Out of My Mind

LEAGUE OF UNITED LATIN AMERICAN CITIZENS v.PERRY (Nos. 05-204,
05-254, 05-276 and 05-439)
Web-accessible at:
http://www.law.cornell.edu/supct/html/05-204.ZS.html

Argued: March 1, 2006 -- Decided: June 28, 2006
Opinion author: Kennedy
===============================================================

The 1990 census resulted in a 3-seat increase over the
27 seats previously allotted the Texas congressional delegation.
Although the Democratic Party then controlled 19 of those
27 seats, as well as both state legislative houses and
the governorship, change was in the air: The Republican
Party had received 47% of the 1990 statewide vote, while
the Democrats had received only 51%. Faced with a possible
Republican ascent to majority status, the legislature drew
a congressional redistricting plan that favored Democratic
candidates. The Republicans challenged the 1991 Plan as
an unconstitutional partisan gerrymander, but to no avail.


The 2000 census authorized two additional seats for the
Texas delegation. The Republicans then controlled the governorship
and the State Senate, but did not yet control the State
House of Representatives. So constituted, the legislature
was unable to pass a redistricting scheme, resulting in
litigation and the necessity of a court-ordered plan to
comply with the U. S. Constitution's one-person, one-vote
requirement. Conscious that the primary responsibility
for drawing congressional districts lies with the political
branches of government, and hesitant to undo the work of
one political party for the benefit of another, the three-judge
Federal District Court sought to apply only 'neutral' redistricting
standards when drawing Plan 1151C, including placing the
two new seats in high-growth areas, following county and
voting precinct lines, and avoiding the pairing of incumbents.
Under Plan 1151C, the 2002 congressional elections resulted
in a 17-to-15 Democratic majority in the Texas delegation,
compared to a 59% to 40% Republican majority in votes for
statewide office in 2000, thus leaving the 1991 Democratic
gerrymander largely in place.

In 2003, however, Texas Republicans gained control of both
houses of the legislature and set out to increase Republican
representation in the congressional delegation. After a
protracted partisan struggle, the legislature enacted a
new congressional districting map, Plan 1374C. In the 2004
congressional elections, Republicans won 21 seats to the
Democrats' 11, while also obtaining 58% of the vote in
statewide races against the Democrats' 41%. Soon after
Plan 1374C was enacted, appellants challenged it in court,
alleging a host of constitutional and statutory violations.
In 2004 the District Court entered judgment for appellees,
but this Court vacated the decision and remanded for consideration
in light of Vieth v. Jubelirer, 541 U. S. 267 . On remand,
the District Court, believing the scope of its mandate
was limited to questions of political gerrymandering, again
rejected appellants' claims.

Held: The judgment is affirmed in part, reversed in part,
and vacated in part, and the cases are remanded.

399 F. Supp. 2d 756, affirmed in part, reversed in part,
vacated in part, and remanded.

Justice Kennedy delivered the opinion of the Court with
respect to Parts II-A and III, concluding:

1. This Court held, in Davis v. Bandemer, 478 U. S. 109
, that an equal protection challenge to a political gerrymander
presents a justiciable case or controversy, although it
could not agree on what substantive standard to apply,
compare id., at 127-137, with id., at 161-162. That disagreement
persists. The Vieth plurality would have held such challenges
nonjusticiable political questions, but a majority declined
to do so, see 541 U. S., at 306, 317, 343, 355. Justiciability
is not revisited here. At issue is whether appellants offer
a manageable, reliable measure of fairness for determining
whether a partisan gerrymander is unconstitutional. P.
7.

2. Texas' redrawing of District 23's lines amounts to vote
dilution violative of sec. 2 of the Voting Rights Act of
1965. Pp. 17-36.

(a) Plan 1374C's changes to District 23 served the dual
goals of increasing Republican seats and protecting the
incumbent Republican against an increasingly powerful Latino
population that threatened to oust him, with the additional
political nuance that he would be reelected in a district
that had a Latino majority as to voting age population,
though not a Latino majority as to citizen voting age population
or an effective Latino voting majority. The District 23
changes required adjustments elsewhere, so the State created
new District 25 to avoid retrogression under sec. 5 of
the Act. Pp. 17-18.

