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Friday, January 20, 2012

In 9/0 ruling, SCOTUS smacks down 3-judge federal court that redrew Texas' Congressional districts; stresses state government's superior role over federal courts in determining the interests of Texas citizens

I've just read today's unanimous, per curiam (unsigned) opinion by the United States Supreme Court in Perry v. Perez. The media reports I've read so far are, unsurprisingly, either clueless or filled with Democratic Party spin (but I repeat myself), and they're working hard to paint this as some kind of "split" or "mixed" result in which the SCOTUS produced something for both sides to like and both sides to hate.

PlanC100_texas_cong_dist_mapThat's wrong. This is an amazing decision that, fairly interpreted, was a brutal smack-down of a special three-judge federal district court. And the smack-down was delivered because that court had thoroughly ignored the wishes of the voters of Texas — as expressed by their duly elected representatives in the Texas House, the Texas Senate, and the Governor's Mansion — about how to redraw Texas' electoral maps to accommodate the 2010 Census results, in which four additional seats in Congress were apportioned to Texas.

This whole area of the law is highly technical, with a complicated and sometimes internally inconsistent set of judicial, legislative, and historic precedents involved. So even though this opinion is comparatively short and clearly written, it's rough sledding for most non-lawyers to follow, especially when one starts getting into the tall grass of mandatory direct SCOTUS jurisdiction, Section 5 preclearance requirements of the Voting Rights Act of 1965, and relative standards of proof in preliminary injunction hearings. But here's how the opinion tees up the stakes and the big-picture issues:

[H]ere the scale of Texas’ population growth appears to require sweeping changes to the State’s current districts. In areas where population shifts are so large that no semblance of the existing plan’s district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment....

(Even casual students of voting rights cases like me can appreciate the ironic understatement of that last sentence. Indeed, it's been so hard to find "neutral legal principles" that even the Supreme Court has frequently fragmented into multiple small voting blocs in these cases, quite commonly failing to produce any single written opinion that speaks for a majority of the Court. This is the kind of droll observation that John Roberts, as Chief Justice, can put in without it bugging any of the left-leaning Justices enough that they ask him to take it out, and one or two of them aren't completely humorless anyway.)

The Supreme Court continues:

... Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan — even one that was itself unenforceable — “to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”

So you don't throw out democracy and mount a judicial coup d'état just because some small part of a redistricting map is, or might be, problematic. Instead, to paraphrase today's opinion, what the Legislature passes and the Governor signs — what Texas' own duly elected government does for itself in the exercise of its solemn duties under both the state and federal constitutions — should, as much as possible, trump federal judges who think it's their job to just dive in and fix whatever they think they can improve upon.

After more analysis along these same lines, we get to the meat of the decision, which also conveys the smack-down (citations omitted, boldface, highlighting & first bracketed portion mine):

In this case, the District Court [that comprehensively redrew the Texas Legislature's map] stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.

Wait, wait ... You don't think that's a smack-down? You expected maybe something snarky, maybe something like Justice Beldar would have written?

Actually, the dry and unemotional language used here again makes me think that Chief Justice Roberts is the likely unacknowledged author. Regardless, here's my translation, in plain English and without the restraint with which judges talk about each others' screw-ups in print:

Whoa! Just WHOA now! Just who do you three judges on the special district court think you are? Who made you the boss of the Texas state government and Texas voters? You're not!

And you may think that you have some judicial Magic 8-Ball which tells you what's best for the citizens of Texas, but we have these Constitutions — one federal, one state — which actually limit your whole role in this fight to way, way, way less than you guys think you're supposed to be doing. So cut it out, right now!"

The rest of the opinion mostly comprises specific examples of things the three-judge special district court got absolutely wrong because they thought, at least in this particular case, that they were philosopher-princes who rule the cosmos instead of federal judges. (Umm, again, that's Justice Beldar's characterization, not from the per curiam opinion itself.)

