Supreme Court is skeptical of challenge to Texas district lines

9 Dec 2015 | Author: | No comments yet »

High court considers Arizona redistricting challenge.

“It seems that almost every year since the middle 1970s,” wrote Harvard sociologist Nathan Glazer, “we have awaited with hope or anxiety the determination of some major case by the Supreme Court, which would tell us that affirmative action transgressed the ‘equal protection of the laws’ guaranteed by the Fourteenth Amendment . . . or, on the contrary, determine that this was a legitimate approach to overcoming the heritage of discrimination and segregation and raising the position of American blacks.” Mr. WASHINGTON (AP) — Practical concerns about forcing states to abandon the way they have drawn electoral districts for more than 50 years seemed to give a key justice pause Tuesday in a Supreme Court case of immense importance to the nation’s growing Latino population.America’s Supreme Court will begin hearing on Wednesday what has been described as one of the most important race cases in years, as it rules on a challenge to affirmative action by a white university applicant.

WASHINGTON—The Supreme Court confronted a fundamental question underlying American democracy in two cases argued Tuesday: deciding who counts when dividing the seats in state and local legislatures. The court heard arguments in a case from Texas on the meaning of the principle of “one person, one vote,” which the court has said requires that political districts be roughly equal in population. Debating a Texas case that could upend the political balance in the nation from New York to California, the more conservative justices indicated they were open to changing the way state and municipal voting districts are drawn to equalize population. Conservative justices asked tough questions of both sides, while more liberal members said slight differences in population — less than 10 percent — were not enough to violate the Constitution’s equal-protection clause. Both have the potential to shift more power to Republicans, in what could be the greatest upheaval in legislative districts since the 1960s voting-rights rulings.

At issue is whether minor population differences among districts are acceptable if they were done for partisan advantage or to comply with a now-defunct provision in the Voting Rights Act. The idea of affirmative action was first introduced by John F Kennedy in 1961, with a law which included a provision that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, colour, or national origin”. It will be the high court’s second go-round with the case, which concerns a plaintiff named Abigail Fisher who says the university discriminated against her as a white woman in rejecting her application. The more liberal justices opposed a switch to using only the number of eligible voters, which would render non-citizens invisible when drawing districts — along with children, prisoners, some ex-felons and some people with intellectual disabilities.

Two rural Texas voters are challenging the use of total population data in drawing state Senate districts because they say it inflates the voting power of city dwellers at their expense. Justice Anthony Kennedy seemed to agree, telling Hearne that if the commission had a good faith belief its actions were proper, “then you have a problem.” Hearne said any action based on partisan ideology means there was “an illegitimate purpose,” even though a lower court found that the predominant motive was trying to get the plan cleared by the Justice Department. By the end of the hour-long oral argument on the most consequential case to come to the court so far this term, it seemed the conservative justices might have five votes to move away from using total population.

Justice Ruth Bader Ginsburg said the end result was that the plan actually gave Republicans more than their proportional share of seats in the state legislature. By the 1990s, one study found that 86 per cent of African American students on selective campuses were middle or upper class, and the white students were even richer. Instead, the appeals court was instructed to re-evaluate whether a race-based admissions policy was really essential to the university meeting its diversity goals. Why can’t they have both?” Texas Solicitor General Scott Keller said such an outcome could only be achieved at the expense of other traditional requirements about redistricting, including drawing relatively compact districts that don’t split counties.

Eight states in the US have since banned affirmative action, but the University of Texas currently has two admission policies designed to encourage more people from minorities into its classes. House among the states, requiring that representatives be elected by counting “the whole number of persons in each state.” Deputy Solicitor General Ian Gershengorn, representing the Obama administration, said there was a “data problem,” in that the only constitutionally mandated count is the census, which counts the total population. The justices also considered a challenge from Republicans over whether Arizona’s state legislative districts were redrawn in a way that illegally shifted voters to give Democrats an advantage.

In yet a third case, the court unanimously revived a challenge by some Maryland residents to their state’s 2011 redrawing of its congressional districts, ruling that their case must be heard by a panel of three judges, not a single judge. Her lawyers argue that the top 10 per cent law is an effective way of guaranteeing diversity and so the second category is not needed. “The top 10 per cent plan has proven to be a more effective mechanism for creating a diverse campus at UT than did race-based affirmative action,” said Edward Blum, whose Project on Fair Representation fights affirmative action and backed the latest case. Since the Fifth Circuit didn’t bother, perhaps the justices will ask the university how it defines a “critical mass” of underrepresented minorities, how admissions officers know when it has been attained, and precisely how it furthers the school’s educational interests.

They also noted that congressional seats, which would not be affected, are apportioned based on population, and that survey data on eligible voters is less reliable. Richard D Kahlenberg, a senior fellow at the Century Foundation and editor of The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. In 1997, the Texas legislature instituted a race-neutral policy that guarantees students who graduated in the top 10% of their high school classes automatic admission to Texas public colleges and universities. Perhaps most important, they said, is the need to keep districts relatively equal in terms of population so that all residents have the same access to their elected officials. “There is a voting interest,” Justice Sonia Sotomayor acknowledged. “But there is also a representation interest.” The challengers’ argument boils down to this: Texas’ population-based system puts more voters in districts with fewer non-citizens and others who cannot vote, thereby diluting the weight of their votes. The justices displayed little of the aggressiveness that often marks Supreme Court arguments and Justice Antonin Scalia said nothing at all during the hourlong session.

Court majorities studiously avoid ruling on whether the equal-protection clause in the Constitution means what it says, and college admission officials continue to favor certain racial groups over others in the name of meaningless and unquantifiable notions, such as “diversity” or “critical mass.” Liberals today condone state-sponsored racial discrimination in the name of helping black people. In Arizona, Hispanics and American Indians have preferred Democrats. “That justification, even if it was had in good faith, does not excuse a constitutional violation of one-person, one-vote,” attorney Mark Hearne told the court. But as Justice Clarence Thomas’s concurrence in the first Fisher decision explained, this was the same reasoning used by white segregationists in the Jim Crow era. “Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950s, but emphatically rejected by this Court,” Justice Thomas wrote. “And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then . . . the alleged educational benefits of diversity cannot justify racial discrimination today.” Racial favoritism has correctly been described by Chief Justice John Roberts as “a sordid business,” and we should hope that the court can finally bring itself to outlaw the practice.

Voters created the five-member commission in 2000 to take the politically charged once-a-decade job of drawing new maps out of the hands of the Legislature. Smart students who would be academic stars at most schools are steered into institutions where they are overmatched academically in relation to their peers but satisfy the needs of administrators who care more about skin tones than graduation rates.

Arguing for the commission, lawyer Paul Smith said that only two of the five commissioners were found to have acted with a political purpose and that was only with respect to a single district. An earlier version of this article incorrectly stated that it contends the Constitution requires states to divide their legislative seats by registered-voter population. A brief submitted by several former Justice Department officials warned that a ruling against the Arizona commission could throw out more than 1,000 other redistricting plans around the country.

Riley, a Manhattan Institute senior fellow and Journal contributor, is the author of “Please Stop Helping Us: How Liberals Make It Harder for Blacks to Succeed” (Encounter Books, 2014).

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