Comments on LULAC v. Perry

Daniel H. Lowenstein, Professor of Law at University of California, Los Angeles, has these thoughts:

Today’s Texas redistricting decision and Monday’s campaign finance decisions have certain features in common. Most obviously, the Court was badly fractured. Most importantly, the Court stayed quite close to the status quo on constitutional issues (as opposed to the Voting Rights Act portions of today’s decision, which create new doctrine). Perhaps most intriguingly, in both cases the new justices positioned themselves as moderate members of the conservative bloc.

Although specialists have been dissecting the campaign finance decision, Randall v. Sorrell, for signs of change, the salient features of that decision are that the unconstitutionality of spending limits was strongly reaffirmed and there was just a slight nudge on contribution limits in the direction of greater First Amendment restriction. In my opinion, the latter was necessary, because in Shrink Missouri the Court extended permissiveness well beyond anything Buckley v. Valeo had said. It is not clear whether Randall sets a floor beneath the Shrink Missouri abyss or goes further and casts doubt on Shrink Missouri. Either way, Randall is very much a reaffirmation of Buckley.

On partisan gerrymandering, LULAC v. Perry is even more clearly—though less happily—a case that leaves us where we were. In Vieth v. Jubelirer, a four-member plurality would have overruled the holding in Davis v. Bandemer that constitutional claims against partisan gerrymandering are justiciable, because there are no manageable standards for deciding such claims. In three separate opinions, four justices dissented, each opinion proposing its own standard. The pivotal vote was cast by Justice Kennedy, who thought a manageable standard might be discovered and therefore was unwilling to find the claims nonjusticiable. But he did not think any such standard had been proposed and on that ground denied relief.

In LULAC, the same four justices dissented, and Justices Scalia and Thomas, members of the Vieth plurality, continued to hold the claims unconstitutional. Kennedy wrote the lead opinion, again saying that the question is whether the appellants’ claims offered “a manageable, reliable measure of fairness.” The answer was that they did not. The only difference was that Chief Justice Roberts and Justice Alito joined in this general statement of the problem, though they did not join Kennedy’s discussion of the particular deficiencies of the claims. Whereas in Vieth we had a 4-1-4 split, in LULAC it is 2-3-4. The important point is that the median voter still says that the issue is justiciable but the Court does not know what the law is and therefore will not grant relief.

As Scalia demonstrated in Vieth and as Justice Stevens also points out in LULAC, Kennedy’s posture is profoundly irresponsible. It is therefore disappointing to see Roberts and Alito taking the same stance. However, in their case it is most likely a holding action. They may want some time and experience before taking a clearer position. In the meantime, they are situated on the left side of the conservative bloc, which is where they sit right now on campaign finance as well.

Where do the rest of us stand constitutionally on partisan gerrymandering? In a recently published article at 14 Cornell J. Law & Public Policy 367, I came to the surprising conclusion that, on the principle that you cannot replace something with nothing, Davis v. Bandemer is still good law. If I was right in that analysis, I don’t see anything in LULAC that changes the situation.

The novel constitutional issue that received the most public attention was the mid-decade issue. On that point, I believe Kennedy was right to emphasize the preferability of redistricting being effected by legislatures rather than courts. I believe the Court’s conclusion that mid-decade redistricting is neither unconstitutional nor constitutionally suspect is correct. But that does not mean mid-decade redistricting is good. The best solution to this problem would be a federal statute prohibiting a legislature from drawing congressional districts more than once in a decade. There would have to be exceptions for when a plan is declared invalid or in the case of a referendum.

The Voting Rights Act issues are very complex and I make only a few short points. First, Kennedy folds some of the racial gerrymandering concepts into his Section 2 analysis. This is bizarre, analytically unsound for reasons demonstrated by Roberts, and probably bodes no good.

Second, there is probably no good doctrinal answer to why District 23 was struck down and District 24 unsound. But there is a very good impressionistic answer. In the strongest portion of his opinion, Kennedy tells a persuasive story that District 23 was on the verge of becoming a Hispanic-controlled district and that for partisan and incumbent reasons the legislature snatched it away. The story he tells on District 24 is that the Democrats are using race as an attempted way to save a prominent, white Democratic representative.

Third, bringing the “quality” (or “style,” in Roberts’ expression) of a district into the Section 2 analysis is not good for politics or for minorities. It is simply another restraint on how the legislature must carry out its legal obligations. This happened to be a Republican legislature and a Republican plan, but this decision will apply to Democratic legislatures as well. And the decision compounds one of the evils of the racial gerrymandering cases, by limiting minority legislators’ flexibility to accomplish their objectives as they wish.

I conclude on a note of tentativeness. I have published exegeses of both of the Court’s prior partisan gerrymandering cases, Bandemer and Vieth. In both cases, major points became clear to me after repeated readings and long consideration. It is quite possible that on reflection and after hearing what others have to say, I will have a different view of LULAC.