So this case is already going back, in a big hurry ("judgment shall issue forthwith," sez the SCOTUS, so no motions for rehearing or such), to the special three-judge district court. Their job — now that their attitudes (and legal standards) have been appropriately readjusted — will be to take the map passed by the Legislature and signed into law by the Governor, and to then make the absolute minimum number of changes that are absolutely necessary to fix, temporarily (for 2012 only), only those specific things that the plaintiffs in the case actually demonstrate to be pretty darned likely to be found illegal or unconstitutional.

That's likely to end up looking an awful lot, then, like what the Legislature passed. And that means the Democrats have lost this round in Texas for all practical purposes.

But do you want to know what actually got my motor racing the most when I read through this per curiam opinion? It was this (bracketed portions mine):

This Court recently noted [in the Northwest Austin MUD No. 1 v. Holder case, a 2009 Roberts opinion,] the “serious constitutional questions” raised by [Voting Rights Act] §5’s intrusion on state sovereignty. Those concerns would only be exacerbated if §5 required a district court to wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.

Friends and neighbors, that's what my tenth grade English teacher at Lamesa High School, Mrs. Koger, trained me to recognize as "dramatic foreshadowing." And since I would very much like to see the SCOTUS agree that it's now time to quit presuming, as a matter of federal law, that today's Texans are racists just because 1965's Texans were racist, I'm very eager to see this play out.

The four liberal Justices likely read that same paragraph, though, and thought (to themselves; they wouldn't quibble about this with the Chief, or decline to concur over it): "Yeah, we'll just see about that when the time comes." But the Beldar SCOTUS Tea-Leaf-o-Matic™ says Chief Justice Roberts is signaling that he has the votes for what will be a monumental decision in American constitutional law and, indeed, American history.


UPDATE (Fri Jan 20 @ 10:30pm): The PBS NewsHour actually does a pretty good job reporting this story, in large part because they interviewed and relied upon election law expert Rick Hasen. Prof. Hasen has been very gracious in some previous blog discussions with me about Texas redistricting. He's a reliable leftie, but he's wicked smart, and he tries to be (and mostly succeeds in being) intellectually honest (even when he's wrong). Prof. Hasen also picked up on the broader Voting Rights Act implications. The NewsHour headline (which Prof. Hasen links and republishes without demurrer on his own blog): "Supreme Court Ruling on Texas Electoral Maps 'Huge Setback' for Democrats." And yes, that's exactly right.


UPDATE (Sat Jan 21 @ 3:10pm): The Wall Street Journal's editorial page also mostly gets this story right, including the implications for future litigation on the continuing constitutionality of Section 5, in "Holder's Texas Defeat: The Supremes deliver a unanimous drubbing on redistricting." (But you won't learn anything there I didn't already say here; and the Journal's admirably concise telling leaves out some details I tend to savor.)

A lot of the other commentary I'm reading about this decision completely misses the parts of the opinion in which the SCOTUS stressed that there can't be any map re-drawing without the required evidentiary showing of a legal violation to justify it. Even some conservative bloggers I've read seem to be assuming that the three-judge court can still produce, if it's so inclined, another map that suits the Democrats better than what the Legislature passed and the Governor signed.

That is emphatically wrong. For that to happen, at least two of the judges of the three-judge special court would have to publicly defy the SCOTUS. The last time something like that happened on a really important case was in 2000, when the Florida Supreme Court pointedly ignored the SCOTUS after the SCOTUS had already said, "Hey, you can't do that, so cut that out, and don't make us come down there and smack you!" The Florida court's institutional reputation has still not recovered, and the reputations of the individual judges who'd led the defiance simply vaporized because they were exposed as lawless partisan hacks. 

