Courthouse Steps: Gerrymandering in the Supreme Court

Operator:                                 Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group, was recorded on July 25, 2018 during a live Courthouse Steps teleforum conference call held exclusively for Federalist Society members.   

 

Mr. Wesley Hodges:               Welcome to The Federalist Society's teleforum conference call. This afternoon, our topic is a special Courthouse Steps discussion focusing on the recent gerrymandering decisions in the Supreme Court. My name is Wesley Hodges and I'm the Associate Director of Practice Groups at The Federalist Society.

 

                                                As always, please note that all expressions of opinion are those of the expert on today's call.    

 

                                                Today, we are very fortunate to have with us Mr. Hans A. von Spakovsky, who is the Manager, for the Election Law Reform Initiative and a Senior Legal Fellow at The Heritage Foundation.

 

                                                After our speaker gives his remarks today, we'll move to an audience Q&A. Thank you very much for speaking with us today, Hans. The floor is yours.

 

Mr. Hans A. von Spakovsky:  Well, thanks for having me. The Supreme Court has released several redistricting cases today and last week, and I'm mainly going to talk about the Wisconsin case that was released on June 18th. I'll just mention briefly the Texas, case that came out today.

 

                                                This is Abbott v. Perez. I think most people looking at the case see it as an almost a complete victory for the State of Texas, which has been batting for years over its redistricting plan there. And it's a great example, unfortunately, of how complex this litigation is and how long it take because there're still arguing -- the decision came out today. They were arguing about redistricting plans made after the 2010 census. We're only two years away from the 2020 census and the case actually was filed back in 2011.

 

                                                So this has been ongoing for quite a while. It's been up and down from the lower courts to the Supreme Court. And, in essence, the Texas case was a very traditional redistricting claim. The challengers said that 2013 redistricting map that the Texas Legislature had drawn was tainted by discriminatory intent and that it was therefore a violation of both Section 2 of the Voting Rights Act and the Fourteenth Amendment's Equal Protection Clause.

 

                                                In 2011, the State Legislature adopted new congressional state district lines. They actually -- Texas submitted it for preclearance to the Justice Department under Section 5 of the Voting Rights Act. Section 5 was still in effect at that time and Texas was one of the states that had to pre-clear any changes in its voting laws. The Justice Department denied preclearance and then the plan was challenged in the Federal Court in Texas. The 2011 plan was never actually used. The courts ended up saying it was discriminatory.

 

                                                The courts actually drew up their own interim plans, and in 2013 the Texas Legislature basically adopted a new plan for the State that was primarily based on what the courts had done. But that 2013 was also challenged. The lower district court—three judge panel—found that the 2013 plan, which as I said was largely based on plans drawn up by federal courts. They claimed that that did not cure the -- a taint of discriminatory intent that the court had found before the 2011 map and it -- they invalidated several districts with regard to -- supposedly depriving Hispanic voters of an equal opportunity to elect their candidate, which, of course, is the standard under Section 2.

 

                                                The Supreme Court today, in essence, overruled all -- almost all of the lower court decisions, except for one particular district. The Court, in essence, found that the court made a mistake when it tried comparing the 2013 plan to the supposedly discriminatory intent in the 2011 plan or any kind of claim that the Legislature had acted in bad faith. In fact, the Court found there was insufficient proof that the 2013 Legislature acted in bad faith or engaged in intentional discrimination. And also held that the challengers did not meet the Section 2 legal standards.

 

                                                Section 2 legal standard has this test called the "totality of the circumstances." And, in essence, there's a whole long series of factors that you have to apply to see if the totality of the circumstances shows discriminatory intent. And the Supreme Court ruled that the challengers, despite what the lower courts said, actually didn't provide proof of that.

 

                                                So they upheld all of the districts with the exception of one state house district that they said was an impermissible racial gerrymander. And, you know, what's interesting in that one particular district is that district really showed the conflict that state legislators have. You know, Texas argued that it had factored in race in order to meet the requirements of the Voting Rights Act in order to provide voting opportunities for minority voters.

 

                                                And, you know, the rule on this is that race can't be the predominate factor in redistricting. If a state does that, they violate a Supreme Court case called Reno v. Shaw. But race can be a factor in the redistricting process and states do have to take race into account to meet the requirements of Section 2. So the problem states have is that if they use too little race when they're drawing up new maps, they're going to get a Section 2 lawsuit against them saying they're not considering minority voting rights. But if they use too much race, then they are going to get a lawsuit saying well, you used race too much, and therefore, you have violated the Constitution.

