More Thoughts on the Texas Redistricting Cases.

Dan Ortiz of the University of Virginia Law School has these thoughts on the decision:

Wednesday’s opinions in LULAC confounded, I think, nearly all expectation. While many thought that the Court might develop the law governing partisan gerrymandering in one direction or another, it did not. As exactly before, such claims are justiciable but the Court can’t find any law to govern them. On the other hand, few expected the Court to make any major changes in doctrine under the Voting Rights Act and Shaw v. Reno. But LULAC surely did. What follows are short descriptions of four moves I see the Court making in these two areas, some of which could have large consequences. Whether they do or not depends on how seriously courts, including the Supreme Court, take them in the future. That’s unclear. I apologize for the doctrinal nerdiness of the discussion. Unlike the Court’s handling of the gerrymandering claims, most of these four moves are fairly technical and difficult to understand. But they are no less potentially significant for that.

Three of the Court’s moves spring from its analysis of whether Texas District 23 violated § 2 of the Voting Rights Act. In order to boost a Republican incumbent’s chances of reelection in a district that was becoming increasingly Latino, Texas had replaced some of District 23’s Latino voters with Anglo voters who would more likely vote Republican. The Court found that the plaintiffs had met § 2’s three threshold factors—they had shown that Latinos in the area were “sufficiently large and geographically compact to constitute a majority in a single-member district,” that they were “politically cohesive,” and that the Angelo majority votes “sufficiently as a bloc to enable it … usually to defeat” Latino-preferred candidates. This part of the analysis is unremarkable and makes no real changes to existing § 2 law.

The next stage of analysis is where things get interesting. Texas claimed that any problem with District 23 was cured by District 25, a newly created majority-Latino district. In the first of its moves, however, the Court held that “one majority-minority district [can] compensate for the absence of another only when the racial group in each area has a § 2 right ….” In other words, an opportunity district in one area would not “count” in the overall § 2 calculations unless minority voters within it would themselves have an independent § 2 claim. This development may have several effects. First, it limits where states can locate any majority-minority districts they must draw to satisfy § 2. A state cannot decide to meet the requirements of § 2 by creating majority-minority districts just anywhere. Only certain places will do. Second, these locational restrictions may in turn affect the state’s ability to gerrymander. Indeed, this may have been the very reason why the Court created this rule. As many have noted, by failing to develop any tools to regulate political gerrymandering directly, the Court has encouraged people to attack it with the only tools available—racial vote dilution and one-person, one-vote claims—even if those tools were developed for very different tasks. Now perhaps the Court is developing racial vote dilution law itself to take that into account. In other words, the Court’s inability to address gerrymandering directly might be leading it to develop racial vote dilution law to pick up the slack. Only time will tell whether this is a dangerous development. I tend to think that it is.

The Court’s next had to determine whether minority voters in District 25 “had a § 2 right”—that is, would minority voters in the area covered by that district hypothetically be able to bring a successful § 2 claim to force creation of that district or one like it if District 25 did not exist. Here the Court makes its second and most interesting move. In deciding that minority voters in District 25 could not meet the three threshold factors for § 2, it reinterpreted the first factor—compactness—in a radically new way. Prior to LULAC, the Court had viewed this factor as requiring geographical compactness. That is, plaintiffs had to show that a reasonably geographically compact group of minority voters could form a majority within a district. If a majority could be aggregated only by pulling together voters from far-flung areas, there would be no § 2 violation. In LULAC, however, the Court focused as well on a different concern: how homogeneous the various minority voters aggregated together were. Relying on the district court’s findings that Latinos in two parts of District 25 were “disparate communities of interest” with “differences in socio-economic status, education, employment, health, and other characteristics,” it found District 25 to be noncompact. Thus, minority voters within District 25 could never argue that § 2 required its creation and so it could not be used to offset District 23.

In one sense, this move represents the flip-side of the Shaw line of cases. Those cases held that plans subordinating “traditional districting criteria,” especially geographical compactness, to race violated equal protection. They rested in part on Court concern that districting plans not reinforce attitudes of racial distinctiveness—the idea that people are racially heterogeneous. In LULAC, by contrast, the Court holds that § 2 does not allow us to assume that people within a single racial or ethnic group are culturally homogeneous. Although the Shaw cases worry about the differences between groups while LULAC worries about the differences within groups, they share an animating concern—what some have called “race essentialism.” They just worry about it, so to speak, from different directions. Shaw says we should not act as if people of different racial groups are that different from each other—in this context, that Latinos and Anglos think and act differently. LULAC, on the other hand, says that we should not assume that people in the same racial group are really the same—here that all Latinos have the same interests. Even if racial identity cashes out politically, that is, Latinos of different stripes vote similarly, we must still prove that they are culturally homogeneous.

What effect will this anti-essentialist turn have in § 2 cases generally? If the Court were to require that § 2 plaintiffs establish both geographical compactness and racial homogeneity, § 2 claims would be much more difficult. In addition to showing that members of the racial community are politically cohesive—that is, tend to vote for the same candidates—they would have to show that they are culturally, economically, and socially cohesive as well. Indeed, the Court even suggests that health differences between members of the group could matter. Having to prove these more general forms of cohesiveness would make establishing a § 2 claim very difficult. Could, in fact, even men and women within a racial group be lumped together? To many, their differences, whether due to nature or nurture, are vast.

