Kennedy, Roberts and the “Sordid Business”


In her July 2, 2006 article, Linda Greenhouse pondered whether the Supreme Court was not the "Roberts Court,” but instead the “Kennedy Court.”  Linda Greenhouse, Roberts Is at Court’s Helm, But He Isn’t Yet in Control, N.Y. Times, July 2, 2006, at 1.  Despite Roberts’ goal of “inspiring the Court to speak softly and unanimously,” Greenhouse noted the Court often issued divided opinions in which the Justices expressed “frustration and pique” with one another and in which Justice Kennedy, not Chief Justice Roberts, cast the decisive vote.  Id.  The opinion in League of United Latin American Citizens v. Perry (LULAC), No. 05-204 (U.S. 2006) was just such an opinion.

In LULAC, Justice Kennedy, writing for a five-Justice majority (which also included Justices Stevens, Souter, Ginsburg, and Breyer), ruled that the Texas redistricting plan violated § 2 of the VRA—a ruling that required Texas to redraw its districts in the south and west portions of the state.  Kennedy opinion at 36.  Chief Justice Roberts responded with a powerful dissent in which he claimed that the Latino population in Texas was better off under the new plan and called “divvying us up by race” a “sordid business.”  Roberts opinion at 20.


Texas’s 2003 redistricting plan (plan 1374C) made significant changes to District 23 in west Texas, and the LULAC appellants challenged the plan as a violation of § 2 of the VRA.  Id. at 17.  In the trial court case, Session v. Perry, 298 F.Supp.2d 451 (E.D. Tex. 2004), many plaintiffs challenged various aspects of the plan.  Many of those challenges were later consolidated to form LULAC.  The 2002 congressional election results for District 23 showed that Republican incumbent, Henry Bonilla, was in danger of being ousted by “an increasingly powerful Latino population.”  Id.  Bonilla, who won with 51.5% of the overall vote, captured only 8% of the Latino vote in a district where Latinos had 57.5% of the citizen voting age population.  Id. (citations omitted).  To protect Bonilla’s incumbency, plan 1374C moved 100,000 Latinos out of District 23 and replaced them with voters from an Anglo, Republican area of the state.  Id. (citations omitted).  As a result, even though the Latino voting age population remained just over 50%, the citizen voting age population fell to 46%.  Id. (citations omitted). 

To compensate for these changes, the State created new District 25 which used a 300 mile-long strip of land to connect Austin, in central Texas, with towns on the Mexican border.  Id.  In new District 25, 77% of the population was at the northern and southern ends of the district and even though Latinos comprised 55% of the citizen voting age population, they were split between the two distant areas of the district.  Id. (citations omitted).  According to the trial court, the changes to District 23 protected Bonilla while allowing him to “be reelected in a district that had a majority of Latino voting age population—although clearly not a majority of citizen voting age population and certainly not an effective voting majority.”  Id. (citations omitted).  In addition, given the reduction in Latino voting strength in District 23, District 25 allowed the state to avoid retrogression under § 5 of the VRA.  Id.


Kennedy determined that plan 1374C violated § 2 of the VRA.  Id. at 18.  A state violates § 2 "if, based on the totality of circumstances, it is shown that the political processes leading to…election in the 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."  42 U.S.C. § 1973(b).

Analyzing a § 2 claim begins with the three threshold requirements of the Gingles test, followed by a consideration of the “totality of the circumstances.”  Kennedy opinion at 19.  The three requirements (the Gingles requirements) that must be satisfied to establish a § 2 violation are: “(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 vot[es] sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate.”  Id. (quoting Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986) (internal quotation marks omitted).

The plaintiffs satisfied all of the Gingles requirements.  Kennedy determined that the Latino population in old District 23 was “sufficiently large and geographically compact to constitute a majority in a single-member district,” and possessed “electoral opportunity protected by § 2.”  Id. at 21.  The racially polarized voting in Texas generally and in District 23 in particular satisfied the second Gingles requirement.  Id.  Finally, Anglo voting patterns in the new District 23 satisfied the third requirement because they would “often, if not always, prevent Latinos from electing the candidate of their choice.”  Id.

Kennedy’s analysis differed from the Chief Justice’s on several key issues:  whether District 25 was an appropriate remedy for dismantling a Latino opportunity district elsewhere, whether geographic "compactness” was essential to that analysis, and whether, when evaluating the “totality of the circumstances,” the proportionality of a minority population’s voting power should be considered statewide or regionally.


First, the Justices disagreed over whether Texas could satisfy its “§2 obligations by creating new District 25 as an offsetting opportunity district.”  Id. at 23.  According to Kennedy, although there are instances when a state can use a majority-minority district to compensate for the absence of another, it can only do so “when the racial group in each area had a §2 right and both could not be accommodated.”  Id.  Additionally, even though §2 does not forbid creating a noncompact majority-minority district, the noncompact district cannot “remedy a violation elsewhere in the State.”  Id. at 24.  Kennedy found that District 25 was not compact, so it could not remedy dismantling old District 23.  Id.    

