Publications
League of United Latin American Citizens v. Perry (05-204)
Greetings, Court Fans!
Today marked the final day of the Term, and with it came the Court’s much-awaited opinion in Hamdan v. Rumsfeld, which invalidated the military tribunals set up for the detainees at Guantanamo Bay. We’ll get that summary out as soon as we possibly can. To tide you over until then, here’s the summary of the other big opinion of the week, League of United Latin American Citizens v. Perry (05-204), an almost unbelievably splintered opinion on a “partisan gerrymandering” challenge to Texas’ most recent congressional redistricting plan. Remember a few weeks ago, before Rapanos and Sorrell, when we were lamenting the Roberts’ Court’s boring unanimity? Well, Perry is Exhibit A for “be careful what you wish for” โ get out your scorecard, because you’ll need it to keep track of the alignment of the Justices.
Perry consisted of four cases challenging various aspects of the Texas redistricting plan, which has a lengthy history. Texas gained congressional seats following the1990 census, requiring the state to draw new district lines; at that time, the Democrats controlled the Texas legislature, and they enacted a plan that safeguarded their majority status in the state’s congressional delegation. Texas Republicans challenged the plan but lost, and they continued to constitute a minority of the Texas congressional delegation despite making considerable gains at the state level. After the 2000 census, Texas again gained congressional seats, but a divided Texas legislature could not come up with new district boundaries, so a federal three-judge panel stepped in to draw the lines. In 2003, the Republicans captured both houses of the Texas legislature, and they proceeded to redraw the lines again, this time to their benefit. One group of citizens challenged the new plan, arguing that the “mid-decade” statewide redistricting was a blatant “partisan gerrymander” that violated the Voting Rights Act, while other groups claimed that the alleged use of race and politics to draw particular district boundaries violated the First Amendment and the Equal Protection Clause. Another three-judge panel upheld the new plan against these challenges, and the Court consolidated the cases on appeal.
Justice Kennedy wrote the principal opinion in the Court’s decision, which affirmed in part (rejecting the challenge to the statewide plan and to one congressional district), reversed in part (finding that another district’s boundaries did violate the Voting Rights Act), and vacated in part (by not reaching certain claims in light of the other holdings). We’ll take the various challenges one at a time, which may help keep the Justices straight.
The Challenge to the Plan as a Whole
The challenge to the entirety of the statewide plan was that it was a partisan gerrymander that denied equal protection of the laws by burdening Democrats because of their views and association. The key cases in this area were Davis v. Bandemer (1986), where a majority of the Court recognized political gerrymandering as a valid claim but could not agree on its elements, and Vieth v. Jubelirer (2004), where a plurality of a differently-constituted Court thought such challenges were nonjusticiable and best left to the politicians but could not get a majority to agree. This time around, the Court declined to revisit the justiciability issue and again could not come up with a standard to apply to political gerrymandering. Instead, we have a cobbled-together holding that, whatever the standard should be for these claims, it can’t be the appellants’ preferred rule that any mid-decade redistricting (i.e., one not done in response to census results requiring new districts) must have been done for partisan reasons and therefore must violate the First and Fourteenth Amendments. Justice Kennedy, writing for himself, noted that this rule would make no sense, as it would allow for expressly partisan redistricting just after a census but strike down a perfectly sensible plan done mid-decade. Also, there could be any number of valid reasons for a state to redraw lines that (as here) had been mandated by a court a few years earlier โ including trying to match the balance of electoral power in the state as opposed to entrenching a minority (as the old plan had done). In a portion of his opinion joined by Souter and Ginsburg, Kennedy also found that mid-decade partisan redistricting, by itself, was not “sufficiently suspect” to give shape to a “manageable” standard for determining when a gerrymander was unconstitutional โ so by failing to offer a reliable standard for review, the appellants had failed to state a claim. In a separate opinion, the Chief (joined by Justice Alito) agreed that the appellants had offered no reliable standard for identifying unconstitutional partisan gerrymandering, and so their claim should be rejected. Given that finding, he took no position on the justiciability issue, keeping his powder dry for later.
