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:


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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Today’s orders

By on May 22, 2017 at 6:17 pm

Today the Supreme Court declined to wade into the battle over “soft money,” unregulated contributions to political parties. The Bipartisan Campaign Finance Reform Act of 2002, also known as “McCain-Feingold” after the senators who spearheaded it, bars state and local political parties from using soft money for activities related to federal elections – for example, vote-registration drives and get-out-the-vote efforts for elections that include candidates for federal offices. The law also bars the use of soft money to raise money for activities related to federal elections.

The Louisiana Republican Party challenged the bans, arguing that they violated the First Amendment by prohibiting the party from using soft money for activities that are not coordinated with federal candidates or campaigns. A special three-judge panel rejected that claim, and today the justices agreed to let that ruling stand. Groups supporting campaign finance reform hailed the announcement as an important step to limit the influence of major donors. Justice Clarence Thomas and the court’s new justice, Neil Gorsuch, indicated that they would have heard oral argument in the case and reviewed it on the merits.

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Richard H. Pildes is the Sudler Family Professor of Constitutional Law at NYU Law. In 2014, he argued predecessor case Alabama Democratic Conference v. Alabama on behalf of the appellants, and he continues to represent those plaintiffs.

In this decade’s redistricting, the major constitutional development, apart from Shelby County v. Holder, has been the court’s commitment to ensuring that intentional race-based districting not take place except where a strong basis exists for concluding that the Voting Rights Act actually requires it. The first stages were the Alabama cases in 2015, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama. Those cases established the foundational principle that states cannot mistakenly invoke the VRA to engage in excessive and unjustified uses of race in redistricting. Thus, race-based districting absent a strong basis for concluding that the VRA requires it violates the Constitution.

As the two racial redistricting cases decided this term — Bethune-Hill v. Virginia Board of Elections from Virginia and now Cooper v. Harris from North Carolina – further reveal, the court simply is not going to permit states to be casual in invoking the VRA to justify race-based districting. Bethune-Hill  added to the Alabama cases by clarifying  an important issue: that a racial gerrymander can exist even when states follow traditional districting principles, if voters have still been predominantly sorted into districts by race. Cooper now adds further bricks to the barrier against unnecessary racial redistricting by holding that the VRA does not require – and the Constitution does not permit – the intentional creation of majority-minority districts if interracial political coalitions are already providing minorities effective electoral opportunities. Remarkably, it is now clear that the justices are unanimous, despite all their other differences, in their commitment to ensuring that, in drawing districts, race not be used in excessive and unjustified ways.

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Two North Carolina congressional districts, District 1 and District 12, have – as Justice Elena Kagan observed today – “quite the history before” the Supreme Court. In the last 25 years, the districts have been at the heart of four earlier racial gerrymandering cases at the court. Last year, a three-judge district court invalidated both of the districts, on the ground that state legislators had illegally packed the districts with African-American voters, which in turn reduced the influence of African-American voters in other districts. The Supreme Court today upheld that decision, in a major ruling on racial gerrymandering.

In her opinion for the court, Kagan explained that racial gerrymandering challenges like this one boil down to two questions. First, was race the predominant factor behind the legislature’s decision to move voters in or out of a district? And if it was, can the state show that it had “good reasons” to believe that it would violate the Voting Rights Act if it didn’t use race to draw the districts? Kagan noted that the Supreme Court’s inquiry on the first question is relatively limited, because it only reviews a district court’s findings of fact – such as whether race played a predominant role – to determine whether they are clearly wrong. Therefore, a district court’s finding can survive as long as it is “plausible,” even if the justices might reach a different conclusion.

Justice Kagan with opinion in North Carolina redistricting case (Art Lien)

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We live-blogged this morning as the court released orders and opinions.The transcript is available at this link.

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