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Supreme Court Decision Update - League of Latin American Citizens v. Perry

supreme1.jpgIn one of the more anticipated Supreme Court cases this term, in League of Latin American Citizens v. Perry (PDF of the Opinion), i.e., the “Texas redistricting case,” our Justices decided that now was a good time to wreak havoc on summary writers, deciding several issues with different majorities in a whopping 132 page decision in which six of the Justices wrote an opinion.

QuizLaw Analysis: The (really) long and short of it is this: On the two issues that the Supremes came to a majority consensus on, the Court held that 1) part of the redistricting plan violated the Voting Rights Act by screwing over the growing Hispanic population in District 23. However, 2) in what was obviously a power-grab by Republicans to entrench themselves in the majority, the Texan Congress did not violate the Constitution by redrawing the electoral map mid-decade, even though new maps were only required to be drawn once every ten years to account for shifts in population. In essence, besides the one district (23), the Republicans redistricting map was upheld.

Here is some preliminary background: After the 1990 census, in which the Republicans gained on the Democratic majority, the Democrats redrew the Texas electoral map in the hopes of holding on to its slim lead in the congressional delegation. The Republicans unsuccessfully challenged the new map, arguing that it constituted impermissible partisan gerrymandering. By 2000, the Republicans had increased their numbers, but since there was no clear majority in the State House, the job of redrawing the electoral map fell to the courts, which largely held the 1991 Democrat-drawn map in place. However, in 2003, the Republicans finally gained a foothold in the state legislature and, with that power, they redrew the map again, resulting in a 2004 election that gave the Republicans a 21-11 lead in the House.

In 2003, several contingents of voters brought suit, challenging the Texas redistricting map (referred to as 1374c), arguing: (i) that redistricting could not take place mid-decade; (ii) that the map unconstitutionally discriminated on the basis of race; (iii) that the map constituted unconstitutional partisan gerrymandering; and (iv) that the map, in effect, diluted the voting rights of minorities in violation of Section 2 of the Voting Rights Act. A Texas district court, however, upheld the map, holding that it was neither unconstitutional nor in violation of the Voting Rights Act. While the case was pending appeal, however, the Supremes came down with an opinion on another redistricting case in Pennsylvania, Vieth v. Jubelirer. In Vieth, the Court decided that it did have jurisdiction over partisan gerrymandering cases, but it didn’t come up with any consensus on a test for determining impermissible partisan gerrymandering. In light of the Vieth case, the Texas court reaffirmed its earlier holding in the Texas redistricting case. This appeal followed.

First, as to the violation of Section 2 of the Voting Rights Act, Justice Kennedy wrote the opinion in which the court’s liberal members joined, creating a 5-4 majority. This majority held that the redrawing of Texas District 23 amounted to vote dilution, in violation of Section 2. Kennedy found that the new configuration of District 23 prevented a Latino candidate from taking a seat from a Republican incumbent because Hispanics constituted a majority of the voting population under the old map - thus, the Texas legislature did, in fact, redraw the map to protect the incumbent by unnaturally shifting a large segment of the Hispanic population into another district. Indeed, the new map resulted in only five Latino opportunity districts in Texas, despite the fact that Latinos made up 22 percent of the population (and therfore should have been accorded two more districts to account for proportional representation.) “In essence,” Kennedy wrote, “the State took away [the Latinos] opportunity [to oust the incumbent] because they were about to exercise it.” Indeed, Kennedy noted, the redrawing of the map was not done on behalf of the Texas voters (specifically the Latino population) but on behalf of an incumbent who was on the verge of losing his seat. Therefore, under the “totality of the circumstances,” section 2 was violated.

On the separate issue of whether redrawing the congressional map mid-decade constituted political gerrymandering, Kennedy also wrote the 7-2 majority opinion (though the seven justices in the majority differed to some extent on the reasons why it did not constitute political gerrymandering). Kennedy concedes that there was political motivation behind the redistricting plan, recognizing that the sole purpose was to achieve a Republican majority. However, he noted (and four other Justices agreed) that partisan aims did not guide the entire redistricting plan, evidenced by the fact that the Republicans did take into account “mundane and local interest” as well as some of the Democrats’ suggestions in redrawing. Kennedy further noted that there was nothing “inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own,” and that — though the new plan did represent a shift in Republican seats — it reflected the distribution of state party power better than did the previous two plans. Six other Justices agreed with Kennedy, rejecting the argument that mid-decade redistricting for exclusively partisan purposes violated the one-person, one-vote requirement because there was no evidence (at least ascertained by the District Court) to support the argument.

Beyond those two issues, however, the Supremes were split and there were no majority opinions on the other issues (though the SCOTUSblog disagrees slightly, if “sympathetic votes” are accounted for). Specifically, three judges (Kennedy, Roberts, and Alito) all agreed that redistricting in Dallas (District 25) did not dilute the African-American vote because African-American voters consistently voted for the white incumbent and thus, African-Americans were not denied their choice of seat-holder. Moreover, the challengers didn’t present enough evidence that African-Americans wielded enough power (with only 25 percent of the population in the area) to change the outcome. Thomas and Scalia implicitly agreed on this count, without actually joining Kennedy’s opinion, by simply rejecting the Voters Right’s Act claims in their entirety.

Souter, joined by Ginsberg, didn’t necessarily disagree with the plurality about the redistricting in District 25, he simply advocated that the matter be remanded to the district court for further consideration, specifically with regard to the question of whether a voting dilution claim can prevail even though the minority population is less than 50 percent.

Justice Breyer chimed in with his own opinion to agree with Kennedy in ruling that Section 2 of the Voting Rights Act was violated with regard to the dilution of the Latino vote. However, Breyer would go many steps further, suggesting that the entire redistricting plan violated the Equal Protection Clause of the Constitution because the plan “overwhelmingly relies upon the unjustified use of purely partisan line-drawing considerations … which will likely have seriously harmful electoral consequences.”

Chief Justice Roberts, joined by Alito, wrote separately to agree that the new redistricting plan was not unconstitutional partisan gerrymandering, but disagreed that the redrawing of District 23 violated the Voting Rights Act. Roberts argued that the existing redistricting plan actually maximized the Latino vote (as found by the District Court) and he therefore found the majority’s reasoning absurd, noting that there is no alternative redistricting plan that would have fared better for the Latino vote. “When a State’s plan already provides the maximum possible number of majority-minority effective opportunity districts, and the minority enjoys effective political power in the area well in excess of its proportion of the population,” Roberts wrote, “I would conclude that the courts have no further role to play in rejiggering the district lines.”

Justice Scalia, joined by Thomas, also wrote a separate opinion, disagreeing with the majority’s holding that District 23 violated the Voting Rights Act. The crux of his argument was that the Voting Rights Act could only be violated if the reason behind redrawing the map was racially motivated. Here, Scalia asserts that it was not racially motivated, it was motivated by a desire to keep the Republican incumbent in office, i.e., a political motivation (that had an unfortunate side-effect on the Latino community). Though an argument might be made that there was an inference of racial motivation behind the political action, Scalia asserted that simple inferences cannot overcome the district court’s finding of fact because the Supreme Court could only overturn a lower court in the case of “clear error,” i.e., “inferences” do not amount to “clear error.”