate the "legality of acts arising out of mixed motives," because such a task can be "complex," and "affixing a single label" to them "can be hazardous." [37] Also, the appellants' argument fails to "show a burden, as measured by a reliable standard, on the complainants' representational rights" which is necessary to demonstrate an unconstitutional act of partisan gerrymandering. [38]

Kennedy also specifically rejected the notion that mid-decade redistricting is more suspect than standard decennial redistricting. There is nothing in the Constitution or prior case law indicating that mid-decade redistricting is inherently suspect, and mid-decade redistricting does not reliably indicate a legislature's sole partisan motivation. [39] Kennedy highlighted the fact that the 1991 Texas redistricting was done at the conventional time but entrenched the declining Democratic Party. [40] Kennedy also expressed concern that invalidating mid-decade redistricting could "encourage partisan excess" during redistricting at the beginning of a decade. [41]

Although no other Justice joined the portion of Kennedy's opinion rejecting the plaintiffs' "sole motivation" theory as a basis for invalidating Texas' mid-decade redistricting, he was joined by four other Justices in the judgment to reject the plaintiffs' statewide challenge to the Texas map on grounds of improper partisan gerrymandering: Chief Justice Roberts and Alito, both of whom agreed with Justice Kennedy that plaintiffs had failed to present a valid theory, as well as Justices Scalia and Thomas, both of whom believe the issue is nonjusticiable.

One-Person One-Vote

Kennedy rejected the appellants' claim that mid-decade redistricting violates the one-person one-vote requirement that each voting district contain the same number of people. This part of his opinion was joined by Justices Stevens and Ginsburg, but it appears that all nine Justices agreed with this conclusion. The appellants contended that use of the 2000 census data during the 2003 redistricting "created unlawful interdistrict population variances." [42] According to the appellants, although a normal redistricting plan operates under the legal fiction that all districts are equipopulous throughout the decade as census data ages, the fiction should not be "a safe harbor" for a legislature to violate one-person one-vote by "unnecessarily creating a population variance when there was no legal compulsion to do so." [43] Kennedy stated, however, that this issue becomes not whether there is an equal protection violation, but whether it was permissible for the legislature to redraw the map mid-decade in the first place. [44]

According to Kennedy, overriding a valid, court-drawn map in the middle of the decade is not sufficiently suspect to establish "a reliable standard for identifying unconstitutional partisan gerrymanders." [45]Kennedy's comment that "partisan aims did not guide every line [the Texas legislature] drew," [46] suggests that a partisan gerrymander claim must meet a very high standard. Such a high standard may result in a plaintiff never successfully challenging a redistricting plan as an unconstitutional partisan gerrymander; and thus effectively rendering the issue nonjusticiable.

Challenges to § 2 of the Voting Rights Act

Latino Voters in District 23

A majority of the Court (Justice Kennedy writing for himself and Justices Stevens, Souter, Ginsburg, and Breyer) ruled that the changes to District 23 in the South and West of Texas amounted to a violation of § 2 of the Voting Rights Act. A violation of § 2 of the Voting Rights Act occurs if "the totality of circumstances" shows that the political processes of a state are not "equally open to participation by members of [a racial group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." [47]

The Gingles requirements provide "three threshold conditions for establishing a § 2 violation: (1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority votes sufficiently as a bloc to enable it.usually to defeat the minority's preferred candidate." [48] If these requirements are met then the Court considers "the 'totality of the circumstances' to determine whether members of a racial group have less opportunity than do other members of the electorate." [49]

The appellants claimed that the changes to District 23 diluted the voting rights of Latinos who remained, because the changes reduced "the Latino share of the citizen voting age population" from 57.5% to 46%. [50] According to the Court, the last two Gingles requirements were satisfied because voting throughout Texas and specifically in the south and west is racially polarized and in the new District 23 "the Anglo citizen voting-age majority will.prevent Latinos from electing the candidate of their choice in the district." [51] The Court also found that Latinos in the area were sufficiently large and geographically compact enough to constitute a majority in a district, and the possessed "electoral opportunity protected by § 2." [52] The new District 23, however, was not a "Latino opportunity district." [53] The Latinos had a bare majority of the voting-age population in the new district, but this was "hollow," because the "relevant numbers must include citizenship." [54]