 

                                                So it's kind of a catch-22 for the states when it comes to this particular issue.

 

                                                That's today's case. Last week, the Supreme Court released its decision in the Gill v. Whitford case. This is a case out of Wisconsin that is an area of the law, where so far the Court has not recognized really a constitutional violation. You know, you can -- as I explained before, there's basically two ways you can sue under a redistricting plan. One, you can claim violation of Section 2 of the Voting Rights Act. You can claim that a legislature discriminated on the basis of race, which is against the law. And/or you can file an Equal Protection claim, and that's based on a series of cases decided in the 1960s by the Supreme Court, where the Supreme Court basically said that -- and that's where they established the one-person, one-vote principle. So that's the rule of the Court that districts have to be as equal as possible when it comes to population.

 

                                                But in the Gill case, the claim that was filed -- it did not make claims under either of those type of legal arguments. The claim they made there was that the Republican-controlled legislature was too partisan in their drawing up of state legislative seats and that the partisanship was so great that it amounts to a constitutional violation. The 12 Democratic voters who sued said that the statewide plan unfairly favored Republican voters and candidate by "cracking and packing" Democratic voters in order to diminish the ability of Wisconsin Democrats to convert Democratic votes into Democratic seats in the legislature. And by "cracking," what they meant was dividing a parties' supporters among multiple districts so that they fall short of a majority in each one. And packing means concentrating one parties' supporters in a few districts that they win by overwhelming margins.

 

                                                The Court has previously looked at the issue of partisan gerrymandering and -- and does it violate the Constitution?  In this decision, the Supreme Court actually did not decide the substantive merits. The decision's written by the Chief Justice. He goes through the cases the Court has considered in the past on this issue. It includes a case from 1973 called Gaffney v. Cummings, a case from 1986, Davis v. Bandemer. 

 

                                                Probably the most -- one of the most recent cases was a case called Vieth v. Jubelirer in 2004. And in that case it was a very similar claim to what happened in Wisconsin. Democrats sued. They're saying that they should get more seats in the State Legislature. The Court did not recognize partisan gerrymandering. And the justices were pretty split. Justice Scalia wrote an opinion with three other justices arguing that partisan gerrymandering claims are not justiciable because there aren't any judicially discernible and manageable standards by which to decide them. Four liberal justices on the Court—which at that time included John Paul Stevens and David Souter, of course no longer on the Court—they generally agreed that such claims ought to be recognized, that if you engage in too much politics, it should be a violation of the Constitution.

 

                                                Probably no one is surprised to know that the person kind of a little bit in the middle on this was Justice Kennedy. Justice Kennedy agreed with the other four justices in dismissing the case. But as opposed to the other justices who said, "look, there just aren't any manageable standards for this case," Kennedy said that while, right at that time, there weren't any clear, manageable, and politically neutral standards for measuring the burden that's put on constitutional rights by partisan gerrymandering, he basically left himself open to consider a future case in which, to quote him, "a standard might emerge." And what was going on in the Gill case out of Wisconsin was the challengers -- the entire was aimed at Justice Kennedy and trying to convince him that they had come up with a standard for deciding when too much politics amounts to a constitutional violation.

                                               

                                                And the standard that they came up with in the Wisconsin case is something that some law professors came up with called the "efficiency gap." And, supposedly, the efficiency gap measures wasted votes. And what are wasted votes? Well, wasted votes, according to the challengers, is a vote -- every vote cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win. To give an example of that, if you need 51 percent to win a state legislative seat and a candidate gets 60 percent of the vote—let's say it's a Democrat—then 9 percent of the votes in that district they would consider to be wasted. Those voters ought to be in a different district.

 

                                                The experts for Wisconsin testified in the case that the efficiency gap is an unreliable measure of durable partisan advantage and that it doesn't take into account, for example, political geography. You know, the political geography is that Democrats tend to be clustered in large cities whereas Republicans are usually distributed in the suburbs and other rural areas of the state. And that's one of the reasons you have the kind of disproportionate effects in the state legislature.

 

                                                I mean, the other problem with this efficiency-gap standard is, in essence, it's a call for guaranteeing proportional representation. Because the essence of the claim the challenger is making is that -- look, if a Democratic statewide candidate gets 60 percent of the votes in a statewide race, with the efficiency gap and the way it operates, the challengers were saying that Democrats therefore ought to get 60 percent of the seats in the state legislature.

