“The Shifting Ground of Redistricting Law”

Very important Chris Elmendorf post at Balkinization, with a more negative view of Cooper v. Harris:

How then is a state to comply with Section 2 of the Voting Rights Act, which, as noted above, has long required states to create districts with enough minority voters (a “racial target”) to consistently elect minority “candidates of choice.” One unhappy possibility is that the Court will simply undertake to free redistricters from the latter obligation, holding Section 2 unconstitutional or narrowing it beyond recognition on the basis of an asserted conflict with the anti-sorting equal protection principle.
 …
Of course, all of this is somewhat speculative. Writing at SCOTUSblog, Kristen Clarke and Ezra Rosenberg argue that Cooper and Bethune Hill, read together, require plaintiffs bringing a racial sorting / equal protection claim to show (as the trigger for strict scrutiny) quite a bit more than the existence of a firm racial-composition target plus the movement of voters to achieve the target. I’m not convinced, but for now, there’s enough looseness in the doctrine for lower courts to go either way on this question.
What is clear is that the Supreme Court, unhappy about racial sorting, is on guard against pretextual justifications for the practice. As Justice Kennedy for the Court remarked in Bethune Hill, “Traditional redistricting principles . . . are numerous and malleable . . . . By deploying those factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”
Going forward, any redistricters who undertake to draw districts with a racial-composition target (majority-minority or otherwise) would do well to announce that the target is merely one objective to be considered and balanced alongside many others, rather than a categorical command. The crossing of fingers is also recommended.

 

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Alabama SOS Defends Against Argument that State Felon Disenfranchisement Bill Doesn’t Go Far Enough

Kira Lerner for Think Progress:

The law still imposes what can be considered a poll tax because former felons have to be able to afford to pay their fines and fees to restore their right to vote. “Wealth should not be a factor in deciding who can vote,” Lang said.

The list of felonies included in the bill also does not include things like public corruption and fraud, crimes which are “typically considered to be the crimes closely associated with voting eligibility,” she said. Unsurprisingly, those crimes generally have less of a racial slant than others.

Merrill, Alabama’s Republican secretary of state, was not accepting of arguments that the bill will not go far enough.

“If we had a stand in Anytown, U.S.A. and in that stand on Main Street we’re giving out ice cream,” he said. “Anybody can come. They can only get one cone and it’s vanilla. There’s going to be some people who are gonna cry because they can’t get but one scoop, and there’s gonna be some people who are gonna cry because we don’t have chocolate.”

“I don’t worry about the people who want two scoops and I don’t worry about the people who want a different flavor,” he said.

Voting, unlike receiving free ice cream, is a constitutional right.

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Talking to Sen. Bernie Sanders About Voter Fraud, Campaign Finance, and Gerrymandering

The live video with Bernie Sanders interviewing me cut out yesterday after 8 minutes because of an internet outage at the Senate. But they’re broadcasting the whole thing today, and you can watch it any time here (29 minutes):

 

[link will be updated]

 

or listen here as a podcast:

 

https://itunes.apple.com/us/podcast/the-bernie-sanders-show/id1223800705?mt=2#

 

 

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“Commentary: Dunlap badly mistaken in agreeing to serve on Trump voter fraud panel”

I have written this oped for the Portland Press Herald. It begins:

Maine Secretary of State Matthew Dunlap is making a serious mistake by agreeing to participate in a sham “voter integrity” commission established by President Trump to validate his ludicrous claims about voter fraud. But it is not too late for Dunlap to withdraw, and it’s the right thing to do….

President Trump raised the voter fraud rhetoric to an unprecedented extent by claiming before the election that there was massive voter fraud taking place in “urban” (read: minority) areas of Pennsylvania and elsewhere. After the election, he made a totally debunked claim that 3 million or more noncitizens voted in 2016. So far, the most credible count of such votes, by the Brennan Center for Justice, is 30 possible noncitizen votes across the entire country. That’s right: not millions, not thousands, not even hundreds.

No responsible election professional or academic has supported Trump’s claims of massive fraud. There’s only one election professional I know of who has: Kansas Secretary of State Kris Kobach, who said, without credible evidence, that there could be a million or more fraudulent votes in the election. Kobach has a reputation for hyping unsubstantiated claims of voter fraud for his own political agenda.

Of course, Trump and Vice President Mike Pence have put Kobach in charge of a so-called “Election Integrity” commission nominally headed by Pence. Prior commissions examining election problems have been bipartisan and headed by party elders: former presidents Jimmy Carter and Gerald Ford in 2000, Carter and former Secretary of State James A. Baker III in 2004, and Bob Bauer and Ben Ginsberg in 2012. There’s no Democratic co-chair of this commission.

No one expects this commission to do what the other commissions did: consult experts, hear testimony and issue a data-driven report on ways to improve the electoral process for all Americans, Democrat or Republican. Instead, the commission’s report is likely to echo the president’s unsubstantiated allegations that fraud – or the potential for fraud – is serious. So serious, the commission will likely urge the passage of national legislation making it harder for people to register and vote. It is a means to suppress votes on a national scale.

And this is where Maine’s secretary of state fits in. He’s going to be used like a patsy….

Dunlap is skeptical of Trump’s claims, and has said his purpose in serving on the commission is to work from the inside, with a seat on the table. There is no reason to believe he can serve this purpose, even if he issues a minority report disagreeing with its findings. The report will still be trumpeted as a “bipartisan” commission that reached certain conclusions.

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Anita Earls: “Bringing sanity to racial-gerrymandering jurisprudence”

Important Anita Earls in the SCOTUSBlog symposium on Cooper v. Harris:

Although not breaking new ground, the court’s post-2010 census round of racial gerrymandering cases make clear that while not every district drawn as a majority-black or majority-Latino district is a racial gerrymander subject to strict scrutiny, states seeking to use packing to weaken the voting strength of black or Latino voters cannot hide behind the Voting Rights Act to do so.

Most importantly, this line of cases, and particularly Kagan’s opinion in Cooper, should put to rest the false dichotomy of “is it race or is it party” that threatened to turn racial-gerrymandering doctrine into a meaningless standard. The census data puts racial data squarely in front of legislators enacting redistricting plans. In most states, election returns showing past voting patterns are also routinely in front of legislators. Party affiliation and voting patterns are also almost everywhere correlated to race. In the absence of direct “smoking gun” evidence of legislative intent, teasing out legislative motive from a binary framework of deciding whether race or party was the predominant factor is an abstraction that does not reflect the real world.

The court’s opinion in Cooper makes clear the common-sense understanding that “the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.” The equal protection clause does not have a partisanship exception. State legislators cannot intentionally assign voters to districts on the basis of their race as long as they ultimately want a particular partisan result. So race may predominate even if the legislature’s ultimate goal was a partisan one. Had the court gone the other way on this question, we would face a situation in which when white voters bring a racial gerrymander claim (the 1990s cases), race is the predominant factor, but when black voters bring the claim (the cases from 2010 through this term), party is thought to predominate. That “heads I win, tails you lose” outcome would have been manifestly unjust.

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“Texas House backs voter ID overhaul, with changes”

Texas Tribune:

The Texas House on Tuesday tentatively approved legislation to overhaul the state’s embattled voter identification law, moving it one step closer to Gov. Greg Abbott’s desk.

Senate Bill 5 would in several ways relax what some had called the nation’s most stringent ID requirements for voters — a response to court findings that the current law discriminated against black and Latino voters.

