Michael
McDonald’s post is far more
thoughtful than anything I could post, so I’ll try to keep this last
point brief.
I personally
agree that Shaw was decided
incorrectly (and my arguments here would be very different if Shaw
weren’t
the law), but even though Kennedy said that politics does not equal
race in the
Shaw context in Vieth, he also said that it could be possible for
partisan classifications
to be applied in an invidious manner unrelated to legitimate
legislative
objectives. If he were convinced, through the facts, that TX was such
an
invidious case, I think he might find the Shaw/Miller test
(predominating over
traditional districting principles) to be a useful standard for such a
claim. Perhaps they might even limit this to mid-decade voluntary
re-redistrictings as a precondition, which might reconcile our two
views on
this, Rick.
As for your
final point on the legislative
process addressing this, you’re forgetting a third possibility, which I
believe is the real reason we don’t get redistricting reform in general
–
the established political parties put so much money and energy into
defeating
these measures, they don’t have a chance. In CA, for instance, both
Dems and Reps (congresspeople and their allies) contributed a ton of
money to
defeat Prop. 77 (as poorly designed as it was). It’s unclear
whether it would have passed even if it didn’t call for mid-decade
redistricting, given the heavy hitters who lined up against it. I just
don’t think the legislative or the initiative process is well-suited to
bring the kind of change that’s needed (though you’re right to
identify the initiative process, where it’s available, as being more
likely to bring change than the legislative process).
From: Rick
Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Thursday,
December 15, 2005
3:16 PM
To: David J. Becker
Cc: 'election-law'
Subject: Re: question
regarding
partisan gerrymandering claim in Texas
redistricting cases
I agree that Shaw could be
good authority for your
argument, but I think Shaw was incorrectly decided for similar reasons
to the
reasons I have put up before. And we have five Justices from Vieth who
rejected the analogy to Shaw.
Perhaps I continue to misinterpret your point, but this still looks
like an
argument of bad intent (disregard of traditional voting criteria in
favor of
partisan advantage) + gross disproportionality on party grounds =
unconstitutional gerrymander. What else would there be to your test?
As for the Elyian stuck political process argument: this is why I have
trouble
with the original Lucas case, where OPOV was approved by voter
initiative. If this is indeed a case where there is widespread public
support to stop these partisan gerrymanders, but the political process
is
stuck, I would expect to see some jurisdictions with the initiative
process
successfully put limits on such partisan gerrymanders. The fact that
it
has not happened yet is some evidence that there's no consensus on (1)
how much
partisanship is too much or on (2) better ways to draw legislative
districts.
Rick
David J. Becker wrote:
Rick,
you might be again misinterpreting what I am saying. I am NOT saying
disproportionality “always creates an impermissible partisan
gerrymander”, nor am I saying that there is any claim, in and of
itself,
for proportionality. I’m saying that disproportionality is and
should be very powerful EVIDENCE (not a claim in and of itself) in
determining
whether a partisan gerrymander goes too far as a matter of
constitutional
law. I think terms like “bad intent” and “bad
effect” might be a bit too simplistic here. If Shaw can look at the
totality of factors (intent, effects, process, etc.) to determine
whether race
predominated too much over traditional districting principles as a
matter of
constitutional law (don’t think that over-representation of minorities
in
a plan wouldn’t be a VERY relevant factor when a court is looking at a
Shaw claim), then I don’t see why, as a matter of constitutional law,
the
same kind of test can’t be applied to overly partisan mid-decade
gerrymanders.
I agree that
it would be nice if Congress
used its power to make laws to enforce more proportionality on a
national
basis, thus making these lawsuits unnecessary (regardless of whether
they have
merit or not), but I’d be interested to see if there is anyone,
anywhere
on this list, who thinks such a law is likely to even be debated in
this or any
other Congress, let alone be passed and signed into law. Every party
has
an interest in maintaining and expanding its power, once it gets power,
so the
legislative process is inherently ill-equipped to deal with this
issue.
We’re seeing this effect play itself out perfectly in state
legislatures
and Congress right now. That’s exactly why the Supreme Court
ultimately ruled the way it did in the OPOV cases – because Congress
was
never going to legislate such a standard (though I, perhaps unlike
Judge Alito,
do believe the Constitution encompasses such a standard).
Credit to
Rick for raising these
interesting questions, because I find this debate fascinating and
worthwhile. I hope I haven’t diverted the discussion away from
Rick’s original question.
From: Rick
Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Thursday,
December 15, 2005
2:52 PM
To: David J. Becker
Cc: 'election-law'
Subject: Re: question
regarding
partisan gerrymandering claim in Texas
redistricting cases
On your second point
David----I agree that the
scenario you give would be great evidence for a SECTION 2 violation.
