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Texas successfully runs out the clock – and sets an ominous standard

June 25th, 2018, 11:09am by Sam Wang

First, the partisan-gerrymandering news. The North Carolina case, Rucho v. Common Cause, was sent back for reconsideration (“vacate and remand”) in light of the Court’s decision in Gill v. Whitford. Retrying Rucho would take a while, so hopefully they will find a faster way.

Now, to racial gerrymandering. In the last redistricting case of this year’s term, Abbott v. Perez, the Supreme Court has ruled against a racial gerrymandering claim. Justice Alito wrote the 5-4 opinion here. With one exception (Texas House District 90), the decision locks in most of a temporary (but according to the plaintiffs, inadequate) map drawn by a trial court in 2012.

In her dissent, Justice Sotomayor wrote that the majority had gone out of its way to preserve a racially biased map. And now most of a probable racial gerrymander stays in place for the rest of the cycle. That’s what comes from having no clear standards: a decade-long shell game that leaves plaintiffs with little or no remedy.

If applied to other cases, Justice Alito’s discriminatory-intent-standard analysis and the jurisdictional arguments may spell trouble for future Voting Rights Act and gerrymandering claims of any kind. This would not affect the re-hearing of the North Carolina case, since there the legislators explicitly conceded discriminatory partisan intent. But it would set the bar extremely high – perhaps impossibly high – for future claims. Rick Hasen has more to say.

It seems to me that a critical misstep was the fact that the trial court drew a “temporary” fix in 2012 that was then passed into law. I wonder…if they had a faster way to draw remedial maps, I wonder, could this mess have been avoided?

For more background, see Common Cause and the Brennan Center summaries.

Tags: Redistricting · Supreme Court

3 Comments so far ↓

  • Pechmerle

    Today, they sent Rucho back to the lower court, by inference on the basis that the Rucho decision below was based on state-wide partisan discrimination, not district-by-district analysis. Here is the complete order; no other analysis from the Court:

    The judgment is vacated, and the case is remanded to the United States District Court for the Middle District of North Carolina for further consideration in light of Gill v. Whitford,
    585 U. S. ____ (2018).
    The League of Women Voter had tried to avoid this result, by filing last week a supplemental brief arguing that the North Carolina gerrymandering affected plaintiffs in every district. This argument either did not work, for now; or – more likely – was considered too late too count. So, Rucho will have to work its way back up again.

    • Pechmerle

      Oops. Saw “Texas” and didn’t notice the reference to Rucho already in the post.

  • LondonYoung

    “I wonder…if they had a faster way to draw remedial maps, I wonder, could this mess have been avoided?”

    If a large bipartisan collection of experts created a robo-districter that enforced PA-like rules (respect existing municipal borders to the extent possible, etc…) then the courts might be tempted into using it. But you guys would all have to agree and the dems would have to forgo city cracking. Even without the data you discuss in the following post, I think you can already do most states – the bigger problem is forming a consensus around a single “open source” set of rules.

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