Luckily, the Court makes clear that it is not requiring that. “We emphasize,” it states, that “it is the enormous geographical distance separating Austin and the Mexican-border communities, coupled with the disparate needs and interests of these populations—not either factor alone—that renders District 25 noncompact for § 2 purposes.” In other words, the Court is not saying that plaintiffs have to show that the minority population within a district is both geographically and culturally compact but only that when plaintiffs can show neither form of compactness § 2’s threshold compactness requirement is not met. In this view, either geographical or cultural compactness alone is sufficient to satisfy this first threshold requirement. (In fact, though, the Court may limit the impact of cultural compactness even further. It suggests that it applies only across geographically compact subgroups that are themselves geographically dispersed, not within the overall dispersed group.)

This way of reinterpreting compactness, if the Court is serious about it, would open up rather than close down § 2. It would enable geographically noncompact groups of minority voters to establish § 2 violations so long as they can show that they are culturally homogeneous. It would work to relax the traditional geographical requirement that the Court had previously suggested was central to § 2.

Is the Court serious about this move, though? I’m not sure. Although some of the Justices who joined this part of Justice Kennedy’s opinion, all of whom were necessary for it to represent the opinion of the Court, may be happy to relax geographical compactness, it seems odd to think that Justice Kennedy himself is. After all, he has championed geographic compactness in the Shaw cases. Perhaps he is willing to relax it a bit so long as Shaw requirements operate in the background to prevent it from being relaxed too far. Or perhaps this doctrinal innovation is only a sport that the Court will use primarily to throw a wrench into gerrymanders. In this view, the new compactness requirement may come to resemble the doctrinal innovations of Bush v. Gore. Unlike that case, however, LULAC does not signal the limited range of the doctrine’s application. If the new compactness doctrine is meant as a sport but taken seriously by the lower courts, the Court’s inability to develop tools addressing gerrymandering will once again have had collateral consequences on racial vote dilution law.

If anyone is still with me, let me briefly describe the two other moves I think the Court is making. Once the Court found that District 25 could not compensate for District 23, it applied the second stage of § 2 analysis, the so-called “totality of the circumstances” test. One of the circumstances—perhaps the most important—is proportionality. In Johnson v. De Grandy, the Court made clear that if the number of districts in which a minority group forms an effective majority is roughly proportional to its share of the population a § 2 violation is unlikely to be found. In LULAC, Texas argued that proportionality should be determined on a regional, not plan-wide, basis. In particular, it claimed that proportionality should be judged only in the area where valid minority opportunity districts could be created. This approach would give the state a large denominator advantage. Instead of dividing the number of opportunity districts by the number of districts in the plan as a whole, it would divide them by the smaller number of districts in the more limited area where opportunity districts could be created. That would, of course, produce a much larger fraction. Of course, since the court would be looking only at the area where opportunity districts could be created, the proportion of minorities in this area, to which the proportion of minority districts would be compared, would also be higher but typically not correspondingly so. Thus, under Texas’s argument, a state could in general satisfy § 2 by creating fewer opportunity districts.

The Court rejected this more limited frame of reference. So long as plaintiffs allege an injury to minority voters living throughout the districting plan, the denominator must be the number of districts in the plan as a whole and that fraction must be compared to the minority voting-age population in the area covered by the plan as a whole. This move put the final nail in District 23’s coffin. Without counting District 25 as an offset, there were simply too few Latino opportunity districts to match the Latino voting-age proportion of the population statewide.

Finally, the Court made one new move outside of § 2 doctrine. All the Justices except Justice Kennedy, who expressed no opinion on the matter, agreed that a jurisdiction could defend against a Shaw claim on the ground that it had to draw districts the way it did to meet the requirements of § 5 of the Voting Rights Act. This near unanimous expression is very surprising. Many had feared that some on the Court might believe that Shaw effectively overrode § 5. Since it now appears that satisfying § 5 is a compelling interest under equal protection doctrine, the only real question in cases where a state is pressed to meet § 5 standards will be whether its chosen plan uses race in a narrowly tailored way. Reframing the issue as how, not whether, states can meet what § 5 requires gives them some room to work.

Finally, I’d like to point out something in Justice Kennedy’s opinion I find quite interesting. Throughout he speaks of “we.” Yet in two sections—II-B and II-C—no one joined him. Is he just slipping into the royal “we” and so revealing what many critics have long suspected or did he have others joining these parts of the opinion as well and lose them? Given that in II-C he decides that the plaintiffs have provided no appropriate standard to show that mid-cycle redistrictings are unconstitutional, it doesn’t make sense that Scalia and Thomas, who believe these claims are non-justiciable, would have joined him. On the other hand, Stevens and Breyer, who both find a problem with the plan, would not have joined this part either. And Souter and Ginsburg, who clearly are sympathetic to gerrymandering claims but did not speak with any clarity on this one, would have been highly unlikely to. That leaves Chief Justice Roberts and Justice Alito, the Court’s newest members. If they or one of them was once on board these sections, why did they jump? What parts of II-B (a background discussion of legislative and judicial redistricting plans) and II-C (the rejection of the legal standards plaintiffs and amici proposed for regulating gerrymandering) did they find problematic? The answer to these questions might shed light on where the Court will head in the future.