noting that the BVAP of the 2002 version of District 5 was “only” 46.9%, but that the district “will afford black voters a reasonable opportunity to elect candidates of choice and probably will in fact perform for black candidates of choice”
How later courts described this case
- noting that the BVAP of the 2002 version of District 5 was “only” 46.9%, but that the district “will afford black voters a reasonable opportunity to elect candidates of choice and probably will in fact perform for black candidates of choice”
- it should be noted that Armour’s interpretation of the first Gingles precondition pre-dat-ed the Sixth Circuit's decision in Cousin v. Sundquist, 145 F.3d 818 (6th Cir.1998
- "[E]ven though Gingles did not involve an equal protection claim, the three factors were derived by the Court from the principles set forth in the vote dilution cases brought under the Equal Protection Clause. We therefore conclude that the three preconditions have always been and remain elements of constitutional vote dilution claims."
- “We present detailed findings of fact comparing voting behavior by race in performing black districts existing before and after the redistricting process at issue in this litigation.”
Written by the judges who cited it.
The opinion
JORDAN, District Judge,
concurring.
I join the court’s opinion and judgment, and write separately only to suggest that it is time for the Supreme Court to again address political gerrymandering.
In the 16 years since its decision in Davis v. Bandemer, 478 U.S. 109 , 106 S.Ct. 2797 , 92 L.Ed.2d 85 (1986), the Supreme Court has not revisited the issue of political gerrymandering. The result is that lower courts continue to struggle in an attempt to interpret and apply the “discriminatory effect” prong of the standard articulated by the Bandemer plurality. As one three-judge court recently (and correctly) put it, “the recondite standard enunciated in Bandemer offers little concrete guidance.” Vieth v. Pennsylvania, 188 F.Supp.2d 532, 544 (M.D.Pa.2002).
Although some political gerrymandering claims have withstood motions to dismiss, see, e.g., Republican Party of North Carolina v. Martin, 980 F.2d 943, 956-59 (4th Cir.1992), rehearing en banc denied, 991 F.2d 1202 (1993) (three judges dissenting), apparently no such claims have ultimately succeeded (at least not in published opinions), thereby leading some to say that Bandemer “announced a liability standard for partisan gerrymanders that was essentially impossible to satisfy,” Pamela Karlan, The Fire Next Time: Reappotionment After the 2000 Census, 50 Stan. L.Rev. 731, 737 (1998), and others to call for the elimination of the “discriminatory effect” prong under a theory of representational harm, see Megan Creek Frient, Similar Ham Means Similar Claims: Doing Away With Davis v. Bandemer’s Discnminato'i'y Effect Requirement in Political Gerrymandering Cases, 48 Case W. Res. L.Rev. 617, 644-48 (1998). The waters have become even more muddied in light of post-Bandemer cases explaining that political gerrymandering can be — for lack of a better term — a defense to a charge of racial gerrymandering. See, e.g., Hunt v. Cromartie, 526 U.S. 541, 551 , 119 S.Ct. 1545, 1551 , 143 L.Ed.2d 731 (1999) (“Our prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.”); John Hart Ely, Gerrymanders: The Good, the Bad, and the. Ugly, 50 Stan. L.Rev. 607, 621 (1998) (“It is true that by its impossibly high proof requirements the Court in Bandemer essentially eliminated political gerrymandering as a meaningful cause of action, but only after it had essentially declared the practice unconstitutional. And yet, a scant decade later, the dissenters in the cases under discussion stand ready to invoke it as an ‘innocent’ alternative explanation of what appears to be racially motivated gerrymandering. Effectively making a practice nonjusticiable doesn’t make it constitutional, especially when the Court has indicated that it isn’t. Especially when the Court was right.”).
*1353 The lower federal courts need guidance on this recurring issue. I urge the Supreme Court to note probable jurisdiction in this case or one of the other political gerrymandering cases arising from this electoral cycle and hear oral argument.