No, sir or ma'am, these three judges will indeed now understand that every single alteration they make from the Texas Legislature's map is going to be scrutinized under a SCOTUS microscope. Indeed, they've been given a list of specific (and otherwise likely) screw-ups that they have been publicly warned not to repeat. And the whole point of this unanimous, per curiam opinion was to send an unambiguous set of directives: There are no concurrences or dissents to muddy the water, and these three judges now know that what they did the first time couldn't find a single supporter on the SCOTUS. Repeat: these judges couldn't get so much as a kind word even from Justice Ginsburg, the long-time general counsel of the ACLU, on this one. That's such a harsh reality that it can't escape notice.

So these three judges would have to be utter fools to defy the Supreme Court. As I wrote in a comment below, there's no shame in being reversed, nor even in being reversed by a unanimous SCOTUS. There is, though, shame in being reversed twice in the same case on the same issues; and these three judges are going to take lots of care to see that doesn't happen.


UPDATE (Sat Jan 21 @ ~5:00pm): This post is a fine example of why I complimented Prof. Rick Hasen for trying to maintain his intellectual honesty despite his partisanship. He admits to having "gotten a fair bit of pushback that the outcome after remand is far less certain" after his description of yesterday's decision as a "big win for Republicans." But he gives three reasons for why he "think[s] it is unlikely that whatever maps come out of the Texas court (and face a possible second emergency appeal to SCOTUS) are not likely to be nearly as good as the maps which came out now." (By "good," Prof. Hasen means, "pro-Democrat.")

His first and third points, I've already made here. He's correct that it's the Texas Legislature's maps, "(rather than starting from scratch maps) which will govern what the final maps look like." He's also correct that "The three-judge court is likely to be chastened by the unanimous Supreme Court decision."

His second point amplifies on something I've noted in a way that I think is also probably correct (emphasis mine):

In drawing those maps, the Supreme Court went out of its way not only to say that the three-judge court should not deviate from Texas’s plan any more than necessary to solve any constitutional/voting rights violation. The Court specifically pointed out that the court should not draw any minority coalition districts to achieve voting rights results. This makes it more likely that the majority-minority districts will have more minority voters in them and will not lead to the creation of extra Democratic seats.

I'm sure Prof. Hasen would protest and disagree, but I respectfully submit that that paragraph contains an inescapable but implicit acknowledgement that what this is all about is partisan politics, not remedying of racial discrimination. And its premise is that only Democrats can reflect the views of minority voters — an offensive and, indeed, a racist premise. (Again, he would protest and disagree.) But as always, the Dems want to win in federal court what they can't win at the electoral polls. They haven't won a state-wide race in Texas since 1994, and they've lost their majorities in both chambers of the Legislature, because Texas voters have rejected them — repeatedly, comprehensively, at every level and despite all their class- and race-warfare. The likely composition of the Texas Congressional delegation in January 2013 will now, correctly and fairly and legally, reflect that rejection.


UPDATE (Sun Jan 22 @ ~5:40pm): I thank Prof. Hasen for this gracious cross-link to this post. (I'd sent him an email "ping" as a courtesy since I don't think his blog uses trackbacks and his comments are disabled.) In it, he writes (briefly, and not tendentiously but, I hope, with good humor):

For the record, I hardly think it racist to note that minorities, especially African Americans (but aside from Cuban-Americans in Florida) tend to vote for Democrats by very lopsided margins.

To which I'd respond, not quite as concisely:

Of course it's not racist to merely note it, especially as history. But it's a racist judgment (i.e., an act; I'm not indicting people but rather conduct and decisions) to assume or presume that so it must always remain. And partisan race-based politics is an illegitimate basis to strip state legislatures (and, ultimately, their constituents) of their constitutional rights and obligations to redistrict. In Chief Justice Roberts' inarguable formulation: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."


UPDATE (Sun Jan 22 @ 8:10pm): Concision is definitely something I lack, but I haven't vented about this for a few years. So, expressed slightly differently:

1. Democrats believe as a matter of political faith that, by definition, their party includes no racists and can commit no racist acts; rather, Democrats are merely people who insist that government, and especially the federal courts, trample democracy to reorder society (including Texas' Congressional districts) in order to dictate winners and losers on the basis of skin color. Nuance: I learnt it from that "Animal Farm" book ("four legs good!").

