Having also attended the hearing today, I must echo everything that Ned
Foley, Bob Bauer, and Bruce Cain have reported. In particular, the Court
spent a surprisingly small amount of its time on the partisanship issues,
and focused much of its questioning on the racial issues instead, and in
particular on Sec. 2 claims related to districts 23, 24 and 25.
While I thought that Justices Breyer and Souter seemed generally sympathetic
to the arguments of the appellants, there just seems no way that there are 5
justices who would invalidate mid-decade redistrictings -- indeed, there
might not be any. The issues relating to one-person, one-vote were hardly
discussed.
Justice Kennedy made several comments that I thought were interesting.
First, he seemed very concerned whether finding a Sec. 2 violation in
District 24 (where there was apparently 26% black voter population) would
open up Sec. 2 to all sorts of claims regarding the need for an "influence"
district -- a somewhat ironic position for him to take considering he voted
with the majority in Georgia v. Ashcroft to open Sec. 5 to claims regarding
influence districts. Second, he seemed to admit that some standard could
exist for overly partisan gerrymandering, in that he suggested that the
Court could perhaps reverse a lower court that had adopted a plan that
apportioned representatives accurately according to partisan proportions,
over a plan that complied with traditional redistricting principles, but he
seemed to think that such a standard hadn't been enunciated yet. Finally,
he stated that the new district 23 (Bonilla's district), where Hispanic VAP
had been reduced from 63% to less than 51%, in order to improve the
electoral opportunities for Bonilla (who was undisputedly not the Hispanic
candidate of choice), was an "affront and insult" because it removed just
enough Hispanics to "make it look good" (by maintaining a bare majority
Hispanic VAP). However, these comments notwithstanding, the overall
impression he gave was of skepticism of the appellants' claims.
Overall, though these things are notoriously hard to predict, I'd be very
surprised if the appellants will muster more than four votes (and perhaps
far fewer) on any of their claims.
David J. Becker
Election Consultant and Voting Rights Attorney
(202) 550-3470
(202) 521-4040 fax
david.j.becker@electionconsulting.com
www.electionconsulting.com
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
bruce@cain.berkeley.edu
Sent: Wednesday, March 01, 2006 8:30 PM
To: Rick Hasen
Cc: election-law
Subject: Re: Texas Redistricting Hearing
To all,
I was able to attend the arguments today, and am willing to give my
impression, albeit from political science eyes. There was not much
sympathy for the argument that a mid-decade redistricting for purely
political purposes is unconstitutional. A majority of the judges seemed
reluctant to restrict the ability of legislatures to re-do
redistricting, particularly one re-doing a court drawn plan. Absent a
clear standard of political unfairness, they were open to the argument
that the Republican legislative plan merely redressed the perceived
residual unfairness of the Democratic plan that was perpetuated by the
Court. Given that and given that redistricting is first and foremost a
legislative task, it seemed that most of the Justices did not want to
restrict the right of the legislatures to "fix" problems mid-decade.
After all the courts ask legislatures to fix problems mid-decade, why
shouldn't the legislatures have the right to decide that themselves?
The one ray of hope for the plaintiffs seemed to be the section 2 argument
about district 23. By my estimate, there might be five votes for saying
that seat violates section 2, but even here, I would not bet the
bank. The fact that 30% of the Latinos voted for a Republican Hispanic
seemed to raise questions about how cohesive the Laitno bloc voting is,
and Roberts pushed very hard on the question of what, if not 51% Latino,
was the definition of a real opportunity seat.
Even if the paintiffs prevail on the section 2 issue, it seems to me the
legislature could fix that and keep the Republican biases in place. I
certainly could if given the charge. All in all, not a good day for the
opponents of mid-decade redistrictings from where I sat.
Bruce Cain