Supreme Court Upholds TX Congressional District Lines for All Except One District

Today, the Supreme Court issued a decision in Abbott v. Perez, a racial gerrymandering challenge out of Texas.  The Court held that the lower court had used an improper intent analysis to invalidate congressional and state house district maps, that the lower court had improperly applied the “effects” test of Section 2 of the Voting Rights Act to invalidate three districts, and that the fourth challenged district was an impermissible racial gerrymander because the state did not prove narrow tailoring in its use of race.

Justice Alito wrote for the five-justice majority, noting that district map challengers bear the burden of showing discriminatory intent (citations omitted):

We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed. . . . 

The court refused to accept this conclusion, but its reasons for doing so cannot stand up. As an initial matter, the court thought that the two districts would have to be redrawn based on its finding regarding the intent of the 2013 Legislature, and it therefore deferred a final decision on the §2 issue and advised the plaintiffs to consider at the remedial phase of the case whether they preferred to have two districts that might not perform or just one safe district. The court’s decision cannot be sustained on this ground, since its finding of discriminatory intent is erroneous. 

The only other reason provided by the court was the observation that [Mexican-American Legal Caucus] “failed to show” that two majority-Latino districts in Nueces County would not perform. This observation twisted the burden of proof beyond recognition. It suggested that a plaintiff might succeed on its §2 claim because its expert failed to show that the necessary factual basis for the claim could not be established. Courts cannot find §2 effects violations on the basis of uncertainty. In any event, if even the District Court remains unsure how to draw these districts to comply with §2 (after six years of litigation, almost a dozen trials, and numerous opinions), the Legislature surely had the “ ‘broad discretion’ ” to comply as it reasonably saw fit in 2013.

With regard to the invalidated district (citations omitted):

By contrast, where we have accepted a State’s “good reasons” for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions. In Bethune-Hill, the State established that the primary map drawer “discussed the district with incumbents from other majority-minority districts[,]. . . considered turnout rates, the results of the recent contested primary and general elections,” and the district’s large prison population.  The State established that it had performed a “functional analysis,” and acted to achieve an “informed bipartisan consensus.” Texas’s showing here is not equivalent.

Perhaps Texas could have made a stronger showing, but it is the State’s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerrymander. On remand, the District Court will have to consider what if any remedy is appropriate at this time. 

Also worth noting, the Court found that though the lower court did not label its order as an injunction, it functioned as an injunction and the lower court could not avoid review under 28 U.S.C. § 1253 by labeling the order something other than an injunction.

Justice Thomas has been alone in saying that Section 2 of the Voting Rights Act cannot justify using race in redistricting and that therefore requiring legislatures to form majority-minority districts by considering race is impermissible.  But today, Justice Gorsuch joined his concurrence in Abbott reiterating that stance, which may prove very important in future racial gerrymandering cases at the Supreme Court.

The Court also vacated and remanded Rucho v. Common Cause, a partisan gerrymandering challenge out of North Carolina that many liberals are hoping will meet the standing requirements of Gill v. Whitford, back to the district court for further proceedings in light of Gill.

While it may seem that little was decided today, the Court's reiteration of the appropriate burden of proof in redistricting cases is vital to courts consistently deciding redistricting cases according to actual legal principles.

ICYMI: DOJ Finally Enters Litigation Against Guam's Racially Discriminatory Voting Law

A week ago Tuesday, the Department of Justice finally decided to fight against a blatantly racially discriminatory voting law in Guam, as Hans von Spakovsky described:

I have written numerous updates about the voting-rights lawsuit that Davis, a retired Air Force officer, filed back in 2011 against the territory of Guam . . . . Guam refused to allow Davis, a long-time resident of Guam, to register to vote for a plebiscite on the future of the territory because he is white and not Chamorro, the racial designation given to the natives who originally inhabited Guam.