 

                                                And, of course, the problem with that is it obviously does not take into account, not only political geography and where voters are located, but it also doesn't take into account personality differences. And it's like, if you have an efficiency gap like this, which election do you use to try to figure out how many seats a political party should have in the legislature? Because, you know, depending on the personality of a candidate, you know, in one statewide race a Democratic candidate might get 60 percent of the vote. In another statewide race a Democratic candidate might get 55 percent of the vote. Well, under that standard, does the Democratic party get 55 percent of the seats in the state legislature? Do they get 60 percent of the seats in the state legislature? You know, and I think that's a very, very difficult question to answer. And I think it shows some of the problems with this supposed test.

 

                                                By the way, it was kind of interesting because at one point -- at one point the test was applied—and this is in the lower court—the test was applied to some of the prior redistricting maps that had been drawn throughout the country. And they came up with a list of, I think it was, like, about a dozen and a half of the worst maps in the country. These are the maps that the efficiency test said were the most partisan and therefore should be a problem. Well, something like half of them had been drawn up by federal judges in redistricting lawsuits. It tells you a little bit about the test.

 

                                                Everyone was looking at this case—all the political parties, lawyers involved in redistricting—to see what would happen. Would the Court finally recognize partisan gerrymandering as a violation of the Constitution? And if so, you know, what are the standards for determining how much politics is too much? And the Court basically punted on the decision.

 

                                                Instead, they said that the plaintiffs in the case had not establishing standing. They didn’t show a recognizable injury. And the reason for that is that in redistricting cases—the prior types of cases that I was talking about, such as the Abbott v. Perez case today—the injury that a voter has to assert is that his or her voting rights have been diluted in the district in which he or she lives. The Court has not recognized -- has not allowed you to claim standing and an injury by making a claim that the whole, statewide plan somehow injures your voting rights. You've got to make a claim for the particular district you live in.

 

                                                And to give you an example of how that hurt the challengers in this case, the lead plaintiff—William Whitford, who I think is a retired law professor, actually, at the University of Wisconsin in Madison—he had to concede at trial that because he lives in a heavily Democratic district in Madison, the statewide redistricting plan didn't really effect his ability to vote for and elect a Democrat in his district. You know, he and his lawyers argued that whether or not any of the plaintiffs lived in a district that had been packed or cracked, that they'd been harmed because Democrats statewide didn't have the same opportunity provided Republicans to elect someone to the State Assembly.

 

                                                The Supreme Court did not recognize that as providing a standard. That's in line, like I said, with prior cases. The claim -- because the claim was about group political interests that didn't meet the standing requirement. So the Court, rather than simply saying "we're not going to recognize partisan gerrymandering as a constitutional claim," actually reversed the lower court, which had found in favor of the challengers, and remanded the case to the three-judge panel to give the plaintiffs the opportunity to prove concrete and particularized injuries to their individual rights.

 

                                                There was another case pending before the Supreme Court besides the Gill case. This was a case out of Maryland called Benisek v. Lamone. In the Benisek v. Lamone case, the very same type of partisan gerrymandering claim was being made in that case. And the lower court had refused to issue a preliminary injunction as the plaintiffs wanted in the case, saying that the judge was not going to take any action until the Court decided the Gill case. And it -- the same day, June 18th, that the Court issued its decision in Gill it also issued a per curiam decision in the Maryland case holding that the district court had not abused its discretion in denying a preliminary injunction to the plaintiffs while awaiting the Courts' decision in Gill.  So that sends that case back there, too.

                                               

                                                By the way, I should mention that the Supreme Court today, at the same time as issuing its decision in the Abbott case, also issued a decision in, again, in a similar partisan gerrymandering claim out of North Carolina—Rucho, R-u-c-h-o v. Common Cause—and, in essence sent the North Carolina case back down to the lower court, saying that the lower court should look at that case in light of the Gill decision. So what that means is that the North Carolina plaintiffs are going to have to prove that the individual challengers actually suffered an injury.

                                               

                                                I will just say that I'm one of the people that's hopeful that the Supreme Court when this -- this issue comes back to them. This case is guaranteed -- this issue is guaranteed to come back to the Supreme Court. I'm hopeful that they'll stick with the decision that Justice Scalia made in the Pennsylvania case years ago and that they don’t recognize partisan gerrymandering as a constitutional violation.

                                               

                                                Everybody complains about gerrymandering. But the thing about gerrymandering is that there's always been politics involved in it. I don't know how you can possibly come up with some kind of standard that says, "Well, it's okay to engage in some politics, some partisanship, when you're drawing lines, but you can't engage in too much partisanship, too much politics." Where in the world are you going to draw the line? It's going to be in the eye of the beholder, in the eye of the judge, and there's just no way to ever get a real standard, a red line that people can easily follow.

