Subject: news of the day 1/19/05
From: Rick Hasen
Date: 1/19/2005, 10:04 AM
To: election-law

Friday's Hearing in Texas Re-Redistricting Case

On Friday, a three judge court hears oral argument in the Texas re-redistricting case on remand from the Supreme Court for reconsideration in light of Vieth. (You can find links to some of the briefs here and here).) I have now read the state's reply brief and the reply brief of the Jackson/Democratic Intervenors.

The case puts the lower court in a really tough position, because four Justices in Vieth ruled that partisan gerrymandering cases are non-justiciable, four dissenters proposed (at least) three different standards for judging the constituitonality of partisan gerrymandinger, and Justice Kennedy simply could not decide: he left the door open for future challenges, but rejected all the proposed standards that have been set forth so far. I'm going to stick with my earlier view:


It probably doesn't matter much what the lower court does, besides collect information on what actually happened in the 2004 election under the new district lines. It will all come back to the Supreme Court. And what is the Supreme Court likely to do? I have given up predicting how Justice Kennedy might decide things, but let me discuss in more detail the other potential wrinkle: By the time the case makes it back to the Supreme Court, we may have a new Chief Justice. There has been a lot of talk about how conservative (e.g., on abortion rights) that new Justice might be, but it is not clear that a conservative would necessarily reject an invigorated partisan gerrymandering standard. Imagine, for example if Tenth Circuit Judge (and former professor) Michael McConnell gets the nomination. He's written some very interesting stuff on redistricting, including Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 Harvard Journal of Law and Public Policy 103, 103-04 (2000). (McConnell was attacked for this writing when he was up for confirmation, in my view unfairly---Doug Laycock defended McConnell on this score---see page 2 of the linked document.) We could thus be in for a new partisan gerrymandering standard, something I don't support but can foresee if there is a change in Court personnel in time. The Court could begin by adopting the position of the Jackson plaintiffs, that when a redistricting is done for the predominant (or sole) purpose of securing partisan gain, it should be struck down.

Bauer Rips NYT Editorial on the FEC

In this entry, Bob Bauer fisks this New York Times editorial calling for a revamp of the FEC.


Party Rights Case Argued in the Supreme Court Today

You can find the questions presented in Clingman v. Beaver here and my earlier coverage here. I'd be interested in hearing reports from today's oral argument and will post what I receive (with the permission of the sender).


Democrats Consider Ballot Measure Fundraising Limits in California

See this LA Times report. See also Steve Lopez's column, "Man of the People....People Who Pay." You can find my earlier oped on this topic here.


EAC Likely to Order Expedited Audit of Shelley Spending in CA

See here.


"Hybrid democracy, cruise control and 'Caesarism'"

Peter Schrag offers this column. You can find a draft of Beth Garrett's "Hybrid Democracy" article, referred to in Schrag's piece, here.


Complaint Filed Against Soros for Election-related activities

See this press release and complaint.


"Do Over"

Chrisopher Hayes offers this article at New Republic Online about calls for revotes in recent election controversies. 
-- 
Professor Rick Hasen 
Loyola Law School 
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