Monthly Archives: June 2006

Blogging Break through July 7—Dan Tokaji Guest Blogging

One year ago I took my last one week blogging break. Since that time, I have posted 2,386 blog posts, which have gone out to over 700 people on the election law listserv (and some to the 150 people on the new legislation listserv); plus there have been thousands of visitors to the website (I’m constantly amazed by looking at the domain names from where I get visits!). I appreciate all of the help and support I get from other academics, lawyers, congressional staffers, and others who would like to remain nameless with tips and support. And thanks to my readers for the wonderful encouragement. I’m glad the site remains useful. Now, with another blockbuster Supreme Court term behind us, I’m taking a week off blogging to recharge my batteries. I’m also going to avoid email for a week, though those of you who know me know what kind of email addict I am.
I leave the blog in the hands of guest blogger extraordinaire, Dan Tokaji. Dan will also post any posts from guest bloggers in the VRA renewal forum. Thanks again to all of my readers, and have a wonderful and restful Fourth of July!

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More VRA Rumors

CQ has a report (sorry I don’t have a link) that repeats the rumors I reported yesterday on VRA renewal timing. But I’ve also heard conflicting rumors that the measure may come up in the House the week of July 17. The key action on the part of those pushing the existing bills is to get identical bills passed without any amendments an to avoid any kind of conference or compromise. In the wake of the recent events in the House, this seems less likely than before, but we’ll have to wait and see.

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“Hirst v. United Kingdom (No. 2): A First Look At Prisoner Disenfranchisement By The European Court Of Human Rights”

William Powers has posted this draft on SSRN. Here is the abstract:

    The case of Hirst v. United Kingdom (No. 2) examines the issue of prisoner disenfranchisement in the context of the European Court of Human Rights. The Court in this case treats the right to vote, even for prisoners, as a fundamental right that deserves the highest degree of protection in democratic societies.
    This paper explains why the case of Hirst (No. 2) is an important marks an implicit shift in voting rights jurisprudence. The European Court of Human Rights established in this case that it would examine every instance of prisoner disenfranchisement with a heightened scrutiny reserved for the most fundamental of rights. This is in sharp contrast to American courts which have typically deferred to the states’ police power and explicit right under the Fourteenth Amendment to limit the right to vote of individuals convicted of crimes.
    By requiring member states to exercise restrictions on the right to vote proportionately, the European Court of Human Rights has set forth a new way of viewing voting rights that will certainly effect all European countries and will likely have an effect in the United States as well.

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Three Judge Court Moves Quickly to Establish Remedy for VRA Violation in the Texas Case

Here is the order, inviting the parties to submit remedial proposals, including maps and briefs in support of the proposals (presumably debating issues of the timing of the remedy as well, given that the primaries have already taken place). Oral argument will take place on August 3.
Remember that in 1996 a three-judge court threw out the results of already-held primaries on grounds there was an unconstitutional racial gerrymander found by the Supreme Court. If I recall correctly, the three-judge court held the primary the same day as the general election with runoffs in December. (My memory may be faulty on this.)
UPDATE: Richard Winger writes:

    Rick Hasen’s memory about Texas 1996 is correct. The 3-judge district court in 1996 redrew the boundaries on August 6, and ordered free-for-all non-partisan primaries for November 5, 1996, in all the districts with new boundaries. If no one got 50%, there was a run-off on Dec. 10, 1996. New candidates were able to enter the race. This means, if the new maps alter Tom Delay’s 22nd district boundaries, the Republican problem in that
    district would be solved, since new candidates could enter.

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Gerken on VRA Section 2 After LULAC

Responding to this listserv post by Rick Pildes on the error in Justice Souter’s LULAC opinion, Heather Gerken writes (also on the listserv; reprinted with permission):

