The Post article says that the federal constitutional argument against
re-redistricting has "no clear answer." But if the anti-re-redistricting
argument is intended to have any kind of originalist or historical
pedigree, my instinct is that there *is* a clear answer. And that answer
is--in agreement with Rick's argument-- that of course there's no available
constitutional prohibition based upon the reapportionment mandate. I think
Madison's Notes on the 1787 Convention as well as the records of the
ratification debates make it clear that the constitutional bargain that was
struck about reapportionment established a principle that was one of
division *among* the states, and that this compromise was carefully kept
distinct from the allocation of decisionmaking about 'actual
representation' issues internal to a state (e.g. remember the 3/5 counting
of slaves for apportionment purposes).
Moreover, I think the Congressional Elections Clause of art. 1. sec. 4. cl.
1 provides other reasons to be dubious of the argument. How could the
reapportionment mandate contain some implicit premises about the nature of
the districting process when the framing and ratifying generation did not
even assume that districts would be used at all? Some of them *preferred*
the district system over alternatives such as at-large elections. Others
were strenuously opposed to the policy of a district system. But they very
consciously chose to give time-place-and-manner *discretion* over such
choices to the state legislatures in the first instance while giving
Congress the discretion to step in with a preemptive national mandate
(which is precisely what happened when--after years of contrary practice by
some states--Congress finally eliminated the states' choice to use at-large
and other non-districting methods).
Also the partisan innovation that we are now witnessing with
re-redistricting would have been no surprise at all to the framing and
ratifying generation. (I think the only surprises about it would be the
modern level of technological sophistication and manipulative accuracy, the
links between national and state partisans, and the role of the SCT's
1-person, 1-vote jurisprudence.) Participants in the state ratifying
conventions and in the broader ratification debates (both Antifederalists
and Federalists) worried at great length about the possibility of state
legislative manipulation of election procedures (including district
line-drawing, the creation of "rotton boroughs", the calculations involved
in the very decision whether to choose a district or non-district system)
for purposes of partisan or factional advantage. In choosing to
constitutionalize a discretionary power over 'election mode' rather than
constitutionalizing the specific rules, the Framers and Ratifiers were not
at all naive about the prospect that factions would seek to use this
discretion to their maximum advantage.
Their #1 solution to these expected manipulations is embedded in the text
of the Elections Clause itself: *Congress* has the discretion to step in
to preempt the states' choices about electoral 'mode'. Many participants
in the early constitutional debates even thought that Congress had a *duty*
to step in to guard "voter equality" against excessive procedural
manipulation by state legislatures. I think many of these Feds and some
Antis would have expected that Congress should and would respond to the
partisan manipulation and 'arms-race' potential of state-level
re-redistricting through nationwide legislation banning the practice and
setting rules about the timing of reapportionment.
Of course what the early constitution-makers did not anticipate was the
rise of national parties which link the fortunes of state legislative and
congressional politicians. These unexpected national--state party linkages
mean that today it is harder to imagine Congress stepping in in a way that
would be perceived as standing above some distinct partisan fray that is
only occurring at the state level. (Think of the many recent editorials
that have condemned the Rove/DeLay interventions in the Texas process.)
Still it is not impossible to imagine that Congress could provide a stable
solution to the 'collective-action problem' of state-level
re-redistricting.
Perhaps the Democrats' argument about democratic accountability in the
anti-re-redistricting case has more of a functionalist or evolving-meanings
cast, or perhaps it is based in part on new elaborations of equal
protection caselaw? (Since I have the highest respect for the lawyering on
board for the case, I don't assume that I'm not missing some good arguments
here!)
Disclosure: I have a base motivation for offering this post and for
finding out if my claims strike anyone as controversial. I'm still writing
a dissertation that is centered on the Elections Clause power of Congress
(Congressional Election Reform, Partisan Manipulation, and "Political
Safeguards"), and I'm hoping to send out the early history portion to
journals by end of November or so.)
thanks,
Kirsten Nussbaumer
all-but-dissertation for joint JD/PhD Stanford Law and Political Science
(law school class of '00)
kirstenn@stanford.edu
----- Original Message -----
From: Rick Hasen
To: election-law@majordomo.lls.edu
Sent: 10/26/2003 12:31:33 PM
Subject: Is re-redistricting unconstitutional?
The Washington Post has an article by Edward Walsh, Redrawing Districts
Raises Questions; No Precedent Seen for GOP efforts. (There's also this
related article on Texas redistricting.)
The article considers the constitutionality of the practice that took place
in Texas and Colorado to do a second redistricting in a single decade.
Multiple redistrictings have been done in a single decade before, but for
purposes of remedying a constitutional or Voting Rights violation. These
redistrictings were done for partisan (in this case, Republican) advantage.
Under what theory might re-redistricting be unconstitutional? According to
the article, "[i]n a lawsuit filed in U.S. District Court in Tyler, Tex.,
[Democrats] note that the Constitution requires that House seats be
reapportioned among the states after each 10-year Census. An 'implicit
assumption' of that reapportionment mandate, the Democrats argue, is that
the redrawing of district lines within states will take place on the same
schedule."
The Democrats' lawyer, Sam Hirsch, further explains in the article:
"All we're saying is that implicit in decennial reapportionment is
decennial redistricting," said Sam Hirsch, a lawyer for the Texas
Democrats. "American constitutional law is full of implicit assumptions.
The idea that reapportionment and redistricting are tied together is a
small inferential leap. The reason is that reshuffling districts every two
years undermines democratic accountability. People should be able to vote
for representatives who served them well and against those who have not
served them well."
I think this is another unfortunate example of losers in the political
process looking to courts to create new substantive rights in an effort to
achieve a result that cannot be achieved politically. It is more than a
small inferential leap to go from constitutionally mandated apportionment
to a constitutional cap on the number of redistricting in a decade. The
Constitution requires the decennial reapportionment to make sure the
representation among the states is proportional to the population of those
states. The principle at work here is one of equality or fairness across
the states. It has little to do with accountability.
It would be a big leap for a court to say that because we must apportion
every ten years, we may not redistrict within an apportioned state more
than once a decade. Such a rule does nothing to further the goals of
reapportionment.
I agree with Sam and with Tom Mann (quoted in the article) that multiple
redistricting in a single decade is a bad thing, not only on grounds of
accountability but also on grounds of political instability. And
legislators focused on redistricting battles--such as legislators in
Texas--can hardly concentrate on legislative business. But the solution
then is to do as some states have done and forbid the practice of
re-redistricting in a single decade. In those states that have an initative
process, such a change could be enacted without legislative approval. In
other states, it would be a tougher battle, most likely to be enacted when
either Democrats or Republicans can see themselves on the wrong end of a
re-redistricting in a finite time horizon.
But there are real costs to constitutionalizing policy choices like this,
both related to further enmeshing courts in the political process and
further removing options for future experimentation by states in ways that
may be unforeseen today.
That's not to say that the Texas re-redistricting is legal. It could
violate the Voting Rights Act or have some other problem. But I don't see
creating a new constitutional right here.