The personnel changes made by President Trump, including Jeff Sessions as Attorney General and John Gore as Deputy Assistant Attorney General for the Civil Rights Division, were necessary for the Department of Justice to uphold the law and the rule of law:

After Guam lost in March, it appealed the decision to the Ninth Circuit Court of Appeals. On November 28, after eight years of studied indifference, the U.S. Justice Department under Attorney General Jeff Sessions finally did the right thing: It filed an amicus brief in the Ninth Circuit supporting Arnold Davis.  

DOJ’s brief, which was filed by John Gore, the acting assistant attorney general of the Civil Rights Division, argues that “Guam’s plebiscite law intentionally discriminates based on race.” It directly violates Supreme Court precedent set in Rice v. Cayetano, a 2000 decision in which the Court threw out a similar Hawaii law. DOJ points out that the Fourteenth and Fifteenth Amendments both apply to Guam; the fact that it is a territory does not deprive its residents of those constitutional protections. The brief asks the Ninth Circuit to uphold the district court’s decision. . . .

The discriminatory law had been ignored for 8 years by the Obama DOJ because the voters the law discriminated against were the wrong color: 

The Obama administration refused to enforce federal law barring racial discrimination in voting, housing, employment, and education on a race-neutral basis. The Holder/Lynch Justice Department didn’t care if you were being discriminated against unless you were a member of one of its favored groups, a distinction that does not exist in our anti-discrimination laws. The Equal Protection Clause of the 14th Amendment, as well as federal statutes such as the Voting Rights Act and the Fair Housing Act, protect all Americans from racial discrimination.

Because DOJ had abdicated its duty to enforce the laws, this long case to vindicate Mr. Davis' voting rights has been fought by a courageous attorney - RNLA member Christian Adams.  We are grateful that the Sessions Justice Department respects the rule of law and has chosen to support Adams' litigation against this discriminatory law - at last.

Threats and Intimidation Against Electors

Yesterday, the Electoral College convened and voted to make Donald Trump the next President of the United States.  In most presidential election years, this process barely makes the news.  But this year, amidst celebrity calls for electors to abandon the person for whom they were pledged to vote, electors have been threatened with mountains of harassing emails, voicemails, and letters and even death threats:

The nation’s 538 presidential electors have been thrust into the political foreground like never before in American history. In the aftermath of a uniquely polarizing presidential contest, the once-anonymous electors are squarely in the spotlight, targeted by death threats, harassing phone calls and reams of hate mail. One Texas Republican elector said he’s been bombarded with more than 200,000 emails.

Just a few disturbing examples:

• By mid-November, 22-year-old Michigan elector Michael Banerian had already received hundreds of emails: “You have people saying ‘you’re a hateful bigot, I hope you die,’ ” he said. “I’ve had people talk about shoving a gun in my mouth and blowing my brains out. And I’ve received dozens and dozens of those emails. Even the non-threatening-my-life emails are very aggressive.”
• Every elector in Pennsylvania was assigned a plainclothes state police officer for protection: Thousands of emails land in their inboxes every day. Copies of the Federalist Papers and other books urging political courage are being mailed to their homes. They are even getting phone calls in the middle of the night.
• One elector in Arkansas had to file a police report due to "continual threats."

The duties, selection, and voting requirements of electors in each state are established by state law, and the electors who voted for Trump yesterday were fulfilling their legal duties.  To their credit, most Democratic leaders have decried the threats, but the Department of Justice has been strangely silent.  Such threats against electors likely fall under the prohibition against voter intimidation or harassment contained in Section 11(b) of the Voting Rights Act, which falls under DOJ's jurisdiction.  Interstate communications that threaten another person are punishable under 18 U.S.C. 875(c).

However, it appears that the FBI and DOJ have done nothing to investigate the threats against presidential electors.  We hope that the Trump Justice Department will investigate these threats, which not only threaten the electors individually but also our constitutional republic and the uniquely American nonviolent transition of power.

Chilling View of the Clinton Supreme Court

If Hillary Clinton wins in November, she could remake the Supreme Court into a bastion of "liberal jurisprudence" that would last for another generation:

The unfilled vacancy of Antonin Scalia’s seat combined with a Hillary Clinton victory in November could set the Court on a new course. . . . The result would be a solid 6-3 liberal majority of a kind not seen in many decades. 