The State responded to appellants' claim by arguing that "it met its § 2 obligations by creating new District 25 as an offsetting opportunity district." [55] The Court rejected this argument because a State can only use one majority minority district to compensate for the absence of another when the racial group in each area had a § 2 right and both could not be accommodated. [56] District 25 was not a compact district and consequently did not constitute a remedy for the State's § 2 violation in the new District 23. [57] District 25 combined two distant Latino communities, one near Austin and another near the Mexican border, that have very different needs and interests, and consequently did not provide the "opportunity that § 2" requires. [58]

After establishing that the Gingles requirements had been satisfied, the Court examined the "totality of the circumstances" beginning with proportionality of the vote state-wide. [59] The Court also determined that another compact Latino district could have been drawn and considered whether its absence constituted impermissible vote dilution. [60] Statewide, 16% of the districts are Latino opportunity districts, but Latinos make up 22% of the Texas citizen voting-age population and therefore are "two districts shy" of proportional representation. [61] In the old District 23, Latinos were gaining strength and threatening the incumbent, Rep. Henry Bonilla, whose support among the Latin community had been steadily dwindling. [62] In response, the State moved many Latinos to a new district and eliminated the chance for Latinos in new District 23 to elect a candidate of their choice. [63] Although incumbency protection can be a legitimate redistricting factor, it is not when it means excluding some voters simply because they oppose the officeholder. [64] The Court stated that the redrawing of District 23 was even more suspect because it was redrawn to have only a nominal voting-age majority, but not a citizen voting-age majority. [65] Consequently, the Court found that there was a § 2 violation based on the totality of the circumstances. [66]

The Court's understanding of § 2 was rejected by the four remaining Justices: Chief Justice Roberts, with Justice Alito joining, who wrote at length in dissent on this issue; and Justice Scalia, with Justice Thomas joining, who in a separate opinion said he agreed with Chief Justice Roberts' conclusion on this issue, but unlike the Chief Justice, Scalia went on to consider-and reject-a claim of unconstitutional racial discrimination with respect to the voters who were moved from District 23 to District 25.

African-American Voters in District 24

Appellants alleged that the redistricting of District 24 near Dallas diluted African-American voting strength, because an African-American minority effectively controlled the district, and § 2 entitles them to it. [67] District 24, which consisted of 50% Anglos, 26% African-Americans, and 21% Hispanics, was split into several different districts. [68] Even though African-Americans and Hispanics do not vote cohesively, the appellants contended that African-Americans "constitute[d] a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes." [69] According to the appellants, because African-Americans constituted 64% of the Democratic primary voters and many Anglos and Latinos voted for the Democrat in the general election, African-Americans effectively control the entire election. [70]

The Court rejected this argument and determined that African-Americans could not elect their candidate of choice in the primary. [71] The Court found that the district was drawn for an Anglo Democrat, Martin Frost, because he never had primary opposition, and in another district which was demographically similar to District 24, an African-American candidate lost when he ran against an Anglo. [72] The Court found that because there was no contested Democratic primary in the last 20 years in District 24, there was no benchmark to decide whether African-Americans could elect their candidate of choice. [73] The Court conceded that African-Americans had influence in District 24, but found that "[t]he opportunity to elect representatives of their choice" under § 2 "requires more than the ability to influence the outcome between some candidates, none of whom is their candidate of choice. [74] The Court based its reasoning on that of the District Court in Session v. Perry, and found that there was no clear error. [75]