(b) A State violates sec. 2 'if, based on the totality
of circumstances, it is shown that the political processes
leading to nomination or election ... are not [as] equally
open to ... members of [a racial group as they are to] other
members of the electorate.' 42 U. S. C. sec. 1973(b). Thornburg
v. Gingles, 478 U. S. 30 , identified three threshold conditions
for establishing a sec. 2 violation: (1) the racial group
must be 'sufficiently large and geographically compact
to constitute a majority in a single-member district';
(2) the group must be 'politically cohesive'; and (3) the
white majority must 'vot[e] sufficiently as a bloc to enable
it ... usually to defeat the minority's preferred candidate.'
The legislative history identifies factors that courts
can use, once all three threshold requirements are met,
in interpreting sec. 2's 'totality of circumstances' standard,
including the State's history of voting-related discrimination,
the extent to which voting is racially polarized, and the
extent to which the State has used voting practices or
procedures that tend to enhance the opportunity for discrimination
against the minority group. See id., at 44-45. Another
relevant consideration is whether the number of districts
in which the minority group forms an effective majority
is roughly proportional to its share of the population
in the relevant area. Johnson v. De Grandy, 512 U. S. 997
. The district court's determination whether the sec. 2
requirements are satisfied must be upheld unless clearly
erroneous. See Gingles, supra, at 78-79. Where 'the ultimate
finding of dilution' is based on 'a misreading of the governing
law,' however, there is reversible error. De Grandy, supra,
at 1022. Pp. 18-20.

(c) Appellants have satisfied all three Gingles requirements
as to District 23, and the creation of new District 25
does not remedy the problem.

The second and third Gingles factors-Latino cohesion, majority
bloc voting-are present, given the District Court's finding
of racially polarized voting in the District 23 and throughout
the State. As to the first Gingles precondition-that the
minority group be large and compact enough to constitute
a majority in a single-member district, 478 U. S., at 50-appellants
have established that Latinos could have had an opportunity
district in District 23 had its lines not been altered
and that they do not have one now. They constituted a majority
of the citizen voting age population in District 23 under
Plan 1151C. The District Court suggested incorrectly that
the district was not a Latino opportunity district in 2002
simply because the incumbent prevailed. The fact that a
group does not win elections does not resolve the vote
dilution issue. De Grandy, 512 U. S., at 1014, n. 11. In
old District 23 the increase in Latino voter registration
and overall population, the concomitant rise in Latino
voting power in each successive election, the near victory
of the Latino candidate of choice in 2002, and the resulting
threat to the incumbent's continued election were the very
reasons the State redrew the district lines. Since the
redistricting prevented the immediate success of the emergent
Latino majority in District 23, there was a denial of opportunity
in the real sense of that term. Plan 1374C's version of
District 23, by contrast, is unquestionably not a Latino
opportunity district. That Latinos are now a bare majority
of the district's voting-age population is not dispositive,
since the relevant numbers must account for citizenship
in order to determine the group's opportunity to elect
candidates, and Latinos do not now have a citizen voting-age
majority in the district.

