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A new look at race and politics in redistricting

Twenty-four hours after giving constitutional backing for Arizona’s use of an independent commission to draw new election district maps for its members of Congress, the Supreme Court on Tuesday took on a case complaining that the same state agency wrongly used race and partisanship in crafting state legislative district boundaries.

This was one of five new cases in which the Court granted review in the final round of regular orders before the Justices began their summer recess.  Other cases dealt with public employee unionism, states’ immunity from lawsuits in other states’ courts, federal courts’ authority to hear securities cases based on state law, and Indian tribes’ rights in contracting with the federal government over public services for tribal members.  All will be heard in the new Term starting in October.

The Justices took no action Tuesday on Mississippi’s plea to uphold its new abortion law, which a lower court said would lead to the closing of the last abortion clinic in the state.  That case may be on hold until the Court decides what to do about a similar case from Texas.  Action may be delayed until the new Term, but could come during the summer recess, although that seems less likely.

The new election law case, Harris v. Arizona Independent Redistricting Commission, was apparently held inactive on the Court’s docket until it ruled on a claim by the state legislature that it was unconstitutional to hand the congressional redistricting task to an independent agency not elected by the people.

The Court rejected that challenge in a divided decision Monday, and then, on Tuesday, ordered a review of how the commission handled the fashioning of state legislative election maps in the wake of the 2010 Census.

A group of Arizona voters raised a number of issues in the new case: that the 2012 state legislative maps violated the “one person, one vote” requirement of population equality among districts because Republican voters were packed into districts to enhance minority voter strength in other districts, that this treatment of Republican voters used partisan factors illegally, and that the commission illegally sought to create districts dominated by Hispanics to enhance their voting power.

These uses of race and partisanship, the new appeal argued, were done to try to enhance prospects that the U.S. Department of Justice would approve the new maps under the Voting Rights Act, at a time when Arizona had to get such clearance before implementing new election laws.  That preclearance requirement has now been wiped out by the Supreme Court, the voters’ lawyers noted, so such factors can no longer be justified.

The Court has already agreed to rule at its next Term on a case that also tests the application of the one-person, one-vote principle.   The issue in Evenwel v. Abbott is whether the process of redistricting should use population measured by voters in each district, or total population in each, in judging whether the equality of representation rule has been violated.

Among the other cases the Court has newly agreed to hear involves a request that it overrule a 1979 decision, Nevada v. Hall, which allowed a state to be sued without its consent in another state’s courts.  The argument in the case of California Franchise Tax Board v. Hyatt — a case that the Court had decided at an earlier stage — is that the 1979 precedent has been undermined by later Court rulings enhancing the sovereignty of state governments.

The Hyatt case involves a years-long fight between the tax-collecting agency of California and an inventor and businessman who now lives in Las Vegas — Gilbert P. Hyatt — over a claim that he underpaid his state income taxes when he was a resident of California.

Hyatt, who claims to have been the principal inventor of the microprocessor chip that is at the heart of computer hardware, at one time won money damages of nearly $500 million on his claim that the California agency pursued him with an aggressive audit of his state tax returns.   He won that in a Nevada state court, over the objection of the California agency that it should be immune to such a claim in a state outside its own.

The money damages award has been pared down by the Nevada Supreme Court, but the tax agency still faces the likelihood of a substantial claim when the case moves on further in Nevada.  The agency’s appeal to the Supreme Court seeks a new look at its immunity claim, as well as the overruling of Nevada v. Hall, in hopes of scuttling the award altogether.

Here in summary are the issues in the other two new cases:

** A plea by major financial institutions, including brokerage firms, seeking to shut down a lawsuit in a state court in New Jersey, in which investors claim that those institutions engaged illegally in the practice of “naked short selling” — that is, selling “phantom” stocks, or stocks that they did not actually own or borrow, and then buying them back at a lower price, pocketing the difference.  While the state case is based on claims of violating state law, the brokerage houses and other institutions contend that the claim is actually based on a federal securities regulation governing short selling.  The case is Merrill Lynch  v. Manning.

**  A request for the Court to clarify the doctrine that a suing party generally can be excused for having missed a filing deadline if it would be unfair to enforce the deadline — a concept that the Court laid down in the 2010 decision in Holland v. Florida in 2010.  An Indian tribe based in Wisconsin argued in its appeal that it was denied “equitable tolling” of its claim that the federal government underpaid the tribe for its costs in carrying out a contract for government services on its reservation, in place of federal agencies.  The case is Menominee Tribe of Wisconsin v. United States.






Recommended Citation: Lyle Denniston, A new look at race and politics in redistricting, SCOTUSblog (Jun. 30, 2015, 12:48 PM),