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Wednesday, May 24, 2017

Doctrine trumps party loyalty (sort of) in two race districting decisions

SCOTUS decided two important cases dealing with race-based districting this week. As I have noted in an earlier post, this area of doctrine has evolved in a suspiciously partisan way. So the question naturally arises: Was this week's pair of decisions mostly a product of partisan loyalty, or did they have some hard core of non-partisan doctrine behind them?

This week, I am happy to report that it looks like doctrine is trumping party. In Cooper v. Harris and Bethune-Hill v. Virginia State Bd. of Elections, the constitutional doctrine of "strict-ish" scrutiny for racial classifications delivered two victories for the "color-myopic" constitution (not to mmention the Democratic Party in the South), winning (in Cooper) bi-partisan votes from a coalition of the four liberal justices plus Thomas. After the jump, a moral for this parable: You might only need a peppercorn of loyalty to legal principle (in this case, from Justice Thomas) for that principle to be durable on a closely and ideologically divided bench. But that legal principle would have a much easier time if it were embodied in crisp, clear precedents that allay justices' concerns about precedents' being manipulated for partisan reasons.

I. First, the doctrinal backstory: Since at least the 2010 census, Republican state legislators in the South have been zealously "packing" black voters into districts with ever-larger black majorities in order to minimize Democrats' political influence. The ploy has been justified by Republicans as an effort to comply with the Voting Rights Act, but, as Ari Berman noted back in 2012, this race-based districting has led to an extraordinary level of racial segregation in Southern politics. In effect, the Southern Republicans are trying to convert the Democratic Party into a black party, on the logical theory that a party drawing on support only from a minority race will be a permanently minority party.

This use of the Voting Rights Act posed an ironic role reversal for Republicans and Democrats on SCOTUS. During the 1990s and early oughts, Democratic appointees and liberals on SCOTUS, (in, for instance, Easley v. Cromartie) had pressed for a lax, fact-based review of race-based districts under an incomprehensible "predominant factor" test. Republican-appointed conservatives, led by Chief Justice Rehnquist (in Shaw v. Hunt) and Justice Kennedy (in Miller v. Johnson), had pushed back against such a standard of review, championing the color-blind constitution in electoral districting. The line-up mirrored the sides in Grutter and Gratz: race-based districting had the ideological look of an electoral version of affirmative action.

After the 2010 census and accompanying redistrictings, however, it was painfully clear that race-based districts were serving the interests of the white Republican majority by minimizing the influence of Democrats, black and white. The question naturally arose: Would liberals and conservatives on SCOTUS switch sides to match their legal views with their partisan loyalties? Would conservatives, in particular, stick to their color-blind convictions, even when it gored the Republican ox? Or would they support only fair-weather, "strict-in-theory, rational-basis-in-fact" sort of color-blindness?

As I noted in an earlier post, Alabama Legislative Black Caucus v. Alabama suggested that a great ideological switcheroo was about to take place. ALBC gave rise to a 4-vote dissent from SCOTUS's conservatives and a 5-vote majority (liberals plus Kennedy) remanding for a harder look at apparently baloney Voting Rights Act justifications for packing black voters into super-majority districts. One did not have to be a diehard Legal Realist to suspect that both sides were suspicious that the other was tailoring its principles for partisan reasons.

II. What is the doctrine of race-based districting after Cooper and Bethune-Hill?

I will spare you the doctrinal convolutions of these lengthy opinions. They are tedious, inside-baseball stuff, fit for an election law blog rather than a generalist forum like this one. (For handy summaries, see my colleague Rick Pildes' post over at Scotusblog. Pildes was counsel for ALBC, so he knows what he is talking about). Here are the simple take-away points, as I understand them:

A. Bethune-Hill's bottom line: Just because a district's boundaries can be explained with "traditional districting factors" does not mean that race did not predominate, if the legislature actually was motivated predominantly by race. A district does not have to look really weird in order to be predominantly motivated by racial purposes: Cleverly disguised use of race is still use of race. It is the ("predominantly") racial purpose, not the race-neutral appearance, that matters. In particular, explaining each jiggle and turn of a district boundary with some conveniently race-neutral story about county lines, incumbent protection, and so forth cannot exonerate a plan that is revealed by "smoking gun" intent evidence to be designed to maintain a minimum percentage of black voters in safe districts.