Conclusion

The Court in, League of United Latin American Citizens v. Perry, sidestepped the general issue of unconstitutional partisan gerrymanders, rejecting only the specific argument that mid-decade redistricting presents special constitutional problems, and made two rulings on Voting Rights Act challenges. For claims of unconstitutional partisan gerrymanders, although they are still technically justiciable, the Court is still searching for a standard. Splitting African-American voters in District 24 did not constitute a violation of § 2 of the Voting Rights Act, because they were too small a group to exercise political control over the district. Moving Latino voters from District 23, however, did amount to a violation of § 2 of the Voting Rights Act, because the Latino community was large enough to control District 23 and the state could not justify taking away their political power by creating a new district that, although majority-Latino, combined two geographically separate Latino communities by drawing artificial boundaries inconsistent with traditional districting principles

In an effort to comply with the Supreme Court's invalidation of District 23 in time for this fall's election, the district court acting promptly on remand has ordered all parties in the case to submit proposed remedial maps by July 14, with responses to those proposals due one week later, and an oral argument to be held on August 3.

Notes

[1] League of United Latin American Citizens v. Perry, No. 05-204 ( U.S. 2006).

[2] A "gerrymander" occurs when a state is divided into voting districts so as to give one group or area an unequal advantage. Random House Webster's Pocket American Dictionary 152 (4 th ed. 2001).

[3] Id. at Kennedy Opinion at p. 41.

[4] Id.

[5] Id. at Kennedy Opinion at p. 36.

[6] Id. at Stevens Opinion at p. 4.

[7] Id. at p. 5.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 6 .

[12] Id.

[13] Id. at 7.

[14] Id.

[15] Id at 8. .

[16] Id.

[17] Id. at 9.

[18] Id.

[19] See, Kennedy Opinion at p. 9 (stating that the appropriate starting point is not the 2000 reapportionment, but instead the 1990 reapportionment).

[20] Henderson v. Perry, 399 F.Supp.2d 756, 763 (E.D. Tex. 2004).

[21] Id.

[22]League of United Latin American Citizens at Kennedy Opinion at p. 3 (quoting M. Barone, R. Cohen, & C. Cook, Almanac of American Politics 2002, p. 1448 (2001)).

[23] Id. at 4.

[24] Id. at 7 (majority opinion).

[25] Davis v. Bandemer, 478 U.S. 109 (1986).

[26] Id. at 306 (Kennedy, J., concurring in judgment).

[27] League of United Latin American Voters, Kennedy Opinion at p. 7.

[28] Kennedy Opinion at p. 8.

[29] Id.

[30] Id. at 9.

[31] Id.

[32] Id.

[33] Id. at 10.

[34] Id.

[35] Id. at 11.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 12.

[40] Id.

[41] Id..

[42] Id at. 14.

[43] Id. at 15 (internal quotations and citations omitted).

[44]Id.

[45] Id. at 16.

[46] Id. at 11.

[47] 42 U.S.C. § 1973(b).

[48] League of United Latin American Citizens, Kennedy Opinion at p. 19 (citing Thornburg v. Gingles, 478 U.S. 30, 50-50 (1986) (some citations and internal quotations omitted)).

[49[ Id. (citations omitted).

[50] Id. at p. 20.

[51] Id. at p. 21.

[52] Id.

[53] Id. at 22.

[54] Id.

[55] Id. at 23.

[56] Id.

[57] Id. at 29.

[58] Id. at 27.

[59] Id. at 29.

[60] Id. at 31.

[61] Id. at 32.

[62] Id.

[63] Id.

[64] Id. at 35.

[65][ Id.

[66] Id. at 36.

[67] Id. at 37.

[68] Id

[69] Id. at 38 (citation omitted).

[70] Id.

[71] Id.

[72] Id. (citing Session v. Perry, 298 F.Supp.2d 451, 483 (E.D. Tex. 2004)).

[73] Id.

[74][ Id. at 40.

[75] Id. at 38.