2. (a) Partisan gerrymandering is one of democracy's most unappealing, raw aspects. Democracy itself is a terrible system of government with many historically demonstrable failings, redeemed only by the fact that it's nevertheless the least worst form of government ever yet invented and implemented.

(b) The Democrats are complaining bitterly that in the Texas redistricting, Republicans discriminated against Democrats and in favor of Republicans. Well, duh. That's not disputed; that is the essence of gerrymandering, which is about sorting voters into districts based on how those voters are likely to vote. Every alternative to gerrymandering comes at a cost to small-d democracy; I haven't yet seen one which was worth that, and I don't believe any such alternative exists. The Founders' decision to put the responsibility for redistricting at the most organic, grass-roots level of government, the state legislatures, was indeed a choice of the least-worst alternative.

(c) However, proof that Republicans simply discriminated against Democrats also wins them no relief in federal court. So Democrats have to engage in this fiction that by discriminating against Democrats, the Republican majorities in both chambers of the Texas Legislature and the Texas Governor were all actually discriminating against racial minorities.

(d) That's counter-factual; the Democrats claimed that in 2003-2004 too, and were ultimately laughed out of court because all they had to support those claims was wild speculation and innuendo.

(e) In fact, neither Republicans nor Democrats have any need to discriminate anymore on the basis of so crude and statistically inaccurate metric as race. They can draw more useful, better-gerrymandered maps using other, much more precise data on who's likely to vote Democratic and who's likely to vote GOP.

(f) Nevertheless, absent actual evidence of discrimination on the basis of race (which doesn't exist, because that's not what's been happening), the Democrats' proof of an alleged voting rights violation depends entirely on their ability to win a purely legal argument (unmoored from evidence) that conflates "Democrat" with "racial minority." Without that presumption and assumption, their legal position falls to pieces, and is exposed as an accusation that Republicans are (gasp!) political.

Posted by Beldar at 09:43 PM in 2012 Election, Law (2012), Politics (2012), Politics (Texas), SCOTUS & federal courts, Texas, Texas Redistricting | Permalink


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(1) Beldar made the following comment | Jan 20, 2012 9:51:24 PM | Permalink

To expand on the phrase "in this particular case":

I think these three judges on this particular special court blew it badly. But as a general rule, there's no shame in being reversed. I do not think their rulings were based on the political affiliation of the presidents who appointed them. And I certainly do not think they are horrible judges or horrible people; to they contrary, they are, in general, fine judges and fine people. Perhaps they were merely confused or misled by weak lawyering (that excuse always works!), and I stipulate that this is a difficult area of law in which clear precedents are hard to find and harder to apply.

I do think, however, that federal courts in general have been way, way too eager to substitute their own ideas of what's right and wrong, good and bad, for the views of duly elected and legitimate political leaders, and I think that's what happened here. And amazing enough, in this particular instance, all nine current members of the SCOTUS seem to agree.

(2) Boyd made the following comment | Jan 20, 2012 11:47:03 PM | Permalink

Y'see? Right here, this is why I read them thar blogs on the Intertubes.

The Austin TV news covered this story this evening, and I was left with the impression that...well, they didn't 'splain it very well, and it sounded to me like it was a smack-down of the legislature. Maybe I wasn't paying close enough attention.

But I'm pretty sure that if they had given the proper emphasis to key facts, such as 1) this was a SCOTUS ruling, 2) it was unanimous (wha...? Unanimous? Nevair!!), and 3) they sided with elected officials and overruled their judicial brethren, I would have noticed.

And finally, "...it's now time to quit presuming, as a matter of federal law, that today's Texans are racists just because 1965's Texans were racist..."

Yes. ^^ This. Those of us in our 50s and 60s today were mere children in 1965, and younger folks weren't even born back then. We get to be our own people, not our parents.