In contrast, the Chief Justice would allow Texas to offset the dismantling of District 23 by creating District 25. He faulted the majority for considering whether there was a §2 violation in District 23 by viewing it “in isolation.”  Id.  He claimed that if the question is “where a fixed number of majority-minority districts should be located,” then viewing a district “in isolation” is not appropriate because it would always be possible to find a §2 violation somewhere.  Id. at 13.  Instead the question should be “whether line-drawing in the challenged area as a whole dilutes minority voting strength.”  Id.  The Chief Justice distinguished LULAC from “a case of the State drawing a majority-minority district ‘anywhere,' once a §2 violation has been established elsewhere in the State.”  Id. at 14.  Instead, the Court should inquire “whether the State has some latitude in deciding where to place the maximum possible number of majority-minority districts, when one of those districts contains a substantial proportion of minority voters who must be in a majority-minority district if the maximum number is to be created at all.”  Id. at 14-15.


The Justices also disagreed over whether §2’s requirement that a minority district be “geographically compact” was really essential in order for that district to be considered an “opportunity district.”  An "opportunity district” is one in which a group of voters have equal opportunity to participate in the political process and to elect representatives of their choice.  42 U.S.C. § 1973(b).  Kennedy stated that compactness was critical to the purposes of §2.  Kennedy opinion at 28 (citations omitted).  The current plan, according to Kennedy, could make it difficult for “thinly financed Latino-preferred candidates” to win elections and provide adequate representation once elected.  Id.  Constituents in the Rio Grande Valley would also experience difficulty controlling election outcomes.  Id.  Kennedy stated that within a district “when…the only common index is race and the result will be to cause internal friction” the state cannot make that district a remedy for a §2 violation somewhere else.  Id. at 28-29.  He then emphasized that it was the “enormous geographical distance separating” the Latino communities, "coupled with the disparate needs and interests of these populations—not either factor alone—that renders District 25 noncompact for §2 purposes.”  Id. at 29.  Because District 25 was noncompact, the new Texas map contained only five compact Latino opportunity districts as opposed to the six in Texas’s old map.  Id.


Kennedy faulted the trial court for not conducting a compactness inquiry of District 25 even though it recognized the 300-mile gap between the Latino communities and a large gap between the needs and interests of those communities. Id. at 25-26.  Despite those gaps, the trial court ruled that there was no §2 violation because “all the members of the racial group, added together, could control election outcomes.”  Id. at 26.  The District Court’s §2 analysis, however, should have taken into account "traditional districting principles such as maintaining communities of interest and traditional boundaries.”  Id. at 27 (citations and internal quotations omitted).  Because a State may not assume that all members of a racial group “think alike, share the same political interests, and will prefer the same candidates," there is no basis to believe that combining “two far-flung segments of a racial group with disparate interests provides the opportunity that §2 requires or that the first Gingles condition contemplates.”  Id.  The significant differences in Latino communities in District 25 resulted in a district in which “one or both" of the Latino communities would “be unable to achieve their political goals.”  Id. at 28.

The Chief Justice, on the other hand, asserted that compactness should only be an element in the analysis and that states should have flexibility to comply with §2.  Id. at 15.  He claimed that the majority’s ruling placed too much importance on compactness, and it was “the antithesis of the totality test that the statute contemplates.”  Id. at 16.  He agreed with the District Court’s finding that the differences of the needs and interests among the different Latino communities in District 25 were offset by the fact that “they were likely to prefer the same candidates at the polls.”  Id. at 16-17.  According to the Chief Justice, the merits of old District 23 versus new District 25 should be decided by the legislature and not the courts.  Id. at 17.  He asserted that that the majority’s “squeamishness” regarding a candidate having to appeal to voters in distant communities was unjustified considering candidates across the country (including old District 23) regularly face such challenges “as part of a healthy political process.”  Id.  The Chief Justice claimed that Texas’s drawing of a district with 55% minority citizen voting age, "rather than keeping one with a similar percentage” did not deny voters §2 equality of opportunity, and the majority’s holding to the contrary “gives an unfamiliar meaning to the word 'opportunity.’”  Id.

Chief Justice Roberts claimed that the majority was “in the awkward position of maintaining that its theory about compactness is more important under §2 than the actual prospects of electoral success of Latino-preferred candidates.”  Roberts opinion at 3.  “The majority prefers old District 23,” he wrote, "despite the District Court’s determination that new district 25 is a more effective Latino opportunity district.”  Roberts opinion at 2-3 (citations and internal quotations omitted).  According to the Chief Justice, regression analysis, attained through the District Court’s fact-finding, showed that in District 25 the Hispanic-preferred candidate would win every primary and general election as opposed to the partial success such candidates would enjoy in old District 23.  Id. at 3 (citations omitted).  The Chief Justice declared that even though the old Texas map achieved the maximum number of majority-minority districts, it lost on “style points” with the majority because “the minority voters in one of those districts are not as ‘compact’ as the minority voters would be in another district were the lines drawn differently.”  Id.

