Election Law

Wittman v. Personhuballah - Post-Argument SCOTUScast

SCOTUScast 3-30-16 featuring Derek Muller
Derek Muller March 30, 2016

On March 21, 2016, the Supreme Court heard oral argument in Wittman v. Personhuballah. In 2012, the Virginia State Legislature adopted a redistricting plan that altered the composition of the Third Congressional District by increasing the percentage of African-American voters in the district. In 2013, plaintiffs, who reside in the Third District, sued state election officials, arguing that the District was racially gerrymandered in violation of the Equal Protection Clause of the Fourteenth Amendment. A three-judge district court agreed and held the districting plan to be unconstitutional, but the U.S. Supreme Court vacated that judgment and remanded the case for reconsideration in light of its intervening decision in Alabama Legislative Black Caucus v. Alabama. On remand, the district court held that the redistricting plan failed strict scrutiny and ordered the Virginia General Assembly to devise a remedial plan. When the Assembly did not do so the court devised its own remedial plan and ordered election officials to implement it.

On further appeal, there are four questions now before the Supreme Court: (1) Whether the court below erred in failing to make the required finding that race rather than politics predominated in District 3, where there is no dispute that politics explains the Enacted Plan; (2) whether the court below erred in relieving plaintiffs of their burden to show an alternative plan that achieves the General Assembly's political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan; (3) whether, regardless of any other error, the finding of a Shaw violation by the court below was based on clearly erroneous fact-finding; (4) whether the majority erred in holding that the Enacted Plan fails strict scrutiny because it increased District 3's black voting-age population percentage above the benchmark percentage, when the undisputed evidence establishes that the increase better complies with neutral principles than would reducing the percentage and no racial bloc voting analysis would support a reduction capable of realistically securing Section 5 preclearance.

To discuss the case, we have Derek Muller, who is Associate Professor of Law at Pepperdine University School of Law.

Harris v. Arizona Independent Redistricting Commission - Post-Argument SCOTUScast

SCOTUScast 2-11-16 featuring Mark F. Hearne II
Mark F. Hearne February 11, 2016

On December 8, 2015, the Supreme Court heard oral argument in Harris v. Arizona Independent Redistricting Commission. In 2012, the Arizona Independent Redistricting Commission redrew the map for the state legislative districts based on the results of the 2010 census. Wesley Harris and other individual voters sued the Commission and alleged that the newly redrawn districts were underpopulated in Democratic-leaning districts and over-populated in Republican-leaning ones, and that the Commission had, therefore, violated the Equal Protection Clause of the Fourteenth Amendment. The Commission countered that the population deviations were the result of attempts to comply with the Voting Rights Act. A three-judge district court ruled in favor of the Commission.
There are two questions before the Supreme Court on appeal: (1) Whether the desire to gain partisan advantage for one political party justifies creating over-populated legislative districts that result in the devaluation of individual votes, violating the one-person, one-vote principle; and (2) whether the desire to obtain favorable preclearance review by the Justice Department permits the creation of legislative districts that deviate from the one-person, one-vote principle, and--even if creating unequal districts to obtain preclearance approval was once justified--whether this remains a legitimate justification after the Court’s decision in Shelby County v. Holder.

To discuss the case, we have Mark F. Hearne, II, who is Partner at Arent Fox LLP.

Evenwel v. Abbott - Post-Argument SCOTUScast

SCOTUScast 2-11-16 featuring Andrew Grossman
Andrew Grossman February 11, 2016

On December 8, 2015, the Supreme Court heard oral argument in Evenwel v. Abbott. As required by the Texas Constitution, the Texas legislature reapportioned its senate districts after the publication of the 2010 census, formally adopting an interim plan that had been put in place for the 2012 primaries.  Plaintiffs, who are registered Texas voters, sued the Texas governor and secretary of state, asserting that the redistricting plan violated the one-person, one-vote principle of the Fourteenth Amendment’s Equal Protection Clause, by failing to apportion districts to equalize both total population and voter population.  A three-judge district court ruled in favor of the state officials.

On appeal, the question before the Supreme Court is whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population when apportioning state legislative districts.

To discuss the case, we have Andrew Grossman, who is Associate at Baker & Hostetler, and Adjunct Scholar at The Cato Institute.

Shapiro v. McManus - Post-Decision SCOTUScast

SCOTUScast 12-14-15 featuring Michael T. Morley
Michael T. Morley December 14, 2015

On December 8, 2015, the Supreme Court decided Shapiro v. McManus. In this case several Maryland citizens sued state election officials claiming that a 2011 redistricting plan violated their rights to political association and equal representation under the First and Fourteenth Amendments.  Although federal law normally requires such claims to be heard by a three-judge federal court, a single judge dismissed the suit for failure to state a claim, and the U.S. Court of Appeals for the Fourth Circuit affirmed.

The question before the Supreme Court was whether a single-judge federal district court may determine that a claim governed by the Three-Judge Court Act is insubstantial, and that three judges therefore are not required--not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).

By a vote of 9-0, the Supreme Court reversed the judgment of the Fourth Circuit and remanded the case. Justice Scalia delivered the opinion for a unanimous Court, holding that the citizens’ redistricting challenge was not so insubstantial that it could be dismissed by a single judge, and should have been considered by a three-judge Court.

To discuss the case, we have Michael T. Morley, who is Assistant Professor at Barry University School of Law.

The Voting Rights Case

Short video featuring Hans von Spakovsky and Derek Muller discussing Evenwel v. Abbott
Hans A. von Spakovsky, Derek Muller December 07, 2015

Hans A. von Spakovsky,  Manager, Election Law Reform Initiative and Senior Legal Fellow of the Heritage Foundation’s Edwin Meese III Center for legal and Judicial Studies, and Pepperdine Law Professor Derek Muller debate the meaning of one-person/one-vote in the Supreme Court’s upcoming case Evenwel v. Abbott.

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.