US Supreme Court Review : League of United Latin American Citizens v. Perry
This article previously appeared in The Constitutionalist (Sept. 2006). It is reprinted with permission.
By George F. Sanderson III
The Court’s latest opinion on legislative redistricting, League of United Latin American Citizens (“LULAC”) v. Perry, 126 S. Ct. 2594 (2006), provides little guidance as to the standard the Court will apply to determine whether a congressional redistricting plan constitutes an unconstitutional partisan gerrymander, or whether those claims are even justiciable, but the opinion makes very interesting observations regarding race and claims under the Voting Rights Act. The opinion also reflects Justice Kennedy’s continued ascendancy as a key swing vote on the new Roberts Court.
The events giving rise to the opinion relate to a 2003 congressional redistricting plan passed by the Texas legislature notable both because the redistricting occurred “mid-decade,” (i.e., not in direct response to reapportionment based on decennial census data) and the lengths that Texas’s Democratic legislative delegation went to avoid the redistricting.
The 2000 census authorized two additional seats in the United States House of Representatives for Texas. At the time, Republicans controlled the governorship and the State Senate while the Democrats controlled the State House of Representatives. With the split in control of the state houses, the Texas legislature was unable to implement a redistricting plan and, instead, a three-judge court set the boundaries for the 2002 congressional elections.
In 2003, Republicans gained control of the State House of Representatives and set about crafting a new redistricting plan, which state legislative Democrats attempted to thwart by absenting themselves from the State in an effort to frustrate quorum requirements. Ultimately, the Republican-controlled Texas legislature passed a new redistricting plan that would virtually assure that the Texas Congressional delegation would shift from a Democratic to a Republican majority.
The appellants made several claims against the State of Texas that the new redistricting plan was improper. The two claims that the Court focused on were the appellants’ contentions that the Texas congressional redistricting plan constituted an unconstitutional partisan gerrymander and that the redistricting plan violated Section 2 of the Voting Rights Act with respect to the redrawing of particular legislative districts.
Justice Kennedy authored the Court’s opinion, which was joined by a majority of the Court only on two points. On the claims of unconstitutional partisan gerrymandering, a majority of justices expressly joined Justice Kennedy to find that the decision would not “revisit” whether such gerrymandering claims are justiciable but would instead examine whether the appellants offer a “manageable, reliable” standard to determine whether partisan gerrymandering violates the Constitution.
Justice Kennedy failed to retain a majority of the Court for the remainder of his discussion of the partisan gerrymandering issue. On the substantive point, Justice Kennedy noted that neither the Constitution nor Congress explicitly prohibit mid-decade redistricting and that past Court decisions “have assumed that state legislatures are free to replace court-mandated remedial plans by redistricting plans of their own.” Justice Kennedy further rejected the appellants’ contention that the fact that the redistricting did not occur in the face of a legal mandate to redistrict revealed that the sole motivation of redistricting was solely partisan.
Justice Kennedy pointed, among other factors, to the legislature’s desire to replace the prior court-mandated plan and to remedy past political gerrymandering that gave Democrats a disproportionate number of congressional seats.
Rejecting the appellants’ contention that middecade redistricting absent a legal mandate to do so was, in and of itself, sufficient to prove a constitutional violation, Justice Kennedy addressed, and rejected, the manageability of the appellants’ other proffered test. Based on the failure of the appellants, and amici, to articulate a “reliable standard” for setting forth a partisan gerrymandering claim, Justice Kennedy maintained that the appellants had failed to state a claim for relief.
After disposing of the political gerrymandering claim, Justice Kennedy examined the challenges to the redrawing of particular legislative districts, which the appellants claimed violated both Section 2 of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Justice Kennedy captured a majority of the Court for this part of his opinion, joined by Justices Stevens, Breyer, Ginsburg, and Souter. In this part, Justice Kennedy held that one district, District 23, violated Section 2 of the Voting Rights Act and had to be redrawn. In its redistricting plan, the legislature shifted 100,000 voters from a predominately Latino county to a neighboring district that was already predominately Latino and replaced them with Republican, predominately Caucasian voters. The State of Texas argued that it had created a new Latino-majority district to offset the redrawing of District 23 and, thus, no Voting Rights Act violation had occurred.
Justice Kennedy, noting that the newly created district was 300 miles long and that the Latino communities at opposite ends of the district had “divergent needs and interests . . . owing to differences in socio-economic status, education, employment, health, and other characteristics,” determined that the substitute district did not ameliorate the Voting Rights Act violation. Justice Kennedy observed that “[l]egitimate yet differing communities of interest should not be disregarded in the interest of race. The practical consequence of drawing a district to cover two distant, disparate communities is that one or both groups will be unable to achieve their political goals.”
