Editor's Note :

Editor's Note :

We hosted an online symposium on the October Term 2016's racial-gerrymandering decisions. Contributions to the symposium are available at this link.

Petition of the day

By on May 23, 2017 at 11:23 pm

The petition of the day is:

16-1148

Issues: (1) Whether Eastman Kodak Industry Co. v. Image Technical Services, Inc.‘s Rule 56 standard or the more stringent “tends to exclude the possibility of independent action” standard articulated in Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. applies where the alleged conduct, unlike in Matsushita, is not inherently pro-competitive and is not economically or otherwise irrational; and (2) whether the U.S. Court of Appeals for the 1st Circuit improvidently applied the heightened “tends to exclude” test to the petitioner’s concerted refusal to deal claim, in circumstances in which it is not warranted, and thus erroneously denied the plaintiff its right to have its case heard by the trier of fact.

Anita Earls is the executive director of the Southern Coalition for Social Justice. She serves as counsel for the plaintiffs in two pending racial-gerrymandering cases, Dickson v. Rucho and Covington v. North Carolina, as well as a pending partisan-gerrymandering case, League of Women Voters v. Rucho.

For all the rhetorical flourishes back and forth between Justice Elena Kagan’s opinion for the majority and Justice Samuel Alito’s opinion concurring in part and dissenting in part, the Supreme Court’s ruling in Cooper v. Harris is not a watershed development in the theory of racial gerrymandering. Two of the central legal questions answered there had been answered in prior cases.

With regard to North Carolina’s Congressional District 1, which the legislature argued was justified as a race-based district because it was drawn to comply with Section 2 of the Voting Rights Act, the court applied Bartlett v. Strickland and Thornburg v. Gingles, to come to the unremarkable conclusion that absent evidence of the third prong of Gingles, the legislature was not justified in dramatically increasing the number of majority-black districts in the state. In other words, where white bloc voting is not usually defeating the candidate of choice of black voters — where coalition districts are working — the Voting Rights Act does not demand the creation of majority-black districts.

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Hans A. von Spakovsky is a Senior Legal Fellow and Manager of the Election Law Reform Initiative at The Heritage Foundation and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department. Along with John Fund, he is the co-author of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”

For anyone who seeks clarity in what states must do in redistricting to comply with the Voting Rights Act and the equal protection clause of the 14th Amendment, the Supreme Court’s decision in Cooper v. Harris will certainly not provide it. And this seems to be the umpteenth redistricting case out of North Carolina to get to the Supremes. If the court is in session, there seems to almost always be a North Carolina redistricting case before it.

This ruling simply adds to the confused state of the law on redistricting and how much legislatures can (or must) take into account race when trying to draw up new congressional lines. And it certainly does not provide any real guidance on how to distinguish between race and partisan politics to determine which of those is the driving factor in the redistricting process.

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Andrew Brasher is the solicitor general of Alabama.

I think the most important aspect of Cooper v. Harris is not the Supreme Court’s unanimous decision on North Carolina’s Congressional District 1, but its divided decision on Congressional District 12. Alabama Democratic Conference v. Alabama left open two questions that Cooper and an earlier case from this term, Bethune-Hill v. Virginia State Board of Elections, try to answer: (1) How does a court go about deciding whether a state drew an individual district predominantly on the basis of race such that strict scrutiny applies? (2) When race predominates and strict scrutiny applies, how does a court evaluate whether the Voting Rights Act justifies the decision to consider race?

The court’s answer in Bethune-Hill and Cooper is that there is a low bar for plaintiffs to show racial predominance, but an even lower bar for surviving strict scrutiny. In other words, it may be relatively easy to get to strict scrutiny, but the scrutiny is not all that strict.

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Kimberly Hermann is General Counsel at Southeastern Legal Foundation.

The government should not consider race when it is drawing electoral district lines – the lines should be drawn based on where people live, not based on the color of their skin. With that said, we would be naïve to ignore the delicate balancing act thrust upon state legislatures when drawing redistricting maps. Electoral districting is one of the most difficult tasks that state legislatures face. On the one hand are the many requirements of the Voting Rights Act that result in states considering and sorting their citizens based on race, and on the other hand is our color-blind Constitution, including the equal protection clause’s prohibition against certain racial classifications. These competing requirements demand that states consider race, but not too much or in the wrong way.

To the extent that the Voting Rights Act and the Supreme Court’s cases call for the consideration of race in redistricting, those calls should be interpreted narrowly and consistently with the Constitution. This is because racial classifications of any sort are inherently suspect and demand the most exacting scrutiny. In answering questions about how governments should zig and zag in drawing district lines, the Supreme Court’s past precedents support striking a balance that is simultaneously most consistent with the statutory text and the Constitution and least race-conscious. Similarly, the statutory text should be interpreted so that it avoids racial classifications and preferences that are presumptively unconstitutional.

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In Water Splash v. Menon, the Supreme Court resolved whether the Hague Service Convention –formally known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters – prohibits or authorizes service by mail. Eight members of the court (Justice Neil Gorsuch did not participate) unanimously adopted the view advocated by the U.S. solicitor general, which one might also dub the Goldilocks approach: The convention neither authorizes nor prohibits service by mail. Instead, it does something in between, requiring courts to look to the rules of the sending and receiving jurisdictions.

