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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

A Guide to the District-Specific Claims in the Texas Oral Argument

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March 2, 2006, 9:20 a.m.

As previously noted, a majority of the Supreme Court seems uninterested in the statewide attack on the 2003 plan as an unconstitutional partisan gerrymander, and the focus of the argument turned to district-specific claims under the Voting Rights Act and the Equal Protection Clause, including the Shaw v. Reno line of racial gerrymandering cases. Consequently, it is worth trying to sort through the issues concerning each of these districts and hazard a guess as to where the Court might be with respect to each.

District 23

This is the district represented by Congressman Henry Bonilla, where, to protect his incumbency, the State's new plan removed approximately 100,000 Latinos from the district, reducing the percentage of voting-age Latino residents from 63% to 51% (and the percentage of voting-age Latino citizens from 57% to 46%).

It is important to distinguish between two different claims raised with respect to this diminishment of Latino strength in District 23. The first is an effects-based vote dilution claim under section 2 of the Voting Rights Act using the traditional Gingles analysis. The second is an intent-based vote dilution claim under either the Equal Protection Clause or the Voting Rights Act (although Texas argues in its brief that, after the 1982 amendments to the VRA, only an effects-based challenge may be brought under the statute, see p. 118 n.118).

This distinction between an effects-based versus an intent-based claim to District 23 is important in part because it is the latter that seemed to interest Justice Kennedy, and it might serve as the basis for his joining four other members of the Court to invalidate this district. He clearly was disturbed by the intentional removal of Latino voters from this district-he called it an "affront"-just as he was disturbed by the intentional inclusion of Latino voters in District 25 (see below).

But he did not appear to analyze this problem in effects-based Gingles terms, and thus it is possible that a majority of Justices might vote to invalidate this district without agreeing upon the rationale for doing so. While five votes may be lacking for an effects-based challenge to District 23 under section 2 of the VRA (as I indicated in my initial post), there may well be five votes for some combination of intent- and effects-based challenges to this district under the Equal Protection Clause and the VRA.

Other Justices seemed interested in the intent versus effect distinction. Early on in Nina Perales's argument, Justice Stevens asked whether intent was relevant to a section 2 claim under the VRA. Ms. Perales responded by saying that her argument focused primarily on the Equal Protection Clause and was based on intent. While perhaps not the answer Justice Stevens wanted to hear, it might have been a strategically wise move to pick up Justice Kennedy's crucial vote.

There was much discussion on whether the State's decision to move the approximately 100,000 Latino residents out of District 23 was based on race or politics. Questioning Ms. Perales, Justice Scalia anticipated the State's argument that the motive was incumbency protection and an effort to remove Democratic voters from the district who happened to be Latino. Justice Kennedy himself echoed Justice Scalia's concern that there could not be an Equal Protection violation if, hypothetically, the State was moving these voters based on an assumption that they were Democratic voters (even if that assumption was mistaken). The factual dispute of whether the drawing of District 23 was or was not motivated by race was enough to cause some Justices apparently to prefer the purely effects-based consideration of the Gingles criteria.

Moreover, in an effort to pin down Ms. Perales's position on this issue of motive, Justice Kennedy asked whether she was challenging as "clearly erroneous" the district court's finding that the motive was politics, not race. Yes, she answered, adding that this case is the flip of Easley v. Cromartie, where a 5-to-4 majority (not including Kennedy) held that the district court there had been clearly erroneous in finding the districting motive to be race rather than politics. (This point in her oral argument seemed a bit in tension with her position in her reply brief, where she disclaimed reliance on the Shaw v. Reno line of cases, which includes Easley v. Cromartie, as the test for determining whether a dilution of minority voting strength is intentional.)

Justice Kennedy also asked Ms. Perales why, in her view, it was impermissible to engage in race-based districting in order to protect incumbents, but not impermissible-indeed required-to engage in race-based districting in order to create minority-opportunity districts. Her response, which she also repeated at the end of her argument in response to a similar question from Justice Scalia, was that compliance with the remedial goals of the VRA was a compelling interest, whereas protecting incumbents was not.

Pursuing the intent versus effect distinction, Justice Souter also asked whether Ms. Perales was basing her attack on the Equal Protection Clause or section 2 of the VRA. Again, she responded by invoking the Equal Protection Clause, saying that the removal of Latinos from the district was invidious-and hence unconstitutional-discrimination.

Chief Justice Roberts, for one, was evidently unsympathetic with an effects-based challenge to District 23 under section 2. Focusing on the fact that the State reduced the Latino voting-age population from 63% to 51%, he repeatedly asked Ms. Perales where to draw the line between enough and insufficient. She never provided a number, even though the Chief clearly wanted one. She tried to explain why she couldn't, but he did not appear satisfied.

