Rick ... feel free to share with the listserve.  I think you might have some thoughts on this, though ...

 

Having sat through argument today, I offer only one observation about the exchanges.  I’m frankly surprised about the rather misguided approach to understanding legislative incentives and redistricting.  

 

I believe that it was Scalia who first pressed on whether the Court would create perverse incentives for legislatures if it banned mid-decade redistricting.  From what Scalia implied (and, later, the TX attorney explicitly stated), forbidding mid-decade redistricting would encourage more efforts by the legislative minority party to gum up the redistricting process and force courts to create a map – with assurance that the districts would remain undisturbed for the full ten years.   

 

First, I’m not convinced that the “undisturbed” point is correct as a factual matter.   It’s hard to name any of the states in the1990s that didn’t face some extra legal challenge after the first round of redistricting.  

 

As to incentive, though, it seems really odd to me that no one seemed to at least raise the possibility that legislative incentives would actually cut in the opposite direction.  In the same scenario w/ that legislative minority party, shouldn’t the temptation to gum up redistricting get stronger – not weaker – w/o some limit on mid-decade redistricting?  Why?  A legislative minority has the ability to take the power away from the opposing legislative majority party (there’s always more minority party representation in a court drawn plan than an unfriendly gerrymander would supply) AND would leave open the chance for a “do-over” redistricting if the legislative minority became a legislative majority.   

 

Seen in this light, I think this case raises an interesting question about the power of the federal courts when they sit on these “failure to act” cases.   Where the legislature (or some portion of it) abdicates its responsibility to redistrict, why should we be so sensitive to the anti-majoritarian concern?  Shouldn’t the court plans (with reasonable review) have bite in this context?  Without some assurance that the “do over” possibility is limited – at least to some degree, how can the courts be seen as anything else than a place-holder?  I wish I had seen more of this in the plaintiff’s response to the question.

 

 

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
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