This morning the Court will hear argument in Wittman v. Personhuballah, a case in which Virginia's Republican congressmen have appealed a three-judge district court's judgment that Virginia's congressional districting map is an unconstitutional racial gerrymander - specifically, that race predominated in the design of Virginia's Third Congressional District, which features a 55% black voting-age population. The district court found that the line-drawers targeted the 55% mark over other line-drawing factors. Ostensibly the line-drawers did this in order to comply with the Voting Rights Act by preventing forbidden "retrogression" in the ability of black Third District voters to elect their preferred candidates. However, the district court held that the Voting Rights Act didn't require so much black voting-age population, as its incumbent black congressman had repeatedly been reelected by 4:1 margins. Virginia's gratuitously generous provision of black voters in the Third District, the district court held, violated the Fourteenth Amendment as interpreted in the Court's Shaw line of cases, which say, roughly, that absent a compelling interest (i.e., compliance with the Voting Rights Act) and narrow tailoring, a district gerrymanders voters by race in violation of the Fourteenth Amendment if race was the predominant factor in its design.
The remedy for such a gerrymander is to draw a district the design of which is not predominantly motivated by race, which in this instance is to say a district with fewer black voters in it. When Virginia's state legislature failed to vote on a replacement plan, the district court appointed a special master to draw one, and adopted his plan. The special master's plan reduced the black voting-age population in the Third District to 45%, which the district court found would maintain the ability of black voters in the Third District to elect their preferred candidate (i.e., the popular black incumbent) and thus comply with the Voting Rights Act.
It takes little political savvy to observe that the district court's ruling created a number of political winners and losers. The winners, of course, are the Democratic candidates in the districts that received the overwhelmingly Democratic black voters moved out of the Third District; the losers are the Republican candidates in those districts. (The
new map's biggest loser, Congressman J. Randy Forbes (R), has seen
black voting-age population in his district rise from 31.3% to 40.9%,
support for Obama in the 2012 presidential election has risen from 48.8%
to 60.9%. One month ago, Forbes announced he planned to run in a
different district.) Indeed, it should surprise no one to learn that (a) the old map was drawn by Republicans and signed into law by a Republican governor, (b) that upon the election of a Democratic governor, Virginia chose not to appeal the invalidation of its congressional districting map, (c) that the state's Republican congressmen intervened in the action to defend the map and are now appealing the judgment invalidating it, and (d) that the nominal plaintiffs in the action, voters in the Third District who claim to be offended by its racially motivated composition, are represented by Hillary Clinton's campaign's general counsel.
The fairly gripping, to my mind, threshold question in Personhuballah is whether Personhuballah's political losers, the Republican incumbents whose districts have received the Third District's exiles, have standing to appeal the district court's judgment. By way of background, both historical and autobiographical, the question of standing to make racial-gerrymandering claims has long been a vexing question, both for the Court and election-law scholars, and for me personally. In the 1990s, the Court struggled to explain who had standing to make a racial-gerrymandering claim, and why anyone would have standing to make one. The who eventually turned out to be voters who lived in allegedly gerrymandered districts; the why was that voters living in those districts were stigmatized by the state's implicit presumption that all voters of particular races voted alike, and harmed by the "signals" such districts sent to their representatives, according to the Court, that they only represented voters of the district's majority race. On these theories, the Court acted for about a decade as a modest counterweight to the Clinton Administration DOJ's policy of encouraging southern states, at pains of Section 5 preclearance denial, to maximize minority representation.
Both of the Court's theories of standing were immensely flawed (though the first of the two, it's generally agreed, is by far the more defensible) and wouldn't have passed the laugh test, much less Lujan's test, in most any other context. Liberal election-law scholars like Pamela Karlan, not normally avatars of modern standing doctrine, turned out in droves to accuse the Court of "turn[ing] its back on the entire fabric of standing law." When, in 2001, racial-gerrymandering doctrine seemingly died out at the Court, Shaw's critics moved on to criticizing other areas of the Rehnquist and Roberts Courts' election-law jurisprudence. But when, last term, Shaw returned, this time as a Democratic weapon against Republican gerrymanders cynically dressed up as Voting Rights Act compliance schemes, Richard Hasen reminded Shaw's new fans of the old Shaw orthodoxy - to wit, that Shaw is "incoherent" and "nonsensical," and that "the racial gerrymandering cause of action protects against no real harm."
I have never believed that Shaw is such a wayward cause of action, or that racial gerrymandering is a victimless constitutional violation. In an article I wrote in college and promptly shelved, because Shaw appeared to be dead at the time, I came to the conclusion that racial gerrymanders are unconstitutional (under existing law) because they set aside districts for candidates of particular races, and that the people who have standing to challenge them are candidates in gerrymandered districts who aren't of the race for which their district has been set aside. I won't defend that thesis in any detail here, except to say that Voting Rights Act jurisprudence subtly requires (not just tends to cause) states to draw districts that predictably will elect minority candidates. The mechanics are that, while in theory the Voting Rights Act protects minorities' ability to elect "candidates of choice," all but one or two regional circuits have held* that the ability to elect candidates of choice can only be truly tested in races where minority candidates run against white candidates, and that the test of whether a district can "perform" for minority voters is whether it can perform in such races. Therefore, when courts and legislatures select VRA-compliant levels of minority voting-age population, what they are selecting are levels sufficient to elect minority candidates. And, when Republican state legislatures over-comply, as was allegedly the case in Virginia, what they are doing is setting levels of minority voting-age population that are higher than necessary to guarantee the election of minority candidates. (Recall that Virginia's error in Personhuballah, according to the district court, was drawing a 55% black district when its black incumbent could win with many fewer black votes.)
* For examples, see here, here, here, and here.
