WASHINGTON -- Modesto City Council elections are in the hands of a whip-smart, 20-something Supreme Court clerk who is powerful and anonymous.
In a closed-door session today, whose results will be revealed Monday, the Supreme Court's nine justices are deciding whether Modesto's defense of its City Council elections merits a full-bore court hearing. While the justices have the final say, their decision is closely shaped by what a law clerk recommends.
Although the court keeps its own counsel, the odds appear stacked against Modesto. The City Council case is one of more than 160 scheduled for consideration today at the court's weekly conference; the lawyer leading the case for the three Latinos who sued the city for election reform is urging the court to let the case slide.
"It makes little sense for this court to grant review of a case that could so easily and quickly be rendered moot," Robert Rubin, a San Francisco-based civil rights attorney, wrote in an amicus brief.
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Modesto residents will go to the polls Nov. 6, Rubin noted. They will be voting on an advisory measure that, if passed, could lead to the city's dropping the at-large elections now under legal challenge.
Latino residents contend that Modesto's at-large City Council elections impede minorities from winning seats. Citing the California Voting Rights Act, a 2002 law, the challengers want district elections to benefit Modesto neighborhoods with large minority populations.
Modesto won the first round in 2005 but lost in California's 5th District Court of Appeal in Fresno. The state Supreme Court in March upheld the ap- pellate court's ruling by declining to hear the city's appeal.
The city now is petitioning the U.S. Supreme Court to hear its appeal. If the high court denies Modesto's petition, the California appellate decision stands and at-large elections will be on thin ice.
"Public entities all over California will be subjected to attack, and considerable money lost," if the at-large elections are rejected, Modesto's attorneys warned the Supreme Court.
City needs four justices
The court's weekly conference remains under tight wraps, hiding the give and take. Law clerks are banned, and the court's public information office will not confirm what time the justices convene in the conference room.
Behind the closed doors, though, Modesto will need the support of at least four justices for the city's petition to be granted. This is a high hurdle.
"Whether or not to grant certi-orari (a review) is a rather subjective decision, made up in part of intuition and in part of legal judgment," the late Chief Justice William Rehnquist said in a September 2001 speech.
Last week, for instance, the court rejected more than 340 petitions, many of them filed by prisoners, and did not grant any hearings.
The court has 3,702 cases on its docket and has scheduled 40 for hearings.
The overwhelming volume forces the justices to rely on their clerks, one of whom has prepared a several-page memo summarizing the Modesto case. The justices likely have not read the briefs.
"I know from my perspective as a lower court judge that there is a constant conflict between the obligation that we have to deal with a very heavy caseload and the need for the judge, as opposed to a law clerk or a staff employee of the court, to deal with the cases," Associate Justice Samuel Alito Jr. acknowledged during his confirmation hearing.
Loyola Law School Professor Richard Hasen, through his Election Law blog, contends that the Modesto case has a "reasonably good chance" of being granted because the dispute is interesting. Not everyone agrees.
The Supreme Court prefers cases in which different federal appellate circuits have issued conflicting opinions that must be reconciled.
This hasn't happened in the at-large election case. Justices also take notice when a case attracts widespread interest.
Next week, for instance, the court will decide whether to take up Exxon's challenge to a $2.5 billion penalty assessed for the 1989 Valdez oil spill. It seems a fair bet, because more than a dozen friend-of-the-court briefs have been filed by such groups as the U.S. Chamber of Commerce and the American Petroleum Institute.
Only one amicus brief was filed in the Modesto case, and that one urged the court to let it go. Lawyers say the time may not be right.
"At-large elections," Rubin wrote for the Lawyers Committee for Civil Rights, "are not of constitutional moment."
Bee Washington Bureau reporter Michael Doyle can be reached at firstname.lastname@example.org or 202-383-0006.