October 06, 2005

Harriet Miers and Election Law: Might She Be a Supporter of the Voting Rights Act and an Opponent of Partisan Gerrymandering?

On many issues, we have no indication of the thinking of Supreme Court nominee Harriet Miers. For example, I so far have no idea what she thinks about the constitutionality of limits on corporate and union election-related spending, an issue on which she would likely hold the swing vote on the Supreme Court.

But we do have some basis for predicting Ms. Miers' views on some issues related to the Voting Rights Act and partisan gerrymandering, based on her service as an at large member of the Dallas City Council from 1989-1991. (Thanks to my colleague Ted Seto for suggesting a look down this road.)

This NY Times profile contained the following passage:

    One of the most controversial issues before the Dallas City Council during Ms. Miers's single term that ended in 1991 was a battle over whether the city should adopt a plan doing away with council members elected at large, an election method that minority groups in Dallas criticized as marginalizing them from municipal politics.

    Ms. Miers, elected as an at-large council member, initially favored the at-large system, but her position evolved to support a proposal that would create a collection of different districts in the city. This was adopted and eventually led to greater representation of blacks and Hispanics in Dallas.

I dug a little deeper into this controversy using the (unfortunately fee-based) archives of the Dallas Morning News (Westlaw and Lexis coverage of this newspaper does not go back that far) and here is what I found.

When Ms. Miers took her at-large seat on the Dallas City Council, the council was already involved in Voting Rights Act litigation over the composition of the council, with minorities arguing for greater representation through districts.

The city council, then with 8 districted members and 3 at large members, considered ways to respond to the lawsuit, including adopting a plan, the 10-4-1 plan, which would have created 10 single member districts, four elected from "quadrant" diistricts, and a mayor (elected at large). When Ms. Miers first came on the council, she was non-committal. "She said she prefers retaining the two at-large seats on the council 'so that there will be someone on the council, other than the mayor, with a citywide perspective.'" James Ragland, 7th Council Member Supports Charter Plan, DMN, June 22, 1989.

By 1990, however, Ms. Miers apparently was convinced of the need for increased minority representation. "Harriet Miers (Place 9, at-large) testified that the 8-3 system was unfair because the number of single-member districts needed to be increased so there would be additional black and Hispanic representation on the Council." Williams v. City of Dallas, 734 F. Supp. 1317, 1379 (N.D. Texas 1990). By August 1990, Ms. Miers was voting to support a 14-1 plan, with 14 single member districts and 1 at large mayor. David Jackson, Lawyers to Propose Settlement in Suit Over Voting Rights, DMN, Aug. 2, 1990. She later supported an appeal to uphold 10-4-1 even though she preferred the 14-1 plan because the 10-4-1 plan had been approved by voters. David Jackson, 6 on Council Want to Appeal Vote Order, DMN, Feb. 3, 1991. The article continued:

    Ms. Miers, an attorney, questioned whether 10-4-1 would provide fair representation for minorities as required by the U.S. Voting Rights Act. Although the council plans to discuss the case with its attorneys behind closed doors, Ms. Miers said she would seek to have the council's discussion of a possible appeal made public. "The city has a right to hear those discussions," Ms. Miers said.

The DOJ refused to preclear 10-4-1, and the battle shifted to the shape of the 14-1 plan, with two alternatives on the table at one point. "Ms. Miers said she had questions about both proposals. 'They're very tough issues, and we're just struggling with them as best we can,' she said." David Jackson, Strauss, Miers, Tandy Undecided on 14-1 Plans, DMN, May 20, 1991.

After a 14-1 plan was approved containing 4 African-American majority districts, Ms. Miers told a group of minority lawyers at a bar assocation luncheon that "Incumbent issues caused the maps under consideration to be drawn a certain way....If we can take the issue of incumbency away, we could have a map in a New York minute." Lawrence E. Young, Protecting Incumbents Cited as Factor in 14-1 Map, DMN, May 25, 1991. Ms. Miers defended the drawing of four black majroity districts rather than 5: "With this council, it seems the balance always ways in favor of protecting incumbents or neighborhoods rather than minority voting rights....She said the creation of a fifth black district was 'one component of a very complex set of circumstances that included the protection of incumbents and neighborhoods. Ms. Miers said that throughout the redistricting controversy she did what she thought was right. She noted that she opposed the competing 10-4-1 plan even though that angered many whites." Id. Opponents later criticized her as naive for not recognizing incumbency protection as the reality in all redistricting. Joyce Saenz Harris, Harriet Miers: Reflections of a Lawyer-Politician (Part 1 of 2), DMN, July 28, 1991. In response, Ms. Miers said: "I'd like to say I'm not doctrinaire...I'm not going to be influenced by how my vote is perceived. I want to be respected and I want to be viewed as being trrue to my convictions...But I don't care much what people think. I can't afford to."

What to make of all of this? It is not entirely clear. We appear to have someone sensitive to minority voting rights and skeptical of incumbency protection. Miers may not be the next Sandra Day O'Connor, but her vote in upcoming Voting Rights Act and partisan gerrymandering cases may be just as nuanced (and perhaps unpredictable). At least they would be informed by some real-world experience.

Posted by Rick Hasen at October 6, 2005 04:55 PM