That
is key to your argument, I think, but it is a point you gloss over.
The
appropriate standard for enforcing a statute is different from what is
appropriate *as a matter of constitutional law.*
As I have argued elsewhere, City of Mobile
v. Bolden was correctly decided because the Court should not have
enshrined in
the Constitution a requirement of proportional representation of racial
minorities in voting. Congress also acted appropriately in response to
City of Mobile v.
Bolden. It
enacted section 2 of the Voting Rights Act, where Congress installed a
proportional-like remedy for the problem of racial vote dilution. The
Court was right to enforce section 2, and it should not strike it down
as
exceeding Congressional power.
The history of section 2 hows us that we can have political solutions
to deal
with a contested vision of political equality. If the Supreme Court
holds, as you suggest, that large disproportionality in party
affiliation and
bad intent always creates an impermissible partisan gerrymander, it
creates a
one size fits all limit on how courts can engage in redistricting---and
it is a
limit that cannot be changed except by constitutional amendment.
Alternatively, if the Court denies the claim, Congress can use its
power to
enforce more proportionality on the basis of party on a national basis
(at
least for congressional redistricting), and states can make changes as
well,
especially those states that have an initiative process. And these
laws
could be changed without constitutional amendment.
David J. Becker wrote:
We’ll
have to agree to disagree on the OPOV issue. I understand your
reluctance, and by no means do I think it’s a slam-dunk, but I
don’t think that it matters whether the “bad’ intent is
partisan, or has some other rationale. I think when a plan drawer
voluntarily draws new districts, for any reason, that he knows do not
comply
with OPOV, the reasons behind his drawing an unconstitutional plan are
only
somewhat probative – I think the intentional drawing of an
unconstitutional plan at the time the plan is drawn can readily, though
arguably, be ruled a constitutional violation per se. Remember, in
these
types of cases, unlike most voting rights cases, a new plan wouldn’t
need
to be adopted by the court – the remedy would simply be to revert to
the
legal plan that was properly drawn at the time.
As for your
second point, Rick,
you’re misreading my point to mean that I’m suggesting a
requirement of partisan proportionality for all plans. I’m
certainly not, and you’re correct that such a proportionality argument,
if anyone were to make it, has several problems. However, evidence of
a
large DISPROPORTIONALITY can be evidence of improper purpose and effect
in
voting rights cases. For instance, just because a state is 40% black,
doesn’t mean that blacks would be entitled to 40% of the congressional
seats. However, if blacks only held 24% of the seats (and it is
possible
to draw more), that would be tremendous, if not virtually dispositive,
evidence
of a Sec. 2 violation. That would NOT mean that the remedial plan has
to
give 40% of the seats to blacks – just that a plan has to be drawn that
is less disproportionate, while also respecting traditional districting
principles. Also, I don’t want to suggest that disproportionality
alone should be sufficient to establish a partisan gerrymandering
claim.
However, when, as in TX, that disproportionality is accompanied by
substantial
evidence indicating other problems (as indicated before, when the
districting
occurred, what the stated reasons for the districting were, and the
freezing
out of racial and political minorities from the process), I believe
it’s
not very difficult to find a constitutional violation.
And as for
the facts indicating such
disproportionality, I’ll again state that it’s important to give
the most evidence to endogenous elections, and not statewide
elections.
Thus, the differences in PA between the Gore and Santorum races would
not be
very probative at all. It would be far more important to look at the
voting done in congressional races.
From: Rick
Hasen [mailto:Rick.Hasen@lls.edu]
Sent: Thursday,
December 15, 2005
2:07 PM
To: David J. Becker
Cc: 'election-law'
Subject: Re: question
regarding
partisan gerrymandering claim in Texas
redistricting cases
As to the first point, I
don't find the intent
argument persuasive, because I think most of the time legislatures
dominated by
one party will have a "bad" partisan intent. Are we to strike
down all plans on this basis? Especially plans that may contain no
more
of a violation of OPOV than the plan that it overturned (by the end of
the
decade due to population shifts).
As to your main point on the disparities, your point about the evidence
is well
taken, but I have a problem even accepting your numbers as a given.
Suppose
the state has 53% Rs and R's control 69% of the seats after a
redistricting
motivated (in sole or predominant part) by a "bad" intent. To
hold this as a partisan gerrymander based on effect would require some
kind of
rough proportionality of statewide voter preferences (transient though
they may
be---and inconsistent as though they may be: remember in Vieth that a
majority
of Pa voters in 2000 preferred both Al Gore for President and Rick
Santorum for
Senate) translated into legislative seats. I don't think courts, in
the
name of the equal protection clause, should enforce such a "one size
fits
all" solution on the states. If the Constitution is read to require
proportionality of party, why not proportionality of race too? Cf. Mobile
v. Bolden. What kind
of interest group could not then bring a proportionality claim?