The Chief Justice also stated that it is “blushingly ironic” that the majority prefers old District 23 to District 25 even though both have the same compactness flaw.  Id.  According to the Chief Justice, the Latino communities in old District 23 that joined to form a voting majority are “nearly twice as far apart" as the communities in District 25.  Id.  He goes on to say that “perhaps the majority is willing to 'assume’ that Latinos around San Antonio have common interests with those on the Rio Grande rather than those around Austin, even though San Antonio and Austin are a good bit closer to each other…than either is to the Rio Grande.”  Id. at 11 (emphasis added).


After finding that the plaintiffs had satisfied the Gingles factors, Justice Kennedy considered the “totality of the circumstances.”  Kennedy opinion at 29.  He found that the totality of the circumstances, especially the “troubling blend of politics and race,” demonstrated that the new map violated §2.  Id.

Kennedy considered the proportionality of the Latino vote statewide as opposed to regionally because the Court had already found that “another reasonably compact Latino district” could be drawn and now considered whether “the absence of that additional district constitutes impermissible vote dilution.”  Id. at 31.  The question was not, as the Chief Justice claimed, “‘whether line-drawing in the challenged area as a whole dilutes minority voting strength’, but whether line-drawing dilutes the voting strength of the Latinos in District 23.”  Id. (citations omitted).  Performing the proportionality inquiry on a regional basis would have required a selection of districts that would ultimately be arbitrary.  Id.  Kennedy found that of the thirty-two congressional districts there were five (excluding District 25) reasonably compact Latino opportunity districts amounting to approximately 16% of the districts.  Id. at 32.  Latinos, however, made up 22% of voting age citizens leaving them “two districts shy of proportional representation.”  Id.  States are only required to achieve “rough proportionality,” and the Court did not decide whether a two-district deficit weighed “in favor of a §2 violation” because other evidence, such as inappropriate incumbent protection, indicated there was a §2 violation.  Id.

Justice Kennedy took exception to the State’s efforts to protect the incumbent in District 23.  Latinos in District 23 were becoming more politically active and consequently threatening the incumbency of Rep. Henry Bonilla.  Id. at 32-33.  The State responded to the threat by dividing the “cohesive Latino community” in District 23, moving about 100,000 to a district that was already a Latino opportunity district, and leaving the rest in a district where they had “little hope of electing their candidate of choice.”  Id. at 33.  The State “undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive,” so they “in essence…took away the Latinos’ opportunity because Latinos were about to exercise it.”  Id. at 33-34.  Kennedy stated that although there are instances when incumbency protection is a legitimate redistricting factor, it is unacceptable when it “means excluding some voters from the district simply because they are likely to vote against the officeholder” -- a situation in which "the change is to benefit the officeholder, not the voters.”  Id. at 35.  Texas’s changes were even more suspect, according to Kennedy, because the new District 23 retained a nominal Latino voting-age majority, but not a Latino citizen voting age majority, creating “the façade of a Latino district.”  Id.

Unlike the Chief Justice, Justice Kennedy had no qualms about reducing the State’s flexibility to comply with §2.  According to Kennedy, the problem was “entirely of the State’s own making.”  Id.  Texas chose to break apart old District 23 to protect the incumbent “from the growing dissatisfaction of the cohesive and politically active Latino community in the district,” and it chose to attempt to compensate for this decision by creating new District 25.  Id. at 35-36.  Despite the Chief Justice’s emphasis on the District Court’s ruling that new District 25 was a more effective Latino opportunity district than old District 23 had been, that assertion was irrelevant because the District Court did not account for “the detrimental consequences of [District 25’s] compactness problems,” and the District Court considered old District 23’s past political effectiveness but did not consider how effective it would be today given the increased “Latino political power in the district.”  Id. at 36.

The Chief Justice conducted his “totality of the circumstances” analysis on a regional level and would have ruled to uphold the map.  He found that “in south and west Texas, Latinos constitute 58% of the relevant population and control 85% (six out of seven) of the congressional seats in that region.”  Roberts opinion at 18.  He asserted that the majority did not properly follow precedent in considering proportionality statewide.  Id. at 19.  Even considering proportionality statewide, there were six Latino opportunity districts (including new District 25) out of thirty-two which amounted to 19% of the seats.  Id.  The Chief Justice argued that 19% is “‘roughly proportional’ to the Latino 22% share of the population.”  Id. (citations omitted).  He faulted the majority for not including District 25 in its proportionality analysis because “Latino voters from everywhere around the State of Texas…can ‘count' for purposes of calculating proportion against which effective Latino electoral power should be measured.  Heads the plaintiffs win; tails the State loses.”  Id. at 20.



The differences between Justice Kennedy’s and the Chief Justice’s interpretation of §2 of the VRA do not necessarily indicate that the Supreme Court is the “Kennedy Court.”  They do, however, not only illustrate Kennedy’s power as the swing vote, but also the distance the Court must travel to achieve the Chief Justice’s goal of a Court that speaks “softly and unanimously.”