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.
--
Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org