We’re expecting opinions today at 10 am. Given the number of high-profile cases yet to be decided, it seems likely that we will get one or more of them. Rick Pildes has these thoughts on one of those high-profile cases: the Texas redistricting case, which was argued on March 1.
Most attention on the Texas redistricting case has focused on the most visible and easily explained issue of whether the Court will hold that mid-decade redistricting violates the Constitution. After the oral argument, the answer appears likely to be no. But when the Court’s decision comes down, it will almost inevitably make new law on three other important issues concerning voting rights and the Constitution:
1. Constitutional Constraints on Racial/Ethnic Redistricting.
For the first time in many years, the case requires the Court to revisit issues spawned by its decision in the early 1990s, Shaw v. Reno. Shaw recognized constitutional constraints on the extent to which race could be used in the districting process, but the contours of those constraints have remain undefined. During the 1990s, more liberal groups vigorously objected to Shaw. Now some of those groups are seeking to invoke Shaw to hold invalid at least part of the Republican-controlled Texas redistricting process.
Two issues to watch for in this aspect of the Court’s decision: First, the Court has struggled to separate racial and political motivations behind the design of highly contorted districts. Current doctrine makes the former but not the latter constitutionally problematic. But separating between these two motivations in the political context is extraordinarily difficult, and to some extent, a highly artificial effort, at least where black voters vote overwhelmingly for Democratic candidates. Texas defends by arguing it was politics that motivated the design of the district at issue. That is the same claim North Carolina offered, but that the Court rejected, in Shaw. How the Court disentangles political from racial motivations in this context, or whether it abandons that effort altogether, will have much to say about how significant the constitutional constraints on election district design will be. Moreover, since much of voting rights law currently requires determining whether election regulations are racially or politically motivated, how the Court handles this question will have implications for voting rights issues beyond the redistricting context.
Second, Texas argues that it created the Hispanic district issue to make up for its decision to eliminate a different Hispanic district elsewhere. Is it constitutional for a state to create a “compensating†minority district in this way. One view would be that the relevant baseline must be the state as a whole, so that this kind of defense is permissible. But the Court has said in the past that this defense is available only if both the old and new district are in the same “part†of the State. That is, the baseline is not the state as a whole, but the particular “part†of the State. This requires the Court, however, to decide how to define the “parts†of a State. That, too, is an uncertain inquiry. Doing so, I suspect, will introduce even more uncertainty and litigation into this already complex area of law. But a number of Justices seemed inclined to invalidate the Hispanic district at issue for just this reason. If that is the result, it will have implications not just for constitutional law, but for the Voting Rights Act (VRA), where this same issue arises.
2. The Voting Rights Act in Today’s World of Multi-Racial and Ethnic Demographics.
A main target of the Texas redistricting was to destroy the district that elected Rep. Martin Frost, one of the most effective members of the Democratic Party. His district reflected the more complex world in which the VRA must be applied today. Its voting-age population was 21% black; 34% Hispanic; and 41% Anglo white. Black voters strongly and consistently voted for Frost, who is white. The Justice Department was internally divided on this question, with the staff lawyers in the Voting Rights Section concluding that dismantling this district violated Section 2 of the VRA, but the head of the section rejecting the staff’s view.
Does dismantling a district that is 21% black but regularly elects a white candidate whom the black community endorses violate Section 2 of the VRA? Based on the argument, the Court seems likely to reject that claim; indeed, I would be surprised if it received more than a couple of Justices endorsed this view. Since the 1990s, the Court has rejected the views of the career staff in the Voting Right Section in many cases, and I expect that to be so again here. But the particular way the Court rejects the claim could have great importance. It might do on a narrow basis closely tied to the particular facts of Texas. Or it might do so on the basis of principles that have implications for other claims of this general sort. The way the Court resolves this issue could also have implications for the current debates in Congress about renewing the VRA and what modifications, if any, to make in the existing law. This particular question in the Texas case ties directly in to those debates.
3. Is Partisan Gerrymandering Unconstitutional at the Retail Level Even If Not At the Wholesale Level?
Although the Court is likely to reject the general partisan gerrymandering attack, Justice Stevens aggressively pressed at argument his apparent view that at least one of the districts should be struck down as an unconstitutional partisan gerrymander (the district that eliminated Martin Frost). Justice Stevens pushed a principle as to why that was so that has not been addressed in prior cases. From the argument, it is difficult to tell how receptive Justice Kennedy was to this new principle, but the Stevens approach would be a much more surgical and narrowly-targeted way to get at partisan gerrymandering. For that reason, it is possible to imagine Justice Kennedy being open to considering such an approach. Justice Kennedy is clearly troubled by excessive gerrymandering, but has just as clearly had difficulty finding standards he can accept by which courts would address the issue. If the Court strikes down even one district here as an unconstitutional gerrymandering, it would be a dramatic moment in the constitutional law of democratic politics. The Court has never struck down any election district, let alone a districting plan, as an unconstitutional partisan gerrymander.
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