    Just two quick thoughts on Rick [Pildes’]s interesting post. Though I think Rick is right to believe that this signals an important fault line in the opinion, I’m not yet ready to conclude it portends the type of dramatic change in voting-rights doctrine that Rick suggests (like everyone, however, I need more time to digest the opinions to come to a firm conclusion).
    (1) On the academic parlor game — guessing what the glitch means — there are at least two other explanations for the glitch (whether they are more persuasive is not clear, but I think it’s worth putting them out there). The story Rick tells, as I understand it, is that Justice Souter included the sentence because he “heard the music” of Justice Kennedy’s opinion, grasped that the true import of Kennedy’s approach would invalidate District 25, and added the sentence into his join even though Kennedy’s opinion never went that far. (Rick does not specify the precise mechanics, but he writes, “But Justices Souter and Ginsburg understand him to in fact, do exactly that — and they sign an opinion in which they say that District 25 does indeed violate the VRA. How can this be? I believe Justice Souter has rightly heard the music in Justice Kennedy’s opinion, even though Justice Souter did not recognize that Justice Kennedy did not, technically, go so far as to hold that District 25 itself violated the VRA.”). I find this explanation a bit odd. In thinking about the mechanics of the Supreme Court’s drafting process, I think the more likely story is that the first draft of Justice Kennedy’s opinion did strike down District 25, Souter’s opinion joined it, and then for some reason Justice Kennedy eventually trimmed back the opinion so it affected only District 23 (and because of some oversight Justice Souter never amended his to reflect the change). If that’s what happened, it suggests two other backstories.
    First, if, as Rick surmises, Justice Kennedy was trying to import a Shaw-like community of interest requirement into the first prong of Gingles, the first draft of the opinion struck down both districts (and Souter’s join would have included the sentence it did). If Justice Kennedy backed off that position, it was because he could not get enough support for that position to justify striking down District 25, something that undermines the possibility that the case signals a sea change in Section 2 doctrine (unless and until Justice Kennedy can get some support from his brethren to the right, who showed little interest here in invalidating a district under Section 2 or in endorsing Kennedy’s reading of the compactness requirement).
    Second, while Rick is absolutely right that Justice Souter may be “hearing the music” of Justice Kennedy’s opinion, the reverse may have been true. Justice Souter has repeatedly written against the idea of “trading off” the interests of minority voters (a position he’s held at least since DeGrandy) and seems to think that it matters where in the state a majority-minority district is drawn. I think he’s wrong on this and have repeatedly criticized this position in print. Kennedy’s opinion, however, repeatedly sounds this theme (despite the fact that this notion is squarely in tension with the opinion’s (correct) conclusion concludes that dilution must be measured using a statewide metric). Perhaps Justice Kennedy was trying to win Justice Souter’s vote on District 25 not through Rick’s “import-Shaw-into-Gingles” route, but with a “no-trading-off-minority-interests-in-complying-with-Section-2” strategy. The first draft of the opinion may have invalidated District 25 on these grounds but, for whatever reason, it didn’t get any traction. What we see now are the vestigial remains of that gambit.
    (2) If Rick is reading the opinion correctly — that is, if the Supreme Court will read a community of interest requirement into the compactness prong of Gingles going forward — I’m still not persuaded that this “is a statement of profound significance that reflects a dramatic change in direction,” as Rick suggest. Perhaps Rick is merely describing the normative force of the change. But at least as a practical matter, I’m not sure it creates a significant hurdle to voting-rights suits in the future. Imagine you are litigating the case and the judge says, “look, it’s not enough that you show that the voters are of the same race; the Supreme Court now requires them to be a community of interest to satisfy Gingles.” You would respond, I suspect, that the very fact that minority voters can be grouped into a compact district means that they are in a community of interest. In doing so, you’d appeal to the strong, gut-level idea that geography matters, that voters who live in the same region (even if they are from different socio-economic backgrounds) have something in common. In fact, if you were litigating the case, you’d just dust off all the Shaw cases to find some useful rhetoric about the importance of the compactness test in identifying communities of interest. As a practical matter, while Rick’s reading of the case might generate one more expert witness or brief in a trial, I’m not sure whether it will have a profound impact on the ground.
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More Texas Redistricting Coverage

Howard Bashman gives extensive links to redistricting coverage here, here, and here. See also links in today’s The Note.
In addition to the items cited there, you can listen to Spencer Overton and Roger Clegg on the PBS News Hour with Jim Lehrerhere. Michael McDonald has a Roll Call oped (paid subscription required). Abigail Thernstrom has written this Wall St. Journal oped. Bob Bauer writes here. OSU has posted this chart of the ruling. See this story in the SF Chronicle. Political Wire asks if we are ready for a redistricting boom.
I’m sure there’s more to come….

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