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Electronic Roundtable '06

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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.

Electronic Roundtable '06

Politics and Race a Messy Mix in Argument on Texas Case

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March 1, 2006, 4:42 p.m.

Here's a quick effort to summarize the main impressions of this afternoon's two-hour argument. More details will follow:

  1. There was not much interest on the Court to invalidate mid-decade redistricting categorically, or even create a presumption against it. Justice Kennedy in particular seemed to think that the threat of mid-decade redistricting might be a salutary constraint on the temptations of decennial gerrymandering.
  2. Justice Kennedy, at one point late in the argument when questioning the Texas Solicitor General, seemed to indicate that he still hopes that there will be a substantive standard for invalidating excessive gerrymandering, whether of the decennial or mid-decade variety. But it seems doubtful that there will be a cohesive effort on the part of a majority of the Court to adopt such a general standard, or that the 2003 Texas map would be held to violate it.
  3. Justices Breyer and Stevens asked questions based on their own very different substantive standards articulated in their separate Vieth dissents. At one point, it seemed like they might try to join forces on the notion that a state cannot draw a less compact district than in a previous plan if the only reason to do so was pure partisanship. But it was unclear whether Justice Kennedy would embrace such a standard.
  4. Several Justices, including Chief Justice Roberts, Justice Kennedy, and perhaps even Justice Souter, seemed sympathetic to Texas's argument that mid-decade redistricting would be permissible in order to remediate an excessive gerrymander in a previous plan. These Justices, as well as others, seemed particularly unsympathetic to the plaintiffs' contention that Texas Republicans should be required to wait until the next decennial census in order to correct a previously improper gerrymander by the Democrats.
  5. Consequently, it seems as if this case won't make very much new law on the issue that's attracted the most attention: partisan gerrymandering under the Equal Protection Clause. We can look for a decision that rejects that particular challenge to this specific mid-decade plan, without a general ruling protecting all mid-decade plans or indeed all decennial plans from constitutional challenges on the grounds of excessive partisanship.
  6. Much of the focus of today's argument, instead, was on narrower issues that have attracted less public attention: (1) whether a couple of districts in the 2003 plan violate the Voting Rights Act because they dilute minority voting power; and (2) whether one particular district constitutes an improper racial gerrymander under the Shaw v. Reno line of cases.
  7. Justice Kennedy, in particular, focused intensively on the Shaw issue, at several points indicating that he thought District 25 involved an inappropriate use of race. But it was unclear whether he would get support from any other Justice on this issue. The four liberals on the Court don't favor Shaw claims, and the other four Justices didn't indicate much interest in this issue. The Texas SG directly responded to Justice Kennedy's concern by pointing to factual findings in the record that District 25 was drawn for political not racial reasons. He also noted that District 25 was not particularly contorted in shape compared to previous racial gerrymanders invalidated under Shaw. Those points seemed to satisfy Justice Scalia and perhaps other conservatives on the Court. It was unclear whether these points ultimately would satisfy Justice Kennedy on this issue, but he was listening intently to this argument (as he was to all the presentations this afternoon).
  8. The relationship of race and politics as motivations for districting decisions, whether on a regional or district-specific level, dominated much of the Justices' concerns and led to some confusing exchanges. Chief Justice Roberts suggested to both Paul Smith and Nina Perales, the two lawyers representing different sets of plaintiffs challenging the map in different ways, that their arguments were at "cross purposes" with each other. When Mr. Smith said that pure partisanship was the sole motive of the 2003 map, Chief Justice Roberts asked him how he could make a Shaw claim, which requires that race be a predominant motive in drawing a district lines. And the Chief Justice suggested that Ms. Perales was inconsistently arguing both that race was too much of a factor in one respect and too little of a factor in another.
  9. The Chief Justice was well aware that the relationship between the Voting Rights Act and the Equal Protection Clause created a tension between excessive and insufficient consideration of race, and the opinions in this case may cause the Justice to address that tension, on the eve of congressional consideration of the Act's renewal. One need not anticipate a broad ruling from the Court on this point, but whatever the Court says - if indeed there will be a majority opinion in this complicated multi-issue case - will be important.
  10. Justice Alito asked only one question. Directed at Ms. Perales, it was whether incumbency was an impermissible consideration under the Equal Protection Clause. She answered, no, but that the real motivation of the particular districting in question was race, not incumbency. Again, as in much of the rest of the argument, the issue was which of the two motives was really controlling the districting decisions.
  11. Although several Justices seemed sympathetic to the plaintiffs' Voting Rights Act claims in the case-most notably Justice Stevens-it was hard to see five votes to sustain any of these claims.
  12. The most active questioners were Chief Justice Roberts, Justices Stevens, Scalia, Kennedy, Souter, and Breyer (in order of seniority, not number of questions; it seemed fairly evenly balanced among them). Justice Ginsburg was noticeably reticent. Justice Thomas, as usual, did not ask any questions.
  13. One impression, particular after watching both yesterday's Vermont case and the one today, is that Justice Breyer and Souter are looking for ways to find common ground with their more conservative colleagues. In other words, today like yesterday, there were voicing the possibility that the so-called "liberal" position in the case might lose, but on narrow grounds, leaving open the possibility of a different result in future cases. It seems that strategy might work here, since Justice Kennedy today seemed to be voicing a similar thought.
  14. It would be very interesting to observe the Justices' own conference on how to decide the case. Will they take up the various issues (and indeed different docketed appeals) separately? Who will control the assignment(s) in the case(s) and how will they be made? Will Chief Justice Roberts find 5 votes to control the assignment-on all issues, or some? Will Justice Stevens? Or will Justice Kennedy, straddling the Court, be able to assign the cases to himself?
  15. The argument may be over, and the Justices worked impressively hard to prepare for it (digging deep into the geography and political culture of Texas), but much more work at the Court remains to be done.

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