Subject: Re: [EL] Redistricting in the wake of the mid-term election
From: Justin Levitt
Date: 11/3/2010, 3:33 PM
To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

An example often cited as a case in point: the Hinds County, Mississippi county supervisors' redistricting in 1973, using equalized road mileage as an objective measure that quite effectively fragmented the minority population.

"Objective" in this context does not mean "neutral," either in intent or effect. 

Micah Altman and Michael McDonald have quite a good new article in the Duke Journal of Constitutional Law & Public Policy, here, explaining what computers can -- and cannot -- achieve in the redistricting process.

Justin

On 11/3/2010 2:53 PM, John Tanner wrote: 
Yes, the computer's product woudl be subject to the Voting Rights Act.
 The Act looks not only to purpose but to effect (section 4) and
results (section 2).  And there is a potential for purpose issues in
the design of the system.

On Wed, Nov 3, 2010 at 5:44 PM, Jon Roland <jon.roland@constitution.org> wrote:

This raises a key question whether a map drawn entirely by computer,
according to objective standards, with no human intervention other than to
launch it, would be properly subject to the VRA and its preclearance
standards, which presuppose maps drawn by human beings. Computers don't
discriminate, given an open algorithm that can be debated rather than the
details of the map drawn by it.

I suspect such a system would satisfy the invitation for a solution made in
Justice Kennedy's comment in Vieth v. Jubelirer:

With no agreed upon substantive principles of fair districting, there is no
basis on which to define clear, manageable, and politically neutral
standards for measuring the burden a given partisan classification imposes
on representational rights. Suitable standards for measuring this burden are
critical to our intervention. ... There are, then, weighty arguments for
holding cases like these to be nonjusticiable. However, they are not so
compelling that they require the Court now to bar all future partisan
gerrymandering claims. ... That a workable standard for measuring a
gerrymander's burden on representational rights has not yet emerged does not
mean that none will emerge in the future.

On 11/03/2010 02:54 PM, Justin Levitt wrote:

Florida's amendment uses an intent standard, not an effects standard

-- Jon
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-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt@lls.edu
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