The State's argument that it met its sec. 2 obligations
by creating new District 25 as an offsetting opportunity
district is rejected. In a district line-drawing challenge,
'the first Gingles condition requires the possibility of
creating more than the existing number of reasonably compact
districts with a sufficiently large minority population
to elect candidates of its choice.' Id., at 1008. The District
Court's finding that the current plan contains six Latino
opportunity districts and that seven reasonably compact
districts, as proposed by appellant GI Forum, could not
be drawn was not clearly erroneous. However, the court
failed to perform the required compactness inquiry between
the number of Latino opportunity districts under the challenger's
proposal of reinstating Plan 1151C and the 'existing number
of reasonably compact districts.' Ibid. Section 2 does
not forbid the creation of a noncompact majority-minority
district, Bush v. Vera, 517 U. S. 952 , but such a district
cannot remedy a violation elsewhere in the State, see Shaw
v. Hunt, 517 U. S. 899 . The lower court recognized there
was a 300-mile gap between the two Latino communities in
District 25, and a similarly large gap between the needs
and interests of the two groups. The court's conclusion
that the relative smoothness of the district lines made
the district compact, despite this combining of discrete
communities of interest, is inapposite because the court
analyzed the issue only in the equal protection context,
where compactness focuses on the contours of district lines
to determine whether race was the predominant factor in
drawing those lines. See Miller v. Johnson, 515 U. S. 900
. Under sec. 2, by contrast, the injury is vote dilution,
so the compactness inquiry considers 'the compactness of
the minority population, not ... the compactness of the contested
district.' Vera, 517 U. S., at 997. A district that 'reaches
out to grab small and apparently isolated minority communities'
is not reasonably compact. Id., at 979. The lower court's
findings regarding the different characteristics, needs,
and interests of the two widely scattered Latino communities
in District 23 are well supported and uncontested. The
enormous geographical distances separating the two communities,
coupled with the disparate needs and interests of these
populations-not either factor alone-renders District 25
noncompact for sec. 2 purposes. Therefore, Plan 1374C contains
only five reasonably compact Latino opportunity districts,
one fewer than Plan 1151C. Pp. 20-29.

(d) The totality of the circumstances demonstrates a sec.
2 violation. The relevant proportionality inquiry, see
De Grandy, 512 U. S., at 1000, compares the percentage
of total districts that are Latino opportunity districts
with the Latino share of the citizen voting-age population.
The State's contention that proportionality should be decided
on a regional basis is rejected in favor of appellants'
assertion that their claim requires a statewide analysis
because they have alleged statewide vote dilution based
on a statewide plan. Looking statewide, there are 32 congressional
districts. The five reasonably compact Latino opportunity
districts amount to roughly 16% of the total, while Latinos
make up 22% of Texas' citizen voting-age population. Latinos
are, therefore, two districts shy of proportional representation.
Even deeming this disproportionality insubstantial would
not overcome the other evidence of vote dilution for Latinos
in District 23. The changes there undermined the progress
of a racial group that has been subject to significant
voting-related discrimination and that was becoming increasingly
politically active and cohesive. Cf., e.g., id., at 1014.
Against this background, the Latinos' diminishing electoral
support for the incumbent indicates their belief he was
unresponsive to their particularized needs. In essence,
the State took away their opportunity because they were
about to exercise it. Even accepting the District Court's
finding that the State's action was taken primarily for
political, not racial, reasons, the redrawing of District
23's lines was damaging to its Latino voters. The State
not only made fruitless the Latinos' mobilization efforts
but also acted against those Latinos who were becoming
most politically active. Although incumbency protection
can be a legitimate factor in districting, see Karcher
v. Daggett, 462 U. S. 725 , not all of its forms are in
the interests of the constituents. If, as here, such protection
means excluding some voters from the district simply because
they are likely to vote against the officeholder, the change
is to benefit the officeholder, not the voters. This policy,
whatever its validity in the political realm, cannot justify
the effect on Latino voters. See Gingles, supra, at 45.
Pp. 29-36.

(e) Because Plan 1374C violates sec. 2 in its redrawing
of District 23, appellants' First Amendment and equal protection
claims with respect to that district need not be addressed.
Their equal protection claim as to the drawing of District
25 need not be confronted because that district will have
to be redrawn to remedy the District 23 violation. Pp.
36-37.

Justice Kennedy concluded in Part II that because appellants
have established no legally impermissible use of political
classifications, they state no claim on which relief may
be granted as to their contention that Texas' statewide
redistricting is an unconstitutional political gerrymander.
Justice Souter and Justice Ginsburg joined Part II-D. Pp.
7-15.