B. Cooper's two bottom lines:

1) State legislators do not have carte blanche to create black-majority districts to deal with racial bloc voting that allegedly violates the VRA, unless those legislators actually show a likely violation of the VRA absent te packing of black voters. In particular, the legislators have to show that there really are not enough cross-over white voters to break the alleged white bloc. VRA compliance must be proven, not assumed, as a justification for "predominantly" race-based districting.

2) Plaintiffs challenging a district as race-based do not need to produce a race-neutral districting map that accomplishes the State's proffered race-neutral goals as well as the State's map. Contrary to one (apparently erroneous reading of) Easley v. Cromartie II, such proof of a predominantly racial motive is not essential, because "direct evidence" of racial purpose -- for instance, "scores of leaked emails from state officials instructing their map-maker to pack as many black voters as possible into adistrict, or telling him to make sure its BVAP hit 75%" -- could also supply the needed proof.

II. Were these decisions rooted in political party or constitutional doctrine?

One might be just a wee bit suspicious of the line-up in Cooper, especially when one contrasts it with the line-up in Cromartie II. All of the Cromartie II liberals read Cromartie II narrowly to allow proof of racially discriminatory purpose even without the plaintiffs' producing a race-neutral map accomplishing the State's race-neutral goals. Alito, joined by Roberts and Kennedy, wrote a dissent from the holding described at I(B)(2) above, calling for a broader reading of Cromartie II. But back in 2001, Kennedy joined the conservatives in Cromartie II in dissenting from Breyer's very deferential attitude towards race-based districts. Now Kennedy is joining a dissent that declares "[a] precedent...should not be treated like a disposable household item—say, a paper plate or napkin -- to be used once and then tossed in the trash."

Has Kennedy suddenly been converted to a deep love for stare decisis, a love so deep that he is willing to give a broad reading to a mushy precedent that he had earlier decried? Or did Kennedy join Alito's dissent because Kennedy regarded Kagan's majority opinion as a cynically opportunistic and partisan defense of the color-blind constitution, a defense that was rejected by liberal justices in '01 when it got in the way of black politicians' districting demands but currently being deployed by some of the same liberals to get rid of Republicans' districting plans now that black Democrats can win without packing black voters?

Well, let's let Alito's dissent speak for itself. Accusing the majority of "execut[ing] a stunning about-face" on Cromartie II, Alito wrote that, by easing the proof of race-based districting, “the federal courts will be transformed into weapons of political warfare," because, "[i]f the majority party draws districts to favor itself, the minority party can deny the majority its political victory by prevailing on a racial gerrymandering claim,” claims that "can exact a heavy price by using the judicial process to engage in political trench warfare for years on end.”

It is difficult for me not to read this passage as anything but an accusation that the Cooper majority has relaxed Cromartie II's proof requirements because now the majority sees that racial gerrymandering benefits Republicans ("the majority party") and hurts Democrats ("the minority party"). Of course, Alito is expressly speaking of litigators, not his brethren on SCOTUS. But if the shoe fits...

So is such an accusation accurate? The question is difficult to answer, because Cromartie II is a convoluted, fact-specific mess. One can easily pull language out the opinion to favor either the majority's or dissent's reading of how a "predominantly racial" purpose is proven. Indeed, it is quite possible for such mushy, fact-specific precedents to follow a partisan path even if each justice sincerely votes for completely non-partisan reasons, because, as Justice Scalia caustically noted in his Morrison v. Olson dissent, with the "ad hoc approach to constitutional adjudication,... the law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be." Of course, what a liberal majority in 2001 thinks the law "ought to be" might be quite different than what a similar liberal majority in 2017 thinks -- and Cromartie II obligingly provides a big tent for both views.

Mushy precedents like Cromartie II, in short, naturally invite the accusation that the law is (as Alito put it) a "weapon of political warfare." It is not just Cromartie II that invites such suspicion. The same opportunity to tailor the principle to the current majority's current unspoken preferences is present in (for instance) Fischer's analysis of affirmative action or Morrison's of separation of powers.

