But this gets back to the Vieth v Jubelirer problem
that the results of just one election, or even the
results of two elections in a row, aren't persuasive
enough all by themselves.

It seems to me that the basis for overthrowing the
2003 Texas redistricting is the process by which it
happened, not on what the election results were.

--- "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu>
wrote:

In response to the suggestion that perhaps
mid-decade redistricting done
solely for partisan purposes should be held to
violate the Constitution:

What if the motivation for a mid-decade
redistricting is to correct for a
prior partisan redistricting? Suppose that 60% of a
state's voters vote for
Republican House candidates but that the
redistricting scheme adopted after
the last census results in Republicans winning only
40% of the state's House
seats. If a mid-decade redistricting changes the way
the districts tilt, so
that Republicans win, say, 65% of the state's House
races with 60% of the
popular vote, the new districts would seem to
provide a closer fit to the
popular will. Should such a mid-decade
redistricting, designed to correct
for the prior partisan redistricting, be vulnerable
to the charge that it
was done only for a partisan purpose?

Perhaps someone has the statistics that would
indicate whether the
mid-decade Texas redistricting resulted in a better
fit, or a worse fit,
with popular will (as I've used that concept above).

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: adam morse [mailto:ahmorse@gmail.com]
Sent: Monday, December 12, 2005 11:47 AM
To: Rick Hasen
Cc: election-law
Subject: Re: timing in Texas cases

At the risk of reading too much into the tea leaves,
the timing
decisions strike me as a very good sign for the
plaintiffs (and for
those of us who want teeth in judicial review of
partisan
gerrymandering).  If Justice Kennedy decided to side
with the
nonjusticiable view, there would be no hurry to hear
the cases.
Expediting review only makes sense if there is a
concern about redoing
the districts in time for this election, and that
only makes sense if
the plaintiffs are likely to win.  So my guess is
that the delay was
about either Kennedy or Roberts wrestling with the
case, and that one
of them decided that he was likely to side with the
Vieth dissenters.
Of course, this could just be wishful thinking on my
part, and the
timing may simply indicate that the Court does not
want to foreclose
relief this election, even with the expectation that
they will
ultimately vote to deny relief.  But I'm even more
optomistic based on
the timing orders than I would be anyway.

All that said, we could easily get a narrow
"partisan purpose can't be
the ONLY motivation for redistricting" decision that
would only really
bite at midterm redistricting.  But that would still
be a step
forward.

Adam Morse

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