captions copyright national cable satellite corp. 2008 and also that people figured out ways to try to not make it look like race was the predominant factor in the districts and the supreme court backed off from the ledge at the end of the 1990s redistricting cycle. looking at this cycle, if anything, and correct me if you disagree with this, pam, it seems like intentional racial discrimination claims are coming up and being more prevalent. shaw claims you're getting some of them, but i suppose none that are terribly prominent but that we're sort of back to classic mobile versus bolden type claims that are coming out in different states. >> i think that's right. i don't think there are going to

be a lot of shaw claims this time around and i think part of the reason for that is the supreme court in 2001 in the kind of end of the review of north carolina's post-1990 redistricting, and it is worth saying, you know, the 1990 census came out, north carolina began its redistricting, the case went to the supreme court once early on, on partisan redistricting in a case called pope bleagainst blue where the supreme court summarily affirmed the dismissal of the complaint and we'll talk more in a moment about partisan gerrymandering, and it went up to the supreme court shaw against reno and went back to the supreme court again, went back to the supreme court a third time and finally in april of 2001, just as the census numbers from the 2011 census were being handed to the states, the supreme court finally signed off on the 1990 round of redistricting. but the result of that is that most of the legislative

districts that are being drawn for african-american communities today are districts that were there already, and they're simply being preserved and therefore you can always explain those districts as simply preservation of existing districts or protection of incumbents, and so shaw claims i think there are going to be very shaw claims involving majority black districts except in areas where the black population is decreasing so much that you have to really struggle to continue to comply with one person, one vote, and keep the districts in place. the other thing is because of the political realignment, the places where latino districts are being drawn, they are not generally being gerrymandered. what's generally happening is purposeful discrimination against the population rather than attempting to draw districts where there aren't enough latino voters to effectively create a district so i think you're absolutely right that almost all of the intensal racial discrimination claims

this time around are going to be claims by minority voters challenging existing districts or proposed districts rather than by non-minority voters claiming race played too much of a role in the process. >> something the students often don't appreciate until they sit in front of a computer, one thing i should pump a website my students and i have done, drawcongress.org, we've done maps for the whole u.s. >> it's not part of hang and quarter congress as well. it's the draw. >> maybe we should have been craftcongress.o craftcongress.org. it's not that hard to draw compact majority/minority districts much of the time. a lot of the disfigurement in the early days watt the push of so many different considerations at once like incumbency considerations, partisan considerations and youed wh edn

with some of the districts. talking about the afric african-american districts not only because of incumbency but because of other factors that a lot of the more heavily packed districts that historically were necessary are not as necessary in a lot of these areas and as you said sometimes you just can't draw them. there are some, because of the relative decline of the black population in particular areas, when i say relative, not keeping up the pace with particularly latinos but also in some areas whites that then you just can't draw these majority african-american districts. there's still some out there if you look at carin brown's district in florida that's a sight to behold and there are a few others here and there but then you look at the white districts, the district i live in the harlem district but the one south of us goes all the way from the upper west side of manhattan all the way down through greenwich village, jumps over the brooklyn bridge, goes into parts of, gets burrouh

park, brooklyn, ends in coney island, otherwise known as the nathan's bars effect. funny shapes happen all over the place and happen for many reasons and compactness is often -- i've drawn districts where went i drew the plan for district in northern georgia, would be something that justice o'connor would really love but had a mountain range in the middle, you had to go outside the district in order to get from one side to the next, and so shapes can be deceiving. but i think in this redistricting cycle, particularly in texas and else where these are intentional claims of racial discrimination coming out. justice kennedy decided there was authentic gerrymandering? >> this is the thing about partisan gerrymandering. the last time the supreme court looked in-depth is veath against jubilier in the redistricting in pennsylvania where the republicans were in control and

although the state lost, was losing i think it was three seats going from 21 to 18, they managed to pair all democrats and try to get additional seats for the republicans. they guessed wrong because some of their candidates got indicted so they didn't quite succeed in picking up as many seats as they had hoped for but the supreme court split into three groups. four of the justices led by justice scalia thought that although political gerrymandering might well violate the constitution and therefore there isn't an argument, not as if any of the justices think excessive political gerrymandering is politically acceptable but four of the justices thought that claims of political gerrymand gerrymandering, to quote the wonderful line, to sear the consciousness of the people's representatives to persuade congress to deal with the

