The Court heard argument Tuesday in Wittman v. Personhuballah, a racial-gerrymandering case that presents a fascinating threshold question as to whether candidates whose electoral chances are harmed by the remedy to a racial gerrymander have standing to appeal a judgment finding a racial gerrymander, and some less exciting and fairly factbound merits questions about whether a districting scheme confessedly designed, by its drafter, to arrive at a certain racial mix in some districts is a racial gerrymander when goals of incumbency protection and partisanship would likely have led the state legislature to the same place. I have previously blogged on the standing question.
Where the Court comes out on the merits, should it reach them, will probably have considerable impact on the viability of the racial-gerrymandering cause of action as a means of challenging Republican partisan gerrymanders that, in the name of the Voting Rights Act, enhance minority voting strength in a few districts to a degree unnecessary to ensure minorities electoral opportunities in compliance with the Voting Rights Act. Unfortunately for the people bringing these actions, the more natural cause of action, arguing that overzealous Voting Rights Act compliance violates the Voting Rights Act by packing minority voters into a few districts and diluting minority voting strength statewide, is generally foreclosed by recent precedent.
I have nothing predictive to say on the merits, except to make the somewhat sad observation that since the racial-gerrymandering doctrine became a tool of state Democratic parties, the Court's liberals, some of whom have been on the Court long enough to remember dissenting in every leading racial-gerrymandering case and calling for the cause of action's elimination, have become fairly enamored of racial-gerrymandering doctrine, while the Court's conservatives have become fairly skeptical of it. Most remarkably, Justice Thomas, who once wrote that any intentionally created majority-minority district was presumptively unconstitutional, dissented last term from a decision remanding a challenge to a Republican racial gerrymander for additional fact-finding, on the incoherent ground that Alabama was "not the one that is culpable" for racially gerrymandering Alabama; rather, Alabama's racial gerrymander was the fault of "the DOJ and special interest groups like the ACLU [that] hijacked the [Voting Rights] Act" and told Alabama it had to racially gerrymander. Rather than invalidate what by his own lights was an unconstitutional racial gerrymander, Justice Thomas would abjure from "whipsawing" Alabama with conflicting legal commands.
Strange bedfellows of the new racial-gerrymandering cases aside, Personhuballah presents important questions about candidate standing and appellate standing - questions which also have a partisan valence on the facts of this case, given the identity of the appealing candidates (the entire Republican congressional delegation of Virginia), but which are more mediated by the legal craft and transsubstantive commitments that go into standing cases. To briefly recap my last post, the standing question in Personhuballah is whether the Republican congressmen whose districts have received excess black voters from a racially gerrymandered majority-black district that the court below held unconstitutional and reconstructed have standing to appeal, as intervenors, the holding of unconstitutionality and reconstruction, on the ground that their electoral chances have been diminished by their new black constituents. While appellants' claim of injury sounds rather sordid when put that way, there is no doubt that some Virginian Republican congressmen's political lives have been up-ended by the remedy the three-judge district court imposed; one incumbent of 15 years, Randy Forbes, saw his district become a 60% Democratic district, and has chosen to run for reelection elsewhere. Besides the relatively context-specific question of candidate standing to challenge disadvantageous districts, the case also presents the broader question of whether judgment losers have appellate standing when the harm the judgment causes isn't necessarily a harm to a legally protected interest (there is no legal right to a good chance at reelection).
Michael Carvin argued for the appellant congressmen. Questioning was off to a surprisingly standing-free start for a case where the Court requested briefing on standing twice, when Justice Sotomayor asked Carvin why the case wasn't moot when most of his clients weren't really harmed by the district court's remedy and Forbes had chosen to run elsewhere. Carvin gamely offered a representation that his client would run in his old district if the district court were reversed. Next, Justice Ginsburg asked why a voter in District Y lacks standing under the Court's precedent to challenge District X, but the representative of District Y has standing to appeal a redrawing of District X. This elicited the very sensible answer that the voter in District Y lacks standing because he is (under the Court's tortured racial-gerrymandering standing precedent) not the victim of the racial discrimination going on in District X, while Mr. Carvin's clients are not asserting Fourteenth Amendment rights, but rather appealing a judgment finding others' Fourteenth Amendment rights were violated, and therefore don't need to be the victims of racial discrimination in District X.
Carvin's answer to Ginsburg's question spanned two pages of uninterrupted transcript and initially elicited a friendly question from the Chief Justice on the standing of congressmen besides Forbes, so it really seemed, early in the argument, as if standing would be a non-issue. This rapidly changed, as Justice Breyer opened up a lengthy colloquy on whether Carvin's rule would lead to candidate-intervenor standing for any candidate to defend a state's districting plan, and doubted that the few precedents Carvin could marshal in support of his view helped him, and Justice Sotomayor asked a, frankly, confused question on whether Carvin was arguing that any incumbent had a cause of action when his district was changed to his detriment. (Of course, Carvin's argument disavows any claim of a cause of action on his clients' part; what's at issue here is appellate standing.)