The standing theory in Personhuballah is something like the contrapositive of the theory sketched above. Whereas I maintain that white candidates in racially gerrymandered majority-minority districts have standing because they are denied any electoral chance, the appellants in Personhuballah maintain that Republican candidates outside a racially gerrymandered district have appellate standing to appeal a judgment unscrambling a racial gerrymander, because the ensuing redistribution of minority voters will decrease their electoral chances. I am, naturally, broadly sympathetic to this argument, having long believed that gerrymandering claims of all stripes should be litigated by parties who have concrete interests in them - the candidates. There are, however, several difficulties with this particular iteration of candidate standing, which the appellee-plaintiffs and SG, acting as their amicus, have exploited.
First, there is standing law's tautological requirement of a legally protected interest. Numerous standing cases say that injury is not enough; to show standing, one must show injury to a legally protected, or cognizable, interest. It is easy enough to see that a candidate who alleges his district was drawn to ensure no one of his race could ever get elected has alleged injury to an interest that is, at least, legally cognizable. It is harder to see that a Republican candidate living outside an allegedly unconstitutionally gerrymandered district, whose district receives a number of black voters by way of remedying the gerrymander, has suffered some harm to a legally protected interest. What interest would it be? The interest in, as a Republican, running for election in as white a district as possible? In having a good chance at being elected? These, the SG and appellees argue, are not legally protected interests; nothing in the law entitles appellants to white districts or good electoral chances.
Appellants effectively counter, I think, that only plaintiffs need to assert harms to legally protected interests for standing purposes; defendants or intervenors who lose lawsuits in federal court need not have suffered harm to any legally protected interest to appeal, just so long as they suffer some harm. To argue otherwise is to say, more or less, that for a defendant to appeal a money judgment, the mere fact that the judgment forces him to pay money doesn't give him standing; he also needs to show something like a cause of action of his own for the money. Another way of looking at things is that a party to a judgment that's harmed by that judgment and claims the judgment was legally erroneous always has a legally protected interest - the legally protected interest in not being harmed by legally erroneous judgments. Either way, appellate standing shouldn't demand more. As for the argument that, aside from whether it's legally protected, an injury to one's electoral chances isn't even legally cognizable, that leads to the reductio that a Democratic candidate, for example, can't challenge a Republican partisan gerrymander qua candidate, but only as interested voter.
Second, there's the difficulty of speculativeness, or probabilistic injury. The candidate most injured by the plan the district court adopted, Forbes, has suffered a significant blow to his electoral chances, significant enough that he's given up on running for reelection in his own district. However, appellees point out that an extra 12% of Democratic voters isn't insuperable, and that a loss on Forbes's part wouldn't necessarily be traceable to the new map. Here, I again think that appellants have the better of the arguments. The correct way to conceptualize Forbes's injury is not losing reelection itself, but a loss of chance. Much like a contractor or college applicant whose chances of winning a contract or admission are denied by a racial preference, harms which the Court has held are sufficient for standing, Forbes's chances of reelection are significantly diminished by the district court's judgment.
It is, of course, often argued that the Court's solicitude for the probabilistically injured in affirmative action cases is incoherent given the Court's treatment of probabilistic injury elsewhere. Moreover, this is not an affirmative action case, but rather a case in which white candidates seek the reinstatement of something like a racial quota outside their districts in order to decrease party and possibly racial competition for their own seats. However, the Court's probabilistic injury jurisprudence is (somewhat) more coherent than has been generally allowed for, and tends to cut in favor of appellants. The Court, while never quite saying so, seems to distinguish between cases in which, on the one hand, parties claim that some government program may harm them in the future, though they have no interaction with its harmful features in the present, and, on the other hand, cases in which parties presently participate in government processes, usually competitive processes, and claim that those processes are presently unlawfully structured so as to decrease their chances of a positive outcome. A standing doctrine where a purchaser of a state lottery ticket lacked standing to sue about fraud in the lottery, or a candidate for office lacked standing to sue about election rules, would be very strange indeed.
A third difficulty, and perhaps a fatal one, is exactly which if any of the candidates has standing to sue. Forbes is the most harmed by the new plan; however, that plan was adopted by the district court after he and his colleagues appealed. Did the plan confer standing on Forbes where none previously existed? Normally, appellate standing must exist when an appeal is taken. At the time of the appeal, all the candidates were at risk of a bad re-drawing, it was inevitable that at least one would suffer significant harm to his chances of reelection, but none knew which would bear the brunt of the Third District's reconfiguration. Is that a problem? I don't think it should be. If a district court finds multiple defendants liable in a class action (suppose they're multiple asbestos manufacturers), and saves the apportionment of damages for a later phase, the possibility that any given manufacturer may have to pay nothing shouldn't deprive the manufacturers of standing to appeal the liability judgment, assuming an interlocutory appeal is allowed.
Finally, insofar as appellants rely on Forbes's standing (which they shouldn't, as it only became particularly strong after the appeal), his having abandoned his campaign for reelection in his old district is a problem. In a footnote in their reply brief, appellants liken Forbes's situation to that of someone challenging an unconstitutional ban of some conduct who stops engaging in the conduct because it's banned. For that analogy to work, though, there would need to be some evidence in the record that Forbes would run for reelection in his old district were the Court to reverse the judgment below; of course, nothing like that is in the record. Alternatively, Forbes may have standing if the district in which he's now running for office is tougher than his old district; whether that's the case also isn't clear.
In sum, Personhuballah has the potential to remake standing in election law, moving candidates and their lost chances of electoral success to the forefront of districting litigation where they've always belonged. But Personhuballah also has the potential to be a seminal case about appellate standing more generally and probabilistic injury. And with Spokeo likely to be affirmed by a divided court, it may be the only big standing decision this term we get.