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