Tag Archives: Voting Rights Act

Supreme Court — Two Weeks to Go

By tmess2 | Published June 20, 2021

As I noted in my post on Thursday’s decisions, we are nearing the end of the active part of the Supreme Court term.  (Technically, the term starts in October, but the Supreme Court is in recess over the summer barring any emergency case.)  While the Supreme Court does not list opinion days far in advance, they have fifteen argued cases left to decide.  Based on past practice, we are likely looking at four to six opinion days over the next two weeks to wrap everything up — likely Monday of both weeks and Thursday of this week with the other dates depending on when things are ready.

The easy part of this post is that the Supreme Court has now wrapped up October and November.  And we have most of the cases from December and January.    But this year’s docket offers several complications.  First, while the Supreme Court tries to keep each month’s opinion assignments balanced (and the term as a whole balanced), we have multiple months with fewer than nine opinions.  Second, we have several unsigned opinions from December and two opinions that covered multiple argued cases.  Third, Justice Barrett did not start until the November docket.  Based on what we know, there should be six opinions per justice (54 signed opinions for the term.)  As Justice Thomas has seven opinions, it looks like Justice Barrett will only have five opinions.

October and November had 18 cases which should have meant two opinions per justice which held true for every justice except Justice Breyer who had three opinions and Justice Barrett had one opinion which seems to reflect that Justice Breyer picked up the extra October opinion that would have gone to Justice Barrett.  (Justice Breyer may end up with seven opinions and somebody may have lost an opinion in light of Justice Thomas’s seven opinions or the court might just have altered who got the extra case as the term went along.) Continue Reading...

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The Supreme Court and Elections — Post 2020 Editions

By tmess2 | Published March 7, 2021

This past argument session (the February Session) saw the last gasps of the 2020 election.  There were three very different issues on the table:  1) the Trump attempts to overturn the election for alleged failure to follow election procedures: 2) the role of state legislatures, state election officials, state courts, and federal courts in setting the rules for election; and 3) the Voting Rights Act.

On the first issue, there are apparently two cases still pending at the U.S. Supreme Court — one a Wisconsin case that will likely be turned down on the March 8 order list and the other will not be considered until later (either the March 19 or March 26 conference).  The second one is a Pennsylvania case involving the issue discussed below.  Assuming that the Wisconsin case is denied, the Supreme Court will have denied Trump’s requests for review in all of the cases involving alleged fraud in the election over the past several weeks.

The second issue is likely to arise again.  Article I, Section 4, Clause 1 gives the primary authority to set the “times, places, and manner” of congressional elections to the “legislature” of each state subject to the ability of Congress to also legislate on these issues.  Similarly, Article II, Section 1, Clause 1 gives the power to direct the “manner” of choosing electors to the “legislature” of each state.  In recent years, there has been a significant amount of litigation involving these clauses.  There are two key legal questions:  1) what is the scope of “manner”; and 2) what is the “legislature.” Continue Reading...

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The Supreme Court and Redistricting — Again.

By tmess2 | Published March 9, 2019

Next Monday, the Supreme Court begins its March argument session.  Over the following two weeks, the Supreme Court will hear three case on redistricting.  These cases represent the fifth consecutive year in which the Supreme Court is looking at the rules for redistricting.  While memory is always a tricky thing, I can’t remember a redistricting cycle in which there were these many cases this late in the cycle.  At this point, these cases are more about setting the ground rules for 2021 than getting valid lines for the 2020 election (as, regardless of the decisions in these cases, the lower courts will not have much time to redraw the lines or have those new lines reviewed before 2020).

The session starts on March 18 with another look at the lines for the Virginia House of Delegates.  Two years ago, the Supreme Court found that the trial court applied the wrong standard in considering whether the Republicans in the legislature had improperly considered race in drawing those lines.  On the reconsideration ordered by the Supreme Court, the trial court changed its earlier decision and found that race improperly predominated in the line drawing decisions.  As with earlier cases this cycle, this latest racial gerrymander case involves the fine balancing of the interests of the Voting Rights Act (requiring the State to create majority-minority districts) and the Equal Protection Clause.  The question in these cases ultimately are two questions.  First, whether in the name of creating winnable districts for minorities, the legislature is actually engaged in packing more minorities into the district than is really necessary to meet the requirements of the Voting Rights Act.  Second, whether the districts created are such a departure from the normal districting principles that the lines are clearly the result of a racial gerrymander. 

