Although the opinion is correct in noting that constraints on partisan gerrymandering would not, in and of themselves, necessarily enhance the competitiveness of election districts enough to ensure a substantial number of competitive seats, the opinion is nonetheless surprising in its extensive reliance on the history of elections in Texas to bolster this point.  The opinion provides detailed data on elections from the early 1960's to the present to make the point that congressional election districts in Texas (for primary and general elections) have not been highly competitive for over four decades.  But of course Texas, like the South, was an artificial Democratic Party monopoly throughout the 20th century, a monopoly that only began to be broken down in 1965 with passage of the Voting Rights Act.  This monopoly was artificial because not the product of natural competition between the parties; it reflected legal manipulations of the electoral process (the fami
liar litany of poll taxes, understanding clauses, literacy tests etc.) that the Democrats had forced into law in the late 19th century, that largely endured until the 1960s, and that dramatically reduced the size of the effective electorate.  This monopoly also could not be and was not demolished overnight with the passage of the VRA; given the durability of party affiliations, for officials, candidates, and voters, it took about a generation before robust two-party competition emerged in the South in the 1980s and the 1990s.  That districts were not competitive during the decades in which one party successfully manipulated election laws for the precise purpose of creating a non-competitive political order does not provide any insight, it seems to me, into how competitive districts might be absent these artificial, legally-imposed constraints on competition itself.  Although Judge Higginbotham is one of the most thoughtful, careful, and incisive judges on the federal bench, a
nd although his work at grounding his analysis in facts and historical experience is always to be admired, I found this particular point about the longstanding absence of competitive districts in Texas, which plays a recurring role in the opinion, surprising and not sufficiently thought through.

>>> "Michael McDonald" <mmcdon@gmu.edu> 06/09/05 08:19PM >>>
      

Regarding the competitiveness discussion in the ruling, I find it
troublesome that the judges cite an opinion-editorial (Steven Hill's NY
Times op-ed) to establish that independent redistricting institutions do not
facilitate the drawing of competitive districts.  While I appreciate Steven'
s goal of changing the electoral rules of the United States, the statistics
and facts cited in his op-ed are twisted to make his point; it is an op-ed
after all.  I'll give the most egregious example: claiming that Washington
is an independent commission is absolutely wrong.  Members of the
legislative leadership were appointed as commissioners in 2001 and the
commission must adopt a map on a supermajority vote, which resulted in a
bipartisan, incumbent protection gerrymander (see my 2004 article, "A
Comparative Analysis of U.S. State Redistricting Institutions." State
Politics and Policy Quarterly 4(4): 371-396).

==================================
Dr. Michael P. McDonald
Brookings Institution, Visiting Fellow
George Mason University, Assistant Professor
Dept of Public and International Affairs
4400 University Drive - 3F4
Fairfax, VA 22030-4444

Office: 703-993-4191
Fax: 703-993-1399

mmcdon@gmu.edu 
http://elections.gmu.edu/ 

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu 
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of Rick Hasen
Sent: Thursday, June 09, 2005 5:06 PM
To: election-law
Subject: Re: Breaking News: Three-Judge Court in Texas Rejects Challenge to
Re-Redistricting


Some Initial Thoughts on the Texas Decision

I have had a chance to skim the decision
<http://www.campaignlegalcenter.org/attachments/1396.pdf>  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 <http://electionlawblog.org/archives/002758.html>  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 <http://electionlawblog.org/archives/002758.html> , 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.

Rick Hasen wrote:



Breaking News: Three-Judge Court in Texas Rejects Challenge to
Re-Redistricting

This according to a report in The Quorum Report
<http://www.quorumreport.com/>  (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 <mailto:rick.hasen@lls.edu>
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org 




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