petitioned the U.S. Supreme Court to grant ... - Election Law Blog

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3The Court should grant the petition and finally decidewhether total population or voter population “should beused for determining whether the population is equallydistributed among the districts.” Id. As this case shows,the time has come to decide this important question.Changing immigration patterns and federal policieshave converted a problem that once impacted only a fewjurisdictions into a national concern. This issue now affectsstate and local jurisdictions spanning from New York, toMaryland, to North Carolina, to Illinois, to Texas, and toCalifornia. Further, it causes significant financial injuryas billions of dollars of federal appropriations often shiftaway from rural communities to urban centers with highconcentrations of residents who are ineligible to vote.Delaying resolution will exacerbate this growing problemand cause further harm.Finally, the importance of this petition is onlyheightened by the confl ict that using total populationcreates between the one-person, one-vote principle andSection 2 of the Voting Rights Act (“VRA”). In Section 2cases, courts use Citizen Voting Age Population (“CVAP”)to evaluate whether a majority-minority district shouldbe formed. Thornburg v. Gingles, 478 U.S. 30, 50 n.17(1986). Indeed, CVAP was used to form the district indispute here even though that metric was simply ignoredin evaluating the one-person, one-vote implications ofthe revised City districting plan. The Court has alwaysunderstood the importance of avoiding such conflict,especially in the civil rights setting where federal statutesand the Fourteenth Amendment are supposed to workin tandem—not at cross-purposes. See, e.g., Miller v.Johnson, 515 U.S. 900 (1995).
4Granting the petition will have the added benefit ofresolving a circuit split in which all three lower courtcases were incorrectly decided. The Ninth Circuit, overJudge Kozinski’s dissent, held that using total populationwas constitutionally required because drawing districtsusing voter-based statistics would overpopulate districtswith high concentrations of non-voters, which wouldthen violate those non-voters’ right to petition under theFirst Amendment and their right of “access” to electedrepresentatives under the Fourteenth Amendment. Garzav. County of Los Angeles, 918 F.2d 763 (9th Cir. 1991). AsJudge Kozinski persuasively explained, that conclusionfinds no support in this Court’s decisions. Under Reynoldsand its progeny, the Constitution shields electors againstdilution of their vote—not diluted access of non-voters toelected representatives.The Fourth and Fifth Circuits rejected the Garzamajority’s rationale, but likewise declined to adopt JudgeKozinski’s view. Instead, both held that the choice betweentotal population and CVAP is committed to the politicalprocess and is thus judicially unreviewable. Daly v. Hunt,93 F.3d 1212 (4th Cir. 1996); Chen v. City of Houston, 206F.3d 502 (5th Cir. 2000). But while declining to attributeconstitutional significance to the choice between totalpopulation and eligible voters may sound appealing, itconflicts with Baker v. Carr, 369 U.S. 186, 193-94 (1962),and the many cases resolving one-person, one-votechallenges since then. Having “crossed the Rubicon,”Branch v. Smith, 538 U.S. 254, 278 (2003), there is nowarrant for retreating to the political-question doctrinewhen subsidiary issues need to be resolved. So long asthe Court retains the one-person, one-vote principle, it
Page 3 and 4: iiPARTIES TO THE PROCEEDINGAND RULE
Page 5: ivTable of ContentsPageREASONS FOR
Page 11: xCited AuthoritiesStatutes and Othe
Page 14 and 15: 1PETITION FOR A WRIT OF CERTIORARIP
Page 18 and 19: 5has “an obligation to explain to
Page 20 and 21: 7because the City has substantially
Page 22 and 23: 9City of IrvingPopulation, Voting A
Page 24 and 25: 11The district court granted summar
Page 26 and 27: 13I. This Petition Presents An Impo
Page 28 and 29: 15First, the issue has increasingly
Page 30 and 31: 17wards had far more eligible voter
Page 32 and 33: 19or practice, they cannot claim to
Page 34 and 35: 21This case—in which the choice b
Page 36 and 37: 23two, five, or ten, or one-half.
Page 38 and 39: 25In Chen, the Fifth Circuit reache
Page 40: 27Importantly, then, the Fourteenth
Page 43 and 44: 30Tennessee voters’ dilution chal
Page 45 and 46: 32Under the Plan, as noted above, D
Page 47 and 48: 34slightly larger than 9.9%—prese
Page 49 and 50: 1aAppendix AAPPENDIX
Page 51 and 52: 2aAppendix APER CURIAM: *This case
Page 53 and 54: 4aAPPENDIX B — Appendix MEMORANDU
Page 55 and 56: 6aAppendix Bpopulation numbers are
Page 57 and 58: 8aAppendix Bwhich total population
Page 59 and 60: 10aAppendix Bthe court does acknowl
Page 61 and 62: 12aAppendix CON PETITION FOR REHEAR
Page 63 and 64: 14aAppendix DIrving’s at-large el
Page 65 and 66: 16aAppendix Dother things, the at-l
Page 67 and 68:
18aAppendix DThornburg v. Gingles,
Page 69 and 70:
20aAppendix Dfailed to establish a
Page 71 and 72:
22aAppendix Dcomplying with the Gin
Page 73 and 74:
24aAppendix Done-hundred percent co
Page 75 and 76:
26aAppendix Dhis opinion that would
Page 77 and 78:
28aAppendix Dto estimate the 2008 H
Page 79 and 80:
30aAppendix Dvotes of Hispanics hav
Page 81 and 82:
32aAppendix Daverage household size
Page 83 and 84:
34aAppendix DDr. Rives attempts to
Page 85 and 86:
36aAppendix Dwith sampling error ac
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38aAppendix DIn his expert report,
Page 89 and 90:
40aAppendix DAs Dr. Rives pointed o
Page 91 and 92:
42aAppendix DC. Gingles II & III-Ra
Page 93 and 94:
44aAppendix Dthis methodology canno
Page 95 and 96:
46aAppendix Dthat the confidence th
Page 97 and 98:
48aAppendix Dto Dr. Alford’s hypo
Page 99 and 100:
50aAppendix DD. Totality of the Cir
Page 101 and 102:
52aAppendix DThe Court concludes th
Page 103 and 104:
54aAppendix DNotably, James Dickens
Page 105 and 106:
56aAppendix D1231, 1245-46, 173 L.E
Page 107 and 108:
58aAppendix D2. Proof of Changed De
Page 109 and 110:
60aAppendix DPlaintiff has not empl
Page 111 and 112:
62aAppendix Dthe way in which the v
Page 113 and 114:
64aAppendix Dthe requirement that t
Page 115 and 116:
66aAPPENDIX E — RELEVANT Appendix
Page 117:
68aAppendix Eof insurrection or reb
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