Did
the 4th Circuit Wrongly Decide Raleigh
Wake Citizens Association?
If
you have no legal experience… perfect! This is a great “getting your feet wet”
case for reading legal decisions! This post will analyze the recent ruling by the 4th Circuit section by section, while referencing the dissent as
well as the majority opinion. For those who are not experienced reading a legal
decision:
-I
have prefaced my analysis with a brief explanation of each section of the
decision and why it’s important
-I
have opted to use simple page numbers as citations, rather than proper legal
format
-I
have tried to keep the legal jargon to a minimum.
-And,
where possible, you’ll see bulleted lists like this one.
-For
this post series, I’ll also critique the majority opinion as necessary
Part III-C: Authority to Rule,
Rather than Remand
Majority:
-“When
‘the record permits only one resolution of the factual issue,’ remand is
unnecessary. . .” (p.21-22)
-Cites
“copious documentary evidence” and testimony offered by the plaintiff at trial,
and contrasts with Defendant (Wake Co. Board of Elections) both failing to call
any witnesses as well as expressly disclaiming “representing the political
interests of the General Assembly.” (p.23)
McLuckie’s
Position:
-I
mentioned previously that I have my reservations about Larios v Cox, and
I will detail them under Part III-C3. I mention it here, however, because the
majority remarks as follows:
“Even
the legislative proponents of the redistricting laws refused to defend their
actions, instead claiming legislative immunity.” (p.23)
My
problem with this statement is it presumes legislators are *required* to
justify their actions in redistricting – but, at the very least, their immunity
should not be held as a factor against them. As you’ll see, the majority
opinion applies significance to the claim of legislative immunity, and I find
their willingness to do so to be dangerous.
Part III-C2: Restatement
Majority:
-Notes
here that the General Assembly provided no public notice and comment period,
and no solicitation of input from affected parties, representing a departure
from common practice. (p.24)
Part III-C3: “One Person, One Vote”
Analysis – Illegitimate Factors
Majority:
-Cites
heavily to the witness testimony that the district court disregarded (p.25)
-Cites
to expert witness assessment that partisanship was behind redistricting (p.26)
-Demonstrates
that partisanship in redistricting is currently a justiciable question
(p.29-30)
-See
below in McLuckie’s Opinion
Dissent:
-“If
those attacking a redistricting plan prove that a State has abused
legitimate political considerations by systematically over- or under-populating
districts to benefit one party at the expense of another, then the challengers may
be able to prevail as they did in Larios v. Cox. Plaintiffs lean heavily
on Larios. Their reliance is misplaced.” (p.48)
-Cites
different factual record in this case than Larios, and asserts
Plaintiffs have not demonstrated predominance of illegitimate factors
(contrasting Harris)
-
“In sum, even if abusive partisanship claims are justiciable, and do provide
the basis for a one person, one vote claim, Plaintiffs had to prove at trial
that the State relied on this consideration in redistricting, and that this
reliance took precedence over all legitimate considerations, including
maintaining political balance among political parties, avoiding contests
between incumbents of both parties, and recognizing communities of interest.
The State, on the other hand, did not need to offer any justification for its
presumptively constitutional redistricting plan.” (p.52)
McLuckie’s
Opinion:
I’ve
been ominously mentioning my belief that the 4th Circuit has acted
dangerously in this case, and I intend to justify that assertion here.
The
Dissent, at p.48-49, details how Larios v. Cox is
distinguishable from this case:
-(1)
“In Larios, the challenged plan paired in the same district, and thus
pitted against each other, 37 of 74 Republicans but only 9 of the 105 incumbent
Democrats.”
-(2)
“Georgia legislators admitted before the district court that they had
intentionally drawn legislative districts to favor incumbents of one party over
the other. Thus, in Larios, the state legislators conceded that they had
not made [a] ‘good faith effort’ to draw equal districts[…]. The record in this
case contains no such evidence.”
The
Majority, on the other hand, remarks thusly (p.27, and
following into footnote 7):
-“The
legislators who hatched the redistricting plans claimed legislative immunity.