III. Was Cooper really a "partisan" decision"?

I am inclined to think, however, that Kagan's Cooper opinion is as non-partisan as one could reasonably expect in this fraught area of the law. My key piece of evidence is that Thomas signed on to the majority opinion, adding a separate concurring opinion to note that, whatever the majority might say, the Cooper majority effectively confined Cromartie II "to its particular facts." Cooper, in short, is a general blow against the deferential attitude towards race-based districts exhibited by Cromartie II. By walking back Cromartie II, Cooper gives plaintiffs new tools to challenge the gratuitous creation of black safe districts even when they are not being created by Republicans or being challenged by Democrats. I assume that these tools are precisely why Thomas signed on: Cooper's language will provide reasonably durable speed bumps when Democratic state legislatures of the future want once more (for whatever reason) to draw district lines on racial grounds.

So kudos to Thomas for sticking to his color-blind guns. Whether you love or hate his doctrine, you cannot help but admire the man for rejecting the temptation of abandoning his principles for short-term partisan advantage.

Posted by Rick Hills on May 24, 2017 at 12:00 AM | Permalink


*Breyer believes partisan gerrymandering is justiciable, I meant (and typed, but my phone corrected it). So long as I'm revising and extending, I'll note that Miller was pretty explicitly exercised about DOJ's role in the 1990 redistricting. The Court accuses DOJ of "a policy of maximizing majority-black districts" and demanding "abject surrender to its maximization agenda," and says, rather luridly, that Georgia "was driven by its overriding desire to comply with the Department's maximization demands." Much of the opinion's reasoning, courtesy of Kennedy, circles around the impropriety of this federal intrusion, and of course, we should remember that it was actually George H.W. Bush's DOJ that was responsible, very likely for partisan reasons. So the whole line of cases is a testament to non-partisan ox-goring commitment to constitutional principle, in my admittedly somewhat contrarian view.

Posted by: Asher Steinberg | May 25, 2017 5:22:15 AM

I think you're being a little inconsistent. On the one hand, you want to read partisanship into the opinions when it isn't, textually, there, but when I suggest that the conservatives were motivated - in part - by federalism, you ask where that is in Shaw. Shaw, of course, was ultimately reviewing the constitutionality of a state statute, so doctrinally it's nowhere. But I don't see why it has to be part of the Court's formal stated reasoning to have motivated its decision. I don't think I've ever seen anyone suggest before that Shaw et al. weren't largely about a conservative reaction to what some of the opinions luridly called DOJ's "max-black" policy, nor is it surprising that the same people would eventually get around to striking down Section 5. Nor does a partisan account make sense, really; it's generally accepted that maximizing minority representation hurt Democrats in the 90s, just as it hurts them today. The mathematics of cramming reliable Democratic voters into districts that, with white Democrats, end up being super-majority safe Democratic seats haven't suddenly changed. They were always bad for Democrats. (Indeed, a lot of people blamed the 1990 redistricting for Gingrich.) What has changed is who's responsible, their motives, and the necessity to draw such districts to attain minority representation (that is, it's not quite so necessary anymore). The conservatives have more of a problem with an open affirmative-action scheme in districting, though such schemes help Republicans, than they do with racial sorting for partisan advantage; in the case of the latter, at least the goal isn't racial, and the expressive and representative harms that they claimed racial gerrymanders caused are attenuated if people on the ground think the gerrymander's just partisan. As they reasonably see it, a partisan gerrymander in the South, which they're okay with, is inevitably going to be a highly race-conscious affair. What they object to are self-conscious minority setoffs in districting; hence their concurring as to District 1, which was one.

Now, you asked about Breyer. I believe that Breyer sought to inter the cause of action in whatever way he could get 5 votes for then, and is still somewhat uncomfortable about it now; he's said some suggestive things in the recent arguments. But even Breyer isn't going to tolerate racial classification without some benign purpose, and what is happening in today's South must seem to him a cynical misuse of the Voting Rights Act. In any case, Breyer believes partisan gerrymandering is justifiable and when a racial gerrymander is defended as a partisan one, how can he be sympathetic? I simply think that his thinking on the matter has matured given new facts, as O'Connor's did in a different direction, which you can't attribute to partisanship (though it might have been a matter of federalism - note she gets off the train when North Carolina is clearly making its own choice, not DOJ's).

