Order List

December 13, 2005 Supreme Court Update

Greetings, Court Fans!
There shouldn't be any opinions this week (at least not in argued cases), but the Court did issue a significant order list yesterday. The Court noted probable jurisdiction (the functional equivalent of a cert grant) in four related appeals regarding the constitutionality of Texas' 2003 congressional redistricting plan, which has been attacked as a "partisan gerrymander." The cases are noteworthy not only for their political significance, but also because it took the Court six conferences to decide whether to take them (not even the Court messes with Texas lightly).
There are ten questions presented among the four appeals, and (accounting for the fact that they are written by partisans) they give a good flavor of what the dispute is all about:
League of United Latin American Citizens v. Perry (05-204) (Keep in mind, we don't write these!): (1) Is the 2003 Texas congressional redistricting plan, adopted and developed using outdated, inaccurate 2000 census data and resulting in malapportioned districts, in violation of "one person, one vote" when measured against 2003 census data, the "single-minded purpose" of which was to gain partisan advantage, which purpose was realized, an unconstitutional political gerrymander? (2) Is proof of racially polarized voting overcome by evidence of partisan affiliation of minority voters in analysis of . . . minority vote dilution claims?
Travis County v. Perry (05-254): Does the Texas legislature's 2003 replacement of a legally valid congressional districting plan with a statewide plan, enacted for the "single-minded purpose" of gaining partisan advantage, satisfy the stringent constitutional rule of equipopulous districts by relying on 2000 decennial census data and the fiction of inter-censual population accuracy?
Jackson v. Perry (05-276): (1) Do the equal protection clause and the First Amendment prohibit states from redrawing lawful districting plans in the middle of a decade, for the sole purpose of maximizing partisan advantage? (2) Does Section 2 of the Voting Rights Act permit a state to destroy a district effectively controlled by African American voters, merely because it is impossible to draw a district in which African Americans constitute an absolute mathematical majority of the population? (3) Under Bush v. Vera, may a bizarre-looking congressional district, which was intentionally drawn as a majority-Latino district by connecting two far-flung pockets of dense urban population with a 300-mile-long rural "land bridge," escape invalidation as racial gerrymandering because drawing a compact majority-Latino district would have required mapmakers to compromise their political goals of maximizing Republican seats elsewhere in the state?
And finally, GI Forum of Texas v. Perry (05-439): (1) Is political partisanship a sufficient justification, under Section 2 of the Voting Rights Act and the U.S. Constitution, for dismantling a Latino-majority congressional district in order to elect an Anglo-preferred candidate? (2) Does Section 2 permit a state to eliminate a majority-minority district located in one area of a state and create another majority-minority district in a different area of the state? (3) Did the district court err by requiring Section 2 demonstrative districts to be more compact and to offer greater electoral opportunity to minority voters than corresponding districts in the challenged redistricting plan? (4) Does the number of majority-minority districts that can be created in a state function as the upper limit of permissible political opportunity when assessing proportionality under Johnson v. DeGrandy?
The Court also granted cert in one case, Mohawk Industries, Inc. v. Shirley (05-465), in which it will consider the following question of considerable significance to RICO lawyers: Whether a defendant corporation and its agents can constitute an "enterprise" under [RICO], in light of the settled rule that a RICO defendant must "conduct" or "participate in" the affairs of some larger enterprise and not just its own affairs.
Until next time, thanks for reading!
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