Justice Scalia, joined by Justice Thomas, concurred in this part of the judgment, but they would hold that partisan gerrymandering is nonjusticiable. They felt that Kennedy’s disposition of the case was just wrong โ either the claim is nonjusticiable and should be dismissed, or there are standard elements to the claim and the case should be dismissed because the appellants failed to state them. But the Court cannot say “we don’t know what the elements of this claim are yet” and then dismiss for failure to state them (it’s kind of hard to argue, when you put it that way).
Justice Stevens dissented from this part of the judgment and was joined by Justice Breyer. They would hold that purely partisan gerrymandering is unconstitutional because it serves no legitimate governmental purpose, retaliates against individuals based on their political preferences, and discriminates against a politically disfavored group. Stevens thought that the appellants’ mid-decade rule could give rise to a judicially manageable constitutional inquiry โ here, for example, it was easy to identify the legislature’s motive as partisan. In his own two-page opinion (the purpose of which was not entirely clear), Breyer agreed, writing, in essence, that the partisan purpose behind the new plan was really obvious. Stevens also wrote, this time only for himself, that much of Kennedy’s opinion went to the merits rather than the “manageability” of the inquiry, as it focused on whether the complaining party’s “representative rights” were burdened. Stevens thought they clearly were: Democrats across the state lost both the chance to elect their candidates in many districts and the ability to influence Republicans who, because they had newly entrenched majorities, had no need to listen to the opposition. Recognizing that politics will always be a part of redistricting, Stevens would hold that where the predominant motive is to disadvantage a politically salient group, and that purpose is achieved, then the constitution has been violated.
If you’re trying to keep score, that’s seven votes to reject the partisan gerrymandering claim (five because the appellants’ rule is unmanageable and two because the claim is nonjusticiable), with Stevens and Breyer in the dissent. On justiciability, the four more liberal justices appear united in their belief that partisan gerrymandering is still justiciable, while Scalia and Thomas take the contrary view, and the Chief, Alito and Kennedy want to save the issue for another day. When that day comes, it will come down to their votes.
The Challenge to Districts 23 & 25
Another challenge in the case was to the particular borders of Texas Congressional District 23, which was redrawn to safeguard a Republican incumbent threatened by a rising Latino population (though the incumbent was himself Latino) by creating a new District 25 absorbing much of that population and linking it by a “bacon-strip” of land to another Latino area some 300 miles away. Here, at least, there was a clear majority (Kennedy, Stevens, Souter, Ginsburg and Breyer) holding that District 23 violated the Voting Rights Act. Under the Court’s cases applying the Act, the test is whether a given district is a minority “opportunity district” โ that is, whether the minority group is large enough, geographically compact enough, and politically cohesive enough to elect the candidate of its choice, but for majority bloc voting. If so, then the courts must look to the totality of the circumstances to see if the minority has been denied the chance to participate in the political process and elect its choice. Latinos in District 23 qualified for this analysis as they were geographically compact and a majority of the district’s population (Texas argued that its creation of District 25 solved this problem by creating a new Latino opportunity district to compensate for the loss of the old one, but the Court did not agree because District 25 violated the principle of compactness โ the two Latino groups put together in the new district were geographically distant and had different interests and needs: “The mathematical possibility of a racial bloc does not make a district compact.”) Turning to the circumstances, the Court looked at the proportion of Latino opportunity districts in the state relative to the Latino share of the citizen voting-age population, and found that Latinos were two districts shy of proportional representation. Also, Latinos in District 23 had been poised to elect their choice of representative, having increasingly voted against the incumbent in recent elections, and the redistricting followed a history of voting-related discrimination against Latinos in Texas. Given these facts, the plan as to District 23 violated the Voting Rights Act โ and given that statutory violation, the majority declined to reach the appellant’s First Amendment and equal protection claims as to the district, or to decide whether District 25 also was invalid (since it would have to be redrawn anyway due to the ruling on District 23).
