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
-“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)
-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
-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
-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
-“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)
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
-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)
-“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)
-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)