The 95-54 vote followed a six-hour debate that saw fierce pushback from Democrats, who argued the legislation wouldn’t go far enough to expand ballot access and contains provisions that might discourage some Texans from going to the polls. Democrats proposed a host of changes through amendments, a few of which surprisingly wriggled through….

Last year, the U.S. 5th Circuit Court of Appeals ruled Texas lawmakers discriminated against minority voters by enacting the 2011 law. U.S. District Judge Nelva Gonzales Ramos upped the ante in April, ruling the state discriminated on purpose. That raised the possibility she could invoke a section of the Voting Rights Act to place Texas under federal oversight of its election laws — a process called preclearance.

The state’s lawyers want to point to SB 5 next month when they return to Ramos’ Corpus Christi court for a hearing on how to remedy the voting violations. Republican leaders hope she will accept the new law and refrain from putting Texas under preclearance.

“SB 5 addresses every situation that the courts have found in six years of litigation,” King said.

Ramos temporarily softened the ID rules for the 2016 elections, and Huffman’s legislation largely follows its lead. It would allow people without photo ID to vote if they presented alternate forms of ID and signed affidavits swearing a “reasonable impediment” kept them from obtaining what was otherwise required.

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“Top hacker conference to target voting machines”

Politico:

Hackers will target American voting machines—as a public service, to prove how vulnerable they are.

When over 25,000 of them descend on Caesar’s Palace in Las Vegas at the end of July for DEFCON, the world’s largest hacking conference, organizers are planning to have waiting what they call “a village” of different opportunities to test how easily voting machines can be manipulated.

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“FEC Memo Says Cruz Declines to Amend Disclosure Reports”

Bloomberg BNA:

Sen. Ted Cruz (R-Texas) has refused demands by the Federal Election Commission to provide more public details about more than $1 million in bank loans that helped finance his original campaign for the Senate in 2012, according to a new memorandum from FEC staff auditors.
Questions about Cruz’s loans were raised in news reports during last year’s presidential campaign, when the Texas senator was running for the Republican presidential nomination. The questions have never been fully resolved, according to the FEC auditors.
An audit finding that Cruz violated campaign finance reporting rules is set to be considered at the FEC commissioners’ next open meeting May 25. Cruz’s office told Bloomberg BNA that the campaign disclosure reports would be amended after the FEC commissioners approve the audit findings.
Cruz acknowledged in a letter to the FEC in January 2016 that he used loans from Goldman Sachs Group Inc. and Citibank, a subsidiary of Citigroup Inc., to help finance his 2012 campaign for the Senate. The letter did not provide details about the loans, including whether they were secured by assets held jointly by Cruz and his wife, Heidi, who had worked for Goldman Sachs.
UPDATE: Senator Cruz’s office emails this statement: “We have provided all the information the FEC has requested, and once the commissioners approve the audit report at Thursday’s meeting and the process concludes, we will be able to accurately amend our reports to be consistent with the FEC’s recommendations.”
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Rick Hills on the Racial Redistricting Cases

Rick Hills, a colleague, has a provocative essay at prawfsblawg, on the post-2010 racial redistricting cases, including Monday’s decision in the North Carolina case.  Here is how he opens his analysis (his words, not mine):

Since at least the 2010 census, Republican state legislators in the South have been zealously “packing” black voters into districts with ever-larger black majorities in order to minimize Democrats’ political influence. The ploy has been justified by Republicans as an effort to comply with the Voting Rights Act, but, as Ari Berman noted back in 2012, this race-based districting has led to an extraordinary level of racial segregation in Southern politics. In effect, the Southern Republicans are trying to convert the Democratic Party into a black party, on the logical theory that a party drawing on support only from a minority race will be a permanently minority party.

This use of the Voting Rights Act posed an ironic role reversal for Republicans and Democrats on SCOTUS. During the 1990s and early oughts, Democratic appointees and liberals on SCOTUS, (in, for instance, Easley v. Cromartie) had pressed for a lax, fact-based review of race-based districts under an incomprehensible “predominant factor” test. Republican-appointed conservatives, led by Chief Justice Rehnquist (in Shaw v. Hunt) and Justice Kennedy (in Miller v. Johnson), had pushed back against such a standard of review, championing the color-blind constitution in electoral districting. The line-up mirrored the sides in Grutter and Gratz: race-based districting had the ideological look of an electoral version of affirmative action.

After the 2010 census and accompanying redistrictings, however, it was painfully clear that race-based districts were serving the interests of the white Republican majority by minimizing the influence of Democrats, black and white. The question naturally arose: Would liberals and conservatives on SCOTUS switch sides to match their legal views with their partisan loyalties? Would conservatives, in particular, stick to their color-blind convictions, even when it gored the Republican ox? Or would they support only fair-weather, “strict-in-theory, rational-basis-in-fact” sort of color-blindness?

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“ACLU seeks sanctions against Kobach and public disclosure of Trump documents”

Bryan Lowry:

The American Civil Liberties Union has asked a federal court to enable documents from Kansas Secretary of State Kris Kobach’s November meeting with President Donald Trump to be made public.

Kobach earlier this month handed over the documents, which outline a proposed strategic plan for the U.S. Department of Homeland Security, under a federal judge’s order. However, he marked the documents as confidential.

The ACLU filed a motion with U.S. District Court of Kansas in Kansas City, Kan. late Monday seeking to remove that designation and enable their contents to be shared with the wider public.

Kobach’s office did not immediately comment on the matter.

The ACLU also asked the court to sanction Kobach for his earlier failure to comply with the discovery process and to reopen discovery to allow Kobach to be deposed to answer questions about the documents. If the court sanctions Kobach, he will face fines.

“Defendant should be sanctioned for a pattern of misrepresentation and a fundamental lack of candor directed at obscuring documents that Defendant wished not to disclose,” the ACLU’s filing states. “Defendant’s misleading conduct has not only unnecessarily prolonged this discovery dispute…it has raised basic questions about the integrity of Defendant’s representations to Plaintiffs and to the Court, and merits sanctions.”

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“Real Voter Fraud: Suppression, Intimidation and Denying the Right to Vote “

Jim Condos, Vt. Secretary of State writes:

I am deeply troubled by the announcement that the President signed an executive order establishing a commission to review alleged voter fraud in our elections. Since the 2016 election, President Trump has made repeated unsubstantiated claims of widespread voter fraud. Credible studies have shown over and over again that widespread voter fraud simply does not exist, and election officials from across the country, Democrat and Republican, agree. So why the brazen claims of widespread voter fraud? I believe these unproven claims are an effort to set the stage to weaken and skew our democratic process through a systematic national effort of voter suppression and intimidation….

The fact that Vice President Pence and Kansas Secretary of State Kris Kobach have been announced as Chair and Vice Chair of this commission confirms my worst fears. Both are unabashed supporters of restrictive voter ID laws, as they exaggerate claims of voter fraud. Secretary Kobach has championed some of the most restrictive voting laws in the country. The leadership of this commission is a clear prelude to what I expect to be a reinvigorated nationwide campaign promoting strict voter suppression laws and voter intimidation.

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“Maine high court says ranked-choice voting is unconstitutional”

Portland Press Herald:

Maine’s highest court found Tuesday that the ranked-choice voting system passed at referendum last November violates the Maine Constitution.

In its advisory opinion, the Maine Supreme Judicial Court acknowledges the validity of citizen-initiative ballot questions but notes that even citizen-enacted laws can be unconstitutional.

I have posted the court’s opinion at this link.

