“People’s Legislative Power”: Arizona’s Nonpartisan Redistricting Plan Is A Slam Dunk At The Supreme Court
In a significant victory for election reform advocates, a unanimous Supreme Court upheld Arizona’s redistricting plan, which had been challenged by Republicans.
The case comes just a year after the Court’s liberals, plus Justice Kennedy, upheld the legitimacy of the Arizona Independent Redistricting Commission, which had been created by ballot initiative. That case was controversial, since the Constitution specifically requires districts created “by the legislature” of each state, not by an independently constituted commission. Justice Ginsberg, writing for the Court, said that the “people’s legislative power” was close enough. Not surprisingly, the Court’s more literalist wing was outraged.
It’s perhaps surprising, then, that today’s case, Harris v. Arizona Independent Redistricting Commission, was decided 8-0. On the one hand, the case may represent a consensus on at least some aspects of election law—and is thus very good news for electoral reform activists. On the other hand, since it basically defers to a state decision, it’s not a robust test case.
The facts of the case are straightforward. Despite being independent, the five-person Redistricting Commission is still divided among Democrats, Republicans, and ostensible independents: two, two, and one, respectively, with intricate appointment procedures. In April 2012, the two Democrats and one independent modified three districts, and the two Republicans voted against, arguing that the new plan favored Democrats.
Contrary to what you might expect, however, the Supreme Court has never said that partisan gerrymandering is against the law. If the districts disadvantage minorities, a redistricting plan might violate what’s left of the Voting Rights Act. And if they contain wildly different populations, the plan might violate the Equal Protection Clause of the Constitution. But it’s not actually against the law to be craven, manipulative, and duplicitous.
Given that, it’s not surprising that the petitioners lost—though it is surprising that they lost unanimously.
First, while Republicans alleged that the plan was designed to benefit Democrats, there was significant evidence in the record that showed it was actually designed to meet the requirements of the Voting Rights Act. (The plan was ratified before the Supreme Court eviscerated the Voting Rights Act in Shelby County v. Holder.) In particular, it seems those concerns swayed the one independent member of the commission.
Second, the population deviations in the Arizona plan were around 4 percent. That’s well below the 10 percent threshold the Court has adopted when applying the Equal Protection clause. True, that variation was all on one side—Republican-leading districts were generally more populous than Democrat-leaning ones. But that’s not necessarily illegal, and anyway the variation can be explained by the need for the plan to conform with the Voting Rights Act.
Third, while part of the Voting Rights Act was held unconstitutional in 2013, in Shelby County, that doesn’t corrupt Arizona’s motives in complying with it back in 2012. At the time, the redistricting commission was trying to obey the law, not stack the decks.
Does this unanimous decision represent a new dawn for election reform? Not quite.
To be sure, the unanimity does suggest that the redistricting commission is now a fait accompli. No one dissented, or even wrote a separate concurrence, to protest its existence. One wonders if Justice Scalia might have done so, but Chief Justice Roberts, certainly, is not likely to question one of the Court’s recent precedents; he is particularly committed to the legitimacy of the Court and its decisions. On the contrary, he has now joined an opinion upholding the commission’s decision—and one that tends to favor Democrats.
On the other hand, the thing about unanimous decisions is that they tend to signal, at least retroactively, that these cases were relatively easy ones. They are precisely not the ones that indicate a lot of movement on key issues.
For example, while the Religious Right cheered a religious freedom case decided unanimously by the Supreme Court last year, the reason it was unanimous is that it was an old school, religious-liberty-as-shield-against-the-government case. That case involved a prison inmate wanting to grow a half-inch beard; no third parties were involved, no harm was done, and the prison’s safety rationales were ludicrous. That’s why it was uncontroversial.
While much of the Court may not like the context of the commission’s decision, that question is now settled, and what’s left is a far-fetched constitutional claim against a reasonable, and well-documented, state agency decision.
And, as usual in unanimous decisions, Justice Breyer’s opinion tends toward the minimalistic. No wild statements of law or policy here; this opinion was generated to build consensus, and it did so.
Still, this is a significant step forward for election reform. The Arizona Redistricting Commission is an innovative idea, with an elaborate attempt to minimize partisanship and increase accountability. There were constitutional grumblings last year when the Supreme Court decided “the legislature” could also mean “the people,” but as a matter of policy, the commission is an important model for how to improve the messy, dirty redistricting process. On it rides many hopes of democracy advocates.
And today, it won a ringing endorsement from a unanimous court.