(3) DRJ made the following comment | Jan 21, 2012 11:21:00 AM | Permalink

I'm not your equal when it comes to legal scholarship but FWIW I agree with your analysis, including that this opinion was authored by Chief Justice Roberts and that it foreshadows the end of Section 5. As for the District Court Judges' intent, it appears their redistricting changes consistently hurt Republican candidates and helped Democrats. That doesn't suggest a well-intentioned, neutral purpose to me.

(4) Michael made the following comment | Jan 21, 2012 3:16:04 PM | Permalink

Cool. I drive south out of Fort Worth for a talk before the last election. Noticing the names of the people running, I thought, 'Spanish guy maybe a Democrat? But running against Mickey Edwards.' Then I read about the guys running and later winning, Spanish surnamed realtor - R. Hmmm. To paraphrase the hip-hop culture. 'You Republicans are bad.'

(5) Beldar made the following comment | Jan 21, 2012 3:51:42 PM | Permalink

DRJ, you are too modest. And this is one where the SCOTUS has genuinely done its best, I think, to send a clear message that doesn't require a speciality in voting rights litigation to grasp.

(6) Beldar made the following comment | Jan 22, 2012 11:40:50 PM | Permalink

Broken update links to Prof. Hasen's blog fixed, with my thanks to him for his email alerting me to the errors.

(7) Gregory Koster made the following comment | Jan 23, 2012 12:45:24 AM | Permalink

Dear Mr. Dyer: Nope, don't agree with much of what you say, viz:

a) "And I certainly do not think they are horrible judges or horrible people; to they contrary, they are, in general, fine judges and fine people. Perhaps they were merely confused or misled by weak lawyering (that excuse always works!), and I stipulate that this is a difficult area of law in which clear precedents are hard to find and harder to apply." (from your comment #1)

What does it say when "fine judges and fine people" make such a hash of things? You yourself were wonderfully amusing in translating the anonymous opinion and showing us in the laity how the District Court panel was skinned, salted and then pitched into the deep fryer. You do admit that election law is a jumble, courtesy of the Supreme Court and Congress. Given that, why shouldn't the panel come up with another good-in-Rick-Hasen's-eyes set of maps? Damage to reputation? So what? How many edicts sent down from the Jovian brows of the Florida Supreme Court since 2000 have been ignored because of the aftermath of Bush v. Gore? When the FL Supremes decide to chuck someone in the jug for contempt, do the bailiffs laugh and say, no, it's just the Supremes ranting again? Have the Justices salaries been cut? Are they pelted with rotten eggs as their limousines slink about town?

No. Why then should the District feds worry? What can the Supremes do to them? Thanks to the enshrining of judicial privilege and arrogance under the guise of "judicial independence" the District Court panel can do what it likes. So what if it is reversed? Remember the District Judges's motto, after Jim Fisk: "Nothing is lost, boys, save honor." Simply using up time throws more sand into the cumbersome electoral process, giving Dem fraudsters more opportunity, whether in stealing votes or dragging electoral processes to the same courts that made a mess of things.

b)I realize you don't share my opinion of the judiciary being in general so many hogs who would be better being herded to the slaughterhouse, canned, and shipped to the Taliban as a "reset" gesture of American diplomacy. Not every judge is Samuel Kent, I am forced to admit. But there's more than enough tinpot Messiahs who are great at creating Messes for the rest of us to endure.

c)I am more interested in why the opinion was "per curiam" i.e. an anonymous poison pen letter. Why make an opinion PC unless:

i) it covers a peewee issue that is of interest only to the litigants. That's certainly not the case here.

ii) it's a shapeless forbidding monster that needs to be treated by the EPA's Hazardous Waste Superfund department, and the author wants to hide from consequences. See e.e. BUSH v. GORE.