Rick
David J. Becker wrote:
First
of all, I wouldn’t be too sure that the one-person, one-vote argument
isn’t that strong. I think Jeff Hauser answered Fred’s points
quite well. In particular, I believe the voluntary
creation of new districts, that would otherwise (for
constitutional
or other legal reasons) be unnecessary to draw, using apportionment
data that
is undeniably out-of-date and inaccurate, creates a real one-person,
one-vote
problem. I believe the intent of the plan drawers is very important
– a plan drawn right after the decennial census is the best the plan
drawers could do to comply with one-person, one-vote at the time – a
plan
drawn anytime thereafter is NOT the best that can be done, and is
knowingly
violative of one-person, one-vote, when drawn.
Second, with
regard to Rick’s
question, I think the facts are very much at issue. For instance, the
court states that “Republicans garner[ed] 59% of the vote in statewide
elections” in the 2000 election. It’s unclear which specific
elections the court is talking about (at least in the opinion), and
whether the
deviation between elections is great or small (which would clearly
impact its
evidentiary value – if the GOP gets 59% in all statewides averaged, but
in one key race they got 80%, and another 38%, the evidentiary value of
this
statistic is zero). Secondly, as we demonstrated conclusively in GA v.
Ashcroft, voting varies greatly between races for president, senator,
statewide
offices, congress, and local offices. In Georgia,
for instance, a Republican is much more likely to get elected the
higher up on
the ballot he/she is – Democrats have a far greater likelihood of
beating
Republicans in local, county, and congressional elections than in
statewide
contests. Thus, I think this 59% number is virtually meaningless.
As I pointed
out in a separate post, by my
calculations (totaling the number of votes from the TX SOS website),
GOP
candidates got 53% of the vote in the 2002 elections (which proves my
point
about elections at different levels yielding different results, with
Bush
garnering 59% and 61% of the vote in the 2000 and 2004 elections,
respectively). However, the re-redistricting granted them 65% of the
seats (and one could argue, it was designed to give them 1 additional
seat, or
69% of the seats).
Without
question, Rick is right to
question whether a difference of 6% (65% to 59%) is enough to indicate
too much
partisanship. I can’t answer that – I think it’s a very
close question, where other factors (such as when the redistricting
took place,
the stated reasons for the redistricting, and the degree to which
racial and
political minorities were shut out of the process) would play a
particularly
strong role (and in TX’s case, all the factors weigh against the
re-redistricting). However, if one views the facts as showing a
difference of 16% (69% to 53%) in partisanship, that might very well
create
such a strong case that the other factors don’t need to be as
strong. Such a difference should probably create a strong presumption
that partisanship predominated over all other traditional districting
principles.
Clearly, how
the facts in the record are
viewed by the Court will be key. However this comes out, it’s
important to compare apples to apples, and concentrate on the
endogenous
elections when determining the degree of partisanship in elections and
the
overall plan.
I am interested in hearing
from others about the
possibility of crafting a "judicially manageable" test for partisan
gerrymandering in the Texas
redistricting cases. Put aside the Voting Rights Act issues (which
could
well have merit) and put aside the Shaw claim (which strikes me as
weak).
Also, put aside the one person, one vote mid-decade redistricting
argument,
which for reasons Fred Woocher put forward the other day on the list,
strike me
as not that strong. Finally, put aside the (very real) possibility that
the
Court crafts a rule applicable just to *mid-decade* redistricting for
partisan
advantage.
With all that put aside, my question is this: what is the argument that
the Texas
plan itself constitutes a partisan gerrymander? Looking at the facts
on
pages 12-15 (pdf pages) of the three-judge court opinion (http://news.findlaw.com/hdocs/docs/txgate/hndrperry60905opn.pdf),
how can it be said that a plan that gives Republicans an advantage in a
state
that was tending to vote 58% R to 41% D constitutes a partisan
gerrymander? As I recall the test for partisan gerrymandering
plaintiffs
put forward in Vieth (a majority of voters on a statewide basis
consistently is
outvoted on a district-by-district basis), the Texas
plan would NOT constitute a partisan gerrymander. Is there now some
other
test that should be applied, which would show that there is too great a
partisan effect? Or is this only to be an intent test? Let's assume
the Texas
legislature' sole purpose in redistricting was to secure partisan
advantage. Is that to be the test? I find such intent tests very
troubling for a number of reasons I could get into if this is the
argument made
against the Texas
redistricting.
Thanks.
Rick
--
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
--
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