By: Jay Michaelson, The Daily Beast, April 20, 2016
“Republicans’ Coup de Grace On Voting Rights?”: Putting The Interests Of The Republican Party Over The Interests Of Voters
Last week the Supreme Court heard oral arguments in a case called Evenwel v. Abbott. The case involves an issue of increasing importance to American politics: congressional districting. It got to the Supreme Court because conservative litigators with a successful track record of fighting against the right to vote are trying to turn the logic of pro-voter rights decisions on their head. And it’s very possible that they may succeed again.
This most recent battle in the voting rights war involves two of the Warren Court’s most important decisions. One of the tactics that state legislatures used to disenfranchise African-Americans was to draw district lines (or refuse to revise them) in ways that left minority voters massively underrepresented. In Alabama in 1964, for example, some counties included 40 times more people than others. In Baker v. Carr and Reynolds v. Sims, the Supreme Court held that such schemes were illegal. States were required to adhere to a “one person, one vote” standard when apportioning their legislatures. Combined with robust enforcement of the Voting Rights Act, these landmark cases helped to end Jim Crow disenfranchisement schemes.
Perversely, this lawsuit hopes to use these decisions to turn back the clock and dilute the representation of minority voters. The theory of the lawsuit is that Texas violated the Equal Protection Clause when it drew its district lines based on total population rather than on the population of voters. The state, according to the theory, should only be able to conduct apportionment according to the number of eligible voters.
If adopted, the theory presents an obvious practical problem. Total population is measured with reasonable reliability by the Census. Eligible voters are much harder to measure, not least because the numbers change every election. (What should be counted — presidential election years? Off years? State elections? Some combination?) The discretion the measure would leave to legislators leaves the process open to more of the kind of manipulation that Reynolds v. Sims tried to minimize. Plus, it just seems illogical for a state’s representation in Congress to be based on total population, but its districts drawn by eligible voters.
Which brings us to the even bigger problem with the theory: In most cases, the effect of the rule change would be to overrepresent white voters and underrepresent minority voters. As Slate‘s Dahlia Lithwick puts it, “if the plaintiffs win this appeal, power will shift markedly from urban voters to rural voters and to white and Republican districts over minority and Democratic ones.” To read the Equal Protection Clause to not merely permit but require the under representation of minority voters is, to say the least, perverse.
That the argument should be indefensible doesn’t mean that it can’t win. The group bringing this lawsuit scored a major anti-voting rights victory with the 2013 case Shelby County v. Holder. In that case, a bare majority of the Supreme Court gutted the Voting Rights Act. Even worse, it did so by arguing that the explicit powers given to Congress to enforce the 15th Amendment were trumped by an alleged “equal state sovereignty” principle, an idea without support in the text of the Constitution or Supreme Court precedents not written by John Roberts, save for the infamous Dred Scott v. Sanford. If the Roberts Court is willing to cut the heart out of the most important civil rights statute since Reconstruction based on arguments that feeble, it’s hard to imagine why they wouldn’t put the interests of the Republican Party over the interests of voters in Evenwel v. Abbott.
That said, oral argument did not clearly indicate how the case will come out. The Court’s Democratic nominees were predictably hostile. Anthony Kennedy, the likely swing vote, appeared curious but non-committal to the plaintiff’s novel theory. Even if the Court doesn’t buy the argument that the Constitution requires the states to use voters rather than total population, if it signals that this kind of districting is permitted the consequences could be dire.
This case has to be seen as part of a larger political struggle. The Republican Party faces a problem: Demographic changes are making its overwhelmingly white voter base a smaller part of the population. This year, their presidential primary, in which the major candidates try to out-xenophobe one another, will make this problem worse rather than better. To combat this, Republican states have adopted various measures to suppress minority voters — if you can’t attract their votes, keep ‘em from the ballot box or try to make their votes count less through gerrymandering. Their allies in the Supreme Court might well use this case to assist in this vote-suppression effort once again.
By: Scott Lemieux, The Week, December 15, 2015
“Serious Equal-Protection Concerns”: Justice Sotomayor’s Powerful Defense Of Equality
Yesterday, the Supreme Court upheld a provision of Michigan’s constitution that bans the state or any of its subdivisions from “grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The Court was fractured; the six justices who voted to uphold the amendment did so for three independent reasons. Written by Justice Anthony Kennedy, the plurality decision—to which Chief Justice John Roberts and Associate Justice Samuel Alito signed on—was narrow: It upheld the amendment without disturbing any precedent. Far more interesting was Justice Sonia Sotomayor’s dissent, which makes a strong case for a robust interpretation of the equal-protection clause of the 14th Amendment and represents perhaps her most compelling work in her tenure on the Court so far.
