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out-of-date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