 

                                                And the other problem with this is that -- look. The Constitution, for example, on the federal level—and this is, of course, the rule in most states—redistricting is an inherently political act. The Constitution gives the authority to the state legislature to draw their own lines. And while voters can, and often deservedly, get upset over the kind of boundary lines -- district lines that legislatures may draw, well, the one thing the legislature is accountable to voters. And yeah, it may be hard to vote somebody out, but there's always the possibility of getting legislatures out of office if voters are unhappy with the way they draw up district lines.

 

                                                That accountability disappears if you hand over the redistricting and line drawing to federal judges. You know, you can't vote them out of office if you don’t like the kind of lines that they are drawing. And I don't think it's very good for our separation of powers if you hand it over to judges to do and give it to them to decide, well, how much politics is okay. You know, there're other solutions to this. You know, you can put in standards, as some states do, that limit the factors that legislators can use when they draw lines. Things like, you know, not being allowed to take into account where an incumbent lives. Things like that.  You can try to do it that way, but I don't think taking this away from state legislators and handing it over to judges is a good idea.

 

                                                And also, I mean, I just don’t see how it's a constitutional violation to have too much politics going into the redistricting process. Now, I'll be happy to answer any questions.

 

Mr. Wesley Hodges:               Thank you very much, Hans. Let's go ahead and move to audience questions. When we get to your request, you'll hear a prompt and then you may ask your question. We'll answer all questions in the order in which they are received. Looks like we do have one question so far in the queue. Hans, are you ready to move to our first caller?

 

Mr. Hans A. von Spakovsky:  Sure thing,

 

Mr. Wesley Hodges:               Great. Caller one, you are up.

 

Mr. Bob Fitzpatrick:               Hi, this is Bob Fitzpatrick in D.C. And great presentation, and I'm sorry I had to get off to take a call from a client in the middle of your presentation about Abbott. So if you covered this, I apologize. Was there any discussion by the Court or the dissenters about any comments made by any member of the Texas Legislature? As you know, the issue of the admissibility, the consideration as evidence, of comments made the Legislature had been an issue in a lot of cases before the Court. And I'm interested in whether it came up in Abbott or not.

 

Mr. Hans A. von Spakovsky:  You know, I don't recall it coming up. But this was a -- I read this case very quickly. You know, it came out at 10 o'clock this morning and it was --

 

Mr. Bob Fitzpatrick:               Understood.

 

Mr. Hans A. von Spakovsky:  -- and it was a very, very long opinion. I will tell you something that I didn't mention, but is kind of interesting about this case, is that, as I've said, this case has been through the courts -- up and down through the courts. And at one point there was a three-judge panel decision in the case. This was in March of last year. And the dissenting judge in the case, who wanted to find for Texas, was Judge Smith. And boy, there's some really interesting language in his dissent talking about the partisanship of the Obama Justice Department, which came in on the side of the challengers in Texas. And Smith said that their presence in the case negatively infected the proceedings. He was really, really critical of the Justice Department lawyers from Washington who came down in the case. And at one point he said that they entered the proceedings with arrogance and condescension --

 

Mr. Bob Fitzpatrick:               Wow.

 

Mr. Hans A. von Spakovsky:  -- that they -- he noted how one of the Justice Department lawyers displayed her contempt for Texas in his courtroom with -- and her disdain for the proceedings by regularly rolling her eyes at state witnesses answers that she didn't like and amusing herself by chewing gum while court was in session.

 

Mr. Bob Fitzpatrick:               Was this -- was this Jerry Smith?

 

Mr. Hans A. von Spakovsky:  Yeah. And there's like another quote in there where Smith says that it was obvious from the start that the Justice Department attorneys viewed state officials and the legislative majority and their staff—and that's why I mention this in answer to your question—as a bunch of backwoods, hayseed bigots who bemoan the abolition of the poll tax and pine for the days of literacy tests and lynchings. Whereas, the Justice Department lawyers, quote, "saw themselves as an expeditionary landing party arriving here just in time to rescue the state from oppression." And he goes on. I mean, it --

 

Mr. Bob Fitzpatrick:               Well, if you follow -- if you follow Judge Smith, Jerry Smith, you'll notice the Supreme Court is reading him --

 

Mr. Hans A. von Spakovsky:  Yeah. Yeah, no, that is --

 

Mr. Bob Fitzpatrick:               -- a lot and it's just today they took the holy harmless or -- no that's not the right phrase, but the arbitration case. And Judge Smith had written a vociferous dissent in Douglas v. Region's Bank on just that issue. And I'm sure that that had some influence on the Court deciding to take the case. And they took -- they've been taking Indian tribe cases, and Judge Smith has written on this subject also. The retaliation case they took a couple of terms back also he had written on. So I wouldn’t be surprised that that opinion you just referred to had some influence on them also.