In previous cases, the Supreme Court has rejected the concept of a one-size-fits-all approach to how many minorities an individual district must have to give minorities the ability to elect the candidate of their choice.  The last time that these districts were in front of the Supreme Court, the majority found that the record showed that the legislature had used such a mechanical rule, drawing the lines so that each of the twelve minority districts had a voting-age population which was at least 55% African-American.  The question on remand (and the issue on appeal) is whether that percentage was appropriate given the history of voting in these area and, assuming that it was not, whether the lines drawn were still appropriate give the other concerns (compactness, contiguity, incumbent protection, existing community lines, etc.) that traditionally govern the redistricting process. Continue Reading...

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Election Law — Supreme Court Edition

By tmess2 | Published June 14, 2018

While we are still waiting for the decision on the two partisan and one racial gerrymander cases (with less than two weeks to go in the term), we did receive two opinions related to the election process.  The first case — Husted vs. A. Phillip Randolph Institute — was a 5-4 decision on the validity of Ohio’s process for verifying the address of voters and correcting their voter rolls by, in theory removing the voters who had moved or died.  The second case — Minnesota Voters Alliance vs Mansky — was a 7-2 First Amendment case on wearing political apparel into the precinct on election day.

As the close vote indicates, the issue in Husted was more significant and more controversial.  The basic conflict is that federal election law both requires states to take efforts to improve the accuracy of the voter registry and forbids states from removing a voter solely because they did not vote.  Ohio basically has a three-step process:  Step one — not voting in a cycle (a two-year period); Step 2 — a verification notice sent to voters who did not vote in the last cycle; step 3 — not voting in two cycles (a four-year period) after failing to verify their address.   The majority — in an opinion written by Justice Alito — found that the Ohio procedure was consistent with federal law because failure to vote was not the only reason for the removal of the voter.  The main dissent, by Justice Breyer, critiques Step 1.  According to Justice Breyer, Step 2 and Step 3 comply with the “confirmation process” authorized by federal law that states are to use if they believe that a voter may have changed their address.  However, Justice Breyer interprets federal law as requiring that the election authority have a reason — other than the failure to vote — to believe that a voter has moved.  Justice Breyer argues that common sense and census data reveals that Ohio’s method is likely to result in the removal of a significant number of voters who have not changed address.  In a separate dissent, Justice Sotomayor notes that these overly aggressive purges tend to eliminate voters from vulnerable populations — minorities and the poor who already vote infrequently — thereby suppressing their votes.  Even aside from federal law on voter registration, this disparate impact may violate the Equal Protection Clause and Voting Rights Act.   While not discussed in these opinions, my hunch is that Ohio makes no effort at outreach to notify voters that these notices are coming and that they need to respond.  That lack of outreach and simple experience of recent Republican efforts to make voting more difficult confirms Justice Sotomayor’s theory that this law has nothing to do with complying with the federal requirement that states make efforts to improve the accuracy of voter registration information.

Not surprising for a First Amendment case, the majority opinion in Mansky is written by Chief Justice Roberts.  The Minnesota law at issue bans the wearing of political apparel in the polling place.  While finding that polling places are “non-public forums” for the purpose of First Amendment law (meaning that the government can ban speech),  the majority finds a problem with the way that Minnesota has written its law.  The essential problem is that Minnesota law does not define what qualifies as political apparel (unlike many other states with similar laws).   While the state election authority has attempted to give local election authorities some guidance on this issue, even that guidance is somewhat ambiguous.  This lack of clarity was made abundantly clear during the oral argument in Mansky during which the only conclusion that could be drawn about the current state of the law in Minnesota is that the definition of political falls into the “I know it when I see it” category.  Given the broad discretion that the law appears to place in election judges and the lack of clear notice to the voter, the majority found that, as currently written, the law is not reasonable.