(a) Article I of the Constitution, sec. sec. 2 and 4, gives
'the States primary responsibility for apportionment of
their ... congressional ... districts,' Growe v. Emison, 507
U. S. 25 , but sec. 4 also permits Congress to set further
requirements. Neither the Constitution nor Congress has
stated any explicit prohibition of mid-decade redistricting
to change districts drawn earlier in conformance with a
decennial census. Although the legislative branch plays
the primary role in congressional redistricting, courts
have an important role when a districting plan violates
the Constitution. See, e.g., Wesberry v. Sanders, 376 U.
S. 1 . That the federal courts sometimes must order legislative
redistricting, however, does not shift the primary responsibility
away from legislative bodies, see, e.g., Wise v. Lipscomb,
437 U. S. 535 , who are free to replace court-mandated
remedial plans by enacting redistricting plans of their
own, see, e.g., Upham v. Seamon, 456 U. S. 37 . Judicial
respect for legislative plans, however, cannot justify
legislative reliance on improper criteria for districting
determinations. Pp. 7-10.

(b) Appellants claim unpersuasively that a decision to
effect mid-decennial redistricting, when solely motivated
by partisan objectives, presumptively violates equal protection
and the First Amendment because it serves no legitimate
public purpose and burdens one group because of its political
opinions and affiliation. For a number of reasons, that
test is unconvincing. There is some merit to the State's
assertion that partisan gain was not the sole motivation
for replacing Plan 1151C: The contours of some contested
district lines seem to have been drawn based on more mundane
and local interests, and a number of line-drawing requests
by Democratic state legislators were honored. Moreover,
a successful test for identifying unconstitutional partisan
gerrymandering must do what appellants' sole-motivation
theory explicitly disavows: show a burden, as measured
by a reliable standard, on the complainants' representational
rights. See Vieth, supra, at 292-295, 307-308. Appellants'
sole-intent standard is no more compelling when it is linked
to the circumstance that Plan 1374C is mid-decennial legislation.
The Constitution's text and structure and this Court's
cases indicate there is nothing inherently suspect about
a legislature's decision to replace mid-decade a court-ordered
plan with one of its own. Even if there were, the fact
of mid-decade redistricting alone is no sure indication
of unlawful political gerrymanders. Appellants' test would
leave untouched the 1991 Texas redistricting, which entrenched
a party on the verge of minority status, while striking
down the 2003 redistricting plan, which resulted in the
majority Republican Party capturing a larger share of the
seats. A test that treats these two similarly effective
power plays in such different ways does not have the reliability
appellants ascribe to it. Pp. 10-14.

(c) Appellants' political gerrymandering theory that mid-decade
redistricting for exclusively partisan purposes violates
the one-person, one-vote requirement is rejected. Although
conceding that States operate under the legal fiction that
their plans are constitutionally apportioned throughout
a decade, see, e.g., Georgia v. Ashcroft, 539 U. S. 461
, n. 2, appellants contend that this fiction should not
provide a safe harbor for a legislature that enacts a voluntary,
mid-decade plan overriding a legal court-drawn plan. This
argument mirrors appellants' attack on mid-decennial redistricting
solely motivated by partisan considerations and is unsatisfactory
for the same reasons. Their further contention that the
legislature intentionally sought to manipulate population
variances when it enacted Plan 1374C is unconvincing because
there is no District Court finding to that effect, and
they present no specific evidence to support this serious
allegation of bad faith. Because they have not demonstrated
that the legislature's decision to enact Plan 1374C constitutes
a violation of the equal-population requirement, their
subsidiary reliance on Larios v. Cox, 300 F. Supp. 2d 1320,
summarily aff'd, 542 U. S. 947 , is unavailing. Pp. 14-16.