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“House Democratic leader raises concern with Gardner election appointment”

Concord Monitor:

The House Democratic leader is seeking assurances that no New Hampshire taxpayer dollars will be used to support an election integrity commission President Donald Trump created to review alleged voter fraud.

Trump recently tapped longtime New Hampshire Secretary of State Bill Gardner to sit on the commission. It’s not yet clear when the group will start meeting or how much time it will consume.

“I am hoping that you will provide the citizens of New Hampshire assurance that no state money is used for your travel or accommodations while you are working in Washington, D.C. on this Commission,” wrote House Minority Leader Steve Shurtleff in a letter to Gardner on Monday. “In addition, I would hope that your state time is not used in the pursuit of your work for the commission.”

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“Supreme Court Affirms Ban on ‘Soft Money’ in Campaigns”

Kate Ackley for Roll Call:

Sarbanes and outside advocates of new restrictions on political money said they were dismayed that Gorsuch, along with conservative Justice Clarence Thomas, went out of his way to say he wanted the court to hear oral arguments on the Louisiana case.

“It’s troubling that we’re seeing the most recent appointment to the Supreme Court, Justice Gorsuch, side with the most conservative on this, Justice Thomas,” said David Donnelly, president and CEO of Every Voice, which led a campaign against Gorsuch’s nomination over political money concerns.

Gorsuch “is way out of the mainstream. He’s very extreme when it comes to reviewing these questions about who has power in American politics,” Donnelly said.

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“FEC member urges escalated Trump-Russia inquiry”

Ken Vogel for Politico:

Weintraub’s interest was piqued by an article published last week by TIME magazine that revealed intelligence officials had evidence that Russian agents bought Facebook ads to disseminate election-themed stories. It also indicated that congressional investigators were examining whether Russian efforts to spread such content were boosted by two U.S. companies with deep ties to Trump — Breitbart News and Cambridge Analytica.

Representatives for the two companies did not respond to requests for comment.

It’s unlikely that the FEC would be able to build much of a case against Russia, partly because the Justice Department would have primacy on any criminal investigations.

However, Weintraub said, “if there are U.S. citizens involved in any way in spending foreign money to influence a U.S. election, then that would be something that we could and should pursue.”

Yet, the issue is not cut-and-dry, both because Facebook told TIME that it hasn’t found evidence of Russian agents buying ads on the social media platform and because, even if there were proof that Russian agents had paid for the ads, it’s not clear how the FEC would apply the law.

That’s partly because it could be argued that merely paying to disseminate news articles might not qualify as trying to influence an election. And it’s partly because the commission, which is currently comprised of three commissioners nominated by Republicans and two nominated by Democrats (with one Democratic seat vacant), has been famously divided on partisan lines, and its Republican appointees may be disinclined to pursue a case that would embarrass a president of their own party….

Paul Ryan, litigation director for Common Cause, said that if the Russian government paid to disseminate anti-Clinton content “then the activity would seemingly be covered by the ‘expenditure’ prong of the foreign national ban, rather than by the ‘contribution/donation’ prong of the ban.”

Debates about the specifics law aside, Ryan added that “common sense certainly suggests that Russia spending money to influence our elections should be covered by a statute that prohibits foreign nationals from spending money for the purpose of influencing a federal election.”

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Bauer on the Supreme Court’s Summary Affirmance in the McCain-Feingold Soft Money Case

Bob:

The Wild West in campaign finance, with the regulatory process in disarray, has caused all manner of distress among critics of the role of money in politics. But they could be comforted, finding some measure of compensation in a long series of disappointments. The state of disrepair in campaign finance may have convinced wavering Justices that Mr. Bopp was crying wolf, and that the parties, like everyone else out there, are not in dire straits. Better, then, to keep the reforms at least on the books and save judicial intervention for more compelling cases.

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“The Supreme Court may just have given voting rights activists a powerful new tool”

I have written this oped for the Washington Post. It begins:

Sometimes the most important stuff in Supreme Court opinions is hidden in the footnotes. In Monday’s Supreme Court ruling striking down two North Carolina congressional districts as unconstitutionally influenced by race, the majority buried a doozy, a potentially powerful new tool to attack voting rights violations in the South and elsewhere….

This seems to be a much more realistic approach to the interrelated matters of race and party than the court’s earlier treatment of them as either-or propositions for purposes of assessing the legality of gerrymandering. Indeed, political scientists refer to places such as North Carolina as states with “conjoined polarization,” where racial and partisan categories overlap. In North Carolina, about 90 percent of black voters are Democrats; conversely, the overwhelming majority of whites are Republicans. When the Republican legislature passes a plan to limit Democratic voting power, it necessarily affects black voters.

Under this logic, legislators will no longer be able to hide behind claims of partisan motivation to protect themselves from racial gerrymandering claims. Kagan’s approach should allow voting rights plaintiffs to bring more successful racial gerrymandering claims.

And this approach has broader application — especially important given the Supreme Court’s landmark 2013 decision overturning key portions of the Voting Rights Act that had required states such as North Carolina to get federal approval before making new voting rules that could hurt minority voters: Last week, the Supreme Court declined to review a North Carolina case involving voter identification and other strict voting laws. The U.S. Court of Appeals for the 4th Circuit had also treated race and party as proxies for one another and said that a partisan-driven voting law also constituted intentional race discrimination.

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Another Explanation for Justice Thomas’s Joining of Racial Gerrymandering Majority Opinion

I’ve already opined on what might have motivated Justice Thomas (and Justice Kennedy) so side how they did today.

An ELB reader passes along these additional thoughts about Justice Thomas and what comes next:

I’ve always been struck by Justice Thomas’ personal story that, when he couldn’t find a job despite graduating in the top third of his class at YLS, he was convinced that affirmative action led employers to think black attorneys’ law degrees weren’t worth the same. I could well see him thinking that gerrymandering has led to similar devaluation of black Representatives. Similarly, I could see him as offended that the boundary-drawers would see black voters’ race as a data point in predicting how they’ll vote. This may be armchair psychology, but I think it’s important for anti-gerrymandering advocates to figure Thomas out in time for the MD and NC political gerrymandering challenges. It’s possible that the arguments most likely to sway Thomas would be repugnant to the voting rights groups — such as an unflattering comparison of mixed-motive gerrymandering to plus-factor affirmative action programs. I think it’s critical for there to be a Thomas-focused amicus brief, preferably authored by a former Thomas clerk with better insights into his personal views.
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“Two poll workers plead guilty to illegal voting”

Houston Chronicle:

Two people who worked as election clerks during the May 2016 primary runoff have pleaded guilty to unlawfully casting a ballot for another person, Harris County Clerk Stan Stanart announced Monday.

Jeanene Johnson, 63, and Latunia Thomas, 46, pleaded guilty to a misdemeanor charge of “unlawful deposit of ballot” earlier this month. They served one day in jail, and were released, according to the Harris County District Attorney’s office.

With Johnson’s help, Thomas cast a ballot for her daughter at a Harris County Public Health and Environmental Services building during early voting for the May 24, 2016 primary runoff, according to Dane Schiller, a spokesman for the district attorney’s office. He said Thomas’ daughter was not present at the polling location….

Both defendants were charged with a felony, but pleaded guilty to a misdemeanor charge. The two were investigated after other clerks noticed the pair casting the ballot, Stanart said.

Stanart said that obtaining convictions on such crimes is rare. He said this month’s convictions were the most significant finding and prosecution of voter fraud in the last decade-and-a-half.

