June 30, 2004

What Does Today's Summary Affirmance in Larios v. Cox mean?

Today the Supreme Court summarily affirmed a three judge panel decision in Larios v. Cox, 300 F.Supp.2d 1320 (N.D. Ga. 2004) (three judge court) striking down, on one person, one vote grounds, Georgia's newest districting plan for its state House of Representatives and Senate.

In Reynolds v. Sims (1964), the Supreme Court had held that under the Constitution's Equal Protection Clause, state legislative districts need to be of roughly equal size under what is now known as the one, person, one vote principle. Cases subsequent to Reynolds have allowed for some deviation from strict population in state and local redistricting; in contrast, the rule for Congressional districting is that essentially exact population equality in districts is required.

As I explained here, the Supreme Court had appeared to indicate that when a state legislative districting plan deviates from perfect population equality by less than 10%, the state did not need to come up for any justification for the deviation. (Under the same precedent, deviations of between 10-17% were sometimes allowed when there was a good reason for the deviation). In Larios, following the decisions of a few other lower courts (cited in my blog post), the three-judge court struck down a districting plan on one person, one vote grounds, even though the deviations were under 10%. The lower court pointed to what it saw as essentially a partisan gerrymander: Republicans were being packed into districts to help Democrats. (The court also said the redistricting was meant to favor rural and inner-city interests over that of suburban Atlanta.)

The Supreme Court's summary affirmance today in Larios supports the result in the lower court, but not necessarily its reasoning. Thus, the case stands for the proposition that there is no 10% safe harbor any longer; state and local redistricting plans can be struck down even if the deviations are under 10%.

Underlying this case is the Court's continued disagreement about how, if at all, to regulate partisan gerrymandering. In the Court's recent Vieth v. Jubelirer decision, the Court rejected a partisan gerrymandering claim in ways that make such a claim very difficult to bring. (See here). As Justice Scalia explains in his dissent from the summary affirmance, Larios raised the question whether "a districting plan that satisfies this 10% criterion may nevertheless be invalidated on the basis of circumstantial evidence of partisan political motivation." Justice Scalia wanted to set this case for argument precisely to reject the idea that partisan political motivation could be a basis for striking down a districting plan on one person, one vote grounds. This is consistent with his view in his Vieth plurality opinion that partisan gerrymandering itself cannot violate the Equal Protection Clause in a way that Courts can police.

In his concurrence joined by Justice Breyer, Justice Stevens (a Veith dissenter) makes the point plain: he wants to tighten up the one person, one vote standard as a way to police partisan gerrymandering: "After our recent opinion in Vieth..., the equal-population principle remains the only clear limitation on improper redistricting practices, and we must be careful not to dilute its strength." Justice Stevens then went on to say, even though the issue was not raised by appellants in Larios, that the districting plan constitutes an unconstitutional partisan gerrymander under both Justice Stevens standard and Justice Breyer's standards in Vieth.

What to make of all of this? In the first place, strict application of the one person, one vote rule will do very little to control partisan manipulation of district lines. Just consider that not only the Pennsylvania case, but also the notorious Texas re-redistricting, perfectly complied with the one person, one vote standard. They had to because they involved congressional districts. This just makes partisan gerrymanders a bit harder to do.

Second, there are serious costs to eliminating the 10% safe harbor. Strict application of the one person, one vote rule on the local level will make it harder for districters to stick to city or county lines, or to define community of interests, in a reasonable way. Precise equality in many ways is a myth anyway (because of the inclusion of non-voters, census problems, people moving, etc.). A stricter reading of the principle will hamstring districters attempting to keep cities etc. intact in districting and accomplish very little good.

What to make of the votes here? Why did those in the Vieth plurality and Justice Kennedy not vote to set this for argument? Justice O'Connor, for example, concurred in Brown v. Thomson, 462 U.S. 835 (1983), upholding an 83% deviation in one Wyoming district. I don't know. One possibility is that if Justice Kennedy was willing to uphold this, the other members of the Vieth plurality did not want to endanger that precedent by having Justice Kennedy rethink his opinion on partisan gerrymandering, given the ambivalence he expressed in his Vieth opinion.

Update: I am posting additional comments sent to me below.

Renea Hicks writes:

    I don't think it's accurate to state, as you do in your latest post on the implications of Larios, that using one person, one vote principles to police partisan gerrymandering won't mean anything for the Texas cases because Texas fully met the one person, one vote standard. Texas used the uncorrected 2000 census numbers, even though the redistricting was: (1) entirely voluntary; and (2) nearly two years after those numbers were released at sufficiently detailed geographic levels to be used in redistricting. The Supreme Court has never said that there is a constitutional link between official census numbers and the one person, one vote rule. In fact, in Kirkpatrick v. Preisler, it said that mid-decade updates could be used if they met a high evidentiary burden of accuracy. And Georgia v. Ashcroft acknowledges the legal fiction of inter-censal population accuracy in the census. That fiction exists for only one reason: to avoid the constitutional necessity of frequent redistricting. Texas seeks to use the fiction here to PERMIT frequent redistricting.

    On behalf of a voter (a former mayor of Austin) and the City of Austin and Travis County (of which Austin in the county seat), we've argued in our appeal to the Supreme Court (03-1400) that Texas violated one person, one vote by relying exclusively on the fiction in the course of redistricting for what it admits is only one purpose: partisan advantage. In that situation, we say, the one person, one vote principle IS violated by Texas which could have (under Kirkpatrick v. Preisler) proved up a non-stale set of numbers but deliberately chose not to. This seems to fit precisely with Justice Stevens' observation that the one person, one vote principle should not be diluted in the face of partisan redistricting but, if anything, enhanced as a check on a runaway system.

Thanks for writing.

Posted by Rick Hasen at June 30, 2004 09:25 AM