I vehemently disagree with the bit about chumps and partisanship. This may sound naïve, but a judge, even if he has partisan causes, has more important things to maximize than those causes, like adherence to the Constitution, or ending racial discrimination. If you believe racial classifications in districting are presumptively unconstitutional, you should keep voting that way even if only the Republican-friendly ones get struck down (though again, they're ALL Republican-friendly). At least half of them will be, which is better than none, unless one's really a knave who would rather live in a world where all unconstitutional racial classifications are upheld than a world where just the ones that hurt one's political party are. This is, at least, how Thomas feels (though I think they all have principled reasons), and I don't see him as a chump in the least.

Posted by: Asher Steinberg | May 25, 2017 5:04:52 AM

Asher, I am not convinced by your claim that "in the Shaw cases [conservative justices] were attacking federal intrusion into state redistricting." If I am understanding your comment correctly, you are saying that the conservative justices' argument against race-conscious districting was an argument for federalism and state autonomy against DOJ's overweening intrusion into electoral processes under VRA section 5.
Without re-reading those cases in detail, I have to say that your characterization of the conservative position in the Shaw cases seems to me to be a stretch. As I recall, all of those cases rested squarely on the idea that state legislatures violated the 14th Amendment's equal protection clause by using racial classifications as the “predominant” basis for drawing districts. Whether or not they were doing so because of outside federal pressure or on their own volition was simply irrelevant to O’Connor’s Shaw opinion. As Justice O'Connor stated in Shaw itself, "[t]he difficulty of proof [of a predominantly racial motive], of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race."

The notion, therefore, that the conservatives are consistent in their views because they backed electoral federalism back in the Shaw-Cromartie II cases and now in Cooper just strikes me as implausible. But maybe you are making a different case for consistency?

Please do not misinterpret me as saying that the conservatives are the only side with plausibly partisan motivations. The liberals' switch also cannot easily be explained except as a partisan switch in time. After all, Breyer wrote in Cromartie II an opinion actually overturning a district court's fact-findings on racially discriminatory purpose as clearly erroneous under FRCP 52(a): That's a fairly audacious statement about deferring to state legislative choices even when race is involved. In any other context -- say, exclusionary zoning or public employment -- substantial evidence of a state’s racial purpose would at least shift the burden of proof, Mount Healthy v. Doyle-style, to the state to disprove discriminatory intent. Cromartie II, therefore, was a plain declaration that the Equal Protection analysis of electoral districting was fundamentally more deferential than the analysis of racial motivations in other contexts. Yet Cooper cites Arlington Heights for the proposition that, as with any other context, any old "direct evidence" of racially discriminatory purpose (as long as that purpose "predominates," whatever that odd term means) suffices to establish the plaintiffs' case. What explains that switch, aside from a dawning awareness that racial gerrymandering is a partisan tool?

So both sides can fairly declare "tu quoque" to the charge of constitutional hypocrisy.

On final point: I blame neither side for partisan deviations from their old positions. To the contrary, in my view, each side OUGHT to tailor their adherence to constitutional principles to match the perceived adherence of the other side. Who but a chump would be a consistent proponent of any principle – freedom of speech, federalism, the color-blind constitution, etc. – if they thought that the principle would only be honored when it burdened their own preferred partisan or ideological causes? Every constitutional principle is, in essence, a bargain in which one side agrees to adhere to a principle on the condition that the other side does so as well. As soon as either side gets a whiff of defection, then they should rationally bail as well.

Of course, this means that constitutional bargains are fragile. As I have noted elsewhere, it is easier to keep the bargain if the constitutional principles defining the bargain are relatively clear and crisp. To the extent that the Shaw line off cases is defined by mushy, fact-specific “factors” and proof, it is properly vulnerable to partisan unraveling.

Posted by: Rick Hills | May 24, 2017 9:57:21 PM

I've given a little thought to this and I think that the apparent switch by all the Justices besides Thomas on racial gerrymandering (though Sotomayor, Kagan, Alito, and Roberts weren't around for Shaw I/II, Miller, Bush, and Cromartie I/II, I think it's pretty fair to assume they would have divided as their respective liberal/conservative predecessors did) can be explained along a number of non-partisan lines. I would write this up on my blog, as this area used to be my main hobbyhorse, but I have an article to write.