problem of excessive gerrymandering. i think it unlikely that the people's representatives are capable of having their consciences seared in quite this way but the four justices would have left the question of political gerrymandering and how tone force the constitutional prohibitions entirely to the political process. by contrast, four other justices thought that political gerrymandering claims are gestitiable and there's a way to resolve them but they split three ways about what that well developed and manageable standard might be. in the middle no surprise to those who watch the court is justice kennedy who said one has the feeling lines were crossed here. so he did not want to hold that political gerrymandering should never be justitiable. on the other hand he had not seen a standard that would allow courts to step in and decide political gerrymandering claims,

but he didn't want to rule out the possibility that there might be some standard that someone would come up with in the future, and so that means that people still have an incentive to file political gerrymandering cases in the hopes that they can come one a standard that justice kennedy will find sufficient for judges to intervene and then to have been violated in their particular case. >> let me just add one thing which is that he says we'll look in the first amendment, maybe that's where you can find some constraint on partisan gerrymandering because political parties are associations and it discriminates on the basis of -- >> belief sor something. >> reminds me of bad law exam answers, ahh, if only i could find that part of the constitution and recommend dhi part of the ambiguity in the court's decisions, and so if you have -- go look in the first amendment and see if you can

solve this problem, manageability and partisan gerrymanders and you'll get the attention of justice kennedy. >> people have tried to come one various quantitative measures on the theory the supreme court found one person, one vote a tempting measure, sort of what justice stewart referred to as constitutional laws sixth grade arithmetic, tried to do first amendment based arguments but really i think happens and i think the supreme court does enforce some constraints on excessive partisanship is they use other droctrinal hooks to gt there. nato reaffirmed cox against larious, the supreme court said although we have held in the postthat population deviations of less than 10% are not a violation of one person one vote, we're going to affirm a district court decision striking down a 9.9% population deviation on the grounds that the only thing that explained that was incumbent protection and partisanship and those are

illegitimate reasons for devi e deviati deviating. a number of the supreme courts voting rights cases i think can be explained in part as the supreme court using the voting rights act as a tool for limiting the amount of partisan ger wrijerrgerrymandering and b nate's point about the shaw cases. what really happened in the shaw cases is essentially the supreme court saw districts oddly shaped not for primarily racially relevant reasons but because the democrats, who were in control of the process at the time, drew those districts with the intent of also moving a number of minority voters into the districts of white democratic incumbents to serve as a kind of what i used as a kind of meal extender, a hamburger helper, because you don't have enough meat in your district, you have to get them from someplace else. and so there are constraints on

political ger write mannedering. the question is what is the supreme court going to use as the constraints this time this time around? so i think that's pretty much it on the constitution, giving you a sense of the constitutional constraints. you can't take race into account too much to help minorities. you can't take race into account really at all to hurt minorities. you have to comply with one person one vote in some particular form of the like so let's turn to the statutory ones now. there's one we can get off the table fairly quickly and that is the requirement for congressional elections that elections be conducted from single member districts. that is a purely statutory requirement. it's one of the things that separates the united states from most other advanced democracies, which elect their national legislatures at least in part through proportional systems. i think there is zero percent chance of that changing in any way and the one major effect i think that one person, that the

single member districts have is it requires and puts a lot of pressure on courts to draw plans if legislatures can't. you might think and indeed in 1964 and 1966 i believe alabama was actually ran its primaries this way, if you can't draw a new plan that complies with the constitution and gets put into place in time then all of your congressional districts will be elected at-large, but because of this statute, courts don't do that. courts will enjoin an existing plan because it violates one person one vote and if the state doesn't come back with a new plan they'll draw a plan themselves for congressional districts and that's probably the major importance of that. >> section five of the voting rights act, let's talk about it while it's still around. >> oh, stop that, nate, it will be around until 2027. [ laughter ] then it will be renewed. >> i think there are five now

constitutional challenges to section five, four or five of them going through the courts. we had a case -- >> you might want to say what section five is. >> section five of the voting rights act applies to some parts of the country and not others based on various criteria, such as whether in 1964 the jurisdictions had literacy tests or some testing device and had voter turnout below 50% but it was reverse engineered to try to target areas where there was discrimination against minorities from sort of 1964 through 1972. parts of california are covered. most of the areas covered in full are in the south, and so there's a series of cases going through the courts, one that went to the supreme court affectionately called the mudno case or the mud case. >> northwest austin