From your analysis, there don't seem to be any shapeless issues in the opinion. So why the anonymity?

d)So far as Roberts's laudable desire to throw off the shackles of the Voting Rights Act, I think it is a mistake for the courts to do this. This is a job for the legislature. It would be hard going, with plenty of demagoguery, but a successful overthrow would do more damage to the Left than any number of court cases, forcing a long overdue public discussion of "How much is enough?" about past racial discrimination. Roberts may also feel sure he has the votes, but one of them, Scalia, is or will be 76 this year. Let him shove off for glory before The Won faces the voters in November, and Roberts's notions will pop faster than the Dow Jones average in 1929.

e)I also don't think Rick Hasen's honesty in this case makes him a generally reliable source. Ask the old boy about election fraud i.e. the Secretary of State Project and see if you don't get a bland denial that anything is wrong. You wonder why the old boy doesn't hie off to Venezuela, where his knowledge of election law could be put to best use.

Sincerely yours,
Gregory Koster

(8) Beldar made the following comment | Jan 23, 2012 2:59:01 AM | Permalink

Mr. Koster, thanks for another genuinely interesting comment.

We've talked before about judges. I am not minimizing the scope of the harm done to democracy by their (now-reversed) ruling in this case when I say that they are not evil-hearted. My conclusion is based in large part on my own general experience with federal judges, including activist and politically liberal federal judges with whom I frequently disagree. Even if I thought some of them were evil-hearted, I'd not likely say that on my blog for several reasons — among them both (a) a wholesome respect for the canons of ethics and the responsibilities of members of the bar thereunder not to trash-talk the bench, and (b) the not-too-remote possibility that on some future day, I might find myself representing clients before them (and my clients deserve better than to be hamstrung by hiring a lawyer who's already at even a personality disadvantage). But my own personal experience leads me to credit, and want to emulate, the mutual good-will of Justices Scalia and Ginsburg for one another. I understand if you see that as ass-kissing or being corrupted by the system, and we'll just have to disagree on such judgments.

Your curiosity about the fact that this was a per curiam opinion is entirely justified. Which opinions are signed, and which aren't, is a distinction going back through centuries of British and American common-law traditions, and there can be several different reasons why a given decision might appear "per curiam" instead of under the signature of the judge who wrote it. The most common explanation is that the decision was easy, or trivial, or mostly procedural, or for some other reason not enough of a big deal for it to be "claimed" as part of that judge's ouevre.

A second common explanation is that an opinion is genuinely the result of joint and divided efforts, such that its creation was indeed the effort of more than one writer. That's particularly likely to be true in cases decided on an expedited basis, as this one was at both the trial and appellate levels. I see no signs of that in this SCOTUS opinion, but it would be extremely typical for three-judge trial-court panels on voting rights cases to divvy up some of the drafting by subject matter, and then to designate the resulting opinion-by-committee as "per curiam."

In this case, my hunch is that when Chief Justice Roberts took the affirm/reverse head-count at the secret conference (typically held after oral argument), the vote to reverse was unanimous or nearly so — provided that the opinion could be structured in a way that appeared to make no new law and set no new important precedents, and provided that it contain no particularly inflammatory language that the liberal justices would feel obliged to disassociate their names from. My hunch is that Chief Justice Roberts used the promise that this would be a per curiam opinion as part of his arsenal of tools to gather consensus, in other words, and that when he assigned its writing to himself, he might even have promised his colleagues that he would deliberately tone things down. So that left him room to slip in a little bit of dramatic foreshadowing, for example, as long as it was vague and not too obvious; he can still draw concurrences from the libs in a per curiam that merely repeats that a recent case has already noted "serious constitutional questions" about the continued validity of section 5, whereas they'd refuse to let their names be even impliedly associated with the opinion if he's said, "We're probably gonna declare that sucker unconstitutional the next chance we get."