The Shaw cases, by which I mean Shaw v. Reno through Cromartie II, were very different from the current generation of racial-gerrymandering cases. In those cases, a Democratic DOJ, acting against partisan interest, pressured Section 5-covered states to maximize the number of majority-minority districts, at least to the point of proportional representation. Section 5 didn't require this, because maintaining something less than maximum minority representation would have been non-retrogressive; Section 2 didn't require it because it was impossible to obtain proportional representation with compact districts and states are only liable under Section 2 if there's a compact district that could remedy vote dilution. Now, the liberal Justices had no real problem with this federal intrusion and, while they wouldn't interpret Section 2 to mandate proportional representation at all costs, didn't have any problem with what they saw as affirmative action in redistricting - indeed, probably thought it a good idea. The conservative Justices, of course, had real problems with both the federal intrusion and the unnecessary racial classification the feds demanded, however pro-minority and benign it may have been, or been intended to be.

Now, what do we have in the new cases? States under no pressure from DOJ are packing minority voters into as few districts as possible, supposedly in order to comply with the Voting Rights Act, in reality to maximize Republican partisan advantage and, as a side effect, minimize minority political power. In these cases, not only is the racial gerrymandering unnecessary to comply with the VRA, it's actually unnecessary to attain proportional representation. Minority candidates of choice, we're told, were winning in crossover districts before minority population levels were upped to 50+%. The liberal Justices, therefore, see this as a sham affirmative-action scheme that serves no benign purpose, but rather either racially classifies for partisan advantage (one which happens to be contrary to the political preferences of the minority in question), or actually invidiously reduces minority power. The conservative Justices, however, now see, on the liberals' part, a federal judicial intrusion into choices that genuinely are the choices of the states in question, whereas in the Shaw cases they were attacking federal intrusion into state redistricting. As to the substance of what the states are doing, they want to protect partisan gerrymanders or things that might be partisan gerrymanders, which is consistent with a neutral commitment of theirs going back decades. Hence their deferential rule of evidence requiring the alternative map, which is intended to place a burden on plaintiffs to disprove a gerrymander is partisan rather than racial. The liberals, on the other hand, are less concerned about protecting partisan gerrymanders or the states' districting choices and therefore aren't motivated to create special rules of evidence that make this cause of action, to which they're sympathetic for principled reasons, hard to prove. And only Thomas, of the conservatives, is so offended by racial sorting on the part of the state, in an area of traditional state power, that he'll vote to invalidate racial sortings that really may be motivated by partisanship and have nothing to do with either advantaging or disadvantaging minorities qua minorities.

Posted by: Asher Steinberg | May 24, 2017 6:35:20 PM

Unless I am misreading, this post suggests that Bethune-Hill was also decided this week. It wasn't.

Posted by: Sam | May 24, 2017 5:09:47 PM

It must be noted that the Justices were unanimous that one of the two districts had to be struck down. So any talk about conservatives Justices looking to "short-term" partisan advantage is grossly inaccurate.

The other district turned primarily on how closely the Justices should inspect the record. As to both districts, the liberals suggested they shouldn't look too closely at the record (except for clear error). It is difficult to believe the liberal members will proceed consistent with this opinion regarding clear error if a lower court doesn't find unconstitutional racial consideration. That was the real focus of Alito's rebuke and Kagan mockingly derided his reliance on the record in footnote 6.

What has not been remarked upon -- and I am doing so for the first time here -- was Kagan's very ironic reference to "Inherit the Wind" in footnote 6. She proposed that Alito's reliance on the state's star witness's testimony is comparable to a retelling of the play "from the perspective of William Jennings Bryan." However, the play completely misrepresented the Scopes Monkey Trial and told it from the perspective of Clarence Darrow (if he lacked all scruples). Given the facts of the real case, I think a play told from the perspective of William Jennings Bryan would be far more enlightening and honest affair.

For Kagan, an educated person who chooses words carefully as a profession, was this deliberate? Applying modest scrutiny to her chosen example supports Alito's argument so tremendously at least we should get some amusement from it.

Posted by: Crispian | May 24, 2017 11:51:36 AM

I am partisan, but it strikes me as a false equivalence to say the conservatives are equally partisan for wishing to adhere to a precedent which they did not agree to as the libs are for ignoring it when it suits them. In other words, the losing side has a right to switch to the prevailing view, while the prevailers don't have a right to switch. Because, precedent.

Posted by: biff | May 24, 2017 10:46:30 AM

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