More on the Texas Redistricting Cases

Michael S. Kang, Professor at Emory University School of Law, has these thoughts on the Texas redistricting cases:

In LULAC v. Perry, the Supreme Court upheld the Texas mid-decade redistricting against gerrymandering and Voting Rights Act claims except with respect to Congressional Districts 23 and 25. First, the decision is most notable on partisan gerrymandering for what the Court did not do—the Court decided not to intervene against partisan gerrymandering and mid-decade redistricting. Second, the Court decided the Voting Rights Act claims in an intriguing fashion that Rick Pildes has introduced and I discuss further below. Finally, as a practical matter, the Court struck down District 23 and ordered another redistricting of Texas.

First, despite a change in personnel, the Court remains in a holding pattern with respect to partisan gerrymandering. Many hoped that the Court’s willingness to hear arguments in this case might lead to greater judicial intervention against partisan gerrymandering. However, a majority of Justices decided that the partisan gerrymandering claims presented in the case should be dismissed. Justice Kennedy continued to insist that partisan gerrymandering is justiciable, but continued to express his belief that a judicially manageable standard has not yet been discovered. The Court’s decision basically preserved the 4-1-4 split from the Court’s previous partisan gerrymandering case, Vieth v. Jubilerer. In short, partisan gerrymandering is justiciable and may be unconstitutional, but the Texas redistricting was not unconstitutional and the standard for judging the constitutionality of future partisan gerrymandering remains uncertain.

What is more, the Court declined to treat mid-decade redistricting differently from routine decennial redistricting. The appellants argued that mid-decade redistricting represented particular problems. Mid-decade redistricting is based on out of date census data and may violate one person, one vote as a result. Mid-decade redistricting also, they argued, represents a category of particularly egregious gerrymandering for which partisan intent is most clear. The Court decided that the same standards, whatever they will be, apply to all redistricting, whether mid-decade or otherwise.

I doubt the Court’s decision will lead to a rash of new statewide redistrictings. State legislatures did not appear chastened before today’s decision by the risk that the Court would decide the case differently, and there are political drawbacks to large-scale re-redistrictings. However, the Court’s decision invites states to tinker further with individual districts for partisan reasons between elections, as we saw recently in Georgia. There is also little reason expect the Court to change direction soon. Justice Kennedy, the key vote, now has declined to act against clear gerrymanders in Pennsylvania and Texas. Chief Justice Roberts and Justice Alito joined the majority on the partisan gerrymandering claims.

Second, the Court held that Texas could not reduce the influence of Latino voters in Congressional District 23 and offset the reduction by creating a Latino district elsewhere in the state in Congressional District 25. Justice Kennedy explains that District 25 fails as a remedy for vote dilution because the Latino residents in the district were divided between very different communities separated by 300 miles. In an earlier case, Shaw v. Hunt, the Court expressed related dissatisfaction with creation of an offset district in a location other than where the Court identified the vote dilution injury, but here Justice Kennedy goes beyond this earlier reasoning. Justice Kennedy agrees that geographic distance is relevant but also claims that the offset district must be sufficiently compact such that the affected Latinos must share “similar interests” beyond the fact that they would “elect a candidate each prefers.” It is unclear what the Court means here, because the Court declined to analyze directly the constitutionality of District 25. District 25 is inadequate as an offset to Section 23, but not necessarily unconstitutional by itself.

This is a murky area, and I’m unsure about the consequences for the law of democracy. Rick Pildes believes that this strand of the Court’s collective decision will require courts in the future to decide the question of what “similar interests,” besides voting interests, are relevant under the Voting Rights Act. The Court’s ultimate answer on this question would run to the heart of the Justices’ theory of how representative democracy should work and thus would have far-reaching implications for the Court’s jurisprudence. I’m less sure. The majority seemed intent on avoiding discussion of District 25’s constitutionality. I doubt the majority agreed among themselves about the position that Rick believes they hold. Nonetheless, the Court’s ambiguity certainly opens the door to an interesting debate as we go forward with renewal of the Voting Rights Act.

An interesting final question is whether the Court now has shifted redistricting challenges back to race claims. During the 1990s, plaintiffs challenged gerrymanders as racial gerrymanders, as the Court entertained claims under Shaw v. Reno. The Court eventually discouraged Shaw claims by allowing redistricting based on race, provided that it could be explained by partisan motivations. In this decade, plaintiffs have brought partisan gerrymandering challenges that claim redistricting was based too much on partisan motivations. Now again, the Court seems stalemated on partisan gerrymandering but opened the door to some degree on racial gerrymandering. The decision today may invite plaintiffs to again shift their attention to race.