The Supreme Court’s decision today in LULAC v. Perry is a rich and complex set of six opinions, and there is a huge amount of material, especially on interpretation of section 2 of the Voting Rights Act, that will require more sustained study for me to understand. So take these comments in the tentative spirit in which they are made.
From my initial review, here are the headlines as I see them.
1. Partisan gerrymandering claims remain losers, at least for now. I am reminded of the old “Saturday Night Live” routine with “Weekend Update” anchor Chevy Chase reporting: “This just in. Generalissimo Francisco Franco is still dead.” For the Democrats in the this case, and for plaintiffs for the foreseeable future, courts will accept partisan gerrymandering claims (because there is no majority holding them non-justiciable) and then reject the claims because there is no manageable standard. There is no majority still for either rejecting such claims outright, or for accepting them and providing a test for separating permissible and non-permissible consideration of party. Justice Kennedy remains undecided.
For supporters of Court involvement in this area, there are a few reeds of hope that a court majority would eventually allow such claims to be brought. In a separate opinion, Chief Justice Roberts and Justice Alito expressly state they were not deciding the issue, stating, someone disingenuously I believe that the question whether any judicially manageable standard exists “has not been argued in these cases.” That means their votes are potentially up for grabs. I wouldn’t put too much stock in their votes, however, because the ultimate tone of the Chief’s comments is very skeptical of Court over-involvement in these cases. Another potential reed of hope is Justice Kennedy’s discussion on page 13 (slip op) of the “symmetry” standard proposed in amicus brief of Professors King, Grofman, Gelman and Katz. Kennedy is skeptical, but leaves the door slightly ajar: “Without altogether discounting its utility in redistricting planning and litigation, we conclude asymmetry alone is not a reliable measure of unconstitutional partisanship.”
2. The Court Appears to Close or Be Closing Other Avenues for Challenging Partisan Redistricting, Including Through Mid-decade Redistricting The Court, with a stronger majority, has rejected the claim that mid-decade redistricting itself is unconstitutional, and it seems to have reined in some of the speculation, at least among academic circles, that courts should use the one person, one vote doctrine to police partisan gerrymandering claims. It had been commonly thought before the Supreme Court summarily affirmed Larios v. Cox, 300 F.Supp.2d 1320 (N.D. Ga. 2004) that jurisdictions could deviate from population equality in drawing state and local district lines by up to 10% without running afoul of the one person, one vote rule. Larios suggested that doing so (at least in part) for partisan reasons was unconstitutional. Today, Justice Kennedy writes expressing skepticism about this use of Larios (slip op 16).
More importantly, the argument made under the Elections Clause in an amicus brief by Professors Issacharoff, Neuborne and Pildes got no traction. The Court is not looking to find another clause of the Constitution as a vehicle for policing the right amount of partisan competition. Instead, the Court made clear that legislatures have great power subject to court deference to draw district lines, even in the case o congressional districting. (slip op. 7-9.) As much as the Court might be moving toward judging competition in the campaign finance area, it is not doing so in the area of partisan gerrymandering.
3. Justice Kennedy Is The Swing Voter on Section 2 of the Voting Rights Act, and the Result is a Mixed Bag for Supporters of a Strong Reading of the Act. On the one hand, Justice Kennedy, writing for himself and the four liberal members of the Court, strikes down Texas CD 23 on grounds that it deprived Latino voters of an opportunity to elect candidates of their choice. (This part of the opinion is quite nuanced, and appears to change section 2 in numerous, and somewhat substantial, ways.) On the other hand, Justice Kennedy, writing for himself the Chief and Justice Alito, together with the concurring opinion of Justices Scalia and Thomas, reject the argument that section 2 protects the creation of influence districts. This is a blow to the voting rights community, which essentially argued that because the Court recognized the relevance of such districts in the section 5 context in Georgia v. Ashcroft, they would be relevant in the section 2 context as well. But Justice Kennedy (slip op. 40) says the “lack of such districts cannot establish a s 2 violation. The failure to create an influence district in these cases thus does not run afoul of s2 of the Voting Rights Act. (One thing I want to explore further is Justice Kennedy’s use of the term “opportunity district” in referring to CD 23, and how that differs from his analysis of “influence district” in this part of the opinion.)
4. Language from Justice Scalia’s Separate Opinion Will Likely Be Used by Supporters of Renewal of Section 5 of the Voting Rights Act to Support Renewal of the Act without Any Changes. There has been a vigorous academic debate over whether, when section 5 of the Voting Rights Act comes up for renewal, it needs to be changed so that it will be found constitutional against a claim that renewal exceeds congressional power to enforce the Fourteenth and Fifteenth Amendments. Supporters of renewal will likely point to this language in Justice Scalia’s opinion, explaining his belief (which apparently is shared by at least five other members the Court) that compliance with section 5 can be a compelling interest for drawing district lines on the basis of race: “I would hold that compliance with s5 of the Voting Rights Act can be such an interest. We long ago upheld the constitutionality of s5 as a proper exercise of Congressional authority under s2 of the Fifteenth Amendment to enforce that Amendment’s prohibition on the denial or abridgement of the right to vote. South Carolina v. Katzenbach, 383 U.S. 301 (1966). If compliance with s5 were not a compelling interest, then the State could be placed in the impossible position of having to choose between compliance with s5 and compliance with the Equal Protection Clause.” (Scalia slip op. 9.)
This language may be somewhat helpful to supporters of renewal arguing that no change is necessary, but I don’t think it commits Justice Scalia to a position on the constitutionality of a renewed section 5. Note also footnote 2 of the Scalia opinion (“No party here raises a constitutional challenge to s5 as applied in these cases, and I assume its application is consistent with the Constitution.”).
I would further note that I would not be too hopeful about the position of Chief Justice Roberts and Justice Alito when VRA renewal makes it to the Supreme Court. The Chief’s separate opinion disagreeing with Justice Kennedy on the CD 23 violation of section 2 of the Voting Rights Act shows these Justices are not willing to read the Act in a generous way. Note also (Roberts slip op. 20) the Chief’s skepticism about the whole endeavor: “It is sordid business, this divvying us up by race.”
One final question: What will happen with the fall elections in terms of District 23 and surrounding districts, which will have to be redrawn to comply with the Supreme Court’s decision. In 1996, a three judge court threw out election results and ordered new elections with new district lines after plaintiffs successfully brought a claim that a district was an unconstitutional racial gerrymander. Would the district court do so again?