The Texas attorney general’s office has received more than 700 reports of voter fraud since 2002, but has prosecuted only 93 since 2005.

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“Power struggle intensifies between White House and ethics office”

Matea Gold for WaPo:

But in a May 17 letter, Mick Mulvaney, director of the Office of Management and Budget, questioned whether the Office of Government Ethics has legal jurisdiction to get information about waivers that have been granted. He said the Justice Department’s Office of Legal Counsel may needed to be consulted.

“I therefore request that you stay the data call until these questions are resolved,” Mulvaney wrote Shaub in a letter first reported by the New York Times.

Shaub responded forcefully with a nine-page letter to Mulvaney Monday night, denying his request to back off.

“The unusual nature of your letter highlights OGE’s responsibility to lead the executive branch ethics program with independence, free from political pressure,” he wrote. “Accordingly, OGE declines your request to suspend its ethics inquiry.”

The letter, posted by OGE’s official Twitter account, was accompanied by voluminous documents attesting to the agency’s authority to collect information, examples of the executive branch complying with past requests and previous calls by lawmakers for OGE to disclose such data in a public format.

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We May Soon Get a Hint on What the Supreme Court Thinks of Wisconsin Partisan Gerrymandering Case

Via the Milwaukee Journal-Sentinel, comes this stay application in the Wisconsin partisan gerrymandering case (Gill v. Whitford). The state wants the Supreme Court to put on hold a requirement that Wisconsin state legislative districts by November 1.

The Supreme Court will likely rule on this request before the end of the term, at the same time it tells us whether it will hear an appeal of the partisan gerrymandering case next term. If five Justices vote to grant this stay, it will be a good indication that the lower court holding of partisan gerrymandering will ultimately fail. A denial of the stay is a good indication that it won’t fail.

That won’t be a perfect predictor, but it is the most useful tea leaf we would be likely to get before oral argument.

 

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Texas Redistricting Case Will Now Face New Delay Thanks to Today’s SCOTUS NC Decision

The briefing never ends in Texas redistricting case. and another plea for the TX Legislature to get involved again:

In light of today’s Supreme Court decision in Cooper v. Harris, the Court invites the parties to file supplemental briefs, in whatever length they find appropriate, addressing the effect of Cooper (and, if desired, Bethune-Hill v. Virginia State Board of Elections) on the various claims in the congressional and Texas House cases. Such briefs shall be due June 6, 2017. It would be most helpful, to the extent reasonably possible, for any such comments to designate the specific districts to which they are addressed and (if applicable) any specific 2017 findings/conclusions and legal analysis from this panel to which the comments pertain.

In addition to any such briefing, the Court directs Defendants’ counsel to confer with their client(s) about whether the State wishes to voluntarily undertake redistricting in a special session in light of the Cooper opinion and counsel shall report their clients’ position to this Court no later than May 26, 2017.

 

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Partisan Gerrymandering Case Status

The Court’s decision this morning in the North Carolina redistricting case addressed allegations of predominant and unjustified racial intent.  The state attempted to defend its actions, in part, by saying that it was just acting for partisan reasons.

The legal status of “just acting for partisan reasons” in the redistricting context is also a hot topic these days.  The last time SCOTUS really took the issue on was 2004, in a fractured opinion that left the state of the law a bit of a mess.  Only 4 of the 9 sitting Justices were then on the Court.  And there are a few relevant cases headed straight back toward them.

Some of the challenges are out of North Carolina.  One case is directly related to the one decided this morning.  (This morning was Cooper v. Harris; the case coming up is Harris v. Cooper.  It’s all based on who won and who lost in the lower court.)  This is the remand from this morning’s case — while SCOTUS was hearing the race case, the legislature drew new lines, saying explicitly that they intended to draw the new lines “to gain partisan advantage.”  The lower court approved the new legislative remedy, despite plaintiffs’ protest that it amounted to an unlawful partisan gerrymander.  There’s a dispute among the parties about the proper scope of the court’s consideration (and in the meantime, there have been two new cases challenging the new map as a partisan gerrymander, moving at a slower pace).  The lower court’s approved remedy is now up on appeal before SCOTUS, and a decision on whether to hear the case in full is likely coming in the next few weeks, perhaps as early as next week.

The other leading case is out of Wisconsin.  It’s a challenge to the state legislative map as an unlawful partisan gerrymander.  Here, the lower court struck down the state map, and the state is now appealing to SCOTUS.  A decision on whether to hear the case in full is also likely coming in the next few weeks — I think there’s a broadly shared expectation based on the procedural posture and the result below that SCOTUS will hear this case in full.

A decision to consider either case in full would mean briefing over late summer and early fall, an argument date likely in the fall, and a decision likely in the spring or early summer of 2018.   Of course, that timing is entirely up to the Court, and the timing is really just a guess: the cases could easily move faster or slower.

(There are also other partisan gerrymandering cases — including a case out of Maryland — that are a little farther behind in the queue.)

For those looking forward, there’s some intriguing dicta in this morning’s decision: Justice Alito, with the Chief Justice and Justice Kennedy joining, seems to emphasize that some partisan gerrymandering is OK (p. 5 of his separate opinion).  That wasn’t actually the issue in this morning’s decision, and it’s not clear how much those few sentences will impact any individual Justice’s take in a case squarely about partisan gerrymandering (much less an opinion about how much partisanship is too much partisanship).  But tea-leaf-readers gonna tea-leaf-read.

(Also FWIW: there was a magnificent symposium at William & Mary in February concerning redistricting, including discussion of the racial and partisan claims in precisely these cases at and heading to SCOTUS.  If your primary complaint is that the morning’s ELB posts have been too short, keep an eye out for the symposium issue of the William & Mary Law Review).

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Further thoughts on Cooper

A few more points to add to the analyses by Rick H., Rick P., and Justin:

1. Ever since Gingles itself, it has been an open question whether the mere fact of racial polarization in voting suffices to satisfy the case’s second and third prongs. (Justice Brennan’s opinion said yes, but it commanded only four votes on this issue. Some lower courts—including the Fifth Circuit—subsequently held that the prongs are not satisfied if partisanship explains racial polarization.)

Today the Court strongly suggests that the causes of racial polarization are irrelevant. In the Court’s long discussion of crossover voting in District 1, it does not mention a single potential explanation for voter behavior: not partisanship, not racial animus (or its absence), not socioeconomic characteristics, not anything. Instead, the Court relies exclusively on the raw election returns, which indicate that substantial crossover voting must be occurring since black-preferred candidates consistently won elections with ~65% of the vote even though blacks made up only ~48% of District 1’s population.

Going forward, I expect that Section 2 plaintiffs will be able to use the Court’s discussion as a powerful rejoinder to any argument that racial polarization should not “count” for Gingles purposes if it is the product of some non-racial factor. This should make it significantly easier for plaintiffs to satisfy the Gingles preconditions, especially in areas (like the Fifth Circuit) where courts had previously probed quite rigorously the reasons for racial polarization.

2. Another question left open by the Court’s case law is whether crossover districts can comply with Section 2 when all three Gingles preconditions are satisfied. This precise fact pattern was not before the Court since there was insufficient white bloc voting in District 1 to meet the third Gingles precondition. However, the Court’s opinion hinted pretty clearly that crossover districts are acceptable Section 2 remedies, even under conditions of severe racial polarization. In the key passage, the Court quoted North Carolina’s position that if “§ 2 does not require crossover districts . . . then § 2 also cannot be satisfied by crossover districts.” This stance, declared the Court, “is at war with our § 2 jurisprudence.”

