Reports from Oral Argument in the Texas case

I'll be updating this post throughout the afternoon. Here are links to reports from oral argument:
An early AP report.
Bob Bauer.
Ned Foley (with some very interesting surprises) [UPDATE: A reader asks what surprises me most from this report. Here is my answer: Why did the Court take the case, if not to say SOMETHING about partisan gerrymandering? If they were concerned with the VRA issues, why didn't they hear this the last time this was up, rather than simply remand in light of Vieth?)
Lyle Denniston (SCOTUSBlog)
Kahlil Williams writes:

I attended the oral arguments and just returned to my desk. A couple of notes about the proceedings.

While Paul Smith focused predominantly on partisan gerrymandering (which, mid-decade, should only be used in for legitimate political purposes), Nina Perales' comments were dominated by Section 2 vote dilution claims, which focused on Districts 23 and 25. These, along with 24 and 28, were really the focus of the court. Justice Roberts pressed her on the "magic number" needed to determine Henry Bonilla's district as an opportunity to elect, and not merely majority-minority (which allowed it to pass Section 5 muster).

There was absolutely no mention of the DOJ's involvement, or careerist v. political appointee battle.

I'd be happy to provide more info if need be, though I'm sure there are lots of reliable sources out there as well.

Bruce Cain writes:

I was able to attend the arguments today, and am willing to give my impression, albeit from political science eyes. There was not much sympathy for the argument that a mid-decade redistricting for purely political purposes is unconstitutional. A majority of the judges seemed reluctant to restrict the ability of legislatures to re-do redistricting, particularly one re-doing a court drawn plan. Absent a clear standard of political unfairness, they were open to the argument that the Republican legislative plan merely redressed the perceived
residual unfairness of the Democratic plan that was perpetuated by the Court. Given that and given that redistricting is first and foremost a legislative task, it seemed that most of the Justices did not want to restrict the right of the legislatures to "fix" problems mid-decade.
After all the courts ask legislatures to fix problems mid-decade, why shouldn't the legislatures have the right to decide that themselves?

The one ray of hope for the plaintiffs seemed to be the section 2 argument about district 23. By my estimate, there might be five votes for saying that seat violates section 2, but even here, I would not bet the bank. The fact that 30% of the Latinos voted for a Republican Hispanic seemed to raise questions about how cohesive the Laitno bloc voting is, and Roberts pushed very hard on the question of what, if not 51% Latino, was the definition of a real opportunity seat.

Even if the paintiffs prevail on the section 2 issue, it seems to me the legislature could fix that and keep the Republican biases in place. I certainly could if given the charge. All in all, not a good day for the opponents of mid-decade redistrictings from where I sat.

Kareem Crayton writes:

Having sat through argument today, I offer only one observation about the exchanges. I’m frankly surprised about the rather misguided approach to understanding legislative incentives and redistricting.

I believe that it was Scalia who first pressed on whether the Court would create perverse incentives for legislatures if it banned mid-decade redistricting. From what Scalia implied (and, later, the TX attorney explicitly stated), forbidding mid-decade redistricting would encourage more efforts by the legislative minority party to gum up the redistricting process and force courts to create a map – with assurance that the districts would remain undisturbed for the full ten years.

First, I’m not convinced that the “undisturbed” point is correct as a factual matter. It’s hard to name any of the states in the1990s that didn’t face some extra legal challenge after the first round of redistricting.

As to incentive, though, it seems really odd to me that no one seemed to at least raise the possibility that legislative incentives would actually cut in the opposite direction. In the same scenario w/ that legislative minority party, shouldn’t the temptation to gum up redistricting get stronger – not weaker – w/o some limit on mid-decade redistricting? Why? A legislative minority has the ability to take the power away from the opposing legislative majority party (there’s always more minority party representation in a court drawn plan than an unfriendly gerrymander would supply) AND would leave open the chance for a “do-over” redistricting if the legislative minority became a legislative majority.

Seen in this light, I think this case raises an interesting question about the power of the federal courts when they sit on these “failure to act” cases. Where the legislature (or some portion of it) abdicates its responsibility to redistrict, why should we be so sensitive to the anti-majoritarian concern? Shouldn’t the court plans (with reasonable review) have bite in this context? Without some assurance that the “do over” possibility is limited – at least to some degree, how can the courts be seen as anything else than a place-holder? I wish I had seen more of this in the plaintiff’s response to the question.

David Becker writes:

Having also attended the hearing today, I must echo everything that Ned Foley, Bob Bauer, and Bruce Cain have reported. In particular, the Court spent a surprisingly small amount of its time on the partisanship issues,
and focused much of its questioning on the racial issues instead, and in particular on Sec. 2 claims related to districts 23, 24 and 25.

While I thought that Justices Breyer and Souter seemed generally sympathetic to the arguments of the appellants, there just seems no way that there are 5 justices who would invalidate mid-decade redistrictings -- indeed, there
might not be any. The issues relating to one-person, one-vote were hardly discussed.

Justice Kennedy made several comments that I thought were interesting. First, he seemed very concerned whether finding a Sec. 2 violation in District 24 (where there was apparently 26% black voter population) would
open up Sec. 2 to all sorts of claims regarding the need for an "influence" district -- a somewhat ironic position for him to take considering he voted with the majority in Georgia v. Ashcroft to open Sec. 5 to claims regarding
influence districts. Second, he seemed to admit that some standard could exist for overly partisan gerrymandering, in that he suggested that the Court could perhaps reverse a lower court that had adopted a plan that apportioned representatives accurately according to partisan proportions, over a plan that complied with traditional redistricting principles, but he seemed to think that such a standard hadn't been enunciated yet. Finally,
he stated that the new district 23 (Bonilla's district), where Hispanic VAP had been reduced from 63% to less than 51%, in order to improve the electoral opportunities for Bonilla (who was undisputedly not the Hispanic
candidate of choice), was an "affront and insult" because it removed just enough Hispanics to "make it look good" (by maintaining a bare majority Hispanic VAP). However, these comments notwithstanding, the overall
impression he gave was of skepticism of the appellants' claims.

Overall, though these things are notoriously hard to predict, I'd be very surprised if the appellants will muster more than four votes (and perhaps far fewer) on any of their claims.

Comments below the fold

Dave Whalin writes:

> I was unable to get over for the argument this afternoon, but the reports seem to indicate that my surmise as to where the Court will go may be correct. I suggest that they will come down on finding Voting Rights Act violations for the the following reasons. For many years the Court has been relying upon the nonpartisan analysis of the career Justice Department lawyers on these matters. Until the current Administration, these recommendations have been followed by the political appointees at Justice with no, or at most very minor, deviation. The Court has enforced those determinations. The current Administration has upset this apple cart and engaged in a partisan manipulation of the Voting Rights! Act clearance process according to news reports which have not b! een seriously called into doubt. By politicizing the clearance process, the current Administration is putting the Court into a position of either turning a blind eye to an egregious situation or becoming heavily involved in redistricting. It is obvious that the Court wants to get out of the redistricting process in the last few decisions this year. The politicization of the clearance process gets them in it. It would not surprise me to see the Court (by what vote I do not know) come down hard on the clearance process and excoriate the Justice Department in an attempt to put Humpty back together again.
> Time will tell.
> David M. Whalin
> Annandale, VA

Posted by Rick Hasen at March 1, 2006 12:36 PM