 

Mr. Hans A. von Spakovsky:  So, but the point, of course, is this actually was a big loss for the lawyers in the Obama administration who were running the Justice Department at the time --

 

Mr. Bob Fitzpatrick:               Yeah, yeah. Big win for Texas.

 

Mr. Hans A. von Spakovsky:  Right.

 

Mr. Bob Fitzpatrick:               Thank you ever so much.

 

Mr. Hans A. von Spakovsky:  Sure thing.

 

Mr. Wesley Hodges:               Thank you very much, caller, for your question. The queue is now open so if anyone has a question for our speaker or for the cases today, just go ahead and enter the star key and pound key on your telephone to join the conversation. Looks like we do have our next question. So let's go to our second caller.

 

Ms. Cleta Mitchell:                 Hey, Hans, this is Cleta Mitchell of Washington D.C. What -- you know, one of the things that has happened is the change in the Fourth Circuit under Obama with his appointees there, going from one of the most conservatives circuits to one of the worst. And I do remember that in the oral argument on one of these North Carolina cases that, literally, one of the Obama appointees is virtually spewing at the lawyer for the Republican Party of North Carolina. So does this -- so I guess that makes me wonder, I mean -- that court is so tainted at this point. What do you -- I didn’t really quite understand what you think the process will be going forward, since we know that they're such an activist group in North Carolina who literally -- where the NAACP has argued that Democratic -- that it's more important to have Democratic districts than minority districts. So what do we -- what do you expect? Can you do a little crystal ball gazing and tell us kind of what you think the process is going to be now?

 

Mr. Hans A. von Spakovsky:  I think what's going to happen both in the North Carolina case, where the three-judge panel found in favor of the challengers' partisan gerrymandering, and in Wisconsin, where the same thing happened, I think the case is going to go back there. I think the judges are going to allow the plaintiffs to show that they had individual injuries, that their right to vote was diluted. I think, though, the judges are going to find, once again, in favor of the plaintiffs, and the cases will be right back before the Supreme Court, in however long it takes them to do that.

 

                                                So, yeah, I think the only thing that the Gill case did was put down the road that the Supreme Court making a decision on this. And, look, I don't know how long it will take for that to happen, whether it'll be a year or two year. And, you know, we don’t know. The makeup of the Court might be different by the time these cases get back before the Court and the Court finally makes a decision on whether it's going to recognize partisan gerrymandering or not. If Justice Kennedy resigns and he's replaced you know, there's no telling what exactly will happen with this.

 

                                                But, you know, Cleta, what you said also points out the great importance of the judicial nominations that President Trump has been making to the courts of appeals. And, look, we just had news that Jeff Flake was a very big anti-Trumper is now holding up -- he's on the Senate Judiciary Committee and -- one of the Republicans on there -- and he's holding up more than a dozen circuit court nominees because he says he wants to get other things down, like, I think it's lifting traveling restrictions to Cuba and things like that. And that's something that has got to be fixed so that these nominees can get on to these circuit courts.

 

Ms. Cleta Mitchell:                 Well, one other thing that I was wondering, and you know, you and I were both at that U.S. Civil Rights Commission field hearing in Raleigh a few months ago. And the left is coming up with all these different theories that, you know, the wasted vote that you were describing and all, which is so preposterous. But they also have come up with -- and you mentioned the racially polarized voting, which is -- and a different -- they've applied a racial term for what we would consider just plain old politics.

 

Mr. Hans A. von Spakovsky:  Right.

 

Ms. Cleta Mitchell:                 What -- I mean, I guess if you could talk a little bit about what the things are that we need to be doing the way a -- trying to create some literature. I know you write about this all the time. But how can we create some articles, body of law, kind of what's going on trying to come up with some theories to fight and articles to fight back against their ever-changing theories?

 

Mr. Hans A. von Spakovsky:  Well, look, the biggest problem in the area of the Voting Rights Act and particularly Section 2 now is that Section 2 really is being abused by plaintiffs and by judges all over the country who really don’t understand -- I think don’t understand the law. And by abused, what I mean is, look, Section 2 is intended to stop racial discrimination, and these days, unfortunately, because a Black American's vote almost exclusively for the Democratic Party -- it's really hard to distinguish voting patterns that are based on discrimination versus the fact that it's just because of party affiliation.

