Together with Judge Wake's dissent, this may be where, why and on what basis we'll see Cantelme appeal this judgment to the Supreme Court. Remember that the Harris lead counsel told the Republic last week that, "We are heartened that two judges out of three found partisanship was a motivation,"
Before requiring the state to justify its deviations, plaintiffs must make a prima facie case of a one-person, one-vote violation. By itself, the existence of minor deviations is insufficient to make out a prima facie case of discrimination. Brown v. Thomson, 462 U.S. 835, 842 (1983). With respect to state legislative districts, the Supreme Court has said that, as a general matter, a “plan with a maximum population deviation under 10% falls within this category of minor deviations.” Id. at 842. Although courts rarely strike down plans with a maximum deviation of less than ten percent, a maximum deviation below ten percent does not insulate the state from liability, but instead merely keeps the burden of proof on the plaintiff...
Because the maximum deviation here is below ten percent, the burden is on plaintiffs to prove that the deviations did not result from the effectuation of legitimate redistricting policies. The primary way in which plaintiffs seek to carry their burden is by showing that the Commission deviated from perfect population equality out of a desire to increase the electoral prospects of Democrats at the expense of Republicans. Plaintiffs argue that partisanship is not a legitimate redistricting policy that can justify population deviations.
The Supreme Court has not decided whether or not political gain is a legitimate state redistricting tool. See Cox, 542 U.S. at 951 (Scalia, J., dissenting) (noting that the Court has not addressed whether a redistricting plan with a maximum deviation under ten percent “may nevertheless be invalidated on the basis of circumstantial evidence of partisan political motivation”). Because we conclude that the redistricting plan here does not violate the Fourteenth Amendment whether or not partisanship is a legitimate redistricting policy, we need not resolve the question. For the purposes of this opinion, we assume, without deciding, that partisanship is not a valid justification for departing from perfect population equality. (emphasis added)I haven't yet read the entirety of Judge Wake's dissent, but I have to figure Cantelme's working it to find his angle.
From Page 44 of the order:
More importantly, we fail to see how compliance with a federal law concerning voting rights—compliance which is mandatory for a redistricting plan to take effect—cannot justify minor population deviations when, for example, protecting incumbent legislators can. This is, perhaps, our primary disagreement with the dissenting opinion. It too narrowly defines the reasons that may properly be relied upon by a state to draw state legislative districts with wider variations in population. [...]
The dissenting opinion also acknowledges, at 17 & 23, that obtaining preclearance under the Voting Rights Act was a legitimate objective in redistricting. But it contends that pursuit of that objective could not justify even minor variations in population among districts. In practical terms, the dissenting opinion would apparently permit the Commission to consider the preclearance objective only in drawing lines dividing districts of equal sizes. [...]
Plaintiffs and the dissenting opinion, at 19, attempt to reframe the inquiry, arguing that the text of the Voting Rights Act itself does not specifically authorize population deviations. That is correct; there is no specific authorization for population deviations in the text of the legislation. But neither is there specific, textual authorization for population deviations in any of the other legitimate, often uncodified legislative policies that the Supreme Court has held can justify population deviations... The question is not whether the Voting Rights Act specifically authorizes population deviations, but whether seeking preclearance under the Voting Rights Act is a legitimate, rational state goal in the redistricting process. We are satisfied that it is.
The dissenting opinion, at 19, goes a step further and argues that the Voting Rights Act itself prohibits any deviation in exact population equality for the purpose of complying with the Voting Rights Act. No court has so held, and we note that plaintiffs themselves have alleged that the Arizona redistricting plan violates the Equal Protection Clause, not that it violates the Voting Rights Act. We do not read the Act in the same way that the dissenting opinion does.11Footnote 11:
Similarly, the dissenting opinion contends, at 20, that the Department of Justice “has never required unequal population for preclearance in the 48 years of administering Section 5.” That assertion is not proven. More importantly, it is an irrelevant straw man. For preclearance purposes, any variation in population is a means, not an end. There would never be reason for the Department to “require unequal population.” That is not the Department’s goal. The question is whether a state might improve its chances of obtaining preclearance by presenting a plan that includes minor population variations. The evidence presented to us supported that proposition, and neither plaintiffs nor the dissenting opinion deny that fact. (emphasis mine)On the subject of whether the Supreme Court ruling in Shelby County v Holder (2013) changes anything related to this lawsuit or the responsibility of the AIRC to comply with Section 5 of the Voting Rights Act,
...so long as the Commission was motivated by the requirements of the Voting Rights Act as it reasonably understood them at the time, compliance with the Voting Rights Act served as a legitimate justification for minor population deviations.
I had heard scuttlebutt prior to the Harris trial that there was sharp conflict in general between Judges Silver and Wake. In reading the incredibly strong language in describing Wake's dissenting opinion in a couple of places, I suspect that scuttlebutt might be understating the situation. Nevertheless, the judgment in favor of the AIRC stands. To recap, as I posted last week,
The 55-page Order concludes thus:
We have concluded that compliance with the Voting Rights Act is a legitimate state policy that can justify minor population deviations, that the deviations in the map in large part resulted from this goal, and that plaintiffs have failed to show that other, illegitimate motivations predominated over the preclearance motivation. Therefore, plaintiffs’ challenge to the map under the one-person, one-vote principle fails. (emphasis mine)
We find in favor of the Commission on plaintiffs’ claim that the Commission’s legislative redistricting plan violated the one-person, one-vote principle of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. We order the entry of judgment for the Commission.And I will be surprised if Cantelme does not appeal the Harris ruling to the Supreme Court.