At long last, Justice Kagan pointed out that the oddity in Carvin's theory is that, while his clients had injury, something she happily conceded, they haven't suffered injury to a legally protected interest of theirs, which the Court's standing precedents appear to require. Carvin said that a legally protected interest isn't really required in appellate standing, which, as I explained in my last post, I agree with. (Tellingly, the Solicitor General's cite for the proposition that a legally protected interest is required in appellate standing really says nothing of the sort.) Justice Kagan said that might be right, but seemed odd. Justice Kennedy, who didn't appear to really understand that Carvin was arguing that he didn't need a legally recognized interest, asked him what his legally recognized interest was, and suggested it might be "being re-elected without, I don't know, improper interference or something like that?" (I take this as a distinctly friendly question.) Justice Alito, much more pointedly, rhetorically asked whether a congressman had a legally cognizable interest in "running in a district that was lawfully enacted by the state legislature."
Next, Stuart Raphael argued for the Virginia Board of Elections. The Board of Elections thinks Forbes, at least, has standing, but that the judgment below invalidating Virginia's districting plan should be affirmed. (There was a great deal of mirth on whether Virginia's change in governor had anything to do with that.) Justice Breyer, again, doubted that Carvin's best precedent, Meese v. Keene, which held that a state senator had standing to challenge a designation of some films he wanted to show as political propaganda because that designation might harm his electoral chances, was anywhere close to controlling. Raphael said Virginia wasn't happy about "officious intermeddlers" defending its districting schemes, but Keene gave them standing; the Chief Justice asked whether it was fair to characterize Forbes as an officious intermeddler when he was defending "the future of his political career that he's had for 16 years." On that rather sympathetic note for his adversary, Raphael sat down and ceded the lectern to Marc Elias, counsel for the plaintiff-appellees (and general counsel for the Hillary Clinton campaign).
Elias began by addressing standing, which may have been a wise tactical choice given that four of the Court's eight Justices had some clear interest in his argument, but ran him into a predictable buzzsaw on the conservative side of the bench. Justice Alito, perturbed by Virginia's refusal to defend his plan, asked whether Carvin's clients wouldn't have standing even if Virginia refused to defend its plan "for a racist reason," which he hastened to add he didn't think was the case of Virginia. Elias, sticking to principle, said that even then congressmen would lack standing. (He would later allow that the state legislature might have standing to defend its plan if the Governor wouldn't.) Justice Kennedy asked a series of questions about whether incumbency protection might be the legally protected interest that would lend appellants standing, and understandably couldn't understand why the state legislature might have standing to appeal the invalidation of the plan it drew on this ground, but the incumbents actually harmed by the invalidation wouldn't. Elias's confusing answer appeared to assume that incumbency wasn't a legally protected interest, the very premise of Kennedy's questions.
Finally, Ian Gershengorn argued for the United States. Immediately out of the box, Justice Kennedy asked why incumbency protection couldn't be the appellants' legally protected interest when the state legislature has a policy of promoting incumbency protection. Gershengorn appeared to say that the state could somehow create a legal right to incumbency protection that would give congressmen standing to challenge changes that threatened their reelection, but that Virginia hadn't done so. Justice Breyer asked a very sharp question about whether, on the Solicitor General's view, a black candidate would lack standing to challenge a district designed to prevent the election of black candidates, even though a voter would have standing. Gershengorn said the candidate would only have standing to challenge the district as voter, if he were a voter in the district. Despite this rather, to my mind, unsatisfying answer, Breyer quickly confirmed that he still doubted standing, asking a series of questions about the supposed unmanageability of letting legislators challenge changes remedial plans make to districts those legislators don't live in. When Gershengorn said that he agreed, and that candidates don't have a right to choose the voters in their district, Justice Kagan pointed out that Forbes wasn't trying to choose, but rather, trying to keep the ones he had under the legislature's plan, and suggested he might have a legally cognizable interest in keeping them.
Predictive Musings: I tend to think the Court may well equally divide on standing. Alito, Roberts, and Kennedy look like strong votes for standing, Breyer and Sotomayor look like very strong votes against it, and Ginsburg and Kagan appeared to lean against finding standing, although Ginsburg and Kagan may be persuadable, particularly if the Court can get to a merits judgment they'd like. The length of time it took Hawkins v. Community Bank of Raymore, yesterday's 4-4 decision, to be released after Scalia's death, and the length of time some other seemingly obvious 4-4 splits are taking to come out, does suggest that the Court is trying to negotiate its way around 4-4 splits wherever possible.
If the Court does decide in favor of standing 5-3 or 6-2 (I cannot see a majority against standing), it seems rather unlikely that the Court will water down appellate standing requirements and hold that appellants don't need a legally protected interest for standing. Instead, the Court is likely to adopt the Alito/Kagan/Kennedy suggestion that candidates have a legally protected interest in legislatively enacted district lines. That would leave the broader project of candidate standing in districting cases (to the extent such a project exists outside my febrile imagination) a bit up in the air, as the Court's holding would be limited to cases where candidates defended existing districts, rather than challenging them. And it would bizarrely suggest that judgment losers, on top of being harmed by judgments, need to show that their legally protected interests were harmed (whatever that might mean) in order to have standing to appeal. Nevertheless, a holding that appellants had standing in Personhuballah, on whatever grounds, would be a small step in the right direction for standing doctrine in districting cases and for honesty and transparency in litigating them.