district number one. >> came through four years ago and the court cast some serious, showed its concern as to the constitutionality of the coverage formula for section five of the voting rights act, state of arizona challenging it and cities in north carolina, some plaintiffs in north carolina, shelby county, alabama, coming up in florida and texas as to the constitutionality of section five, we'll see whether the court is willing to take that on. that would be a major decision. they will take it on. the question is whether they're willing to use a scalpel or cleaver in striking down section five. and that has sort of cast a shadow a little bit on the redistricting process that the supreme court is potentially going to rule section five unconstitutional. even in the most recent texas case reiterated concerns about

the constitutionality of section five and at the same time that we have those cases hanging out there, we have a new standard for section five of the voting rights act passed in 2006 and the voting rights act reauthorization amendments of 2006 said that the department of justice, which is charged with reviewing voting laws by the juror dictions or the d.c. district court when it reviews the voting laws, must make sure that they don't havefully discriminatory purpose and that they do not have discriminatory retrogresive effect they don't diminish the ability of minorities to elect their preferred candidates of choice and so now the question facing the d.c. district court in this texas case, facing justice department for example in their preclearance denial of the voter i.d. law in south carolina is,

well what types of redistricting plans are making minorities worse off diminishing the ability of minority groups to elect their preferred candidates of choice? it said jurisdictions were allowed to trade off jurisdictions that would elect the minority preferred candidates against where minorities might have influence over the election so by moving toward the ability to elect the standard tries to bring back what preexisted the supreme court decision. the long and the short of it is, there is a lot of i won't say controversy but disagreement among partisans as to what the standard means and how doj is behaving. doj has not struck, has not interposed an objection for a

denial of preclearance or redistricting plan except in two small cases, one dealing with east feliciano parish in louisiana and amity county, mississippi. they are participating of course in the texas redistricting litigation going on in d.c., and so we get a sense of how they interpret this provision from that, and there are several states that opted not to go the doj route this time around and instead litigating the section five voting rights cases in the d.c. district court which then may lead to supreme court review. besides south carolina and the two redistricting cases there's also this case out of the city of kingston, north carolina, which is challenging the constitutionality of section five, where the department of justice denied preclearance from a move to non-partisan elections

there so i think those three objections or four objections includ texas so the only sort of indications as to what the new section five means and a lot of the cases, texas is an example as well as the two redistricting situations i mentioned they make the argument there's a discriminatory purpose that is underlying these voting laws or redistricting controversies. >> there's obviously the question of the constitutionality question five the supreme court will get back in the next term at the latest. in the meantime it's clear that section five has been working, that is there has been very little retrogression and in the place where there has been retrogression they have rejected or in texas litigating the

retrogressive nature of the legislative and state plans. this is one of the things i think is difficult to get a true handle on. how do you know a statute designed to deter or prevent something is working and so people oftentimes say doj isn't objecting very much, that's a sign that the voting rights act isn't needed but of course that's like saying we have a law against murder, we don't need it anymore because few people are being killed. it may really be the presence of the law is the thing that deters or prevents the behavior, moreover the voting rights act i think now has become so institutionalized and section five review become so institutionalized in a lot of places that it takes jurisdictions off the hook of having to have tough conversations because they simply said doj will never preclude this. instead of it would be the wrong thing to do, they say doj won't preclude so we can't do this and provides a lot of political

cover to jurisdictions to simply do what i think is the right thing. i agree with nate when the real question of section five going back to the supreme court is not up or down is the whole thing unconstitutional, because i think it's not super likely that the supreme court wants to issue the opinion that will lead to popular press coverage, supreme court strikes down crowned jewel of secondary construction, so on the supreme court you see narrowing constructions of the act, hence congress's attempt in the 2006 act to override the supreme court's decision in bosher parish about what discriminatory purpose is and override the decision in supreme court versus georgia and you get that back and forth and mudno is an example of that where the court invented a larger bailout provision than congress would have provided but i'm not sure

there really is a consensus that the voting rights act is unnecessary and indeed the decision of people who are losing purpose base challenges and objections to take those up as the constitutional objection s. it is a tactic on the foes of the voting rights act because the ideal case would be to take up a totally blameless jurisdiction saying we don't understand why we have to do this and i think they tried to do that in numudno but it was premature. instead shelby county, alabama, part of a state with a series of statewide objections and county objections to what subdivisions have done. they have texas which the supreme court just saw pretty powerful evidence of purposeful racial discrimination and that's a very bad tactic if you want to say a law is no longer necessary to have people who are really the best kind of targets of law going up there and saying, look over there, there's somebody

