Circuit Splits

Citizens United Sequel Illustrates Justices' Strategic Use of “Defensive Denials”

If, like most Americans, you were fixated on the Supreme Court’s health care decisions, you may have missed another noteworthy decision issued last week. In American Tradition Partnership v. Bullock, the Court summarily reversed the Montana Supreme Court’s decision to uphold a state law limiting campaign spending by corporations and unions on state and local elections.

I found this case interesting for two reasons. First, the Court rarely decides cases by summary reversal. As Stern, Gressman, and company explain in their outstanding Supreme Court Practice guide, “The most controversial form of summary disposition is a per curiam opinion that simultaneously grants certiorari and disposes of the merits at some length, discussing both the facts and the issues involved.” The Court's decision to summarily reverse a case in this manner is controversial, the guide continues, because “[t]he parties are given no opportunity to file briefs on the merits or to argue orally before the Court.”

In addition to the controversy surrounding the Court's use of summary reversals, Bullock is also noteworthy because, while the nine justices issued their opinion per curiam (i.e., unsigned, from the Court as a whole), Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, issued a dissenting opinion. At first glance, this may seem particularly odd because it only takes four votes to grant certiorari. If the four members of the Court’s liberal bloc disagree with the majority opinion in Citizens United, as they clearly do, why didn’t they vote to grant certiorari? The “defensive denial” theory offers a compelling answer to this question.

A defensive-denial scenario arises when four justices desire to see a particular outcome on the merits in a case in which a cert. petition is pending before the Court. Where the four justices who would otherwise like to review the case fear that doing so would lead the majority to reach an undesirable outcome on the merits, they will instead “defensively deny” certiorari.

The Court’s summary reversal in Bullock provides a nice illustration of this theory in action. In Bullock, the petitioner asked the Court to decide whether its decision in Citizens United v. FEC striking down a federal limitation on corporate campaign spending applied to a similar state law in Montana. “There can be no serious doubt that it does,” the Court’s single-page opinion concludes. As such, the Court simultaneously granted certiorari and struck down the Montana law without briefing or oral argument.

In their dissenting opinion, the four liberal justices express their disagreement with the Court’s holding in Citizens United. “Were the matter up to me,” Justice Breyer writes, “I would vote to grant certiorari in order to reconsider Citizens United or, at least, its application in this case.” As I noted above, the four dissenting justices could have voted to grant certiorari, in which case the Court would have reconsidered Citizens United after briefing and argument. So why didn’t they? Justice Breyer's dissent provides the answer: “I do not see a significant possibility of reconsideration” by the conservative majority.

In other words, Justice Breyer and his dissenting colleagues likely recognized that, had they granted certiorari in Bullock, the conservative majority would have simply issued a full opinion on the merits reinforcing its decision (at greater length and in more detail) in Citizens United. To avoid that outcome, the dissenting justices voted defensively to deny certiorari.

Does the Voting Rights Act Permit "Coalition Suits" by Different Minority Groups?

Last month the D.C. Circuit upheld the constitutionality of Section 5 of the Voting Rights Act, the controversial statute that requires voting districts with a history of discrimination to obtain “preclearance” from either the Department of Justice or the U.S. District Court for the District of Columbia before modifying state or local voting practices or procedures. A number of Supreme Court watchers, including the Blog of Legal Times, have speculated that the D.C. Circuit’s decision last month in Shelby County, Alabama v. Holder set the stage “for an eventual U.S. Supreme Court battle.”

While the public's attention may be focused on Section 5 for the time being, a lesser known issue involving Section 2 of the Voting Rights Act may soon steal the Court's attention. Last week in Pope v. County of Albany, the Second Circuit called attention to a circuit split over Section 2 of the Act, which generally prohibits states and political subdivisions from maintaining voting requirements, practices, or procedures that “result[] in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a).

Under Section 2, members of minority groups may bring claims of vote dillution where multimember voting districts “submerge” minority voters into the majority masses. Bartlett v. Strickland, 556 U.S. 1 (2009). To bring an actionable claim in such cases, a plaintiff must show, among other things, that the members of their protected class form a “politically cohesive” minority group. Thornburg v. Gingles, 478 U.S. 30, 51 (1986).

