Maybe, as a law student, I have to formal a view of government, but I think
that Professor Askin misses an important point.  The 14th Amendment and the
Voting Rights Act place limits on a states power to gerrymander.  States do
not need constitutional or statutory permission from the federal government to
act.  The federal government is a limited government in which affirmative
measures create its powers to act.  The state government is a general
government and affirmative measures limit its power to act.  The fact that no
explicit statutory or constitutional provision limit the state's actions in
politically gerrymandering actually favors the existence of the power.  Of
course the courts jurisprudence under Baker in interpreting the 14th Amendment
may actually be a provision that limits state power.  This should be the focus
of the argument.

Finally, as a conceptual matter, isn't all redistricting inherently political
in that it comes from the political process?

Mark Leen
HLS 3L

Quoting Frank Askin <faskin@kinoy.rutgers.edu>:

> To the contrary, while Shaw v. Reno was a travesty for racial gerrymandering
> cases -- where the objective was to protect minority voting rights pursuant
> to the Voting Rights Act  and the 14th Amendment (footnote 4 of Carolene
> Products) -- it seems to me to establish a reasonable standard for political
> gerrymandering cases, since political gerrymandering has no explicit
> statutory or constitutional protection.  Where districts are not compact, not
> contiguous, and were foisted upon a political minority by a political
> majority which controlled both the executive and legislative branches, that
> seems to me to establish a pretty good prima facie case of political
> interference in the electoral process....  If the governing party cannot use
> its governing authority to dispense patronage jobs (Elrod v. Burns) why
> should it be able to exercise that power to dispense legislative seats!  See
> my Op Ed in the December 1 Legal Times.  FRANK
>
> Prof. Frank Askin
> Constitutional Litigation Clinic
> Rutgers Law School/Newark
> (973) 353-5687
>
> >>> rick.hasen@lls.edu 12/08/03 08:05PM >>>
> "Drawing a Line:" My commentary on Vieth
> 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 asid!
>  e 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 HasenLoyola Law School919 South Albany
> StreetLos Angeles, CA  90015-0019(213)736-1466 - voice(213)380-3769 -
>
faxrick.hasen@lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://elec
tionlawblog..org
>
>
>