With twenty-one opinions left, we are starting to have some idea for every month but February and April as to who might have the opinions.  For October, the only case left is Gill, the Wisconsin partisan gerrymander case, and the only Justice without an opinion is Chief Justice Roberts.  For December, it is likely that Chief Justice Roberts has the only remaining case on court orders for cell phone records.  For January, there are two minor cases left — and Justices Breyer and Kagan are still due an opinion.  There are two problems with projecting February — the Supreme Court dismissed two cases without opinions (meaning that with only seven other cases argued that month, we will not know which two justices originally got those two cases until the last opinion for February is issued); and we still have five cases outstanding.  In March, which only had eight cases to start with, there are two cases left — the California Pregancy Resource (anti-abortion counseling) centers disclosure regulations and the Maryland partisan gerrymander case — and three justices without an opinion — Justices Thomas, Justice Breyer, and Justice Sotomayor.  With both remaining cases likely to be controversial decisions, I can’t see Chief Justice Roberts assigning Justice Thomas to either case (especially the pregnancy resource center case unless Chief Justice Roberts want feminists to be even more riled up at the judiciary).   At this point, I am seeing a good possibility that Justice Breyer is going to get his wish and have re-argument in the fall on the two current partisan gerrymandering cases along with the North Carolina partisan gerrymander case.  If not, I am seeing two narrow opinions that recognize some limited ability to challenge a partisan gerrymander but with different standards than used by either lower court.  Finally, for April, as is typically the case up until the last week of the term, as the most recent month, there are still eight cases to be decided out of twelve cases (three opinion and one tie-vote).  Additionally, since one of the February non-decisions came before the April arguments, it is unclear if one of the justices will get a make-up assignment from the April argument.  (At this point, none of the justices has a full complement of seven opinions — assuming that the three non-opinion cases count toward the full quota, but Justice Ginsburg has six — one from every session but February.  As such, it is more likely than not that any additional opinion — and there should be no more than one such opinion — from Justice Ginsburg will be from the February argument, and we can only pray that it is Janus).

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Redistricting Advanced Course

By tmess2 | Published May 27, 2017

We are four years away from the next full round of redistricting.  The redistricting process is a combination of federal law, state law, and local politics.  The fact that there are legal rules governing the process means that individuals who do not like one of the many maps (congressional, state senate, state house, county commission, city council) can bring a court challenge to that map.  When discussing federal law, there are two crucial provisions — the Fourteenth Amendment and Section 2 of the Voting Rights Act.  (Additionally, there is some suggestion that the First Amendment may have an impact on certain types of gerrymanders.)  This week the Supreme Court issued an opinion on North Carolina’s congressional districts that attempted to reconcile the Fourteenth Amendment and the Voting Rights Acts.

The background of this case is that, two decades ago, the Supreme Court (in a case involving North Carolina) held that a racial gerrymander — one in which race played a significant role in the drawing of the lines — would be subject to strict scrutiny (the most state unfriendly form of review — requiring showing of both a “compelling interest” justifying the use of race and that the use of race was “narrowly tailored” to meet that compelling interest).  Over the years, the Supreme Court has clarified that, to trigger state scrutiny, race must be the predominate factor in drawing the lines.  The Supreme Court has also clarified that Section 2 of the Voting Rights Act can be a compelling interest.

North Carolina currently has three Democratic representatives in Congress — from the 1st district, the 4th district, and the 12th district.  Before the last round of redistricting, African-Americans represented around 48% of the voting age population (BVAP in election law jargon) of the 1st district and 43% of voting age population of the 12th.  That BVAP was enough to make African-Americans into a very significant segment of the Democratic primary vote in those districts and there are enough white Democrats in those districts that — even in bad years nationally, the Democratic candidate gets well over 60% of the vote in those districts.  In short, African-Americans could get their preferred candidate selected in those districts even though they did not have 50% of the vote.  In the trial court, North Carolina conceded that they did take race into account in drawing the 1st district but claimed that they did so to meet Section 2 (that is by making the 1st district into a majority-minority district),  On the 12th district, North Carolina claimed that they did not draw that district to pack it with African-Americans but rather to pack it with Democrats.  However, there was some evidence that — at least for one county in the district — they did expressly consider race and, also, that they used race as a proxy for partisanship.  Additionally, the 12th was already compliant with “one man, one vote” even if North Carolina had kept the old district lines and the changes added mostly African-Americans while removing mostly whites.

The Supreme Court made three crucial rulings in this case:  1) using race as a proxy for partisanship is still using race; 2) there is no particular way that the party claiming a racial gerrymander has to prove the existence of a racial gerrymander (i.e. the party challenging the gerrymander does not have to produce an “alternative” map that closely matches the goals that led to the actual map); 3) there needs to be a substantial reason to believe that the racial gerrymander is necessary to comply with the Voting Rights Act.  In this case, because the history of the districts showed that African-Americans could easily elect their preferred candidate even though the BVAP was not a majority in the district, the Voting Rights Act did not require the conversion of these “opportunity” districts into majority-minority districts.  As such, the lower court decision invalidating the legislatively-drawn districts and drawing a new temporary map (at least until the legislature draws its own new map) was upheld.

