High Court Considers Arizona Redistricting Challenge

8 Dec 2015 | Author: | No comments yet »

Congressional Hispanic Caucus fears 55 percent of Latinos would be impacted if Texas loses ‘one person, one vote’ case.

The United States Supreme Court will hear arguments on Dec. 9 in Fisher v. WASHINGTON–The Supreme Court on Tuesday will hear two cases that dispute the methods used to draw political maps, with a challenge from Texas having the potential to create the greatest upheaval in legislative districts since the 1960s voting-rights rulings. There’s a serious angle and a less-serious angle to this case, and I’m inclined start with the former. (The less-serious way, which we’ll get to in a minute, involves unicorns, so stick with me.) The case is Evenwel v. The Texas lawsuit contends the Constitution forbids the formula 49 states have used for decades: applying a state’s total population, as determined by the census, as the numerator under a doctrine known as one-person, one-vote. Emily Bazelon, a staff writer for the magazine, and Adam Liptak, The Times’s Supreme Court correspondent, have been exchanging emails about the possible outcomes of the case and what they might mean at a moment of debate over race in American higher education.

The plaintiffs, Texans Sue Evenwel and Edward Pfenninger, contend that the current process for counting voters, based not on the number of eligible voters but rather on total population, violates the long-established legal principle of “one person, one vote” endorsed by the Supreme Court in the 1960s. It argues political districts should be drawn instead from “eligible voters,” a requirement that would exclude swaths of the population currently used in map calculations, such as children, illegal immigrants and others who can’t vote.

But as President Obama has acknowledged, daughters like his — who have grown up with privilege — don’t need preferential consideration when applying to college. Across the country, sometimes eloquently and sometimes not (these are 18-to-22-year-olds), minority students and their supporters have channeled the spirit of Black Lives Matter and demanded more. Election experts say that if the challengers prevail, heavily populated urban areas that trend Democratic would lose seats to more rural regions that align with Republicans. Houston likely would see its delegation to the state House shrink to 22 representatives from 24, said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund.

The court’s liberals appeared eager to keep the existing system, with several questioning whether drawing districts based on eligible voters as the challengers argue would lead to non-voting residents getting proportionally less representation in the legislature. The University of Texas at Austin’s legal defense is that it needs to admit “the African American or Hispanic child of successful professionals in Dallas” so as to dismantle stereotypes that all blacks and Latinos are poor. Counting everyone and not just eligible voters magnifies the electoral influence of places, typically urban, with sizable populations of people ineligible to vote, including legal and illegal immigrants as well as children. Hispanic advocates say a broad win for the challengers would reduce Hispanic influence in elections and boost the power of rural, often Republican voters.

Mother Jones had an interesting piece the other day explaining that those who helped bring the case to court are “an unusual pair.” One is a Texas tea party activist who has promoted a conspiratorial film suggesting President Barack Obama’s real father was Frank Marshall Davis, a supposed propagandist for the Communist Party. The challengers said the state Senate redistricting map signed into law in 2013 did not equally distribute voters, improperly inflating the voting power of urban areas. Joaquin Castro, D- San Antonio, said the case puts many non-eligible voters at risk that deserve to be represented equally to voting district constituents. Non-eligible voters are mostly children, but also include legal permanent residents, foreign citizens and convicted felons. “This case, if the plaintiff is successful, would say to millions of Americans that you have no place in American democracy, that your voice doesn’t count at all,” Castro said. “Not only that, it would put that into law. These plaintiffs were reportedly recruited by Edward Blum, the director of the Project on Fair Representation, a non-profit group “funded by secretive conservative donors,” which has spearheaded the litigation.

That is unacceptable.” Castro also fears the “eligible voter” requirement could be skewed and corrupted, like gerrymandering, allowing districts to manipulate who they deem eligible to mean registered voters or even more specific requirements. In response, the Texas Legislature enacted what’s called the “top 10% plan,” under which anyone graduating at the top of his or her high school class earned admission to any public university in Texas — including the flagship, UT Austin — irrespective of SAT or ACT scores.

Over time, the top 10% plan produced a freshman class at UT Austin with as many black and Latino students as the flagship campus had achieved using explicit racial preferences in the 1990s. Holder, which effectively struck down the heart of the Voting Rights Act, freeing nine states, mostly in the South, to change their election laws without advance federal approval.

