Justin Levitt and Lisa Sandoval (in The Hill)
Dan Lowenstein
Bob Bauer (second post)
Rick Pildes has also posted a must-read post on the election law listserv (link not yet available). Here it is in full:
- Fascinating Error in the Texas Redistricting Case: Part I
In understanding the implications of the Texas decision for the Voting Rights Act, one critical question is whether the Court actually holds that District 25, the new Austin-to-Texas Hispanic district, violates the VRA. The Court majority is clearly deeply troubled by this district, both by its geographic spread and by the fact that it joins Hispanic voters of very different socio-economic backgrounds, but does the Court conclude that district is actually illegal?
Writing the opinion for the Court, Justice Kennedy’s concluding paragraph states only that “the redrawing if lines in District 23 violates Sec. 2 of the VRA.” Dist. 23 is the prior district, also a Hispanic district, known as the Bonilla district. BUT, Justice Souter’s opinion, in which Justice Ginsburg joins, states: “I join Part III of the principal opinion, in which the Court holds that Plan 1374C’s Districts 23 and 25 violate Sec. 2 of the VRA.” (my emphasis). The other Justices who agree with this part of the decision, Justices Breyer and Stevens, do not appear to say anything specific about this matter.
I will address how I think this conflict will end up getting resolved, when the Court publishes the official version of the opinion, and why I think this error emerged. But first let me explain why this glitch is a revealing window into a significant issue. The view that District 25 is troubling (leaving aside whether it’s merely troubling or actually illegal, or even unconstitutional) itself signals a significant turning point in voting-rights law. The Latino voters in this “area” of Texas face racially-polarized voting, as the law defines it, and have cohesive preferences for Latino over Anglo candidates. Under the conventional understanding of the VRA, that would be enough to justify a legal requirement under the VRA that, if a geographically compact district could be created in which Latino voters would be a majority, the law would require such a district. But Justice Kennedy finds that result troubling, at the least, because these Latino voters do not have what we might call “coherent” interests; that is, even though they vote for Latino candidates, they have vastly different socio-economic backgrounds. Texas wanted to dismantle the old Latino district and defended doing that by arguing that the new district, Dist. 25, complied with its obligations under the VRA. At a minimum, the Court today holds that a majority Hispanic or Black district (by direct implication) cannot be considered a district that satisfies the VRA unless that district groups together minority voters with “coherent” interests— meaning, it seems of similar economic status, for example. That is, the opinion constitutes a move away from essentializing racial identity: merely because a district is majority minority, is geographically compact, and minority voters cohesively prefer black candidates, the VRA is not satisfied unless those voters also have substantive interests, such as economic interests, that have some commonality or, as noted above, are “coherent” in some sense. As Justice Kennedy puts it, “We do a disservice to these important goals [of the VRA] by failing to account for the differences between people of the same race.” To those who understand voting-rights law, that is a statement of profound significance that reflects a dramatic change in direction.
But in addition to that kind of essentializing being troubling, does it actually make a district illegal? Does it make it unconstitutional, even? The Court’s opinion clearly bypasses the second question. Based on the oral argument, I believe Justice Kennedy would, in fact, have serious doubts about the constitutionality of such a district, but it is unclear how many Justices would join him in that view. But would such a district actually itself violate the VRA? That is, if a state creates a majority Hispanic or black district, those voters prefer a minority candidate, the district is geographically compact, but those voters do not share common material interests or statuses, does such a district violate the VRA? Justice Kennedy does not go that far, legally, in this opinion. 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. But more on why this glitch emerged, and how I expect the Court to correct it, in another post. For now, I simply wanted to alert readers to the error and what is at stake in the issue.