More on the #SCOTUS Oral Argument in Virginia Congressional Redistricting Case

I have now had a chance to review the transcript in Wittman v. Personhuballah, and I agree with other commentators that it seems very likely that the Republican intervenors is likely to fail. It appears that the four Court liberals are unlikely to side with the intervenors, either on the question of standing or on the merits, and Justice Kennedy could well be a fifth vote against the intervenors.  Kennedy was not crystal clear in his position at the oral argument, but recall that he sided with the plaintiffs in last year’s Alabama redistricting case, raising similar issues.  Either a 5-3 decision, or a 4-4 dismissal means the lower court ruling requiring the redrawing of the districts to deal with the racial gerrymander stands.

The case was especially well argued by all the advocates, Mike Carvin for the Republican intervenors, Mark Elias for the plaintiffs, Stuart Raphael for the state, and Ira Gershengorn for the US government as amicus.

You can find news coverage from Adam Liptak (focusing heavily on the race or party issue), Lyle Denniston, Bob Barnes, Mark Sherman, and Richard Wolf.

If you want more background on the issues in the case, I’ve written Racial Gerrymandering’s Questionable Revival, Alabama Law Review (2015) and Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and ElsewhereHarvard Law Review Forum (2014).

I also HIGHLY recommend Justin Levitt’s forthcoming piece, newly revised, on the spate of these cases where Republican legislatures have wrapped themselves in the Voting Rights Act to gerrymander for their advantage. It discusses the history of the Va. redistricting action in detail.  Here is the abstract to Quick and Dirty: The New Misreading of the Voting Rights Act (forthcoming, Fla. State L. Rev.):

The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and poised to once again take center stage at the Supreme Court this Term. The Court has agreed to hear a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the litigation posture of the case may not make it clear to the Court, Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act — substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands.

This short and timely Essay is the first to identify the ways in which multiple jurisdictions in this redistricting cycle appear to have substituted this cartoon of the Voting Rights Act for the real thing. It identifies the racial essentialism at the heart of the demographic shorthand, and contrasts that retrograde approach with the tailored and nuanced law on the books. It then elaborates the constitutional danger of replacing the real statute with the imagined one, and urges courts, including the Supreme Court, to see the cartoon for what it is.

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