Also: The SCOTUS is extremely conscious of the urgency of this case, given that we're only weeks away from the 2012 Texas primaries. That dynamic tends to make justices slightly more willing to compromise or overlook small quibbles, and to discourage them from writing separately. Both of the two pending special district court proceedings involving this decade's Texas redistricting are going to be coming back again, for more thorough review after one or possibly two contested trials on the merits. When there is less of a time crush, you're more likely to see signed concurrences or dissents, although the majority opinion may still end up being written per curiam. (The famous modern example of that is Bush v. Gore, of course.)

Section 5's pre-clearance requirements were only ever constitutional because the Voting Rights Act was a remedial statute, designed not just to end, but to put right, past violations of the voting rights of southern blacks. Yes, I'd prefer that Congress, by repealing section 5, recognize that its presumptions against certain states and other political subdivisions are no longer justified. Failing that, I'd be content for the SCOTUS to recognize that its presumptions can no longer be justified as remedial, and that what section 5 does now is contrary to both the purpose and literal language of the Fourteenth Amendment.

And I'll stick with my evaluation of Prof. Hasen. He could probably argue my side of the argument better than I have, if he agreed to be so tasked, but obviously he and I reach diametrically opposed conclusions even when we agree on a whole bunch of underlying facts and subsidiary principles. And if I find myself being annoyed, I deliberately call to mind again the image of Justices Scalia and Ginsburg attending the opera together by night while they dissent vigorously from each others' views by day.

(9) pa made the following comment | Jan 23, 2012 2:12:34 PM | Permalink

The Cholla Jumps, an Arizona blog, wrote a most interesting post about redistricting and what the law says about favoring various identity groups. Seems to me that a great many judges, legislators, DOJ lawyers, and community organizers would benefit from reading this very clear explanation. Here are my favorite paragraphs from the longer post:

"Here you can see that there is no express requirement that majority-minority districts be created or preserved. Majority-minority districts are the product of a concept developed by the Department of Justice and the courts. What the laws says is that every citizen must have an equal opportunity to elect representatives of their choice. The Department of Justice has interpreted this requirement to mean that Democrats have to be able to elect Democrats, Hispanics have to be able to elect [Hispanics] and African-American voters have to be able to elect candidates with the same color of skin. There has never been any validation of these interpretations by the DoJ and the courts; there has never been a demonstration in the cases that Hispanics always prefer Hispanic candidates, Whites will not prefer non-white, etc. … All of these preferences are inherently discriminatory and are prohibited under the 14th Amendment of the U.S. Constitution.

"Please note the final sentence in section (b) above. There is no right to have members of a protected class elected in numbers equal to their proportion in the population. ...

"If the commission will disregard protection of the incumbents and focus on getting an equal number of persons in each district and that each district is geographically compact and contiguous to the extent practicable you will be on solid legal footing. Once you venture out into discovering and protecting various communities of interests and discriminating based on use of language or surnames or color of skin you will find yourself on very thin ice and in possible violation of the 14th Amendment requirement of equal protection under the law. Equal means equal; it does not mean putting the heavy hand of government on the scales to favor one group over another group."

[The Cholla Jumps recently erased its entire archive from the Internet (stupid stupid stupid), although the blog is still active. The link for the original post I quoted from won't take you anywhere, but here it is for the record anyway: http://thechollajumps.wordpress.com/2011/06/05/pima-county-redistricting-commission-is-being-ill-advised/]

(10) DRJ made the following comment | Jan 23, 2012 8:33:53 PM | Permalink

Excellent updates and I've enjoyed the conversation with Prof. Hasen. I'd just like to add my two cents to the notion that Texas Hispanics vote Democratic so redistricting to increase Democratic representation isn't racist. Texas 23rd District is a majority Hispanic district that since 1985 has been represented by Hispanic politicians from both Parties. The 23rd was redistricted in 2006 to increase Hispanic representation and a Democrat won, but a Republican won in 2010. So even if Hispanic districts vote for Democrats in other states, they don't uniformly vote Democratic in Texas ... and it's suspect to suggest they will.