The implications of such a shift are massive. The Court is not a legislative body, and it can’t simply undo all of the conservative rulings of recent decades. The doctrine of stare decisis means the Court tries not to contradict its past rulings except in rare cases. But after speaking to a number of prominent legal scholars and experts, it appears there are some notable areas where a liberal Court could make a significant difference.

Specifically, the Court could overturn or limit Citizens United and the free speech rights contained in it:

Clinton promises to "appoint Supreme Court justices who will protect Americans’ right to vote over the right of billionaires to buy elections," and has reportedly told her own donors that she will make prospective justices pledge to overturn Citizens United. . . . But most of the experts I spoke with expressed skepticism that the decision will be overturned outright. . . . That being said, the legal scholars I asked suggested that a more left-leaning Court could subtly undermine Citizens United by upholding distinct campaign finance regulations at the federal and state levels. 

"My guess is that [a more liberal court] wouldn't overrule Citizens United in the short run, but that it would narrow the decision and uphold a range of possible regulations of money in the political process," Geoffrey Stone, a law professor at the University of Chicago and specialist in free speech cases, says. "Over time, these decisions would significantly erode Citizens United."

The Court could also threaten the integrity of elections and states' ability to administer their own elections -- for example, by upholding a legislative revival of the preclearance process struck down in Shelby County v. Holder or by raising the standard of scrutiny of laws regarding voting:

For example, in Crawford v. Marion County in 2008, the Court ruled that Indiana's photo ID requirement for voters was not an undue burden, because, as Justice John Paul Stevens wrote, "the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters' right to vote." . . . But [Pam] Karlan notes that the Court wouldn’t even have to totally reverse course and start applying strict scrutiny to make progress on these issues. "One of the things I’ve been thinking about is a more liberal version of the undue burden–style standards that the Court has employed," she says. "A version of that test that really takes into account socioeconomic disparities and the like could have a major impact." . . . 

That’s a particularly promising avenue for the Court since it requires minimal change in the Court’s doctrines. "It’s not necessarily the legal tests themselves that are the problem," Karlan notes. "It’s the sensibilities and the understandings and the world-awareness of the people applying the tests." That’s something that changing the membership of the Court could shift substantially, even if the new Court isn’t eager to overturn precedent.

These are just a few of the ways a Supreme Court remade by liberal lawyer Hillary Clinton could threaten the rule of law and the role of the courts by enacting liberal policies by judicial fiat.  Electing Donald Trump is the only way to prevent this chilling picture becoming reality.

Voter ID Victory in Wisconsin

Noel Johnson, an attorney at the Public Interest Legal Foundation, recently wrote a piece outlining the numerous failures of the ACLU and other anti-voter ID parties in Wisconsin. Beginning with the 7th Circuit's determination that Wisconsin's voter ID law violates neither the constitution nor the Federal Voting Rights Act, voter ID opponents in Wisconsin have continued to "strike out."

The most recent blow came as Judge Adelman, a Clinton appointee and the judge who originally invalidated Wisconsin's voter ID law, refused to expand the law on remand from the 7th Circuit. The ACLU brought in a number of witnesses and attempted to argue that Wisconsin's refusal to allow the use of some student IDs, VA veteran ID cards, and various other forms of ID violated the equal protection clause.

Judge Adelman ruled that to expand the law would create the unreasonable burden of "requir[ing] the state to update the existing voter ID law every time a new ID is found to be an acceptable form." A few of the ACLU's witnesses argued that certain IDs in their possession should be deemed acceptable for voting despite the fact that they were already in possession of U.S. passports which satisfy the law's requirements. As a result of the ACLU's weak arguments, Judge Adelman ruled that the plaintiffs had failed to convince him that there was a large number of people who did not possess qualifying IDs and could not obtain one.

In spite of their loss, the ACLU claims that they will try again. However given their record, it doesn't appear voter ID proponents in Wisconsin have much cause for concern.


The RNLA sends out a weekly Voter ID update for its members.  To sign up for these email updates, click here.