The Chief and Alito dissented from this ruling, principally on the issue of whether District 25 compensated for the loss of old District 23. The district court had found that District 25 had a Latino majority that acted as a voting bloc, such that it was a more effective Latino opportunity district than old District 23, and that the plan actually created more Latino opportunity districts in that region of the state (i.e., it looked at proportionality regionally, not statewide). For Roberts, the majority’s holding was basically that the Texas plan maximized the possible Latino opportunity district “but loses on style points” because District 25 is an ungainly “bacon-strip” district (which was inevitable given the geography and demography of Texas). But there was no “freestanding compactness” requirement in the Voting Rights Act, which would impose counterproductive per se restrictions on states’ ability to draw lines to comply with the Act’s other requirements. Roberts closed by noting that “I do not believe it is our role to make judgments about which mixes of minority voters should count . . . It is a sordid business, this divvying up by race.”
Scalia’s opinion also included a dissent from this ruling; he and Thomas would have dismissed the District 23 challenge for failure to state a Voting Rights Act claim. As a result, Scalia noted that he was required to reach the appellants’ constitutional equal protection claims. In an analysis joined by the Chief, Thomas and Alito, Scalia rejected those claims. Although the Court will not hesitate to apply strict scrutiny where racial concerns are the predominant motives behind state action, the district court found that the Texas legislature was not racially motivated when it redrew District 23 โ it was protecting the Republican incumbent, and it just so happened that the loyal Democrats it moved around were Latinos. This finding was not clearly erroneous As to District 25, these Justices would have found that its creation was racially motivated (Texas was trying to create a majority Latino district), but that complying with the Voting Rights Act was a compelling state interest and that the new district was reasonably necessary for and narrowly tailored to doing so. So they would affirm the district court’s ruling in all respects as to both districts.
For the scorekeepers, that’s 5-4 to reverse and redraw District 23 (and by necessity District 25) under the Voting Rights Act. Had the Court reached the constitutional claims, four Justices would have upheld the districts โ since the majority did not speak to the issue, it’s unclear what would have happened (paging Justice Kennedy . . . .).
The Challenge to District 24
Finally, the appellants also challenged the borders for District 24 in the Dallas area, which were redrawn to break up an African-American population that consistently voted for a Democratic incumbent. Although blacks were not a majority in the old District 24, the appellants argued that they nevertheless dominated the district such that they too qualified for the Court’s review under the Voting Rights Act. In other words, although District 24 was not a “majority-minority district,” it was a “coalition district” whose minority population was entitled to Voting Rights Act protections. Assuming (without deciding) that this was a valid argument, a plurality led by Kennedy (along with, for this part of his opinion, the Chief and Alito) nevertheless found no error in the district court’s ruling that old District 24 was not an African-American opportunity district: Whites controlled the district, and there was no evidence that blacks could elect the candidate of their choice. So there could be no Voting Rights Act violation. Scalia and Thomas concurred, as evidenced by Scalia’s statement in his opinion that none of the statutory challenges stated a claim.
Souter dissented, joined by Ginsburg. They would not only assume that a coalition district can qualify for Voting Rights Act analysis, they would expressly hold that it can, at least where minority voters are the majority of those voting in the primaries of the party that tends to win the general elections โ meaning they can usually elect their choice. So they would not reject the District 24 claim out of hand, but would remand for the district court to review the other Voting Rights Act gatekeeping criteria and, if those also were satisfied, the totality of the circumstances for discrimination. Stevens also dissented, but he would not have bothered to remand as District 24 was, for him, an unconstitutional partisan gerrymander. Breyer did not join this part of Stevens’ dissent, but he seems implicitly to have agreed with the reasoning by finding the “entire” plan unconstitutional.
Score: 5-4 to affirm.
And that closes the books on one of the hairiest decisions of the Term. If you’re still with us, thanks for hanging in there โ we’ll get you Hamdan and the rest of the Term’s final decisions soon.
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
