Subject: Re: my views on Vieth
From: Rick Hasen
Date: 12/9/2003, 9:58 AM
To: Frank Askin
CC: election-law@majordomo.lls.edu

Frank says that "political gerrymandering has no explicit statutory on constitutional protection." I would put the point differently.  The Constitution does not dictate how states are to draw district lines (or indeed whether districting needs to be done at all).  Congress has imposed a statutory requirement of single member districts for electing members of Congress, and the states are bound by that and any other requirements imposed by the Constitution. For example, drawing lines to discriminate against African-American voters could create an equal protection violation under the 14th amendment.

In Vieth, as in Bandemer, one of the two major political parties is claiming that it is not getting enough seats under the districting plan passed by a legislature controlled by the other major political party. The claim is, like the race claim, an equal protection claim under the 14th amendment.   The question is how much one party can advantage itself without running afoul of equal protection.  In Bandemer, the plurality said that it would assume the legislature acted with discriminatory intent, but the complaining party could show discriminatory effect only by demonstrating it is being effectively shut out of the political process.  The Vieth plaintiffs want to put more teeth into this test, by requiring something like a proportionality test.  I think the Court would be best not to adopt such a standard, for reasons stated in my oped.

A bizarre shaped district (as in Shaw) might be relevant to show discriminatory intent, but that is already assumed in the case of partisan gerrymandering.  It doesn't seem to me to be relevant to the question of discriminatory effect.

The patronage cases such as Elrod are completely inapposite.  There, the state wants to use political affiliation in a hiring, transfer, or firing decision.  Non-policymaking employees complain that this violates their First Amendment rights of association.  There is no equal protection claim. It is completely consistent to say that a state may not infringe on the First Amendment rights of its employees by patronage practices but it still may draw lines that favor one political party over the other----so long as the process does not go so far (i.e., shut out the other party from the political process) so as to be an equal protection violation.

Rick

Frank Askin wrote:
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://electionlawblog..org

  

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org