Nor did the Chief seemed any more inclined to accept Ms. Perales's separate intent-based Equal Protection challenge to District 23. If Latino voters were sufficiently cohesive to form a voting bloc to support an effects-based Gingles claim, as her brief had asserted, then wouldn't this political reality undermine her Equal Protection argument that their removal from the district was based on race rather than politics? It was on this point that Chief Justice Roberts twice said that her arguments were at cross-purposes.

But Ms. Perales won't need the Chief's vote if she can pull together a five-member coalition that includes Justice Kennedy along with Justices Stevens, Souter, Ginsburg, and Breyer, whether or not they all embrace the same reasoning for invalidating District 23.

District 24

This district was the one in the Dallas / Fort Worth area represented by Congressman Martin Frost, where African-Americans constituted 23% of the population, Latinos 38% and Anglos 35% (the remaining 4% being mostly Asian). This district was fragmented in the 2003 plan, and the plaintiffs-represented at oral argument by Paul Smith on this issue-argued that the fragmentation was an effects-based violation of the Voting Rights Act because it eliminated the controlling influence that the African-Americans had over the choice of the Democratic nominee and thus the eventual winning candidate in the district.

This particular VRA claim seemed to fall on deaf ears at the oral argument.

But a separate basis for challenging District 24 emerged at the oral argument, based on a suggestion from Justice Stevens. Observing that the districts that replaced District 24 were less compact-a point which the Texas Solicitor General appeared to concede-Justice Stevens asked whether this deterioration of compactness undertaken solely for partisan reasons could give rise to a district-specific claim of unconstitutional gerrymandering.

When it looked like Justice Kennedy might jump on this bandwagon, Justice Scalia quickly intervened in an apparent effort to stop this from happening. Justice Kennedy persisted in showing interest in this possibility, but he did not commit himself.

If adopted, it would be a different kind of "non-retrogression" principle than the one existing under section 5 of the Voting Rights Act. Rather than looking to see whether there had been a retrogression in terms of minority voting power, this inquiry would examine whether there had been a retrogression in terms of traditional geography-based districting factors. If so, such slippage would need to be justified by neutral, non-partisan objectives.

It would be intriguing to consider what implications this proposal would have to the eventual redistricting after 2010. Seemingly suggested by Justice Stevens as a modest alternative to the substantive standards for evaluating partisan gerrymandering claims that were considered-and rejected-by Justice Kennedy in Vieth, this new non-retrogression idea if adopted might actually operate in practice to preclude any consideration of partisan motives (unless the new maps were at least as geographically sound as the old ones).

District 25

This new district is the one that extends from the Mexican border up to Austin, connecting two different groups of Latinos at the northern and southern ends of the district. Challenged by Paul Smith's clients as a race-based gerrymander under the Shaw v. Reno line of cases, this district was of evident concern to Justice Kennedy.

Several Justices, including Chief Justice Roberts and Justice Scalia, probed whether District 25 could be explained as politically rather than racially motivated, as Texas was urging. These Justices also inquired, again anticipating Texas's position, whether the Shaw-based inquiry into motive was dependent on a district's having a relatively contorted shape. Mr. Smith seemed to suggest that compactness would protect a district from a Shaw violation (presumably because a compact racially drawn district would conform to the goals, if not the demands, of the VRA's section 2). But some of the Justices, including the Chief, seemed to resist this suggestion.

In the end, it remains unclear whether any of the Justices other than Kennedy would be inclined to find a Shaw violation in District 25.

There is, however, another theory for potentially invalidating District 25. It is the same geography-based non-retrogression principle that Justice Stevens floated with respect to District 24. Justice Stevens observed that the new District 25 was also less compact than its predecessor, and again a political motivation would not justify this backsliding on traditional geographical criteria.

A District-Based Reversal of the Trial Court's Judgment?

Thus, it is possible that all three of these specific districts-23, 24, and 25-could be invalidated on Equal Protection grounds, without invalidating the 2003 map as a whole.

Presumably, the Court will take a separate vote on each of these districts and, unless there are five votes to invalidate a particular district, will affirm the trial court's judgment as to that district. It is perhaps conceivable, however, that the Court will take a single vote whether to affirm or vacate the trial court's decision as a whole, with some justices voting to vacate because of a perceived defect in one district, while other justices voting to vacate because of perceived defects in another.

Under this latter scenario, although there would be at least five votes to vacate, there wouldn't necessarily be five votes in disagreement with the trial court as to any particular district. In this situation, it would be difficult for the trial court to know what to do on remand. That problem is reason enough for the Court to avoid this possibility.

But even announcing a judgment, or set of judgments, from the Court in these consolidated cases may prove tricky.

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