Austin admits 75 percent of the freshman class based on what’s called the Top 10 Percent Plan, which gives seats to students from Texas who graduate in the top 10 percent of their high schools. (California and Florida, which have banned race-conscious admissions, use top-percent plans for their public universities, too.) The courts call this approach to admissions “race neutral,” even though it depends on residential and school segregation to achieve a racially diverse student body. In court papers, Evenwel and Pfenninger said they live in “districts among the most overpopulated with eligible voters” and that “there are voters or potential voters in Texas whose Senate votes are worth approximately 1½ times that of appellants.” Last year, a three-judge panel of the U.S. Almost all states and localities count everyone, and the Constitution requires “counting the whole number of persons in each state” for apportioning seats in the House of Representatives among the states. The officials making the calls look at academic achievements, like grades and test scores, and also personal factors, like essays, leadership qualities, extracurricular activities, work experience, community service, socioeconomic status, family composition and, yes, race.

They are actually underrepresented in the holistic part of the admissions process: White students are disproportionately more likely to get in through this door. In addition, if universities are specifically seeking students who are bridge-builders, preferences for privileged students of color are an unnecessary and blunt instrument. These numbers are also disproportionately white, compared with the state’s population, which in 2010 was about 12 percent black and about 38 percent Hispanic.

Indeed, there is evidence that because low-income whites have more experience interacting with minority students in high school, they are more likely than other whites to engage with students of other races during college. Whenever the government takes race into account in choosing some people over others, courts treat the distinctions as suspect, in light of the 14th Amendment’s guarantee of equal protection under the law. Courts approve race-conscious government programs only if they are narrowly tailored to further a compelling government interest. (That’s the standard called strict scrutiny.) The 14th Amendment was adopted in 1868, after slavery ended, when Congress was concerned about protecting the rights of black people.

But instead of urging adoption of a program exclusively for black people, as some civil rights leaders had done, King called for a racially inclusive Bill of Rights for the Disadvantaged. Only when racial preferences have been banned, usually by voter initiative, have universities adopted class-based affirmative action programs to indirectly promote racial diversity. It’s also mini: In 2008, out of a class of more than 6,300, only 216 African-American and Hispanic students got in through holistic admissions, which is just 33 more than got in this way before race was considered, according to the university’s brief. Kahlenberg, a senior fellow at the Century Foundation, is editor of “The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v.

He wrote the opinion the first time Fisher came before the court, in 2013, and his views of affirmative action have straddled a kind of middle ground. Over the years, Kennedy has disliked just about every race-conscious government program to come before him, but he has never ruled to end these race-conscious efforts altogether. O’Connor gave affirmative action a time limit. “We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote. That’s a good summary, one that shows that the Supreme Court’s approach in this area may be good policy but is jurisprudentially at war with itself.

But the only justification allowed by the court’s precedents for taking account of race in admissions decisions is “educational diversity,” which can seem like human-resource department jargon elevated to constitutional principle. It is, rather, based on a gauzy idea that is very hard to test, to quantify, to strictly scrutinize: that people learn better in an environment in which there is a “critical mass” of students who would otherwise be underrepresented. That means campuses look more like America, foster the next generation of leaders and role models and may well create richer classroom and dorm-room discussions. How are courts meant to decide whether and how much otherwise-forbidden racial classifications should be permitted in pursuit of something as vague as educational diversity?

On the one hand, he knows that the legacy of racial injustice persists. “Much progress remains to be made in our nation’s continuing struggle against racial isolation,” he wrote for the majority in June in a fair-housing case, joining the court’s four-member liberal wing. He might respond to your point that the effects of holistic admissions on minority representation are “lite” and “mini” by saying that we should be especially wary of possible constitutional violations that lack significant corresponding benefits. It leaves some judges straining to fit benefits that are hard to measure within the four walls of the diversity box, while others dismiss the whole project as misguided.

Alito Jr. asked. “Cambodian Americans?” Afterward, the court ruled 7 to 1 in favor of sending the case back to the appeals court for “more exacting” scrutiny of U.T. There are many more low-income white applicants than poor low-income applicants of color, and so if schools focus on income, their numbers simply swamp the numbers of poor minority kids. But it also may be possible for schools to be more creative about how they factor in socioeconomics, and to come up with strategies that aren’t purely income-driven (like the top-percent plans), and increase minority enrollments without being explicit about it. Last year, three researchers at Georgetown University (Anthony Carnevale, Stephen Rose and Jeff Strohl) ran a series of simulations, modeling different class-based preferences for admissions to the country’s top-rated 193 colleges and universities. The models imagine a real departure from the current admissions process at most of these schools (for example, no more preferences for the children of alumni, and a lot fewer spots going to wealthy kids).

If “race neutral” admissions could achieve racial diversity, and benefit poor white students, too, would this be a win-win — constitutional and less socially divisive?

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