A significant feature of this decision is its discussion of “race as party.”  There are currently three basic types of gerrymander noted by election law experts — a racial gerrymander (lines drawn based on race for racial reason), a partisan gerrymander (lines drawn on past partisan performance for partisan reasons), and race as party gerrymander (using racial composition to approximate partisan vote).  This decision rejects any attempt to defend a gerrymander as actually being a race as party rather than racial gerrymander.

There remains the issue of partisan gerrymander.  The last time that the Supreme Court looked at partisan gerrymanders, the Supreme Court issued an ambiguous split decision.  The controlling decision kept open the possibility that such a claim could be raised but found that the challengers failed to propose any usable standard that would permit a court to find that the legislature went too far.  Since that decision, there has been a massive change in data management (of course, not just for redistricting purposes) that both makes it easier for those drawing maps to draw very precise lines to achieve partisan goals and also to measure the partisan impact of those lines.

Last November, in a challenge to Wisconsin’s state legislature, a three-judge panel determined that there was a usable standard for measuring a partisan gerrymander.  More significantly, the panel found that Wisconsin had engaged in a partisan gerrymander and that the lines could not be justified by traditional redistricting goals (e.g., compactness, respecting communities of interest, etc.).

In part, the Wisconsin involves a new statistical analysis.  That analysis (the “efficiency gap” or “EG” ) looks at how many votes are “wasted” — i.e. votes cast for the losing candidate or excess votes (more than 50% plus one) for the winning candidates.  In a close race, the winning party wastes few votes and the losing party wastes a significant number of votes.  In a landslide, the winning party wastes more votes and the losing party, while still wasting a large number of votes, wastes fewer votes than it would in a close race.  The efficiency gap looks at the total number of wasted votes state-wide by subtracting the number of wasted votes that one party has from the number of wasted votes that the other party has and then dividing by the total number of votes cast.  Imagine for an example, a state in which 60 of the districts favored one party by 55-45%  and the remaining 40 favored the other party by 75-25% with 3,000 votes in each district.  In the 60 districts favoring party A, party A wastes 5% of the total vote (150 in each district) and party B wastes 45% of the vote (1350 votes) for a state-wide total of 9,000 wasted votes for party A and 81,000 wasted votes for party B.  In the 40 districts favoring party B, both parties waste 25% of the vote (750 votes) for a state-wide total of 30,000 votes each.  The net is that — out of 300,000 votes statewide, there is an efficiency gap of 72,000 wasted votes for party B or 24% of the total vote in favor of party A.  (Also turning 43% of the state-wide vote total into 60% of the seats.)  The challengers proposed a two-part test for determining if there was a partisan gerrymander:  1) was there an intent to engage in a partisan gerrymander; and 2) does the EG show a significant partisan gerrymander — defined as an EG of 7% or more in favor of that party).  If the challengers can meet both elements, the courts would then shift the burden to  the defenders of the map who could win by showing that the map was the legitimate result of state policy or inevitable given the state’s political geography.  In other words, a state does not have to draw weird lines to overcome the fact that 60% of the state lives in areas where 60% of the voters are Republicans and the other 40% live in areas where 70% of the voters are Democrats.

While not strictly adopting the test proposed by the challengers, the Wisconsin panel did find that EG was a useful device in determining whether a party had proven an intentional partisan gerrymander.  The Wisconsin panel also held that the state had failed to provide sufficient justification for those lines.

Under federal law, the appeal of this decision goes directly to the Supreme Court.  The Supreme Court has three options:  1) affirm without briefing and argument; 2) reverse without briefing and argument; or 3) schedule briefing and argument.  Wisconsin has asked the Supreme Court to reverse without briefing and argument.  If the Supreme Court decides to grant full briefing, Wisconsin has asked for a stay of the panel decision (which requires Wisconsin to draw new lines this year in time for the 2018 elections or the panel will draw their own lines).   As the Supreme Court has never adopted standards governing a partisan gerrymander claim, it is unlikely that the Supreme Court would affirm without full briefing and argument.  We should know by the end of June when the Supreme Court breaks for the summer whether they will grant full briefing and argument on this case (instead of reversing without argument).

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