 

                                                And, unfortunately, because of that almost complete adhesion between black voters of the Democratic Party, the Democratic Party is now using Section 2 to try to basically guarantee political party success. And the key -- one of the key things for any state that's fighting a case like that is to bring in -- you know, they always bring in statistical experts and others, but the big thing they need to bring in are historians, particularly people that know the history of recent decades to show that the voting patterns no longer have anything to do with, you know, racial discrimination on the side of state officials, but everything to do with party affiliation. And that's just, you know, we need more research and writing on that issue because otherwise, the courts are failing to distinguish between the two.

 

Ms. Cleta Mitchell:                 Well, anything we'd just love to -- we're always fighting. I mean, you do the best job of anybody of fighting them, so thank you.

 

Mr. Hans A. von Spakovsky:  Thanks, Cleta.

 

Mr. Wesley Hodges:               We do have one more question in the queue. Let's go and move to our next caller. And if you'd like to enter the queue, just enter the star key and pound key on your telephone.

 

Mr. Tim Sendek:                     Hello. My name is Tim Sendek. I just finished up in a recount case here in Indiana and this may not have to do with your discussion—I'm late in on your discussion—but I was very -- something was brought to my attention that greatly disturbed me. I've done many of these things, both in the state and county level. The machines we use—and I'm trying desperately to recall the manufacturer and I don’t—apparently can be manipulated as it turns out because we had one machine in this recount that overheated and they took some votes off it, the local technicians did for the county. But then they said to explore it anymore, we have to call a company in Indianapolis to send a technician here next week, type of thing, and he'll come up on your dime and he will then see if any more votes were lost when it overheated. And my immediate reaction was "Holy smoke, that's really power." Nobody on the local level, and I'm in the second most populous county in Indiana near Chicago, but nobody knew how to get the votes off of this machine when it broke down. I'm wondering if you've heard of that before or if it concerns you.

 

Mr. Hans A. von Spakovsky:  Well, voting equipment was certainly not the topic of the court cases I'm talking about today. I do know that occasionally local election officials, and like I said this is completely off-topic, but local election officials do run into problems with equipment. You didn't say whether or not this was an electronic voting machine or whether this was an optic --

 

Mr. Tim Sendek:                     It is.

 

Mr. Hans A. von Spakovsky:  It is. Okay. Not an optic scan ballot.

 

Mr. Tim Sendek:                     No. It's an electronic one that overheated just like your comp-, -- they all look like laptop computers.

 

Mr. Hans A. von Spakovsky:  Right. See that's the kind of situation in which good local election officials would themselves want to immediately institute an audit, would immediately want to institute a technical analysis of the machine to make sure that there weren’t any problems that led to votes being improperly recorded or not recorded correctly. And if election officials aren't doing that, then they aren't doing their job.

 

Mr. Tim Sendek:                     Thank you.

 

Mr. Wesley Hodges:               Thank you, caller. We do have two more questions in the queue. Let's go and move to our next caller.

 

Mr. Royce Van Tassell:           Hi, this is Royce Van Tassell from Utah. Given that the courts in many ways push their decision to the future, it's hard for me to understand why the Court took all three cases, particularly where they had taken one from a Republican-ground district and a Democratic-controlled district, it felt like there was a desire on the part of at least four justices to get an answer. Do we have any meaningful insight into why they accept and then sort of punt on three potentially momentous cases?

 

Mr. Hans A. von Spakovsky:  Well, I'm assuming they took the cases because they didn't want the lower court decisions to stand. You know, they didn't want lower court decisions saying that partisan redistricting is a constitutional violation because those decisions aren't in a court with Supreme Court precedent, but, you know, they delayed making a substantive decision because of -- there really -- I mean, it was a real standing problem.

 

                                                As I said, the standing rule that the Supreme Court has applied to all prior redistricting cases, redistricting cases based on Section 2 of the Voting Rights Act, or the Equal Protection Clause: one person, one vote stands, the Fourteenth Amendment. They've always required a voter to show that he or she's been injured, that their vote has somehow been deluded in the district in which they live. And these other courts all -- I mean, they not only ignored the Supreme Court's precedent on partisan redistricting, they in essence ignored the Supreme Court's precedent on standing. And so, clearly the Court was sending a big message to the lower courts that, yeah, we're putting off our decision on the substantive issue, but you shouldn't even be sending us these cases unless the standing issue has been met in accordance with our prior precedence.

 

                                                So this -- nobody's talked about it this way, but this was a little bit of a slap in the face of the lower court judges.

