Yes, the second half of that sentence is inept. But the adequate response is "a Republican majority" and a "fair districting plan," viewed in partisan terms, amount to the same thing in the context of Texas in the 2000s.
Richard H. Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law
212 998-6377
<marty.lederman@comcast.net> 6/28/2006 8:33 PM >>>
And Walter Dellinger again, http://www.slate.com/id/2144476, focusing on this remarkable sentence from the controlling AMK opinion: "The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew."
Understandably, Walter "would have thought the first part of that sentence would have disposed of the case: If the legislature has decided to undertake an action 'for the sole purpose of achieving a Republican congressional majority,' it has right then and there failed the basic constitutional test that all legislative acts must, at the very least, serve some legitimate legislative purpose. An act with the 'sole purpose' of achieving a partisan aim does not satisfy that standard."
What made this Texas case different, in Walter's view, "is that the most salient issue involved a challenge to one big decision -as opposed to a lot of small complicated ones*the decision to create a whole new plan. And that legislative decision was admittedly done with the 'sole purpose' of achieving a partisan aim. To this objection the rest of Justice Kennedy's critical sentence*'but partisan aims did not guide every line it drew' is just no answer. The fact that legitimate nonpartisan aims might have guided some of the countless line-drawing decisions may well have provided a defense to a challenge to how the plan was drawn. But it is simply not responsive to the challenge here: A challenge to the big threshold decision to replace a valid plan with a new one."
What, short of a Scalian "Who Cares?," is an adequate response to this observation?
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From: Rick Hasen <Rick.Hasen@lls.edu>
More Texas Commentaries and News
Justin Levitt and Lisa Sandoval (in The Hill)
Dan Lowenstein
Bob Bauer (second post)
"The Coming Ballot Meltdown"
Andrew Gumbel has this article in The Nation.
"Justice Department clears Georgia's voter ID rules"
A.P. offers this report.