Several implications follow. First, jurisdictions that are successfully sued under Section 2 should be able to design crossover districts as a remedy for the violation. Second, Section 2 suits should fail if they are used to challenge existing crossover districts (in an effort to replace them with majority-minority districts). And third, as in Cooper, jurisdictions should not be able to use Section 2 compliance as a defense in a racial gerrymandering case if they convert crossover districts into majority-minority districts. Arguably, all of this was implicit in Bartlett, but it’s still important to see the Court providing confirmation.

3. Finally, there are many majority-minority districts, both in the South and elsewhere in the country, where functioning crossover districts could be drawn instead. In an article a few years back, I created the below density curve of minority population share in all districts (congressional and state legislative) in states previously covered by Section 5. The distribution is clearly bimodal, with one of its peaks around 60% minority voting age population. The district distribution also looks nothing like the underlying distribution of minority population share at the precinct level, which is unimodal and normal in shape. This suggests that the district distribution—with its many majority-minority districts—is the product of intentional racial redistricting.

Of course, the mere fact that a crossover district could have been drawn in an area where a majority-minority district was drawn instead does not establish that race was the predominant factor in the district’s creation. The plaintiffs in Cooper had much more damning evidence than that, including the use of an explicit racial target. Nevertheless, it is certainly relevant that many majority-minority districts are more “packed” than they need to be to comply with Section 2—likely intentionally in many cases. This means that Cooper’s reach could be greater than that of the racial gerrymandering cases the Court has previously decided this cycle.

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“Justices Reject 2 Gerrymandered North Carolina Districts, Citing Racial Bias”

Adam Liptak for the NYT:

The Supreme Court on Monday struck down two North Carolina congressional districts, ruling that lawmakers had violated the Constitution by relying too heavily on race in drawing them.

The court rejected arguments from state lawmakers that their purpose in drawing the maps was not racial discrimination but partisan advantage.

The decision was the court’s latest attempt to solve a constitutional puzzle: how to disentangle the roles of race and partisanship when black voters overwhelmingly favor Democrats. The difference matters because the Supreme Court has said that only racial gerrymandering is constitutionally suspect.

Election law experts said the ruling would make it easier to challenge voting districts based partly on partisan affiliations and partly on race.

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Justice Kagan Gained Justice Thomas in NC Racial Gerrymandering Case; How Did She Lose Justice Kennedy?

I’ve noted how interesting and mysterious it is that Justice Thomas signed onto Justice Kagan’s opinion in today’s racial gerrymandering case. Given Justice Thomas’s views on Section 2 of the Voting Rights Act, and his view of the clearly erroneous standard (especially as he dissented in Easley v. Cromartie), it is not that surprising that he concurred in the judgment here. What is surprising is that he joined in Justice Kagan’s opinion, giving her a fifth vote and making her opinion a majority opinion for the Court.

But also it is a surprise is that Justice Kagan did not get Justice Kennedy’s vote. Kennedy was the vote with the four liberals in the Alabama’s and Virginia’s redistricting cases (with Thomas in the dissent). Kennedy was responsible for reviving these claims for use by liberals for a new purpose (as explained here).

Here is my guess about why Justice Kennedy did not vote with Justice Kagan on District 12 (he did, and the Court was unanimous, on District 1, finding the VRA was a pretext for what the legislature did):

It appeared before this case, that according to Easley v. Cromartie, in a racial gerrymandering case where the question is race or party, it is plaintiffs’ job to come up with an alternative redistricting plan that achieves the same political goals but with “greater racial balance.”  (I think that is a nonsensical standard from Justice Breyer in this case, but there is is.) There’s no question that in today’s case, the plaintiffs could not produce such a map. Justice Kagan dealt with this issue by essentially rereading Easley v. Cromartie to not require that plaintiffs produce such a map.

I don’t think Justice Kagan’s reading of Easley‘s requirement is the best one, and I can understand Justice Alito’s complaint that the majority threw away Easley like a disposable paper plate or napkin. Justice Kennedy could well agree with Justice Alito.

He also may agree with Justice Alito that the Kagan majority opinion waters down the race or party test. There’s language in Justice Alito’s opinion pushing the race or party point (and now I believe there is conflicting language on this from Kagan). Perhaps Justice Kennedy agreed with Alito on this point too.

This latter point seems somewhat less likely, however, because Justice Kennedy in the 2006 LULAC case seemed to endorse the proxy approach to race and party (as I explain here).

So my guess remains that it is the Easley test, abandoned by Kagan, that cost Justice Kennedy.

 

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Disagreeing With Rick Hasen on the North Carolina Case

I’ve now had a chance to read Rick Hasen’s assessment of the North Carolina case and I feel obligated to note my fundamental disagreement with the most dramatic parts of his post.

Rick says there are “two bombshells” in footnotes to the case and then says “Holy cow this is a big deal” and “wow” about what is purportedly buried there.  But the principles stated in those notes are nothing new; they go back to the first cases decided in this area, in the 1990s; and there is no disagreement between the majority and the dissent about these principles.

The majority and dissent disagree about what plaintiffs should have to do to prove their case and on what the most appropriate factual findings are here.  But that’s all they disagree about.  Contrary to Rick, the majority is not holding anything like the principle that it will treat partisan-based districting (or partisanly-motivated election regulation more generally) as a proxy for race-based districting (or race-based election regulation).  Doing that certainly would be revolutionary, and would indeed trigger enormous debates within the Court.  But there are no such debates today because the Court did nothing of this sort.

1.Ever since the mid-1990s, the Court has been clear that sorting voters by race – for any reason – triggers strict scrutiny. More technically, when sorting voters by race is the predominant reason for a district’s design, the district must survive strict scrutiny.  That has always meant that race cannot be used as a proxy for likely political voting patterns.  The footnotes Rick references say nothing more than that.

2. Thus, in Bush v. Vera, 517 US 952, 969 (1996), the Court held Texas districts unconstitutional because “political gerrymandering was accomplished in large part by the use of race as a proxy.” Similarly, that opinion also said that race could not be used “as a proxy” for political voting patterns or anything else.  The Court condemned “the misuse of race as a proxy” for incumbent protection or partisan advantage seeking.  The State may not “use race as a proxy to serve other interests.”  And very directly, the Court held:  “District 30 also involved the illicit use of race as a proxy when legislators shifted blocs of African-American voters to districts of incumbent Democrats in order to promote partisan interests.”  Again, the passages Rick fixates on say nothing more than what the Court has always said about this, since the racial gerrymandering cases began.  Indeed, the very footnotes Rick references explicitly, and accurately, cite these cases from the mid-1990s.  There is simply nothing new here.

3.  In other words, the North Carolina case (regarding CD 12) remains within the standard mold of trying to decide whether voters were sorted by race or by party. If voters are moved as Democrats or as Republicans, that is fine, as long as the Court does not put constraints on partisan gerrymandering.  But if they are moved as black or white citizens, that can trigger strict scrutiny.  Again, there is nothing new about that (however much sense it does or doesn’t make).

4.  For just these reasons, there is nothing surprising about the fact that neither Justice Thomas nor the dissenting Justices took issue with the footnotes that Rick considers “bombshells.”Thus, one cannot conclude from today’s opinion, as Rick suggests, that the decision “means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting.” Yes, it would be doctrinally radical for the Court to conclude that partisan gerrymandering is equivalent to racial gerrymandering.  But that’s not at all what the Court did.

