SCOTUS Arguments: Virginia Republicans Look Likely to Lose in Racial Gerrymandering Case

SCOTUS Arguments: Virginia Republicans Look Likely to Lose in Racial Gerrymandering Case

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The Washington Post headline on today’s Supreme Court hearings in the 3rd CD racial gerrymandering case is “Supreme Court may decide against Va. Republicans in redistricting fight,” and I tend to agree after skimming through the oral arguments transcript. Also, keep in mind that all that’s needed is a 4-4 tie (e.g., the four “liberal” justices to side with the state appellees) in this case for the lower-court ruling (affirming the new district lines) to stand.  A few passages that jumped out at me from the oral arguments include:

Justice Sotomayor“Are you representing that if the map goes back to the enacted form, not the new one, that [Rep. Randy Forbes (R-VA 4)] will run in his old district?”  

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Michael Carvin, Esq. (on behalf of Appellants): “Absolutely. He will run in the district that he lives in, that he has been reelected in for 16 years, and that he has a huge incumbency advantage.”

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Justice Sotomayor: “Forbes is the only one who had a ­­ who had, perhaps, a live claim, but he’s decided to run in another district. So how do we have a live claim or controversy?”
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Justice Sotomayor: “Every time your district is changed and you believe it hurts you, you have a right to go to court and say what?”
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Justice Kagan: “So the legally cognizable interest is ­­ just finish the sentence for me.”
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Justice Kagan: “And the question is, does the fact that it also has political benefits, does that insulate these line drawers from what you would think is the obvious conclusion, which is this is unconstitutional conduct?”
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Justice Kagan: “And we’ve never had a harmless error rule for racial discrimination.
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Virginia Solicitor General Stuart Raphael:  “…our administration came into power in January 2014. The case was pending on summary judgment. We defended the district on summary judgment. We defended it at trial. The same career attorney argued it at trial. When the district court ruled against Virginia, we had to evaluate whether we could win on a clear error standard, and concluded we could not.”
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Raphael: “Congressman Forbes, the fact that he had to switch from CD4 to CD2 really does prove the injury. And the Special Master found that his district would go from 48 percent Democratic to 60 percent Democratic. I think that that suffices to prove the injury.”
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Marc Elias, Esq. (on behalf of private appellees): “…members of Congress simply don’t have a legal interest in choosing their voters”
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Elias: “We would lose ­­ we would lose if it’s a tie [between race and partisanship], but in this case there is no tie. There’s nothing even approaching a tie. The legislature set a 55 percent threshold…Any time the State sorts people based on
race in a ­­ using mechanical targets or ­­ or  thresholds in a redistricting context, then it has to show that there was a ­­ a very good reason for doing so.”
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Elias:  “The other evidence included statements by  members of the House and Senate in the House of Delegates redistricting at page 533 and 527. There ­­ there really appears to have been a mantra: “This has to be at least 55 percent performing.” Senator Vogel said that, and she’s an election lawyer. She said, “The lowest that DOJ will preclear is 55 percent.” That’s page 533 of the Joint Appendix. And then [Virginia Delegate and architect of the GOP House redistricting plan] Janis’s statements that the most important factor to him was obtaining preclearance, and it.”