| Subject: Re: Breaking News: Three-Judge Court in Texas Rejects Challenge to Re-Redistricting |
| From: Rick Hasen |
| Date: 6/9/2005, 3:06 PM |
| To: election-law |
I have had a chance to skim the decision of the three-judge court rejecting partisan gerrymandering and one person, one vote challenges to the Texas re-redistricting, on remand from the Supreme Court to reconsider in light of Vieth. Some initial and very tentative thoughts:
1. All three judges agree that the standard plaintiffs came up with could not be distinguished from the standards identified and rejected by the Supreme Court in Vieth. (The concurring judge on the panel had different views on the permissibility of re-redistricting mid-decade in light of one person, one vote requirements, but believed the issue was not properly before the court on remand.)
2. As I suggested months ago, the judges saw their task as essentially giving Justice Kennedy a chance to reconsider whether there is a judicially manageable standard for separating permissible from impermissible use of party in drawing district lines. After recounting the holding of Vieth, the majority writes: "While the state's contention that most, if not all, of [plaintiffs] arguments have been rejected by a majority of the Court [in Vieth] is strong, we decline to stop there, given the unusual fracture of the Court in Vieth. We can only fairly read the remand to suggest that the Justice providing the fifth vote sees the possibility of a workable standard emerging from this case, the rejected allegations of the complaint in Vieth aside." (pdf at 11).
3. The majority engages in an extensive discussion of the lack of connection between the plaintiffs' individual rights claims and the claimed structural defect in the redistricting: the absence of competitive districts. The court sees little connection. It notes the lack of competitive districts in Texas for 4 1/2 decades, and notes that non-competitive districts can emerge from both bipartisan gerrymanders and even lines drawn by "neutral" redistricters. In short, it sees no connection between the competitiveness issue and the partisan nature of the redistricting. (see part C, beginning at page 30 of the pdf)
4. The court engages in a very interesting discussion of the mid-decade redistricting argument (part IV, beginning on page 36 of the pdf). Particularly interesting is the court's discusion of how OPOV acts as a legal fiction, given changes in population throughout a decade. The court also turns the tables against the university professors who brought the argument forward in their amicus brief, citing Prof. Sandy Levinson's North Carolina article on OPOV against the argument advanced in the brief.
5. As I have stated, I would not expect this lower court opinion to have much influence on the Supreme Court. It just bought Justice Kennedy another year to think about things, and with a possible replacement of the Chief Justice with a Justice such as Judge Michael McConnell (whose work is cited by the three judge court), there's the possibility that Justice Kennedy's vote would not be needed to overturn the results of Texas. But with the timing of things at the Supreme Court, that might not happen even in time for the 2006 elections.Breaking News: Three-Judge Court in Texas Rejects Challenge to Re-Redistricting
This according to a report in The Quorum Report (paid subscription required). I'll link to the opinion just as soon as I find it (or if someone e-mails it to me, I'll post it). More once I've seen the opinion.-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 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 William H. Hannon Distinguished Professor of Law Loyola Law School 919 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