Redistricting under §§2 and 5 of the Voting Rights Act, and the First and Fourteenth Amendments

League of United Latin American Citizens v. Perry

This case addresses appellant’s arguments that the Texas redistricting statute engages in unconstitutional gerrymandering in Districts 23 and 24; specifically that its basis in race and politics violates the First Amendment and Equal Protection Clause of the Fourteenth Amendment, as well as §2 of the Voting Rights Act.

First, the majority (take that with a grain of salt, the opinions are jumbled) surveys the history, recounting the Democratic attempt to stave off a Republican majority in 1990 by employing newly emerging computer technology to create districts favorable to Democrats. Legal attacks failed. When Republicans took the Governorship and the State House judicial redistricting became necessary to circumvent a legislative impasse. Two of the three judges involved later sat on the three judge panel that heard this case, providing direct insight. The judicial plan set out guidelines but left great leeway to the legislature and completely failed to reflect the 59% majority which Republicans held by awarding 17 districts to Democrats and 13 to Republicans. Republicans addressed this disparity with a special redistricting in 2003, just before the 2004 elections, and won a 21:11 district margin for their 58% majority.

The Court does not revisit, but assumes an affirmative answer to, the question, barely settled in Vieth v. Jubelirer, as to whether an Equal Protection challenge to a political gerrymander is within the Court’s jurisdiction. The Constitution leaves the “Times, Places and Manner” of apportionment to the states (though Congress may override it), and has no explicit provisions for changing districts outside of a decennial census.

Appellants argue that a politically motivated mid-decennial redistricting per se violates the Equal Protection clause (because it serves no legitimate purpose), and the First Amendment (by burdening one group because of its political opinions and affiliations). The Court is unwilling to make presumptions about the motives behind a redistricting plan, but even if it was, it is unwilling to invalidate a redistricting plan without a showing of actual burden. Asymmetry is not a reliable test, and the Court does not want to furnish a disgruntled minority with a free shot at achieving in the courts what it could not in the legislature. In an argument that the Court reads as redundant with the previous one, appellants also argue that a voluntary redistricting plan violates the one-person-one-vote constitutional rule in that it unnecessarily creates population variance. Furthermore, appellants fail to establish an equal-population requirement violation. The per se challenge thus fails.

In 2003 Republicans changed district lines around District 23 in order to reduce the Latino population and increase the Anglo/Republican population to protect Henry Bonilla’s incumbency amidst floundering Latino support. To accomplish this a 300 mile snaking district was created that wound from the Mexican Boarder to Austin.

States violate §2 of the Voting Rights Act if, “based on the totality of the circumstances, it is shown that … [a racial group’s] members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Under Gingles, three threshold conditions exist: (1) the racial group is sufficiently large and compact to constitute a majority in a single-member district; (2) the racial group is “politically cohesive;’ and (3) the majority usually votes as a block sufficient to defeat the minority’s preferred candidate. Where these conditions exist the court must consider the totality of the circumstances. The Court accepts the lower court’s affirmative findings as to (2) and (3). The Court discusses an “opportunity district” (the first condition), and the parties concede that District 23 fits all three criteria, though the State argues that the new District constitutes an “offsetting opportunity district.” Precedent only allows an offsetting district to fulfill §2 requirements where the racial group in each area had a §2 right and the State could not accommodate both. Also, since a §2 right entitles a compact minority group to be districted together (from what I can tell) it is no answer to create a non-compact majority-minority group somewhere else.

The opinion chides the District court for failing to consider compactness in addition to bare minority voting strength. The District court only evaluated the compactness of the districts for Equal Protection purposes, where the only issue is whether race is the predominant factor in drawing those lines. Under §2 the issue is vote dilution, including factors like traditional boundaries. When, taking all the issues into account, “the only common index is race and the result will be to cause internal friction. The State cannot make this a remedy for a §2 violation elsewhere.” The “enormous geographical distance” between Austin and the Mexican-boarder communities, along with their “disparate needs,” together render District 25 noncompact under §2. District 23, however, is closer geographically and was split up precisely because it had become so cohesive. Therefore, the Gingles conditions are met in District 23, and District 25 does not remedy the problem.

Next, the Court comes to the totality of the circumstances test. First among those circumstances is the “always relevant but never dispositive” question of the proportion of “Latino opportunity districts” to the Latino share of the voting-age population. The first question here (see why this opinion is 132 pages long?) is whether to consider proportionality statewide or at the District or County level as the previous Supreme Court case did. The Court decides to look statewide because the right belongs not to the minority group but to its individual members and because a smaller area would be arbitrarily singled out. What the Court finds to be most egregious is the attempt to divide a politically cohesive minority community at the moment that its political will might become a majority, furthering the “well documented” history of official discrimination;” something which could raise an equal protection issue. “The State not only made fruitless the Latino’s mobilization efforts but also acted against those Latinos who were becoming most politically active, dividing them with a district line through the middle of Loredo.” The State argues it was motivated by politics, not race. Incumbency protection can be a legitimate purpose, but not to its own end and must be balanced against the effect on voters. The plan violates §2. The opinion does not reach the First Amendment or Equal Protection issues. The Court also has no interest in ruling on other Districts that must now be changed, especially District 25.

Apellants also argue that African Americans, as 64% of the Democratic party, had effective control of District 24, though they made up 25.7% of the voting population of a “racially diverse district.” The Court assumes that a 50% majority is not a prerequisite, but agreed with the District court (in lieu of clear error) that the most rational conclusion is that Anglo Americans controlled the district. “The opportunity ‘to elect representatives of their choice’ requires more than the ability to influence the outcome.”

