April Argument Review IV – Race Discrimination and Voting

On April 24, the Court heard arguments in Abbott v. Perez, the third redistricting case that the justices have heard this Term. Unlike the other cases, Gill v. Whitford and Benisek v. Lamone, which involved partisan gerrymandering, this case involves allegations of racially discriminatory redistricting in violation of the Voting Rights Act and/or the Equal Protection Clause.

The case is a 2017 challenge to congressional and state legislative districts created by the Texas Republican-controlled legislature in 2011 and 2013. The three-judge district court concluded that the federal congressional district impermissibly diluted Hispanic voters and that the state legislative district constituted an unconstitutional racial gerrymander. The three-judge district court then ordered the Texas Attorney General to issue a written advisory within three days stating whether the legislature would hold a special session to address the redistricting, and if not, the parties were ordered to appear before the court to prepare remedial redistricting plans. The state of Texas appealed the decision the the Supreme Court.

The plaintiffs argue that the district court order is not an interlocutory injunction that the Court can yet review, while the state of Texas argues that while the order did not include the word injunction, it functioned as one. Thus, before considering the substantive issues as to whether the districts are unlawful, the Court must consider whether it has jurisdiction to hear the case at all.

Scott Keller, Texas Solicitor General, attempted to begin by arguing the state legislature did not have a racially discriminatory purpose when it adopted the court-drawn maps, but Justice Sotomayor directed him to address whether the Court had jurisdiction to consider the case, as the three-judge district court had not issued or denied an injunction. Mr. Keller spent most of his time addressing the jurisdictional question, arguing that when the district court ordered the state to appear for expedited court-drawn redistricting, the order functioned as an injunction. Justice Breyer posited that if the Court treated the order as an appealable injunction, the Court would hear thousands of appeals from similar orders from three-judge courts, and prompted Mr. Keller to point out where the order “says injunction denied or says injunction granted from which there is an appeal.”

U.S. Solicitor General Edwin Kneedler, arguing on behalf of the United States in support of Texas, spent more time discussing the merits. He stated that whether the district enacted by the state legislature in 2013 was impermissibly discriminatory depends on the intent of the legislature at that time. “Here,” he argued, “the presumption of good faith is particularly strong” because the plans that the legislature adopted were created by the district court “following this Court’s careful instructions.”

Max Renea Hicks, arguing on behalf of the plaintiffs, referenced a quip by Justice Scalia from his dissent in Syked v. United States. “Insanity is doing the same thing over and over again and expecting a different result,” he stated. “[T]he Texas legislature is not insane. It knows how to do redistricting maps. . . with respect to diminishing minority voting rights.  So I would ask the Court to look at it this way: if you’ve done it in 2011 and you know the outcome of it, discrimination is doing the same thing over and over again and expecting and achieving exactly the same results.”

Allison J. Riggs, also arguing on behalf of the plaintiffs, also emphasized that Texas adopted the court-made district in 2013 “as a mask for the discriminatory intent that had manifested itself just two years ago.” Justice Alito pushed Ms. Riggs, asking “what is your evidence that the state adopted the plan previously approved by the court for an invidious reason?” To this, Ms. Riggs responded that the “legislature ignored the explicit warnings of the district court that its ruling was preliminary; it wasn’t done looking” and adopted the plan regardless.

More information about the case and the argument is available in Amy Howe’s summary for SCOTUSblog.

ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

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