A primary purpose of the Hague Service Convention is to require signatory states to designate a central authority that can handle cross-border service requests. But the convention does not require litigants to use that central authority to serve documents; it also authorizes other methods of service, such as via consular agents, and permits signatory countries to authorize still other methods via bilateral agreement or international law. However, the convention (at least in its English translation) is less clear about whether cross-border service by mail is permissible, giving rise to a split among lower state and federal courts.

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Where have I read this before: U.S. Court of Appeals for the Federal Circuit – patent-holding plaintiffs win; Supreme Court – corporate defendants win. The Supreme Court struck yet another blow against the expertise of the Federal Circuit, the specialized appellate court for patent cases, with Monday morning’s opinion in TC Heartland LLC v. Kraft Foods Group Brands, rejecting the rules on patent venue that the Federal Circuit has been administering for more than 25 years. The odd part of it is that this time it was the Federal Circuit saying that patent litigation should look more like conventional litigation and the Supreme Court saying that patent litigation needs to have special rules different from the rules of ordinary civil cases. The Federal Circuit can’t win even when it decides that patent litigation should follow the well-developed rules of mainstream civil procedure!

To understand the issue dividing the Federal Circuit from the Supreme Court, a little background about federal civil procedure is useful. Generally speaking, modern venue statutes treat corporations as present in any state in which they conduct a substantial amount of business. Because venue rules generally permit a plaintiff to sue a defendant in any state in which it is present, that means that in general civil litigation, a plaintiff suing a large company that does business nationwide usually can pick just about any state that seems to provide a forum favorable to the plaintiff. That practice replaced an earlier 19th-century regime, in which corporations were treated as residing in (or “inhabiting”) only the single state in which they were incorporated.

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Tuesday round-up

By on May 23, 2017 at 6:15 am

Yesterday the court added one case to its docket for next term, granting certiorari in SAS Institute Inc. v. Lee, which involves “inter partes” review of patents before the Patent Trial and Appeals Board. Amy Howe covers yesterday’s order list for this blog. At LawNewz, Ronn Blitzer reports that the order list contained a summary affirmance of a lower court ruling that rejected a First Amendment challenge by the Louisiana GOP to a limits on the use of “soft money” by political parties for “federal election activity.” David Savage covers the ruling for the Los Angeles Times, noting that “[s]upporters of the campaign funding laws praised the court for holding the line.” At the Election Law Blog, Rick Hasen suggests that the ruling may indicate that “the Court has really no appetite to get back into this area right now—perhaps they want to save their capital in ruling on other high profile cases coming down the line.” At ThinkProgress, Ian Millhiser observes that new Justice Neil Gorsuch, along with Justice Clarence Thomas, “voted to give the case a full hearing — a strong indicator that Gorsuch is inclined to strike down the soft money law” and “that he may share Thomas’ extraordinarily restrictive view of the government’s power to keep money out of politics.”

The court also issued opinions yesterday in three argued cases. In Cooper v. Harris, the justices upheld a lower court decision finding that in drawing the boundaries of two congressional districts, North Carolina relied too heavily on race. Amy Howe analyzes the opinion for this blog. Additional coverage comes from Ariane de Vogue at CNN, who reports that “the ruling sends the North Carolina legislature back to the drawing board — with significant potential implications for the 2018 midterm elections”; David Savage in the Los Angeles Times, who notes that the “ruling is the third in recent years to fault Southern Republicans for packing more black voters into districts where African Americans were already the dominant voting bloc”; Nina Totenberg at NPR; Robert Barnes in The Washington Post; Lawrence Hurley at Reuters; Richard Wolf at USA Today; Lydia Wheeler at The Hill; Adam Liptak at The New York Times; Greg Stohr at Bloomberg; Cristian Farias at The Huffington Post; Scott Bland and Elena Schneider at Politico; Chris Geidner at BuzzFeed; Lyle Denniston at his eponymous blog; and Vann Newkirk II in The Atlantic. German Lopez unpacks the decision for Vox.

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Petition of the day

By on May 22, 2017 at 11:23 pm

The petition of the day is:

16-1110

Issue: Whether the Federal Arbitration Act preempts a state-law rule that prohibits enforcement of a pre-dispute arbitration agreement with respect to a state statutory claim unless the agreement allows the claimant to pursue representative relief on behalf of all similarly-situated individuals.

Kristen Clarke is President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law. Ezra Rosenberg is Co-Director of the Voting Rights Project of the Lawyers’ Committee for Civil Rights Under Law. 

As we prepare for the upcoming round of 2020 redistricting, the opinions in Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris make clear that what constitutes unlawful racial gerrymandering will prove critical. Although states and localities can act intentionally to preserve and create majority-minority districts, they must do so in a way that complies with the Constitution. First, and put simply, race cannot predominate over every other consideration. And, second, unlawful racial gerrymandering cannot be justified as an attempt to achieve partisan ends.

The decisions provide a workable approach for addressing allegations of unconstitutional racial gerrymanders, while at the same time rejecting the proposition that the intentional creation of a majority-minority election district automatically triggers strict scrutiny. This is clear from the sum and substance of the majority opinions, and from the explicit language in the separate opinions of Justices Samuel Alito and Clarence Thomas in Bethune-Hill and that of Thomas in Cooper. A contrary result would have imperiled legitimate attempts by state legislatures to create majority-minority districts.

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