bl blameless out there. it will be interesting to see where that goes. >> i'll say one other thing i think the voting rights act may be the best, the greatest beneficiary of the citizens united decision. the blowback from citizens united may make the court a little bit more timid to come with a meat cleaver to the voting rights act. you'll get narrowing constructions i think for sure if this case out of the city goes to the supreme court they'll find a way to say that was the doj objection there was wrong. so should we move to section two? section two prevents against racial vote delusion everywhere in the country, not just in covered jurisdictions. there was action over the last decade in section two, two major cases, though, there's more than

that, bartlett versus strickland and lulack versus perry. in general the standard under section two was that if you are a large and compact minority community and you are in an area of a history of discrimination and particularly present conditions of racially polarized voting that you were going to be entitled to a majority/minority district. bartlett versus strickland says yes, when we said majority we meant majority so it has to be over 50%. unfortunately, they didn't say over 50% of what so the denominator question i said before, citizen voting age population, voting age population, fifth circuit and ninth circuit, i guess 11th circuit, a lot of the circuits where you might care about the citizenship issue say you have to look at citizen voting age population which causes some challenges since we don't have the same citizenship data at the, you know, you don't have it on the census forms so you have

to use survey data, so bartlett says it's over 50%. it leaves open two issues, the first is that one about the denominator. the other is about minority coalition districts, so can you group together african-americans and hispanics, for example, in particular areas, in order to surmount that 50% threshold? the recent texas decision has a cryptic sentence saying maybe not, saying the district court's decision in texas if it thought you could do that might not, they might not have really understood what section two is about but there's, you know, if they want it to be clear they could have been and they weren't in that case. on -- >> i think just to say something about that bartlett against strickland the supreme court was so focused on coalitional they didn't focus on coalition of what. in bartlett against strickland it was a coalition between black and white voters would b in the

district. in the texas case it was a coalition between black and latino voters, and i think the supreme court didn't focus quite as much on that as they might have in trying to figure out whether minority coalition districts are something people can bring a claim on because that's something that in areas where there are large cohesive minority communities made up of more than one racial or ethnic minority people have been bringing claims since the 1980s as opposed to the bartlett against strickland style claim which was more of a post-2000 claim. >> it's particularly confusing because justice kennedy decides to rename all the claims in bartlett versus strickland, rename the districts. they've confused us and confused themselves so if that's what the

underlined texas i can he where they're coming from. lulac versus perry which ni nina perales litigated, we give credit where it's due, in the back, so this is a rare section two victory at the supreme court where the supreme court says that the delusion of the latino vote in south texas by shaving off a district which was on the verge of electing latino candidate of choice, you cannot compensate shaving off of a district drawing a district from the mexico border to austin which is a culturally diverse district and the latino populations there did not have an entitlement to a district under section two of the voting rights act.

they're now trying to merge it into the concerns under section two of the voting rights act, but part of the interesting inquiry that then comes out of this is, well, is it not just geographically compact minorities that have claims and entitlements under section two but how culturally similar do they have to be. do you have to add something to this notion of compactness. >> i think the question in section two case is in addition to geographical place and the like is bloc voting. i think part of what upset him so much in lulac against perry was the idea that you had a really quite vibrant politically organized mexican-american community on the verge of electing a congressman and they were told you don't get anything and here we'll just defend this entire plan by drawing a

district someplace else. i'm not sure they would have upheld district 23. this goes back to one of the things that the voting rights act allows you to do which is it allows courts to strike down plans they believe to be unfair without calling anybody an outright racist whereas the constitution requires after washington against davis that you hold that some person acted with discriminatory purpose, and so the voting rights act allowed him without saying you know, legislature of texas we're a bunch of racists here to say this district wasn't fair so that issue is in there but the other issue is how you measure racial bloc voting, what counts as sufficient racial bloc voting. as we move and over the past 50 years this has become increasingly clear, as we move into a world in which partisan affiliation and racial identity or ethnic identity are much more

closely linked in some important ways in the south. the question of how you decide if this is racial or political discrimination comes up again. that is the state of texas often claims in the cases they aren't screwing over latinos because they're latinos. they're screwingmocrs and perfectly happy to have latino republicans elected. therefore how can you say this is racial discrimination? that raises important issues i think the supreme court is going to confront. they've confronted them several times already and just is racial bloc voting about correlation or do you have to show some level of cause indication in which we're inquiring into the motives of individual voters so that is a set of issues that could end up back in the courts this time around. >> one thing about bartlett and how it's relevant to that, in justice kennedy's opinion in bartlett versus strickland he has this dictum sues