Sorry, Marty, but I do not agree that your argument gets off the ground as constitutional reasoning. The most basic defect comes right at the beginning. As you say, the Equal Protection Clause comes into play when one person is benefited or harmed by the state. But no one is benefited or harmed by being in one district rather than another. An analogy I use in my forthcoming article is a registration line at a government-run conference divided, say, into those whose names begin with A-M and N-Z. Alphabetical ordering of last names would be an utterly arbitrary criterion for allocating benefits and harms such as those you give (lower speed limits, higher taxes, access to a municipal auditorium, etc.). But if the purpose is simply to divide people into groups in which no one group gets better treatment than another, then there is no rational basis test, much less a higher standard of review.
True, a redistricting plan may be motivated by partisan gain and almost certainly will be motivated by some political considerations. But most legislative and other political decisions are motivated by partisan and other political considerations. The leading American theoretical work on legislatures in the past half century--Mayhew's "Congress: The Electoral Connection"--is premised on the (concededly somewhat exaggerated) idea that the ONLY consideration in voting on bills is the desire to be reelected. But the partisan and political considerations that underlie, more or less, every law passed, every appointment made, and every other political decision, does not expose all those actions and decisions to equal protection review.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: marty.lederman@comcast.net [mailto:marty.lederman@comcast.net]
Sent: Thu 12/15/2005 3:18 PM
To: Lowenstein, Daniel; Election-law Listserver
Subject: Re: question regarding partisan gerrymandering claim in Texas redistricting cases
Dan Lowenstein writes:
"arguments that the courts should strike down partisan gerrymanders are usually void of constitutional reasoning. What is there about a partisan gerrymander that makes it a denial of equal protection of the laws?"
Actually, I think it's exactly the opposite: Arguments that courts should not invalidate partisan gerrymanders are typically void of constitutional reasoning (not that there's necessarily anything wrong with that).
The argument for the unconstitutionality of partisan gerrymanders is quite straightforward. Here's the concededly simplified (some might say simplistic) version of it:
1. Under the Equal Protection Clause, or the Due Process Clause, or basic postulates of republican governance, the state must have at least a rational and legitimate basis for benefiting some persons at the expense of others when it draws distinctions in the law.
2. The advancement of the Republican Party, or the Democratic Party, is not a rational basis for state action -- indeed, it's an illegitimate basis: The state may not act so as to further purely partisan ends, but must instead be seeking to advance some public purpose.
3. Thus, for example, in virtually any other context, a de facto or de jure preference for, or "gerrymander" in favor of, an identifiable political party would be unconstitutional. Benefits and privileges, for instance, cannot be doled out on partisan grounds -- not even most governmental employment positions (other than high-level policymakers), see Elrod, Branti, Rutan. Democrats can't be specially favored, or penalized, in access to speech fora. (Even Rehnquist agreed with this, as a matter of equal protection, not Free Speech, doctrine; see his dissent in Southeastern Promotions v. Conrad: "Limitations on the use of municipal auditoriums by government must be sufficiently reasonable to satisfy the Due Process Clause and cannot unfairly discriminate in violation of the Equal Protection Clause. A municipal auditorium which opened itself to Republicans ! ;while closing itself to Democrats would run afoul of the Fourteenth Amendment.") Democrats couldn't be taxed at a !
higher rate. Republicans couldn't be subjected to lower speed limits, etc.
4. I should add the obvious point that this is consistent with the Framers' "intent," i.e., their strongly anti-faction, anti-party bias, to the extent anyone cares about such things.
5. This basic principle that partisan gain is an illegitimate state interest should be especially pronounced in the the context of legislative districting -- even more so than in all those other, everyday contexts, for in redistricting the state is making fundamental decisions about the distribution and organization of governmental power itself. That is to say, in deciding how best to structure the national government, and on whose behalf districts should be drawn, the very last thing that a government should be permitted to take into account is partisan retrenchment. "Because it's likely that a Democrat will win this district" is not a valid, let alone "reasonable," basis for these, the most fundamental decisions that a state makes. There is simply no legitimate reason for the state to be concerned with the fate of the Republican and Democratic Parties -- particularly not in the context of (virtually) determi! ning the compostition of the national legislature. (By anal!