Justice Kennedy, joined by The Chief Justice and Justice
Alito, concluded in Part IV that the Dallas area redistricting
does not violate sec. 2 of the Voting Rights Act. Appellants
allege that the Dallas changes dilute African-American
voting strength because an African-American minority effectively
controlled District 24 under Plan 1151C. However, before
Plan 1374C, District 24 had elected an Anglo Democrat to
Congress in every election since 1978. Since then, moreover,
the incumbent has had no opposition in any of his primary
elections, and African-Americans have consistently voted
for him. African-Americans were the second-largest racial
group in the district after Anglos, but had only 25.7%
of the citizen voting age population. Even assuming that
the first Gingles prong can accommodate appellants' assertion
that a sec. 2 claim may be stated for a racial group that
makes up less than 50% of the population, see, e.g., De
Grandy, supra, at 1009, they must show they constitute
'a sufficiently large minority to elect their candidate
of choice with the assistance of cross-over votes,' Voinovich
v. Quilter, 507 U. S. 146 . The District Court committed
no clear error in rejecting questionable evidence that
African-Americans have the ability to elect their candidate
of choice in favor of other evidence that an African-American
candidate of choice would not prevail. See Anderson v.
Bessemer City, 470 U. S. 564 . That African-Americans had
influence in the district does not suffice to state a sec.
2 claim. If it did, it would unnecessarily infuse race
into virtually every redistricting, raising serious constitutional
questions. See Georgia v. Ashcroft, 539 U. S. 461 . Id.,
at 480, 482, distinguished. Appellants do not raise a district-specific
political gerrymandering claim against District 24. Pp.
37-41.

The Chief Justice, joined by Justice Alito, agreed that
appellants have not provided a reliable standard for identifying
unconstitutional political gerrymanders, but noted that
the question whether any such standard exists-i.e., whether
a challenge to such a gerrymander presents a justiciable
case or controversy-has not been argued in these cases.
The Chief Justice and Justice Alito therefore take no position
on that question, which has divided the Court, see Vieth
v. Jubelirer, 541 U. S. 267 , and join the plurality's
Part II disposition without specifying whether appellants
have failed to state a claim on which relief can be granted
or failed to present a justiciable controversy. Pp. 1-2.


Justice Scalia, joined by Justice Thomas, concluded that
appellants' claims of unconstitutional political gerrymandering
do not present a justiciable case or controversy, see Vieth
v. Jubelirer, 541 U. S. 267 (plurality opinion), and that
their vote-dilution claims premised on sec. 2 of the Voting
Rights Act of 1965 lack merit for the reasons set forth
in Justice Thomas's opinion concurring in the judgment
in Holder v. Hall, 512 U. S. 874 . Reviewing appellants'
race-based equal protection claims, Justice Scalia, joined
by The Chief Justice, Justice Thomas, and Justice Alito,
concluded that the District Court did not commit clear
error in rejecting appellant GI Forum's assertion that
the removal of Latino residents from District 23 constituted
intentional vote dilution. Justice Scalia, joined by The
Chief Justice, Justice Thomas, and Justice Alito, subjected
the intentional creation of District 25 as a majority-minority
district to strict scrutiny and held that standard satisfied
because appellants conceded that the creation of this district
was reasonably necessary to comply with sec. 5 of the Voting
Rights Act of 1965, which is a compelling state interest,
and did not argue that Texas did more than that provision
required it to do. Pp. 2-11.

Kennedy, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts II-A and
III, in which Stevens, Souter, Ginsburg, and Breyer, JJ.,
joined, an opinion with respect to Parts I and IV, in which
Roberts, C. J., and Alito, J., joined, an opinion with
respect to Parts II-B and II-C, and an opinion with respect
to Part II-D, in which Souter and Ginsburg, JJ., joined.
Stevens, J., filed an opinion concurring in part and dissenting
in part, in which Breyer, J., joined as to Parts I and
II. Souter, J., filed an opinion concurring in part and
dissenting in part, in which Ginsburg, J., joined. Breyer,
J., filed an opinion concurring in part and dissenting
in part. Roberts, C. J., filed an opinion concurring in
part, concurring in the judgment in part, and dissenting
in part, in which Alito, J., joined. Scalia, J., filed
an opinion concurring in the judgment in part and dissenting
in part, in which Thomas, J., joined, and in which Roberts,
C. J., and Alito, J., joined as to Part III.


Notes:
*
Together with No. 05-254, Travis County, Texas, et al.
v. Perry, Governor of Texas, et al., No. 05-276, Jackson
et al. v. Perry, Governor of Texas, et al., and No. 05-439,
GI Forum of Texas et al. v. Perry, Governor of Texas, et
al., also on appeal from the same court.

# posted by The Seditionist @ 6/30/2006 05:35:00 AM