Monthly Archives: June 2004

More on the meaning of the summary affirmance in Larios

Over on the election law listserv, Rick Pildes argues here that we should read “Larios as holding that systematic partisan gerrymandering is an impremissible purpose under the Equal Protection Clause, pure and simple.” Rick further reads into the summary affirmance a view of Vieth at odds with what the Court actually did in the case a mere two months ago. Rick writes: “What does this suggest about Vieth? Most obviously, if partisan gerrymandering is not a legitimate purpose or rational basis here, it is also not one in the normal context in which plaintiffs bring affirmative challenges to districting plans. To the extent Vieth left this unclear, it now seems that most of the Court takes systematic partisan gerrymandering to be not just illegitimate and unconstitutional, but a serious constitutional problem; the difficulty in the Vieth context really is one of managable remedies, not a debate about whether partisan gerrymandering is unconstitutional. ”
I think that Rick reads too much into the summary affirmance. (And J.J. Gass agrees: see here, noting that if Rick is right, the Texas case should be reversed rather easily.)
In Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173 (1979), the Court explained the reach of a summary affirmance (internal citations omitted):

    [T]he precedential effect of a summary affirmance can extend no farther than “the precise issues presented and necessarily decided by those actions.” A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment. Questions which “merely lurk in the record” are not resolved, and no resolution of them may be inferred.

In this case, the only issue necessarily decided here was that the 10% deviation was too much under the facts of the case. The Court may now simply agree, consistent with other lower court cases as well, such as the 4th Circuit’s Daly v. Hunt, that the state needs to come up with some good reasons for deviating from perfect equality even for state and local districts.
If Rick is right about the meaning of the summary affirmance, we would have expected the Chief Justices and Justices O’Connor and Thomas to joint Justice Scalia in dissent. Their failure to do so suggests that they do not see Larios as implicitly overruling Vieth, at least in those cases where there is a manageable rule to control partisan gerrymandering. (Of course, while one person, one vote is a manageable rule, I don’t concede that it is a manageable rule to control partisan gerrymandering).
UPDATE: Rick Pildes responds here.

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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.

Continue reading What Does Today’s Summary Affirmance in Larios v. Cox mean?

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Tom Goldstein is reporting:
“Here is today’s Orders List. What is not reflected on that list is that the Court in Cox summarily affirmed, with a concurring opinion by Justice Stevens (joined by Justice Breyer) and a dissenting opinion by Justice Scalia.” More soon.
UPDATE: The Scalia dissent is here. The Stevens/Breyer concurrence is here.

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“Parties Hoover Up the Money”

The Hill offers this report, which begins: ” The Republican and Democratic national parties have defied predictions that they would crumble in the aftermath of campaign-finance reform, in part by slashing the signature perks of the soft-money era. Shattering expectations widely held as recently as this year, the six national Republican and Democratic party committees are raising more hard money than they raised hard and soft money combined during the last presidential election cycle, 1999-2000.”
See also this Campaigns and Elections report (link via

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New paper on racial gerrymandering claims

Ethan Leib has posted on SSRN Ugly White Districts: What Should Sandy Do?. Here is the abstract:

    A case just decided by a three-judge panel in the Southern District of New York, where plaintiffs challenge the 2002 New York State Senate redistricting plan, presents a new kind of redistricting challenge. See Rodriguez v. Pataki, 2004 WL 503748 (S.D.N.Y.). Rodriguez raises the issue of what to do about bizarrely-shaped white districts that are constructed or preserved using race as an obvious motivation – apparently in violation of Shaw v. Reno, 509 U.S. 630 (1993), which held ugly black districts to be violative of the Fourteenth Amendment’s Equal Protection Clause – but are adjacent to majority-minority districts that must be preserved in accordance with both Sections 2 and 5 of the Voting Rights Act, the laws forbidding dilution and retrogression of majority-minority districts. Here, I ask what Justice Sandra Day O’Connor should do about unsightly majority white districts that are drawn principally to maintain white majorities, even if such districts also help fashion adjacent majority-minority districts required by the Voting Rights Act.

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Election Law Teacher Database – Version 1

You will find here a database of election law teachers. If you submitted information to me, please check the database to make sure your information was accurately recorded. After I give time for some corrections, I’ll post a revised version, and then link to it on the side of the blog. I’ll try to keep this updated regularly. Thanks to all who contributed information.

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