The case for upholding Michigan’s amendment, which was adopted through the ballot-initiative process, seems compelling at first glance. Even if one agrees that affirmative-action programs are generally constitutional, it surely cannot be the case that the Constitution requires states or the federal government to adopt affirmative-action policies. Had Michigan never adopted affirmative-action policies or had the legislature repealed them, this would presumably not raise a serious constitutional question. So why wouldn’t the citizens of Michigan be able to make the same policy choice? “There is no authority in the Constitution of the United States or in this Court’s precedents,” Kennedy asserts in the plurality opinion, “for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”
In the most relevant precedent, the Court ruled in 1976 that a Washington constitutional amendment that banned the use of bussing to integrate schools violated the 14th Amendment because it “impose[d] substantial and unique burdens on racial minorities.” Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor makes a powerful argument that this and related precedents require the Court to strike down the Michigan initiative.
The core of the Court’s “political-process” precedents, Sotomayor observes, is that minorities have access to the state’s democratic procedures. The Constitution “does not guarantee minority groups victory in the political process,” but it does “guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.” Reallocating power in the way Michigan does here therefore raises serious equal-protection concerns.
Sotomayor’s dissent cites a landmark Kennedy opinion: Romer v. Evans, in which the Court struck down a Colorado initiative forbidding the recognition of sexual orientation as a protected category under existing civil-rights laws. Sotomayor observes that Romer “resonates with the principles undergirding the political-process doctrine.” The Court forbade Colorado from preventing a disadvantaged minority access to the state and local political processes, even though states are not constitutionally required to pass civil-rights laws.
Sotomayor’s dissent also offers a useful defense of the political-process doctrine and its strong roots in the 14th Amendment. Starting with the famous fourth footnote of Carolene Products in 1938, the Court has held that state actions that burden minorities should be subject to heightened judicial scrutiny. When burdens are placed on minorities that affect access to the political process, the possibility of discrimination is particularly acute, allowing exclusionary politics to become self-perpetuating.
It is instructive that in their concurrence Justices Antonin Scalia and Clarence Thomas mock the influence of Carolene Products: “We should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.” This is grimly ironic, given that Justice Scalia and Justice Thomas recently joined an opinion gutting the Voting Rights Act based on highly implausible bare assertions made by dicta in an opinion written by Chief Justice Roberts less than five years ago. With respect to Carolene Products, conversely, what matters is not merely the footnote in one opinion but the fact that it conforms to the 14th Amendment, and was elaborated on in many subsequent cases. Several of these precedents were the political-process rulings that were supposed to control the outcome in yesterday’s case. As both Scalia from the right and Sotomayor from the left argue, it’s hard to deny that these precedents have been silently overruled, even if the plurality says otherwise.
The consequences of Michigan’s constitutional amendment illustrate the ongoing relevance of the Court’s equal-protection precedents. As the dissenters point out, the percentage of African-American students getting degrees from the University of Michigan was the lowest since 1991 after the amendment passed. In addition, the percentage of racial minorities in freshman classes at Michigan’s flagship university has steadily declined—even as racial minorities comprise an increasing percentage of the state’s population. This does not in itself prove that the Court was wrong to uphold it, but it does show that the elimination of affirmative action is unwise, and at a minimum the Supreme Court should show deference to elected decision-makers who determine that it is necessary.
By: Scott Lemieux, The American Prospect, April 23, 2014
“Diversity Is A Faddish Theory”: According To Clarence Thomas, Affirmative Action Is Just Like Segregation
Today, the Supreme Court sent the University of Texas’ affirmative action program back for a lower court for review by a vote of 7-1.
Justice Clarence Thomas concurred in that decision but also wrote a scathing concurring opinion saying he would have rejected Texas’ affirmative action program outright as unconstitutional.
In the opinion, which no other justice joined, Thomas called the idea that racial diversity at colleges improves education a “faddish theory.”
“As should be obvious,” wrote Thomas, “there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity.”
Thomas repeatedly compared arguments for affirmative action in college admissions today to arguments for segregation in the 1950s and before. Here’s Thomas:
It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society… The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks…
There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.
He went on to associate his view with the arguments made by the plaintiffs in Brown v. Board of Education, the 1955 decission that prohibited racial segregation in public schools:
My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”… The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.
Thomas also wrote that universities’ arguments about promoting diversity are canards and their real goal with affirmative action is to help black and Hispanic students—but that they’re not actually helping.
He wrote that “discrimination is never benign” and “the University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.”
Thomas made two arguments that affirmative action hurts black and Hispanic students: It leads to them being admitted to schools where they have, on average, significantly lower SAT scores than white and Asian students; and it creates an impression (both internal and external) that their admissions are not based on merit.
Given the high bar that Thomas places for allowing any public policy that discriminates based on race, this policy analysis wouldn’t matter for the constitutionality of the Texas program.
By: Josh Barro, Business Insider, June 24, 2013
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