Subject: Re: news of the day 4/29/04
From: Rick Hasen
Date: 4/29/2004, 9:19 AM
To: Marty Lederman
CC: election-law <election-law@majordomo.lls.edu>

I don't think it tells us much about that capacity.  Contrast this with a legislator trying to comply with Shaw.  There are competing views on what exactly Shaw requires (e.g., how does shape play in to the predominant factor analysis, what kinds of compelling interests might justify making race the predominant factor?), but a legislator could make a good faith judgment about what Shaw means and then comply, even if the legislator believes there's not much chance that the districting plan s/he would have chosen but for Shaw would have been struck down by a court.  But a legislator trying to faithfully comply with Vieth would conclude that just about any kind of partisan consideration is okay, until the Court can come up with a new standard to constrain conduct.  If the Court, the dissenters, the parties, and the academic commentators have not come up with a workable standard after 18 years, why should the duty bound legislator believe s/he could do a better job in separating permissible consideration of party from impermissible consideration?


Marty Lederman wrote:
Oh, I completely agree with Rick that "even state legislators who feel duty bound to uphold the Constitution will [not] have much problem engaging in the most partisan of gerrymanders."  I also concede that such partisan considerations will continue in full force, because there's virtually no prospect of judicial oversight.  My (implicit) question, however, was whether a state legislator who took her constitutional oath seriously would continue to act in such a partisan fashion.  If the answer to that is "no," and if we know (as we do) that such partisan considerations will, in fact, proceed without even the merest pause of constitutional anxiety, what does that tell us about the capacity, and likelihood, of legislative actors taking their constitutional oaths seriously?
----- Original Message -----
From: Rick Hasen
To: election-law
Sent: Thursday, April 29, 2004 10:45 AM
Subject: news of the day 4/29/04

"Panel Won't Pull Plug on E-Voting"

The Oakland Tribune offers this report. See also this Los Angeles Times report.


More Vieth Coverage and Commentary

The New York Times (I'm not sure why David Rosenbaum refers to Justice Scalia's opinion as the "controlling opinion") (and see this editorial); The Wall Street Journal (thanks to Steven Sholk for the pointer); The Los Angeles Times; The Washington Post; Chicago Sun-Times; Philalelphia Inquirer; Houston Chronicle.

In the blogosphere, Bob Bauer has posted his thoughts here ; Ed Still is here; Marty Lederman is here. I am much more skeptical than Marty that even state legislators who feel duty bound to uphold the Constitution will have much problem engaging in the most partisan of gerrymanders. It is not as though Justice Kennedy's opinion gives much hope of anyone ever coming up with a standard that would satisfy him, having rejected the standards in Bandemer, the plaintiffs' standard, and the three proposed dissents' standards.


Democrats' Spin on the loss in Vieth

See this press release.


"Gore Giving Over $6 Million to Democrats"

A.P. offers this report. Thanks to David Ettinger for the pointer.


-- 
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
    

-- 
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