Absent from the record, therefore, is any trial testimony confirming (or
denying) a partisan motive behind the redistricting and its deviations. Both
the district court and the Defendant make much ado of the admissions the
legislators made in Larios, noting the direct evidence that legislators
purposely skewed district deviations among urban, suburban, and rural divides
to achieve partisan goals. . . contrast[ing]
those facts with this case, with its lack of direct evidence. But here, the
lack of direct evidence may have its roots in the legislators’ avoiding
discovery through claims of legislative immunity. Moreover, direct evidence is
simply not required.” (Boldface mine)
-I’ll
accept the ideal that circumstantial evidence or conclusion by inference can
substitute (very poorly!) for direct evidence, insofar as a ‘more probable than
not’ standard.
-But
here, I believe the 4th Circuit has taken the position: “Well,
there’s no evidence in the record, but we presume it would exist if we could
have compelled testimony.”
-Why do I believe that?
The 4th Circuit next cites a case where partisan redistricting was
upheld by the Supreme Court (Gaffney, p.28), and distinguishes it from
the case at hand. Problematically, however, the cited case is from 1973, and
the 4th Circuit makes no attempt to reconcile the narrower standards
in this case with the expanded standards of presumptive constitutionality when
Maximum Population Deviation is less than 10%. In doing so, the Court assumes
the existence of a “rare” or “unusual” circumstance that permits overriding
presumptive constitutionality, rather than demonstrating the existence of
such a circumstance.
-
The 4th Circuit then cites to a law review article suggesting that a
court may strike down a plan with *any* population deviations, rather than
pertinent ones. (p.29)
-My
reservations are as follows:
(1)The
4th Circuit applies a standard of review where ““Findings will be
deemed clearly erroneous if, for
example, ‘even though there is some evidence to support the finding, the reviewing court, on review of the
record, is left with a definite and firm conviction that a mistake has been
made’ or if the findings were made using ‘incorrect legal standards.’”
(p.9) (boldface mine)
(2)They
then cite a case (Larios) which they admit is distinguishable from the
case at hand, by virtue of disregarding the absence of facts that were present
in the cited case (p.27)
(3)They
follow up by failing to offer an explanation why the distinguishing factor (legislative
immunity) is legally offset by the absence of facts, while never addressing
seemingly conflicting case law (10% Max. Pop. Deviation is presumptively
constitutional) (p.27)
(4)Finally,
they offer an unconvincing authority to support their assertion that the
districts are inappropriately partisan. (p.29)
(5)And
this is to say nothing of the Majority’s position on expert witness testimony,
or the potentially negative ramifications on lawful privilege.
Part III-C4: “One Person, One Vote”
– Justifications on Pretext & Legitimate Factors
Majority:
-Rejects
the following arguments regarding rationale for redistricting: new school
districts were better aligned with voting districts, reducing campaign costs,
increasing voter turnout, greater representation (p.31-34)
-Assesses
alternate proposed redistricting plans (p.35-36)
Dissent:
-“Faced
with the heavy burden of proving that the asserted illegitimate ‘partisanship’
constituted the predominant motivation for presumptively constitutional
redistricting plans, Plaintiffs failed to offer any evidence truly probative of
legislative intent.” (p.58)
McLuckie’s
Opinion:
-Again,
I agree with the Dissent.
From
the Majority (p.36):
“In
fact, what the alternative plan shows is that legitimate considerations,
including the stated rationales for redistricting, utterly failed to explain or
justify the high levels of deviation in the enacted plans – because those
rationales could have been accomplished by a plan with virtually no population
deviations”
-Again,
my reservations with this:
(1)The
Majority rejects the rationales offered for redistricting, and equates the
absence of considerations it approves to the presence of illegitimate considerations.
(2)The
Majority has neither need nor right to force explanation or justification on
the enacted plan because – let’s all say it together – the plan is
presumptively constitutional when maximum population variances are within 10%!
Part III-C5: Reversal of District
Court
Majority: Holds that the reasoning above constitutes “just such an unusual case” as to
warrant reversing the district court (p.37)
Part III-C6: Deference of Ruling on
Urban vs Rural apportionment
Majority:
“Because we rule on the basis of partisanship, we need go no further of [sic]
the regional favoritism issue” (p.38)
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