Let me add an additional twist to Rick's question:

What (if anything) would make the mid-decade Texas redistricting
unconstitutional while saying the mid-decade Georgia redistricting
constitutional? How does one draw the line between redistrictings that
aim solely for partisan advantage (Texas) versus redistrictings that
give partisan advantage while also greatly reducing community divisions,
county divisions, and improving compactness (Georgia)? Or is a
re-redistricting unconstitutional regardless of how egregious a partisan
or sweetheart gerrymander was originally drawn?

- Doug

Douglas Johnson
Fellow
Rose Institute of State and Local Government
doug@talksoftly.com
310-200-2058


-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Frank
Askin
Sent: Thursday, December 15, 2005 10:03 AM
To: Rick.Hasen@lls.edu; election-law@majordomo.lls.edu
Subject: Re: question regarding partisan gerrymandering claim in
Texasredistricting cases


   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
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