As the Second Circuit pointed out last week, however, “[t]he circuits are split as to whether different minority groups may be aggregated to establish a Section 2 claim.” Writing for the panel, Judge Reena Raggi offered the following summary of this division:

Compare Nixon v. Kent Cnty., 76 F.3d 1381, 1393 (6th Cir. 1996) (en banc) (holding such "coalition suits" impermissible), with Concerned Citizens of Hardee Cnty. v. Hardee Cnty. Bd. of Comm'rs, 906 F.2d 524, 526 (11th Cir. 1990) (approving aggregate Section 2 claims) and Campos v. City of Baytown, 840 F.2d 1240, 1244 (5th Cir. 1988) (same). In Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271, 275-76 (2d Cir.), vacated on other grounds, 512 U.S. 1283, 115 S. Ct. 35, 129 L. Ed. 2d 931 (1994), this court identified a Section 2 violation in a challenge that aggregated blacks and Hispanics, without specifically ruling that such aggregation was permissible. Meanwhile, the Supreme Court has expressly reserved decision on the issue, while at the same time indicating that a plaintiff relying on an aggregated minority group would have to demonstrate that its members are politically cohesive. See Growe v. Emison, 507 U.S. 25, 41, 113 S. Ct. 1075, 122 L. Ed. 2d 388 (1993); see also Badillo v. City of Stockton, 956 F.2d 884, 890-91 (9th Cir. 1992) (affirming dismissal of Section 2 claim because plaintiffs failed to show sufficient black/Hispanic cohesion, without discussing whether aggregation was in fact permissible).

In finding plaintiffs not to have demonstrated the political cohesiveness of blacks and Hispanics in Albany County, the district court did not, as plaintiffs argue, hold that, as a matter of law, the burden needed to be satisfied through statistical evidence. See Thornburg v. Gingles, 478 U.S. at 57 n.25 (stating that where applicable election data is not available, "courts must rely on other factors" to determine whether Section 2 claim has been proved); see also Brewer v. Ham, 876 F.2d 448, 454 (5th Cir. 1989) (noting that "statistical evidence is not a sine qua non to establishing cohesion"). Rather, the court found that the particular socioeconomic data and anecdotal evidence advanced by plaintiffs to demonstrate the aggregated group's political cohesiveness were not factually convincing. We express no view on this factual determination because plaintiffs' injunction motion fails, in any event, at the third step of Gingles analysis, majority bloc voting. See infra at II.B.3.b.

Pope v. County of Albany, Docket No. 11-3439-cv (2d Cir. N.Y. May 29, 2012).

Racial Gerrymandering, Vote Dilution, and the Fifteenth Amendment

Earlier this year in the Texas Redistricting Case, the Supreme Court rejected an election map drawn up by a district court that favored Democratic candidates. Today's post features a circuit split over the related issue of gerrymandering. The term "gerrymandering" generally refers to a political maneuver whereby the party in power redraws their state's electoral districts in a way that benefits their party or disadvantages their political adversaries. One form of gerrymandering involves the drawing of electoral districts so as to dilute a particular racial group's voting power.

Enter Backus v. South Carolina, which, last week, identified a circuit conflict over the question of whether the Fifteenth Amendment's guarantee that "[t]he right of citizens of the United States to vote shall not be denied or abridged . . . on account of race" supports a claim for vote dilution. Case No.: 3:11-cv-03120-HFF-MBS-PMD (Dist. S.C. Mar. 9, 2012). Here's what the court had to say:

Plaintiffs assert a vote dilution claim and a racial gerrymandering claim under the Fifteenth Amendment. It is unclear whether vote dilution claims are cognizable under the Fifteenth Amendment. In recent decisions, the Supreme Court has emphasized that it has never recognized such a claim. See, e.g., Reno II, 528 U.S. at 334 n.3 (majority opinion) ("[W]e have never held that vote dilution violates the Fifteenth Amendment."); Voinovich v. Quilter, 507 U.S. 146, 159, 113 S. Ct. 1149, 122 L. Ed. 2d 500 (1993) ("This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims; in fact, we never have held any legislative apportionment inconsistent with the Fifteenth Amendment."). In light of these decisions, circuits are split on whether vote-dilution claims are cognizable under the Fifteenth Amendment. Compare Prejean v. Foster, 227 F.3d 504, 519 (5th Cir. 2000) ("Indeed, the Supreme Court has rejected application of the Fifteenth Amendment to vote dilution causes of action."), with Page v. Bartels, 248 F.3d 175, 193 n.12 (3d Cir. 2001) ("We simply cannot conclude that the Court's silence and reservation of these issues clearly foreclose[] Plaintiffs' Fifteenth Amendment claim . . . .").

Even if vote-dilution claims exist under the Fifteenth Amendment, the Fourth Circuit has recognized that they are essentially congruent with vote-dilution claims under the Fourteenth Amendment. Washington, 664 F.2d at 919. Both require proof of discriminatory purpose and discriminatory, or dilutive, effect. Id. For the same reasons that Plaintiffs have failed to prove a Fourteenth Amendment vote-dilution claim, they have failed to prove a Fifteenth Amendment vote-dilution claim.

(alterations and ellipsis in original). The following image reflects the proposed Congressional map as passed by the South Carolina House of Representatives on June 15, 2011:

 

[*Image courtesy of the South Carolina Legislature: http://www.scstatehouse.gov.]

[**For more on the battle over redistricting in South Carolina, check out Ballotpedia's wiki page here.]