Authored by Jonathan Turley,
California Democrats face a pesky problem: their recent gerrymandering effort may have a racial discrimination problem. According to Ninth Circuit judge Kenneth Lee, the problem is District 13 and the public comments of the primary mapmaker, who declared his intention to create a Latino-dominated district.
Democrats are bullish about retaking the House of Representatives and making Rep. Hakeem Jeffries (D-N.Y.) the next Speaker after the midterm elections. Part of that optimism is the cushion of five seats created through further gerrymandering of California’s U.S. House districts.
According to one respected Ninth Circuit judge, however, California may have a slight problem: Its new congressional map may be based on racial discrimination.
Judge Kenneth Lee this week dissented from a decision upholding the districts, and his detailed dissent could lay the foundation for a serious challenge that goes all the way to the Supreme Court.
At issue is Congressional District 13, in the Central Valley, which Lee reveals was the result of openly racial criteria by the principal architect of the new districts.
Lee begins his dissent by quoting Chief Justice John Roberts for a 2006 decision, stating, “It is a sordid business, this divvying us up by race.” When it comes to gerrymandering, it is all a sordid business of course — but this sordid business may be unconstitutional.
The court has accepted that gerrymandering is part of politics. Majority parties, like Democrats in California and Republicans in Texas, have openly redesigned districts, sometimes into absurd shapes, to achieve political ends.
One of the vehicles long used to help boost Democratic seats is the Voting Rights Act, which prohibits districts that discriminate against racial minorities. But this law has long been challenged as itself a statutory mandate for racial discrimination.
We are currently awaiting a decision from the Supreme Court in Louisiana v. Callais on whether Section 2 of the Voting Rights Act is unconstitutional in barring any district that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”
The result of the law has been decades of protracted litigation over the design of districts to effectively guarantee minority — overwhelmingly Democratic — representation in Congress. That is viewed by many as flying in the face of the guarantee of the 14th Amendment barring the use of race to discriminate between citizens. As Chief Justice Roberts famously wrote in 2007, “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
Once again, partisan gerrymandering is constitutional. Indeed, last December, the Supreme Court allowed Texas to keep its redrawn maps. In Abbott v. League of United Latin American Citizens, the Supreme Court observed that “Texas adopted the first new map, then California responded with its own map for the stated purpose of counteracting what Texas had done.” In his concurrence, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch), called it “indisputable” that “the impetus for the adoption of the Texas map (like the map subsequently adopted in California) was partisan advantage pure and simple.”
Judge Lee (a Trump appointee) is now saying that it was not that “pure and simple” with regard to at least California’s District 13.
He focused on the work of Paul Mitchell, whom he described as “a California redistricting expert paid hundreds of thousands of dollars by Congressman Hakeem Jeffries, House Majority PAC, and the DCCC to draw a redistricting map for California.”
“Race-based interest groups,” Lee noted, “wanted certain racial outcomes out of the process. He happily delivered.”
Mitchell is quoted as openly embracing race as the critical element in his design, including publicly declaring that the “number one thing that I started thinking about” was creating a “Latino majority/minority district” in Los Angeles.
Judge Lee notes that the stated intent to create a Latino-controlled district ignores that this is already one of the most powerful and well-represented racial groups in California: “Latinos do not just make up the largest racial/ethnic group in the state … [but also hold] significant sway among California’s Democratic elected officials and leaders.”
Nevertheless, the plan was upheld by U.S. District Judge Josephine Staton (an Obama appointee) and U.S. District Judge Wesley Hsu (a Biden appointee). In fairness to the panel, there were respected key witnesses, including redistricting experts Dr. Bernard Grofman and Dr. Jonathan Rodden of the Hoover Institution, who rejected race as the key criterion. They helped create a record to support redistricting driven by political motives. The majority also stressed that there is a presumption of good faith in such plans.
This is where it gets particularly interesting. Lee notes that, while there is a presumption, it is not absolute. It became unsupportable, he argued, when Mitchell refused to answer questions about his motivations and assurances.
“Mitchell went to great lengths to avoid testifying under oath about how he drew the California map — even though he publicly talked about it to the press and interest groups before this lawsuit.”
In such a circumstance, Lee insists, the court should “take Mitchell’s statements at face value and conclude they reflect his true motivations behind the Proposition 50 map. We have nothing else to go on.”
That sets up an interesting scenario. If the Supreme Court rules against the use of race in districting under the Voting Rights Act, the opinion could have blowback on gerrymandering cases that rely on the same criterion. The Roberts court has drawn a bright line against the use of race to discriminate in various areas, including college admissions.
Moreover, the court (and particularly its three liberal justices) has stressed that one cannot ignore legislative comments on such intent. Just this week, Justice Sonia Sotomayor pushed back on the claims of neutral intent of Idaho legislators in requiring student athletes to play on teams associated with their biological sex. Although the state argued that the record did not show anti-transgender intent, Sotomayor insisted that the record had to be considered and “there’s certainly a lot of comments” that could be weighed on the question.
While the panel wrote an equally detailed case in favor of the districting as politically (not racially) motivated, there remains the glaring incongruity of sheltering the key figure and his public statements that embrace a race-based motivation for District 13. That could prompt some to send the plan back with the rapidly approaching midterm elections at stake.
The question is whether a court can simply ignore the stated intentions of the map-maker in determining the purpose of the map. At some point, Judge Lee suggests, an assumption of good faith becomes a willful blindness to racial discrimination.
Jonathan Turley is a law professor and the author of the forthcoming “Rage and the Republic: The Unfinished Story of the American Revolution.” It will be released on Feb. 3 for the 250th anniversary of the Declaration of Independence.