ogy, think of the (correctly decided) cases that have held that favorable ballot placement cannot be based on partisan considerations.) I think we would all agree that if Texas enacted a statute that said "The Texas congressional delegation shall consist of 21 Republicans and 10 Democrats," that law would be unconstitutional. And so, frankly, would the current Texas districting law be invalid, if Section 1 of that law read: "The purpose of the district linedrawing herein is to try to ensure that at least two-thirds of all Texas representatives to Congress are Republicans." Well, everyone agrees that that is, in fact, the de facto (principal) purpose of the DeLay plan -- just as it was the manifest purpose of Phil Burton plans to dramatically favor Democrats in California. Why shouldn't that plan be declared unconstitutional, where everyone knows tha! t its objectives are not legitimate state objectives?&nb sp;
6. Of course, this reasoning -- constitutional reasoning in just about every way that matters, wouldn't you agree, Dan? -- would lead to invalidation of virtually every redistricting of the past 60+ years, because redistricting is shot through with (barely veiled, if that) partisan considerations that are, more often than not, determinative (i.e., "but for" causes of where the lines are drawn). And that -- the profound upheaval of what we've come to take for granted, our mother's milk -- and not any "constitutional reasoning," is why the Court has shied away from applying this basic Equal Protection/democratic-governance principle in the context of redistricting, even though "It's good for the Republicans" or "It makes Democratic legislative majorities more likely" would be illegitimate "state interests" in virtually every other area of governance, and would lead to judicial invalidation in most or all of those other! areas. Kennedy's Vieth concurrence is commendable for !
its candor, whatever else one thinks of his equivocation. He signals that gerrymanders that disfavor one party are impermissible -- "incompatible with democratic principles," 541 U.S. at 316 -- and yet, in the first sentence of his opinion, he explains why he isn't willing to do anything about it: "A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process."
Please don't get me wrong: The enormous ramifications of applying this otherwise uncontroverted and baseline "anti-partisan-advantage" principle may be a damn good pragmatic reason for the Court to have stayed its hand; I tend to agree that it is (although I'm uncertain). But "constitutional" reasoning, as most would understand it, has got little to do with it. As I see it, all of the "constitutional" reasoning is on the other side.
------------- Original message --------------
From: "Lowenstein, Daniel" <lowenstein@law.ucla.edu>
Every once in a while Rick and I agree on a substantive point, and this is one of those times. Re-redistricting is generally a bad idea, for reasons of the type mentioned by Larry Levine. But that does not make re-redistricting unconstitutional. Some in this thread have argued that re-redistricting--or original redistricting--under such-and-such circumstances is bad public policy. Maybe so. But have we gotten to the point that one's belief that something is bad public policy constitutes an argument that the thing is unconstitutional? I prefer to live in a republic.
States can and should put into their state constitutions prohibitions against redistricting more than once a decade. (Such a prohibition has been found in our constitution by the California Supreme Court since the first decade of the twentieth century.) Congress can and perhaps should pass legislation prohibiting congressional redistricting more than once a decade. Major exceptions should be for when a redistricting plan has been voided by a court or by the electorate in a referendum or initiative.
The only constitutional argument I have seen against re-redistricting in this thread or elsewhere is the population argument, and that is quite lame in my opinion. The Census provides authoritative and constitutionally sanctioned data on population. Reliance on those data throughout the decade creates no risk of the serious problems of malapportionment that led up to the 1960s redistricting cases. The argument is only an excuse to strike down mid-decade redistricting, when the motive for doing so is the belief (which I share) that such districting is bad public policy. In my opinion, that is unacceptable constitutional jurisprudence.
More generally, arguments that the courts should strike down partisan gerrymanders are usually void of constitutional reasoning. What is there about a partisan gerrymander that makes it a denial of equal protection of the laws. An answer to that question can be teased out of the plurality opinion in Davis v. Bandemer, or so I have argued. No answer to that question can be found in any of the several opinions in Vieth v. Jubelirer. Or so I argue in a forthcoming article in a symposium in the Cornell Journal of Law & Public Policy. Nor is an answer easy to find in the voluminous popular and academic writing on this question.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148