 

Mr. Wesley Hodges:               Thank you, caller. We do have one more question in the queue. If anyone else would like to join, just go ahead and enter the star key and pound key on your telephone.

 

Caller 5:                                  Hello, Hans. I missed the beginning of your presentation. I would like to have heard it, again, but I don’t want you to have to go through it. You can if you'd like at the -- if you want to do that in addition to my question.

 

                                                I just want you to look into your crystal ball or maybe if there is a case -- as you know, there are many black plurality or majority districts and I've guess they've somehow been justified under the Voting Rights Act and the Fifteen Amendment. It seems a little shaky, but you can sort of see how that would happen. The question is are there one, Spanish-speaking plurality districts and if so, can they be justified under the Voting Rights Act and the Fifteen Amendment and are there any challenges to such districts being drawn?

 

Mr. Hans A. von Spakovsky:  Well, in fact the -- yeah, I mean it's been standard. There are many, many cases under Section 2 of the Voting Rights Act and under the former Section 5 that did not involve black voters but involved Hispanic voters. We've also had cases over voting rights of American Indian voters too. So it -- the Voting Rights Act, the way it's written, typically Section 2, actually doesn't just cover racial and ethnic minorities. The way the language is written it covers any group of voters who are a racial or ethnic minority in the district in which they live.

 

                                                So, theoretically, if a group of white voters, for example, believe that they've been discriminated against in a district that, let's say it's 20 percent white and 80 percent African American, white voters could bring a Section 2 lawsuit. And in fact, that has happened. The first lawsuit like that filed by white voters was actually filed by— where white voters had a claim like that—was actually filed by the Justice Department back in 2005 during the Bush administration on behalf of white voters in Noxubee, Mississippi, who were being discriminated against by the local black power structure. And in fact a federal court found in their favor, said that there was blatant racial discrimination going on against white voters and said the Voting Rights Act would cover and protect them.

                                               

                                                So, you know, it -- Section 2 doesn't just protect African American voters. Like I said, it protects really any racial, ethnic minorities who are being discriminated against on the basis of race.

 

Caller 5:                                  Well, I mean, that's kind of ironic I suppose. But in these next cases, you are dealing with the question of race.

 

Mr. Hans A. von Spakovsky:  Right.

 

Caller 5:                                  Hispanic is really a language, really. I mean, Hispanic is not at least as far as the census is concerned is not a race.

 

Mr. Hans A. von Spakovsky:  No, I agree with you. I mean, the term Hispanic is something made up. It was -- the Hispanic term is not a real -- it's a pseudo-ethnic category that was basically created by the Federal Government and it's not real. But the courts have recognized it as a real category and so far, no one has challenged the constitutionally, for example, of Section 2 when it's being used to protect voters that are labeled as Hispanic.

 

Caller 5:                                  That's a real shame. Okay. Well, thank you very much, I think.

 

Mr. Hans A. von Spakovsky:  Sure.

 

Caller 5:                                  I appreciate it.

 

Mr. Wesley Hodges:               Thank you, caller, for your question. The queue is currently open for anyone who would like to join. Just go ahead and enter the star key and pound key on your telephone. Looks like we do have another question in the queue. Let's go ahead and move to our next caller.

 

Mr. Gerald Gruber:                 Hello, I'm Gerald Gruber from Fulton, Maryland, and I'm not a lawyer. Just interested in the subject. I'm a member of The Federalist Society for my own enjoyment and amusement. But I appreciate the fact that you said that this is just plain politics and "politics ain't bean-bag" as was written in 1898 by some droll-old writer. And we have now reached a point where in the cunningness of bean-bag, if you will or whatever you want to call the dangers of politics, stepping on somebody's toe, is this disparate results.

 

                                                I mean, if you're a statistician, you can find disparate results wherever you want to. It occurs all the time and to use it to say this disparate result shows discrimination, it's like a famous bank robber who was asked why he keeps on—and he was also good at getting out of jail, and they'd re-arrest him again and somebody asked him why he keeps on robbing banks, and he said because that's where the money is. And, you know, I think if you're the Democratic Party and you want to rearrange the politics and you don’t have the legislature to do it, you then have to claim whatever you can claim and disparate results strikes me as something like that. I'm sorry I'm calling in like it's -- I'm talking to C-Stan [sp] or something like that --

 

Mr. Hans A. von Spakovsky:  Well, not, but, look, you're absolutely right about that. And in fact, Justice Alito, he didn't say in this case, but he said it actually in a case a year ago, another redistrict case—this one out of North Carolina called Cooper v. Harris—one of the things he warned about in that case was that if the Court recognizes partisan gerrymandering as a constitutional violation -- here's this great quote from Justice Alito, quote, he said that if they do that, then the Court will quote "invite the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena." And I think that is an entirely accurate assessment of this because I think that's exactly what's going on in these partisan redistricting claims.