Justice Kennedy found the newly proposed “uncompact” legislative district not to be an acceptable remedy for removing a cohesive Latino community from District 23.
In another part of his opinion, not expressly joined by a majority of the Court, Justice Kennedy turned aside a Voting Rights Act challenge to another particular congressional district that was broken apart under the legislative redistricting plan, finding that the appellants had failed to meet the requirements for making out a Section 2 violation with respect to that particular district.
In a lengthy opinion, Justice Stevens, joined in part by Justice Breyer, concurred with Justice Kennedy that District 23 had been unconstitutionally redrawn, but he disagreed on all of the other points of Justice Kennedy’s opinion. Justice Stevens maintained that manageable standards existed to permit the Court to evaluate the political gerrymandering claims and, specifically, that the Constitution, and especially the First and Fourteenth Amendments, prohibit a state from using its redistricting power to rely exclusively on partisan preferences in drawing district lines Further, Justice Stevens opined that identifying the motive for the 2003 redistricting as purely partisan was simplified due to the legislature’s decision to redistrict when under no legal obligation to do so. “By taking an action for the sole purpose of advantaging Republicans and disadvantaging Democrats,” Justice Stevens wrote, “the State of Texas violated its constitutional obligation to govern impartially.” Justice Stevens also noted that the 2003 redistricting plan, as drawn, impermissibly burdened Democrats’ representative rights separate and apart from the manner in which the redistricting came about.
Justice Souter authored a separate opinion, joined by Justice Ginsburg, concurring in part and dissenting in part. Justice Souter stated much less cryptically than Justice Kennedy that partisan gerrymandering can be recognized as a violation of equal protection, but he then opined that, because the Court had failed to garner a majority for any one standard to evaluate the merits of the claim, he viewed the issue “much as the subject of an improvident grant of certiorari”–implying that the Court should not have addressed the issue once it recognized that the determination of the applicable standard was a morass.
Justice Breyer authored a short opinion concurring in part and dissenting in part, also joined by Justice Ginsburg, in which he stated that due to a demonstrated risk of entrenchment, the fact that partisan consideration rendered “traditional district- drawing compromises” irrelevant, and that no justification other than party advantage could be found on the record, the redistricting plan in its entirety violated equal protection.
Chief Justice Roberts wrote an opinion, concurring in part and dissenting in part, joined by Justice Alito, in which he expressly took no position on the question of the justiciability of a political gerrymandering challenge–asserting that the question “had not been argued” in the case.
The Chief Justice specifically dissented from the Court’s holding regarding District 23. The Chief Justice primarily premised his dissent on an analysis of the record before the trial court which, in the Chief Justice’s view, indicated a greater likelihood for a minority-preferred candidate to be elected as a result of the redrawn legislative district than from an alternative plan. The Chief Justice posited that Section 2 of the Voting Rights Act requires plaintiffs to show an alternative district configuration with better prospects for the election of minority candidates and that, in fact, the opposite was true of the 2003 Redistricting Plan.
Finally, Justice Scalia filed a separate opinion, also concurring in part and dissenting in part, joined by Justice Thomas and joined, in part, by the Chief Justice and Justice Alito. Justice Scalia flatly stated that partisan gerrymandering claims are non-justiciable. Justice Scalia criticized Justice Kennedy’s opinion for failing to address the issue: “We must either conclude that the claim is nonjusticiable and dismiss it, or else set forth a standard and measure appellant’s claim against it … . Instead, we … dispose of this claim in a way that provides no guidance to lower-court judges and perpetuates a cause of action with no discernable content.” Justice Scalia further opined that the Section 2 Voting Rights Act claim regarding District 23 also should have been dismissed for failure to state a claim and that the redistricting did not violate equal protection either in whole or in part.
What are the implications of LULAC given that the Justices appear to have substantially different viewpoints on the questions presented, especially with respect to the partisan gerrymandering claim? Although the Court did not go so far as to hold that political gerrymandering is a non-justiciable political question, the fact that the Court was unable to find a workable standard to analyze such claims is not promising for the future of such claims, especially if the basis for such a claim is that the redistricting occurred middecade.
As a result, it is possible that other states that see a shift in the political composition of their legislatures may follow in Texas’s steps and pass mid-decade redistricting plans.
On the other hand, Justice Kennedy’s findings concerning District 23, especially the overt implication that minority voters from different geographic regions of a particular state are not necessarily fungible for purposes of the Voting Rights Act, may breathe new life into Voting Rights Act claims. Given the fractured opinions of the Justices in this case, however, it is difficult to determine what effect this case will have on future redistricting litigation.