December 12, 2005

Breaking News: Supreme Court Agrees to Hear Texas Redistricting Case; Will a Justice Alito Make a Difference?

After so many relistings, this is a surprise. According to Lyle Denniston, the Court agreed to hear four of the seven appeals. "Those four appear to raise many if not all of the key issues, including whether the Court can fashion a standard for judging when partisan gerrymandering is excessive."

This case originally was sent back for reconsideration in light of Vieth v. Jubelirer. In that case, the Court split 4-1-4 (more details here), with four Justices believing partisan gerrymandering cases non-justiciable, four Justices wanting to impose a reinvigorated test for judging partisan gerrymanders, and Justice Kennedy in the middle, agreeing the cases were justiciable, but rejecting all proposed tests for separating impermissible partisan gerrymanders from the permissible use of party information in redistricting. Both Chief Justice Rehnquist and Justice O'Connor were in the block of 4 urging non-justiciability.

So what does the replacement of Rehnquist for Chief Justice Roberts and the likely replacement of Judge Alito for Justice O'Connor mean for the outcome in this case? It would mean nothing unless either of these Justices were to switch positions from their predecessors and agree such cases should be justiciable (putting those Justices in line with the four more liberal members of the Court---though it is not clear that this is a liberal-conservative split). It could be that Justice Kennedy also has finally decided where he stands on the question. The case will likely be argued in April. Stay tuned.

UPDATE: Lyle Denniston's updated post reports that the petitions granted raise issues including the constitutionality of mid-decade redistricting and voting rights issues. The lower court opinion (not published, but available on Westlaw at 4 Election L.J. 321) rejected the argument that mid-decade redistricting is unconstitutional ("The rule the University Professors and other plaintiffs propose would require us to apply an established doctrine in a novel way, with uncertain basis and effect. We add to these concerns the question of whether the entire contention is outside the mandate of the remand order.") It also failed to reconsider the voting rights issues ("The G.I. Forum, Congresswomen, and Texas-NAACP on remand return to their claims that the Texas plan impermissibly burdens minority voters in violation of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Each would tie these claims to partisan gerrymandering. The contention is that these violations occurred in the effort to gain partisan advantage, however else the effort may be flawed. We examined and rejected all of the claims in detail in our previous opinion. [FN86] As these claims are beyond the scope of the mandate we are not persuaded that we should revisit them.")

Any examination of the Voting Rights issues will be done in the shadow of controversy over the DOJ's granting of preclearance to the Texas redistricting under section 5 of the Act. That issue is not directly before the Court but the analysis in the now-leaked report---and the politics surrounding preclearance---could color how at least some of the Justices view the voting rights issues in the case.

UPDATE 2: Here is the Supreme Court's order list, noting two hours for the consolidated hearings in these cases.

UPDATE 3: The timing. Apparently the Court has expedited the briefing schedule (opening brief 1/10; state's brief 2/1; reply 2/22) and set argument for March 1. It is significant that the Court set the case for March 1, given that the Court was filling its April calendar and already has cases set for hearing that day. Presumably the Court wants to expedite things in anticipation of the 2006 congressional elections. Perhaps I'm reading this wrong, but it looks like the Texas primary is March 7. So what good would expediting do? Would the Court order a new primary?

Some history is instructive here, copied from Lowenstein and Hasen, Election Law--3d 3d (2004) at page 306:

    The District Court on the remand of Bush [v Vera from the Supreme Court] redrew thirteen congressional districts and declared void the primaries that had already been held. See Vera v. Bush, 933 F.Supp. 1341 (S.D.Tex. 1996). New runoff primaries were ordered to be held in those districts at the same time as the general election in November. In a runoff primary, candidates of all parties run against each other. If one candidate wins a majority, he or she is elected. If no one wins a majority, a runoff election is held between the top two vote-getters.

    Because a primary was mixed with the Texas general election by reason of the District Court's order, the "straight-ticket lever" that Texas includes in its voting procedures could not apply to the House elections in the thirteen districts, which undoubtedly caused some voters unknowingly to fail to vote in the House races. In the three districts in which no one won a majority in the November primary, a run-off election had to be held in December. This could easily have affected the results in a close election, since turnout in a December run-off figured to be far lower than in the November presidential election.

UPDATE 4: Why did the Court list the case six times before deciding to hear it? After all, if there were 4 Justices to hear the case, that would have been evident before. I see three possibilities:
1. Justice Kennedy has finally decided what he wants to do in these cases, or perhaps he was swayed by an argument of the plaintiffs (such as that mid-decade redistricting for partisan gain is unconstitutional, no matter what else is).

2. Chief Justice Roberts wants to weigh in on these cases.

3. One of the Vieth dissenters was preparing a summary affirmance, and one of the Justices in the majority did not like what was there. Shades of the dispute in Larios. This reminds me of what happend in Harper v. Virginia Board of Elections, recounted in my book, The Supreme Court and Election Law. By a 6-3 vote, the Supreme Court was prepared to uphold the constitutionality of the poll tax. Justice Goldberg prepared a dissent from the Supreme Court's summary affirmance. Justice Black, who was in the majority in upholding the poll tax, did not like what was in the dissent and called for a full hearing, apparently with the expectation that the Court would issue an opinion rejecting the view of the dissenters. Justice Black got burned. Three Justices changed their votes over the summer, and the opinion released after argument was 6-3 striking down the poll tax, with Justice Black in dissent.

Lyle Denniston's post now sets out the questions presented in the petitions. Here are some links to early stories on the decision to hear the Texas case: AP; Washington Post; Bloomberg; Reuters. The Reuters story erroneously reports that the three-judge court was reviewing the DOJ's preclearance decision and that the Supreme Court will now be ruling on that question.

Posted by Rick Hasen at December 12, 2005 07:18 AM