I agree that they will let the map stand--otherwise, all those minority
influence districts are going to be challenged as partisan gerrymanders.

Mark E. Rush
Professor of Politics
Washington and Lee University
Lexington, VA  24450
http://home.wlu.edu/~rushm
(540) 458-8904
(540) 458-8639 (fax)

"David Epstein" <de11@columbia.edu> 12/10/03 20:47 PM >>>

 
I too remain confused as to why they took this case, but I'll reiterate
my Supreme Court-redistricting theory that this is all states'
rights/federalism under another guise. They want states' normal
political processes to operate as long as they don't discriminate
against minorities, and don't want the federal government interfering
unless absolutely necessary.
 
So I'm predicting they'll let the map stand, maybe with some clearer
language about how this is all none of the Court's business.
 
David
 
 

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
Lowenstein, Daniel
Sent: Wednesday, December 10, 2003 5:37 PM
To: Election-law Listserver (election-law@majordomo.lls.edu)
Subject: FW: Vieth Argument Report


    Thanks for posting this, Marty.  The question of why the Court
accepted this case gets more and more mysterious.  I had thought that
after her adventures in the racial gerrymandering cases, O'Connor might
be more receptive to plaintiffs' claims in cases like this.  With the
pressure of Section 5 of VRA considerably lessened compared to the
1990s, few if any racial gerrymandering cases are likely to arise, so I
thought perhaps she would like to have another kind of case in which she
can be the deciding vote on whether a districting plan stands or falls.
 
    But if, as the SCOTUSblog report suggests, she appears to be a solid
vote for the Republican plan, is it possible for the plaintiffs to win a
majority on the Court?  Presumably, it would have to include Kennedy.
The SCOTUSblog suggests that is a possibility, but not a likelihood.
Are Breyer, Ginsburg and Souter all for joining Stevens on this issue?
If so, would they have voted for cert without the likelihood of picking
up a 5th vote?
 
    The alternative explanation (the optimistic one, from my viewpoint),
is that the voting for cert was by justices wanting to reaffirm what now
seems to be the prevailing interpretation of Bandemer, which is that
under normal circumstances, a major party cannot win on a partisan
gerrymandering claim.  Or perhaps to go even further and overrule
Bandemer by declaring the issue nonjusticiable.  That has always seemed
unlikely to me, because from that viewpoint, the way the lower courts
have been dealing with the issue has been quite satisfactory.

            Best, 

            Daniel Lowenstein 
            UCLA Law School 
            405 Hilgard 
            Los Angeles, California 90095-1476 
            310-825-5148 

 

-----Original Message-----
From: Marty Lederman [mailto:marty.lederman@comcast.net] 
Sent: Wednesday, December 10, 2003 1:47 PM
To: Rick Hasen; election-law
Subject: Vieth Argument Report


My friend and colleague Amy Howe reports the following over on
SCOTUSblog (which unfortunately appears to be down right now):
 

In Vieth v. Jubelirer, the Court considered the constitutionality of
political gerrymandering in Pennsylvania, where Republicans in the state
legislature implemented a redistricting plan intended to maximize the
numbers of Republicans in the state's Congressional delegation.  Jenner
& Block's Paul Smith, of Lawrence v. Texas fame, represented those
challenging the redistricting, and he faced tough questions from the
outset from virtually all of the justices.  Justices O'Connor and Scalia
were extremely dubious about whether the issue was justiciable at all:
Justice O'Connor asked Smith why the Court shouldn't just "say hands
off," while Justice Scalia firmly opined that the issue was "none of our
business."  Chief Justice Rehnquist was almost as skeptical, countering
Smith's efforts to explain his proposed "majoritarian" standards for
evaluating claims of partisan gerrymandering with the declaration that
such standards would amount to "pulling this thing out of a hat" and
reminding Smith that the "Constitution never uses the word 'democracy.'"
Justices Kennedy and Breyer were more sympathetic to Smith's complaints
regarding the underlying gerrymandering - with Justice Kennedy
acknowledging that the Republicans' redistricting plan "looks pretty
raw" - but also expressed real doubt regarding the Court's ability to
formulate any workable standards to evaluate claims.  

 

John Krill and Bart DeLone, representing Pennsylvania legislators and
Pennsylvania itself, generally had a much more receptive audience for
their arguments, and the Court was substantially more inclined to let
them speak at length.  The duo repeated, over and over, that "politics
are inherent" in the redistricting process and that claims of partisan
gerrymandering are nonjusticiable.  Most of their questions came from
Justice Stevens, who asked whether Vieth et al. had stated a cause of
action under Justice Powell's opinion in Davis v. Bandemer, in which
Justice Powell contended that a redistricting plan was unconstitutional
if there were no neutral criteria to explain the redistricting other
than to provide a partisan advantage.