| Subject: my views on Vieth |
| From: Rick Hasen |
| Date: 12/8/2003, 5:05 PM |
| To: "election-law@majordomo.lls.edu" <election-law@majordomo.lls.edu> |
Reply-to: rick.hasen@mail.lls.edu |
My commentary in the Legal Times is available here. It begins: "On Dec. 10, the Supreme Court will consider the invitation of some Pennsylvania Democrats to impose a new set of constitutional rules to police claims of partisan gerrymandering. Given the recent escapades of the Texas Legislature and others in re-redistricting twice in a single decade to gain partisan advantage, the Court may be tempted to accept the invitation. But it should decline."
One other interesting aspect of the case is the extent to which the plaintiffs and some of their amici rely upon Shaw v. Reno's "bizarre" district standard for evaluating claims of racial gerrymandering. The suggestion is that the same kind of analysis might apply to partisan gerrymandering. Put aside the inconsistencies of the analysis (Shaw was premised on the "expressive harm" that comes from separating people on the basis of race; it is hard to see that the same applies to separating people on the basis of party); and put aside that Shaw shape test was significantly diluted by subsequent racial gerrymandering cases such as Miller v. Johnson. I think the most interesting aspect here is the fact that some of the people using Shaw here have attacked it (as I have) as unprincipled or poorly reasoned in the racial context. Maybe this is all a way to get O'Connor's vote, who had voted in the earlier Davis v. Bandemer case that partisan claims were non-justiciable, but who also authored Shaw-- 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