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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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Initial Thoughts on the VRA Part of the Texas Case

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June 28, 2006

Edward B. FoleyEdward B. Foley
Director, Election Law @ Moritz
Robert M. Duncan/Jones Day Designated Professor of Law
Moritz College of Law


There is an opinion for a 5-member Court to invalidate District 23. This is significant and somewhat surprising, given the questioning at the oral argument. It had appeared that although there would be five votes to invalidate this district, there wouldn't necessarily be agreement on the reasons for doing so. In particular, at oral argument, Justice Kennedy appeared to prefer a mode of reasoning based on the Shaw v.Reno line of cases involving constitutional claims of racial gerrymandering, rather than section 2 claims of vote dilution under the Voting Rights Act. By contrast, it was clear that the four so-called "liberals" on the Court-Stevens, Souter, Ginsburg, and Breyer (I think Breyer still counts as "liberal" although he seems increasingly the most rightward, or perhaps centrist, of the four)-would not embrace a Shaw-based approach, although they would find section 2 violation. The fact that Justice Kennedy sublimated his Shaw-based thinking for the sake of creating a majority opinion on this issue is an important development.

One potential implication of this development is that new LULAC-like section 2 claims will supersede Shaw-based claims in the future. The combination of Easley v. Cromartie, the 2001 case rejecting a Shaw claim involving the redesign of the North Carolina district in Shaw itself, plus the new LULAC decision indicates that the concept of an unconstitutional racial gerrymander may diminish considerably in its importance. Instead, efforts to attack maps as racial manipulations will focus on the Voting Rights Act as newly interpreted in LULAC. Justice Scalia's separate invocation of Shaw in LULAC provides, perhaps, a note of caution in this regard. But it was noticeable that Chief Justice Roberts and Justice Alito did not join Justice Scalia (and Justice Thomas) in reaching the Shaw claim, even though they rejected the new LULAC section 2 claim. Scalia (with Tomas joining him) said he was obligated to consider the Shaw issue because he rejected the section 2 claim, but apparently Roberts and Alito did not feel so obligated.

The flip-side of the new LULAC-like section 2 claims superseding Shaw, however, is that these new section claims may start to resemble the old Shaw claims at least to some extent. There are passages in Justice Kennedy's opinion (again for a five-member Court) that suggest this. For example, although vote dilution cases under section 2 in the past have largely been about effects, rather than intent (in contrast to Shaw claims, which required proof of discriminatory intent), Justice Kennedy includes some language about improper motive in his section two analysis. Perhaps more generally one could say now that proving vote dilution is not just about numbers and political power, but also about manipulation of boundaries and groups or subgroups of voters.

Justice Stevens, in particular, should be pleased that there was an opinion for the Court on the Voting Rights Act issue. Whether he assigned the case to Justice Kennedy, or Justice Kennedy assigned it to himself, Justice Stevens was able to put together a five-member majority for a liberal result that very well might have eluded him. Although Justice Stevens hardly won all the issues that he would have wanted to in this case, and dissenting from the Court's judgment on a number of grounds, he won more than he might have. He got a five-vote majority opinion on two separate significant points, one being the section two invalidation of District 23, the other being (as discussed earlier) the basic principle that redistricting plans continue to be subject to judicial review for partisan gerrymanders in the event that egregious manipulation can be shown to violate a constitutional standard.

By contrast, the so-called "conservative" ruling on the Voting Rights Act issue in the case, to uphold District 24 on the ground that African-Americans there did not have sufficient strength to win a vote dilution case, was not (in my judgment) as major a development. Not only was there not a majority opinion on this point, but it was not an unexpected decision. All in all, my initial impression is that today's ruling was more of a liberal rather than conservative decision regarding the Voting Rights Act (and, indeed, insofar as the only ruling on the partisan gerrymander claim was to reject a particular problem with mid-decade redistricting, it was not a big conservative win on that issue as well).