5.  In fact, the entire fight between the majority and the dissent would have taken very different form in that event – the dissent argues that partisanship best explained CD 12, but if the majority really was establishing the principle Rick suggests, then the majority could have said it doesn’t matter if that’s why NC did it, because “discriminating on the basis of party [here] is equivalent to making race the predominant factor.”   But instead, the majority’s position was that voters were sorted by race and that’s why strict scrutiny is required.

6.  Since this is closely related, I’ll mention that I also don’t agree with point 10 in Rick’s post, discussing the 4th Circuit voting-rights case, also from NC. Once again, the crucial fact there is that the NC legislature was found to have acted with an unconstitutional racial purpose because it used racial data to choose which voting regulations to enact, and it chose those that the court concluded disadvantaged black voters – and chose them for that reason.  This is a case of race-based discriminatory treatment, pure and simple.

7.  It’s much too fast and loose to suggest, as Rick does, that these cases treat “race and party as proxies for one another.” Racial classifications and racial sorting have for many years been uniquely suspect.  They cannot be engaged in without meeting the standards of strict scrutiny. And a defense cannot be that we were looking to gain partisan advantage by doing so.

But that’s quite different from saying the court will treat party – and partisan-advantage seeking – as a proxy for race, where the two correlate.  Nothing in today’s decision does that or changes the law on the relationship between race and party in these cases.

UPDATE:  After posting this, I saw that Justin Levitt posted a quite similar critique of Rick Hasen’s discussion.  Looks to me like I agree with Justin on what the Court’s opinion actually did and with his rejection of Rick Hasen’s discussion of the decision.

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NC redistricting, from someone not named Rick

Rick Hasen and Rick Pildes have already weighed in on the NC redistricting case this morning.

I agree with much of the Ricks’ analysis, and their assessment that this was utimately a win for voting rights plaintiffs.  But I have to disagree with Hasen’s “holy cow” conclusion.  The Court did not just treat race and party as proxies for each other.  Indeed, I think that represents a version of the overly blunt approach that just got North Carolina smacked down.

[Full disclosure: I was involved with this case as an amicus — and the Court seems to have agreed with much of the brief I worked on.]

First, the agreement (and the good news).  As both Rick H. and Rick P. have said, the Court today rejected a legislature’s attempt to hide unconstitutional behavior under the pretext of compliance with the Voting Rights Act, when real VRA compliance was not really an issue.  I’ve written about the danger in letting recitations of VRA compliance become simple pretext — to drain the statute of meaning by letting legislatures use it merely as political cover while subverting its substance.  Rick H. says that this part of the case is “relatively uncontroversial.”  If that’s true, that’s reason alone to celebrate.

But there’s one part of Rick H.’s analysis — his “holy cow” conclusion — that I respectfully but vehemently disagree with.  He says that Justice Kagan “attempts to solve the race or party problem by moving the Court much closer to the position of treating race and party as proxies for one another in the American South.”  He says that Justice Kagan’s opinion essentially treats race and party as if they weren’t really discrete categories.  He says this was also the basis for the 4th Circuit’s opinion in the North Carolina voting-procedures case, and calls the combined impact a bombshell.  I don’t buy it.

In Rick H.’s telling, the Court this morning treated race and party as if they were interchangeable.  I think there are three separate problems with such an approach, and I don’t think it’s what the Court actually did this morning.  Both the political reality and the Court’s decision are — appropriately and thankfully — far more nuanced.

  1. First, the Court did not address race and party in the “American South.”  For decades, political scientists have recognized a difference between the “deep South” and the “rim South” with respect to black-white relations.  Among other distinctions, there’s more Anglo crossover voting for candidates preferred by the black community in states like Virginia and North Carolina.  (Anglo-Latino voting in the rim South also doesn’t always follow the same pattern as Anglo-black voting.)  Voting patterns are different locally, and those differences matter in redistricting (see fn 5).  Justice Kagan’s opinion discusses the evidence put forward in specific parts of North Carolina.  It’s a mistake to assume that the same voting patterns apply elsewhere in North Carolina, much less in Alabama.
  2. Second, the Court did not say that race and party were proxies for each other.  It’s true that the vast majority of African-Americans in North Carolina currently favor the Democratic party (exit polls say about 90% voted for Clinton).  But the exit polls also show that only about 63% of Anglo voters in North Carolina voted for the Republican party.  As Rick Pildes notes today, that’s a big difference.  And it means that even if you assume that an African-American voter is a Democrat, it’s not a very reliable assumption that an Anglo voter is a Republican.  (And again, the Latino vote in North Carolina is more complicated still.)

    That difference is significant, because it allows courts to make sensible distinctions between action taken because of race and those taken because of party.  Where there is a significant population of Anglo Democrats, does it appear that African-American Democratic voters were targeted while Anglo Democratic voters were left alone?  Maybe the reason is that decisions were made far more about race than party.  (It may also be possible to tell the difference based on where the lines are drawn: since electoral returns are reported by precinct, and racial data is reported by census block, lines that regularly split precincts along racial lines to follow particular census blocks and not others may show that it’s really not party driving the results.)

  3. Third, it’s not news that the predominant use of race, even to achieve other goals, is constitutionally questionable.  Rick H. highlights two footnotes (1 and 7) that critique the intentional and predominant use of race, even when the “real” underlying reason may have been party politics.  That approach doesn’t conflate the two.  And it’s not new.   Legal intent always turns on the means to accomplish some ultimate goal.  Even if it’s entirely lawful to try to get rich, it’s not lawful to intentionally steal from someone else in order to do so.  Similarly, even if it’s lawful to draw lines for partisan advantage (stay tuned on that front), it’s not lawful to intentionally move voters predominantly based on their race in order to do so.  (Or, in the 4th Circuit decision, even if it’s lawful to change election rules for partisan advantage — again, stay tuned — it’s not lawful to target minority voters in order to do so.)

    Judge Alex Kozinski clearly explained the distinction in a slightly different context almost three decades ago: “Assume you are an anglo homeowner who lives in an all-white neighborhood. Suppose, also, that you harbor no ill feelings toward minorities. Suppose further, however, that some of your neighbors persuade you that having an integrated neighborhood would lower property values and that you stand to lose a lot of money on your home. On the basis of that belief, you join a pact not to sell your house to minorities. Have you engaged in intentional racial and ethnic discrimination? Of course you have.”  The ultimate goal — not to lose money — doesn’t change the fact that the hypothetical homeowner intentionally treated minority buyers differently.

So if the Court didn’t broadly conflate race and party, what did it do?

Actually, the opinion is pretty narrow.  It recognized that the evidence presented below was enough to let a court conclude that NC legislators moved people into or out of districts predominantly based on race, and without any good reason.  (It also recognized that that was a really close call, particularly with respect to district 12, and that courts could – and did – reasonably disagree.  There’s a lot in the opinion about the standard of review.  Courts don’t establish truth — they test whether particular litigants have made their case or not.)

The court also recognized that despite citing the VRA, NC legislators didn’t do their homework in figuring out whether the VRA really required packing minorities into two districts — perhaps because they weren’t actually interested in figuring out whether the VRA really required what they did.  As I’ve written before, this is a trend that ties North Carolina to Alabama and Virginia … and several other states this cycle.