 

Mr. Wesley Hodges:               Thank you, caller for your question. The queue is now open. If anyone would like to ask a question before we wrap up the call today, just enter the star key and pound key. Looks like we do have another question. Let's go ahead and go to that caller.

 

Caller 5:                                  Hello, again. I was just curious what provision in the Constitution did the -- those who are against this sort of extreme, I guess, partisan drawing of districts, what were they claiming was the actual problem?

 

Mr. Hans A. von Spakovsky:  Ah. No, that's a very good question, and I'm sorry, I should've said that. They claimed a violation of the First Amendment, and they were talking about the associational rights that we have in the First Amendment. So they claimed that this partisan gerrymandering in Wisconsin violated their right to associate with the Democratic Party, and therefore, was a violation of the First Amendment. They also claimed that it was a violation of the Fourteenth Amendment— the one-person, one-vote standard of the Fourteenth Amendment that was created by the Court in the 1960s—and in essence said that this partisanship dilutes their votes so that their vote isn't the same value as other voters, and therefore, it violates the one-person, one-vote standard.

 

Caller 5:                                  Okay. The First Amendment violates claim probably -- I can't imagine that would actually hold water, but the -- I guess the cases from the 1960s, I should mentioned, I suppose that could, given that's the precedent of the Court. So another question for you is there was during oral arguments, I think in this case, where Justice Ginsburg kind of confronted Justice Gorsuch about, you know, these one-person, one-vote rulings. And he basically didn't say anything. I took his silence to mean, like, he actually disagrees with the -- those rulings but he's not going to tip his hand. Do you think that those 50-year-old, 55-year-old cases are going to be attacked or challenged anytime?

 

Mr. Hans A. von Spakovsky:  No. I think the -- look, you can argue about the one-person, one-vote standard and whether it really exists in the Constitution or not. I'm happy to discuss that, you know, in a different teleforum. But it's been there. It's been so long. There's been so many cases citing it that I don’t think it's really going to be changed or overturned in the Court.

 

                                                I tell you when it may come up again, though. And that is, you know, there was a case recently before the Court in which plaintiffs said—this is again out of Texas a year or so ago—in which the plaintiffs argued that by including non-citizens in the population that the Texas Legislature used to draw up state legislative districts, that that was a violation of the one person, one vote standard because it diluted the value of the votes of citizens.

 

                                                Now, the Supreme Court came out with a decision saying no that doesn't violate the one-person, one-vote standard. But what they did not decide was -- so in the essence of the case was that Texas wasn't in trouble for using the total population numbers, which include non-citizens, including illegal aliens when the drawing applies. But what the Court did not answer is if a state legislature like Texas decides in the next redistricting rounds not to use the total population—let's say they decide to use just citizen population—will that be okay or will that be a violation of the one-person, one-vote standard? And we don't know the answer to that because the Supreme Court said that's not before us so we're not answering their questions. So I suspect that may be something that might happen after the next census.

 

Caller 5:                                  Thank you very much.

 

Mr. Wesley Hodges:               Seeing that there are no immediate questions, Hans, is there anything that you'd like to cover today before we end the call?

 

Mr. Hans A. von Spakovsky:  No. You know, the one thing I would say is Justice Felix Frankfurter many, many years ago warned the courts about getting into the political thicket of redistricting. And I think that's still a very good warning. The Court, the Supreme Court, regularly complains about the many, many redistricting cases that it gets. You know, these are cases based on Section 2 of the Voting Rights Act and Equal Protection Claims.

 

                                                Boy, if they think they get a lot of redistricting cases now, if they, in the future, at some point recognize partisan redistricting as a constitutional violation, they will need to be -- they will need to build an ark, like Noah did, because the Supreme Court and other federal courts will be flooded with partisan redistricting claims all over the country. And the effects it could have on Congress, state legislatures, and local bodies like city councils, I don’t -- I'm not sure anybody can even start to imagine what the effect may be and the chaos and confusion it may cause.

 

                                                And with that, I want to thank The Federalist Society for letting me speak on this topic today.

 

Mr. Wesley Hodges:               Wonderful. Well, on behalf of The Federalist Society, I'd like to thank you, Hans, for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining us. This call is now adjourned.

 

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