(11) Gregory Koster made the following comment | Jan 24, 2012 12:26:59 AM | Permalink

Dear Mr. Dyer: Many thanks for your response. You are quite right about Scalia and Ginsburg and opera going. But I don't think that goes very far. History is loaded with numerous examples of the well-meaning who did great harm trying to bring their well meanings to life. Do you think LBJ was trying to create a welfare dependency class by enacting the Great Society programs? Or that he honestly believed that he was only giving a helping hand to folks who needed help? How did that turn out? On the present Bench, I'll concede that Kennedy is an amiable fellow and all round good citizen. Does that mean his jurisprudence follows good principles? Not hardly. He's found a niche that gives him great power, amiability or no. As I've said before, the day one of Roberts/Alito/Thomas/Scalia kicks off is the day Kennedy becomes an irrelevant nuisance. The Won doesn't need to get a fanatical zany like Larry Tribe on the bench. Squishes like Kennedy or J.P. Stevens will do. Let the leftward march! pressure do the rest. See Stevens's memoirs for a vivid example of score settling leavened with senility masquerading as judicial purpose. I'd be more impressed with mutual goodwill if it led to fewer Supreme books, whether Stevens or Rehnquist or Thomas being published. Want to write your memoirs or teach or lecture or cosy up to the jet set of 2012? Quit the Bench. The judiciary should be a secular version of the monastery.

As for internal tensions on the Court, I invite any reader to read a splendid novel by C.P. Snow THE MASTERS. While set in a provincial college in England in the 1930s, it too examines the doings of a small closed society in which a majority of 13 votes is needed to determine the future course of the college. The tension, the backbiting, the ceaseless maneuvering for advantage all the while denouncing the other side for unscrupulousness----it's all there. I doubt if any of the present Nine could read it without squirming, some more than others.

Your notion about the reason for the "Per Curiam" is appealing, but I don't want to believe it. For it to work, the four sinister judges have to be witless beyond belief. To be sure, Kennedy and Sotomayor fit this mold, but Breyer doesn't, and I don't think Kagan does either. I can't see either of those two acquiescing in an opinion that might open the door to revision, let alone repeal of the VRA. Given Thomas's concurrence, I'm surprised that B or K didn't do some howling on their own. You might be right, and we will find out if The Won is canned at the polls, and a Justice Department that isn't full of liberal bigots has to defend VRA.

Sincerely yours,
Gregory Koster

(12) DRJ made the following comment | Jan 24, 2012 7:55:29 PM | Permalink

By the way, the Republican representative of Texas' 23rd District -- Congressman Francisco Canseco -- is giving the GOP's Hispanic response to President Obama's State of the Union address.

(13) Dan S made the following comment | Jan 26, 2012 11:31:12 AM | Permalink

"Nuance: I learnt it from that "Animal Farm" book ("four legs good!").:

The reason this is so is that when the gerrymandering starts in a 'd'emocracy, them with four legs has twice the votes when it comes to voting with their feet!

(14) DRJ made the following comment | Jan 28, 2012 9:41:21 AM | Permalink

The San Antonio judges want to delay the election, unless the parties agree to compromise. Tell me again how these are neutral judges?

(15) DRJ made the following comment | Jan 31, 2012 7:12:22 PM | Permalink

An update from the DC court proceeding:

"WASHINGTON — Three federal judges weighing the legality of Texas' new political maps reacted with skepticism Tuesday when the state's lawyer suggested the intent of the redrawn boundaries was to maximize the influence of Republicans, not to minimize the influence of minorities."

(16) Beldar made the following comment | Jan 31, 2012 10:41:44 PM | Permalink

DRJ, thanks for the link. Press reports on these proceedings are notoriously unreliable; and during the 2003-2004 litigation, the mainstream media kept believing the spin the Dems' litigation team was putting out, so they interpreted a lot of judicial open-mindedness to both sides as being skepticism about the State's position. If this report is accurate, however, then it makes one grateful, in this instance at least, for the mandatory direct appellate jurisdiction at the SCOTUS.

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