In Dan's posting on Election Law @ Moritz, he calls Kennedy's vote in
Vieth "remarkably irresponsible".
    Two points, one maybe just a curiosity:  Kennedy invited a new
approach.  Mightn't that be viewed as adopting (or close to) Rick
Hasen's position that the courts more often should allow exploration and
experimentation rather than requiring X or barring Y?
    Other point:  When Kennedy suggested in Vieth that perhaps the First
Amendment is a more promising lens for redistricting, I (and others)
thought that unhelpful.  But might the current Texas case bring a
Kennedy "I told you so"?  Mightn't he say that Texas's latest
districting isn't a matter of hyper-partisanship but instead
discriminates against ticket-splitters, i.e., people who vote one way
for President and opposite for Congress, or who like particular
incumbents despite not liking their party?   The facts, I believe, are
these:
    In 2000, of Texas's 30 congressional districts, Bush won 20, 16 of
them by better than his state-wide vote of 59%.  But Dems won USHouse
seats in 17 districts, including seven that Bush had won.  Obviously,
lotsa ticket-splitting, of course attributable in at least large part to
incumbency.
    In 2002, of Texas's now 32 districts, Bush in 2000 had won 21, and
19 of those by better than his state-wide vote.  But Dems again won 17
seats.
    In 2004, of the 32 districts, Bush won 23, with 22 of those by
better than his state-wide vote.  And with the new districting, Dems won
only 11 seats-- two of which Bush had won and one of which he'd won by
at least his statewide margin, 59%.
    ??              Thanx for your moment....  R


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Roy A. Schotland
Professor
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