There was no statewide unconstitutional gerrymander, or a violation of §2 in Dallas, but Districts 23 and 25 violate §2.

Justice Stevens, concurring, argues that a mid term redistricting must further a legitimate government purpose, which purely partisan or racial reasons do not, since the status quo benefits voters and incumbents. Since political motivation to reduce Democratic strength was the sole motivation for the redistricting, it fails judicial scrutiny. After a history of gerrymandering by Democrats, the 2001 census redistrict the protracted argument over redistricting which fell to the judiciary was, in Justice Stevens’ opinion decidedly and fundamentally fair as a status quo. (The story is actually very interesting, the Democratic contingent left Texas so as to deprive the Republicans of a quorum, when a single Democrat returned the Lieutenant Governor called the third special session. That one senator was king for a day. There is also a real truth-to-power quote from the Balderas Court: “we see gerrymandering [as] an abuse of power that, at its core, evinces a fundamental distrust o f voters, serving the self interest of the political parties at the expense of the public good.”) Stevens addresses whether it is legitimate for Texas to redistrict in the middle of a decade for purely partisan purpose.”

Stevens suggests that courts can, and in readily may, conclude that partisan purposes were the sole motivating factor in a decision to redistrict without the legal obligation to do so. He also argues that Upham only held that “a state legislature is authorized to redraw a court-drawn congressional districting when a district court has exceeded its remedial authority,” and not, as the majority believes, at its own whim. The Equal Protection Clause requires a legitimate interest and bars actions motivated by a bare desire to harm a politically disfavored group. The First Amendment protects citizens from being penalized for the expression (in any form) of their political views. Therefore, the decision to redistrict itself was unconstitutional. Justice Stevens also rejects Justice Kennedy’s requirement of a showing of actual burden, and argues that even if that is a constitutional requirement it has been met in this case. Meanwhile, the proportional effect is irrelevant to the underlying unconstitutional motivations.

These same considerations inform the constitutionality of dividing District 24. Under the “intent prong” of the Equal Protection clause, a plaintiff must prove that she is a voter or candidate to have standing, and prove that an impermissible factors subordinated appropriate factors. If they have, strict scrutiny applies. Under the “effects prong” she must prove (1) her candidate won under the old plan (test harm); (2) she is now in a safe district for the opposing party (test harm); and (3) her district is now less compact (test shape of gerrymander).

Justice Souter and Ginsburg, concurring in part, decide that it is time to answer whether “a statutory dilution claim can prevail without the possibility of 50%+ minority voter population.” The opinion adopts a pragmatic rule that the minority constitution of a majority of voters in the primary elections of the dominant party is sufficient because “unless minority voters posses the potential to elect representatives in the absence of the challenged [system] they cannot claim to have been injured by [that system].” It also (finally) notes that, as opposed to some of the plurality’s reasoning, what matters is a given candidate’s status as favored, not the candidate’s race, an observation that undermines the conclusion that white voters controlled District 24. Rather, Justices Souter and Ginsburg would remand for the lower court to consider the question, free of the 50% requirement imposed by the Fifth Circuit.

Justice Breyer, concurring in part and dissenting in part, concludes that partisan advantage was the sole motivating factor, and that this cannot be justified by trying to right the wrong done by Democratic gerrymandering. Justice Breyer believes that the plan as a whole violates the Equal Protection Clause.

Chief Justice Roberts and Justice Alito, concurring in part, in judgment, and dissenting in part, argues that the new District 25 satisfies §2 because, while it might not be compact, it consists of 55% majority Latinos, and that compactness should be subordinated to the District Court’s findings that by the totality of the circumstances District 25 is a Latino opportunity district. The opinion also accuses the majority of ignoring the requirement that plaintiffs show that a better solution exists, in favor of attacking the district on new grounds, compactness, even though that issue was essentially conceded by plaintiffs. ‘Geographical compactness has, until now, been only an element of the plaintiff’s case.’ The opinion also takes issue with the majority’s accusation that the District Court simply aggregated minority voters to measure effectiveness and points out that Latino communities in old District 23 were twice as distant as those in new District 25, giving Latinos a better opportunity statewide than they had in the old plan.

“Even if plaintiffs satisfy the Gingles factors, a finding of vote dilution under §2 does not automatically follow,” but there must be some proportionality consideration. The opinion argues that the proportionality exists, and that the majority sidesteps the issue by looking at proportionality statewide instead, and counts all Latino voters for the purposes of evaluating a single district.

Finally, Justices Scalia and Thomas, concurring in judgment in part and dissenting in part, first argue that claims of unconstitutional gerrymandering do not present a justiciable case or controversy. Similarly, Justice Scalia would dismiss the claims under §2 for failure to state a claim for the reasons in another case and those given by the Chief Justice. Scalia then considers the Equal Protection issue. Whether the plaintiffs must show that race was the predominant factor, or just a factor at all, is irrelevant because the District Court found that it was not. According to the opinion, race, as a correlation to political affiliation, does not constitute a contributing factor.

In the case of District 25 the State had to use race as the predominant factor in order to fulfill its compelling interest (as the opinion would hold) in complying with §5, the dependence on a suspect class must then be narrowly tailored. The State must then show that compliance was its “actual purpose” and that it had a “strong basis in evidence” for the belief that this was required by a constitutional reading of the law. Additionally, it may not go beyond what is required. The opinion takes a concession on the appellants part that the effort was necessary to be conclusive.