There’s also two more helpful nuggets that Rick P. pointed out: the Court explained that alternative maps can serve as evidence of a violation, but need not be produced in every case.  If the question is really about the intent of the legislature, that seems unquestionably right.  And the Court confirmed (p. 16) that crossover districts could satisfy the VRA: just because a plaintiff needs to be able to draw a majority-minority district to come into court doesn’t mean that majority-minority districts are the only available remedy.   I’ve also written about why that’s precisely right — and in keeping with the VRA’s focus on facts rather than assumptions.

This is, to me, good news.  Just good news for different reasons than Rick H.’s assessment.

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Analysis of the Supreme Court’s North Carolina Racial Redistricting Case

[This post will soon also appear at the SCOTUS blog]

The main take-away from today’s decision is that the Supreme Court is continuing the project of winding down unnecessary racial redistricting.  The decision reflects the Court’s effort to modernize the Voting Rights Act (VRA) and ensure it adapts to the changing dynamics of race and politics, in some parts of the country, in the many decades since the Act first was passed.  The crucial fact in today’s decision is that 30-40% of white voters in parts of North Carolina are willing to cross-over and vote for the same candidates that African American voters prefer – and that application of the VRA and the Constitution must recognize these changing realities.

The Court today shored up the constitutional constraints limiting the use of race in redistricting, which has been the main development in the law of redistricting this decade.  That development began with the Alabama cases, Alabama Legislative Black Caucus v. Alabama, and has now been extended to Virginia and North Carolina.  And the Court also opened up a new avenue of constraint by holding that if white voters now vote for candidates black voters prefer at high enough rates, the intentional creation of majority-black districts is no longer required – and indeed, is unconstitutional.

Let me situate today’s decision, before turning to its specifics, in the broader context of the VRA and how race came to play the role it currently does in the modern era of redistricting.

The regime of VRA-required racial redistricting began in the 1990s, in the wake of Congress’ 1982 Amendments to the VRA and the Supreme Court’s 1986 decision in Thornburg v. Gingles.  But almost immediately after the start of that regime, beginning with the Shaw v. Reno line of cases, the Court has been struggling to cabin in and constrain VRA-required race-based districting to circumstances in which it is truly necessary.  In an opinion by Justice Souter back in 1994, Johnson v. DeGrandy, the Court wrote that race-based districting under the VRA relies “on a quintessentially race-conscious calculus aptly described as the ‘politics of the second best.’”  A majority of the Court – confirmed by the parts of today’s opinion that are unanimous – has acted on that view ever since.   If the VRA truly requires race-based districting in certain circumstances, that is fine.  But the Court has been extremely wary of extending the regime of race-based districting anywhere beyond those circumstances.

Thus, over the last 30 years, the Court has held that the VRA does not require maximizing the number of minority districts, but only ensuring that minority voters have an equal opportunity to elect their candidates of choice; it has held that the VRA does not require (and the Constitution prohibits) using irregular district shapes to create “minority opportunity” districts; it has held that the VRA does not apply if minorities cannot be made into the majority  in a district.  And with ever more force – as in today’s decision – the Court has held that the Constitution is violated if jurisdictions use the VRA to engage in race-based districting unless it is clear that the VRA clearly requires doing so.  I sensed developments moving in this direction back in a 2007 article, The Decline of Legally Mandated Representation, and since then, the Court’s efforts to constrain unnecessary race-based districting have become only more pronounced.

The most important aspect of today’s decision is the Court’s unanimous conclusion that Congressional District 1 (CD 1) is an unconstitutional racial gerrymander.  It would be easy to miss that this part of the opinion is unanimous, because the Court divided 5-3 on a second district at stake, CD 12.  But I have always said the most important issue in the NC case was that involving CD 1, and there, the Court agreed in unison.

With respect to CD 1, the critical point is that the Court rejected North Carolina’s argument that the VRA required it to create a majority-black district to make sure black voters had equal political opportunity.  More specifically, the Court concluded that voting in this area was not racially polarized enough to require the remedy of a majority-black district.

What does it mean for voting to be racially polarized (RPV)?  This has been a key concept under the VRA, yet the Court has given the concept almost no significant attention – with today’s decision being the Court’s first and thus most significant opening up of questions about this concept.

When RPV first entered this area of the law, the idea was simple: if 90% of blacks vote for one candidate and 90% of whites vote for the opposing candidate (especially when the former candidate is black), there is a clear pattern of RPV.  But what happens when – as in North Carolina today – roughly 30-40% of whites are willing to vote for minority candidates?  Since the VRA is only triggered in the redistricting area when voting is racially polarized, should RPV still be considered to exist in NC when there is this level of white cross-over voting support?  If the VRA still applies, how does it apply when we no longer have in NC the extreme and stark racial polarization of earlier decades?

Here is how the Court resolves these issues as they come to bear in CD 1:  for the last twenty or so years, white cross-over voting support has been strong enough that, even though the district had a black population of only 46-48%, it overwhelmingly and repeated elected a black member of Congress – typically, with 70% of the vote.  Yet North Carolina took the view that the VRA required it to pump up the black population above 50% to be sure the district was “safe” in ensuring for black voters an equal opportunity.  But the Court held that voting cannot be considered racially polarized when enough white cross-over support exists that black candidates are being elected from districts that are less than 50% black.

This conclusion is of great significance in further unwinding unnecessary racial redistricting.  It means that the mechanical creation of majority-minority districts will no longer be constitutionally tolerated.  If a cohesive black community can get its preferred candidates elected in districts that are, perhaps, only 35-40% black, then pumping those districts up to more than 50% black – on the view that the VRA requires it – will be unconstitutional.  This opens up much more space for the creation of what I have called coalitional or cross-over districts, in which black and white political coalitions unite behind the same candidates.  Indeed, as the Court today recognized, it would turn the VRA on its head if the law actually required – as North Carolina insisted it did – that these kind of effective coalitional districts had to be turned into majority-black districts, just to ensure they are sufficiently “safe.”

Put in other terms, the decision confirms that States must adhere to the view that the intentional creation of majority-minority districts is a “second best” remedial device, to be used only where clearly required.  Indeed, important parts of the opinion further emphasize that States must have a strong record in support if they engage in race-based districting:  States must do a thorough job of demonstrating that doing so is necessary – “the State must carefully evaluate” whether the facts support race-based districting, and the State must engage in a “meaningful legislative inquiry” about whether doing so is necessary.

There are other aspects of today’s decision that will also be important in enforcing constitutional constraints on the excessive and unjustified use of race in redistricting.  The Court said, once again, that  the setting of “a racial target” that has a direct impact on the design of a district means that strict scrutiny is triggered and the district can survive only if the VRA requires it.

Once again, the Court confirmed that if the State intentionally sorts voters by race into districts, the State cannot hide behind the argument that its ultimate goal was to pursue an effective partisan gerrymander.  To the extent partisan gerrymandering is constitutional, States can sort voters by their voting patterns, but not by their race.  As the Court has said before, race cannot be used as a “proxy” for political voting preferences.  To be sure, this can create a quagmire for the lower courts if a State does not directly and obviously use race to sort voters; the courts then have to disentangle whether it was “really” race or partisan factors that drove the district’s design (I have long argued that it makes little sense for the Court to impose constitutional constraints on racial gerrymandering, but not partisan gerrymandering).

There is still more in today’s decision:  The Court held that plaintiffs in these Alabama cases do not have provide their own alternative map (which can be a costly and time consuming venture) in order to be able to prove that a jurisdiction has engaged in race-based districting.  And there had been a confusing couple of sentences in an earlier case, also from North Carolina, that had befuddled the lower courts; the Court today confines those sentences to the particular facts of that one case, as Justice Thomas, who joined the majority, pointed out.  That will clarify the law further and make successful challenges alleging race-based districting more likely.

