It seems to me there should be a presumption against mid-decade redistricting which results from a transfer of political power in the state.  I would think the presumption could be rebutted by special circumstances - e.g., the decennial redistricting was carried out by court order, not by the legislature.  A massive population shift -- such as has recently occurred in Louisiana as a result of Katrina -- might also be justification
     But when the only occasion for the redistricting is the ascension to power of a different party, that seems to be a clear case of partisan gerrymandering.  Is it really sound public policy to allow redistricting every time there is a change in political control in a state?  FRANK

Prof. Frank Askin
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687

Rick Hasen <Rick.Hasen@lls.edu> 12/15/05 12:27PM >>>

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 tr!
 oubling for a number of reasons I could get into if this is the argument made against the Texas redistricting.

Thanks.

Rick


-- Rick HasenWilliam H. Hannon Distinguished Professor of LawLoyola Law School919 Albany StreetLos Angeles, CA  90015-1211(213)736-1466(213)380-3769 - faxrick.hasen@lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlawblog.org