In each and every respect of today’s decision today, then, the Court built on the Alabama line of cases further and made it all the more clear that the Court will aggressively police the role of race in redistricting, not permit the VRA to become a vehicle for excessively packing black voters into districts, and will continue the project of unwinding unnecessary race-based districting.

Disclosure:  I argued one of the Alabama cases and continue to represent plaintiffs in that case, which remains pending in the lower courts.

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Breaking and Analysis: Supreme Court on 5-3 Vote Affirms NC Racial Gerrymandering Case, with Thomas in Majority and Roberts in Dissent

The Supreme Court has issued this 5-3 opinion in Cooper v. Harris. Justice Kagan wrote the opinion for the Court, with Justice Thomas making the fifth vote for affirmance. Chief Justice Robert and Justices Alito and Kennedy dissented. That is an interesting lineup, to be sure.

There is a lot of detail but here is my bottom line: This decision by Justice Kagan is a major victory for voting rights plaintiffs, who have succeeded in turning the racial gerrymandering cause of action into an effective tool to go after partisan gerrymanders in Southern states. That Justice Kagan got Justice Thomas not only to vote this way but to sign onto the opinion (giving it precedential value) is a really big deal. Despite what is written in the text of the opinion, Justice Kagan, in a couple of footnotes (footnotes 1 and 7), attempts to solve the race or party problem by moving the Court much closer to the position of treating race and party as proxies for one another in the American South. Points 8 -10 below explains this in detail.

Justice Alito, in his partial dissent for himself, the Chief Justice, and Justice Kennedy, is incensed at the decision, seeing it as inconsistent with the Court’s earlier decision in Easley v. Cromartie. He begins his dissent with: “A precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash. But that is what the Court does today in its decision regarding NorthCarolina’s 12th Congressional District: The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district.”

Here’s more detail.

  1. The key question in these racial gerrymandering cases has been to consider if race is the legislature’s predominant motive in drawing district lines. If it is, the district is subject to strict scrutiny and the state has to come forward with a compelling reason for making race the predominant factor.
  2. The harm in the racial gerrymandering cases is not vote dilution (which is separately considered under the Voting Rights Act and Constitution). The harm has been conceived of as an expressive one of sending the message that voters have been separated on the basis of race without adequate justification. It is a theory J. O’Connor invented in the 1993 Shaw v. Reno case. Liberals used to hate the theory, till this decade, when they started using the theory to attack Republican gerrymanders that Republican legislatures justified as compelled by the Voting Rights Act. I’ve been critical of the cause of action whether used by conservatives or liberals.  See this paper, Racial Gerrymandering’s Questionable Revival.
  3. In today’s case, Cooper v. Harris, the Court considered a federal court finding related to two congressional districts, District 1 and District 12, both found to be racial gerrymanders by a federal three judge court. The court quickly disposed of the question of how to treat a contrary state court ruling related to these districts, finding the state case presented evidence to consider but did not preclude the findings in the federal case.
  4. As to District 1, the state tried to justify its drawing of the lines as required by the Voting Rights Act. The court disagreed, finding that the Voting Rights Act did not require drawing of the districts. This ruling is like the Court’s recent rulings in cases from Alabama and Virginia, where the Republican legislatures used supposed compliance with the Voting Rights Act to justify packing minority voters into a smaller number of districts (but not enough to create a viable vote dilution claim under the Voting Rights Act). This part of today’s case is relatively uncontroversial.
  5. The controversy comes from the analysis of District 12. That district raises the question whether race or party predominated in redistricting. This is a particularly difficult question in the American South, because of “conjoined polarization,” race and party overlap to a great extent, so the question of which predominates is somewhat nonsensical. I make that case extensively in a forthcoming essay, Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases.
  6. The district court held that race predominated in drawing the district lines. Justice Kagan tries to make her analysis seem routine and perfunctory: a district court’s finding on this is entitled to significant deference, and is reviewed only for clear error. There was enough evidence to support the finding that race predominated, and we must defer.
  7. Kagan has to deal, however, with a holding in an earlier race or party case from the same North Carolina district, Easley v. Cromartie (Cromartie II). In that case, Justice Breyer said that in cases “such as this one,” a plaintiff challenging a district as a racial gerrymander has to show by producing an alternative map that the state could have achieved its same political objectives with a map showing greater racial balance. Justice Kagan demoted this rule from Cromartie II to just a factor to consider, and not necessary to win in this case. This is what makes Justice Alito so apoplectic in his dissent. (He dissented only on District 12.) Reviewing the evidence under that standard, he says the trial court committed clear error.
  8. Despite Justice Kagan’s attempt to explain this as a ho-hum deference to a judicial finding of fact, there are two bombshells in footnotes in the case. Recall that with District 12 the question is race or party, as though these are two separate categories. And in the body of the decision Justice Kagan says it will defer to the trial court’s decision that it is race and not party. (This conforms, using the terms of my draft Essay, to the “race or party” approach.) But in Footnotes 1 and 7, the Court explains that in places where race and party overlap so much they can be treated as proxies for one another. (This conforms, using the terms of my essay, to the “race as party” proxy approach.) Here’s part of Footnote 1: “A plaintiff succeeds at this stage even if the evidence reveals that a legislature elevated race to the predominant criterion in order to advance other goals, including political ones.” And here is Footnote 7: “As earlier noted, that inquiry is satisfied when legislators have“place[d] a significant number of voters within or without” a district predominantly because of their race, regardless of their ultimate objective in taking that step. See supra, at 2, and n. 1. So, for example, if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests—perhaps thinkingthat a proposed district is more “sellable” as a race-based VRA compliance measure than as a political gerrymander and will accomplish much the same thing—their action still triggers strict scrutiny. See Vera, 517 U. S., at 968–970 (plurality opinion). In other words, the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political)characteristics. See Miller, 515 U. S., at 914.” (My emphasis)
  9. Holy cow this is a big deal. It means that race and party are not really discrete categories and that discriminating on the basis of party in places of conjoined polarization is equivalent, at least sometimes, to making race the predominant factor in redistricting. This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts. (Why Justice Thomas went along with all of this is a mystery to me. He joined in the opinion, and his separate opinion expresses no disagreement with these footnotes.)
  10. This race and party as proxies for one another, as I explain in my essay, was also the theory used by the 4th Circuit in holding that North Carolina passed its strict voting law with racially discriminatory intent. That’s not the same question as the predominance question in racial gerrymandering cases, but it is parallel, and it shows the race and party as proxies issue working its way into the law. This is a much more realistic approach to political regulation, and I am glad to see it being elevated in contrast to “race or party” (though I make clear in the essay I prefer a different approach).
  11. Now that we have this ruling, the Court will have to confront a partisan gerrymandering case directly out of North Carolina. In response to the lower court ruling in this case, North Carolina passed a new plan, and it went out of its way to call it a partisan gerrymander. Explicitly and on the record. The three judge court said it could not police the partisan gerrymander under the 2004 Vieth case, and plaintiffs filed an appeal from that too, which has been sitting at the Court and will now need to be acted upon.
  12. And there’s also a finding of racial gerrymanders in NC general assembly races, which is pending before the court. A lower court had ordered special elections in 2017, which had been put on hold by the Court. Perhaps plaintiffs will now try to get that hold put aside by the Court.
  13. Wow.

[This post has been edited, and will likely continue to be edited today.]

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