There's an interesting timing element to this process in Florida: the state legislative plans automatically go directly to the State Supreme Court, while the Congressional plans have to work their way through the state courts. More on this here:

http://rosereport.org/20101103/fl-the-ultimate-legal-fight-in-2011-redistricting/

 

- Doug

 

Douglas Johnson

Fellow

Rose Institute of State and Local Government

Claremont McKenna College

o 909-621-8159

m 310-200-2058

douglas.johnson@cmc.edu

www.RoseReport.org

 

 

 

----- Original Message -----

From: JBoppjr@aol.com

To: jgard@buffalo.edu ; Justin.Levitt@lls.edu

Cc: election-law@mailman.lls.edu

Sent: Thursday, November 04, 2010 11:42 AM

Subject: Re: [EL] Redistricting in the wake of the mid-term election

 

    Dean Gardner, the provision that is attracting the most attention, from a vagueness point of view, as well as from a concern about unrestrained judicial intervention, is the one that says:  "does not favor or disfavor any incumbent or party."  I don't know who wrote this, but it looks like a litigation free for all.

 

    Is there some precedent for this? Do you or someone know what was meant by it?  Jim Bopp

 

In a message dated 11/4/2010 10:04:11 A.M. Eastern Daylight Time, jgard@buffalo.edu writes:

Just a quick point about the new Florida redistricting provision: it's certainly not novel.  Here's an excerpt from a piece I wrote a few years ago on the subject of state constitutional prohibitions on gerrymandering (Representation without Party: Lessons from State Constitutional Attempts to Control Gerrymandering, 37 Rutgers L.J. 881 (2006)):

 

 

* * *

 

By far the most common, and oldest, anti-gerrymandering provisions are those requiring election districts to be "contiguous," a provision appearing today in thirty-seven state constitutions,⁴⁰ and "compact," a requirement imposed by twenty-four constitutions.⁴¹ Although the Equal Protection Clause of the U.S. Constitution imposes a binding population equality requirement on all state legislative districts,⁴² thirty state constitutions presently have provisions that independently require election districts to have equal or approximately equal populations.⁴³ Two of these, Colorado’s and Ohio’s, explicitly impose a more stringent population equality requirement than does the U.S. Constitution.⁴⁴ Twenty state constitutions also contain some kind of restriction on the division of local government units or the crossing of local government boundaries in the creation of election districts.⁴⁵ Six state constitutions require districts to be "convenient,"⁴⁶ a now archaic term usually understood to refer to the ability of citizens or candidates to travel easily about the district.⁴⁷

In addition to these older provisions, a new generation of more precise and sophisticated anti-gerrymandering provisions began to appear in state constitutions during the last half-century, introducing a new vocabulary and stock of legal concepts for assessing the validity of state legislative election districts. The first of these, requiring districts to contain "a relatively integrated socio-economic area," appeared in 1959 in the Alaska Constitution.⁴⁸ Soon thereafter, Oklahoma (1964) required that consideration be given in drawing districts to "economic and political interests";⁴⁹ Colorado (1974) required preservation of "communities of interest," which it defined to include "ethnic, cultural, economic, trade area, geographic, and demographic factors";⁵⁰ Hawaii (1978) discouraged the "submergence" of distinct "socio-economic interests";⁵¹ and Arizona (2000) required "respect [for] communities of interest."⁵² The new generation of provision, however, that most directly addresses the problem of partisan gerrymandering is found in the constitutions of Delaware (1963), Hawaii (1978), and Washington (1983), and expressly forbids discrimination in districting against any person, group, or political party.⁵³ This trend culminated in the recent initiative amendment to the Arizona Constitution (2000), which provides: "To the extent practicable, competitive districts should be favored."⁵⁴

* * *

 

I should add that state courts have generally been extremely reluctant to apply these provisions aggressively, with the result that they have for the most part not been much of a factor in actual redistricting litigation.  As I suggested in a different piece, the main impact of these kinds of provisions may be to demonstrate gradually the existence of a state-level national consensus about how redistricting ought to be conducted, thereby supplying the consensus baseline that the US Supreme Court has been searching for in setting a federal standard to assess constitutional claims of partisan gerrymandering.  (See my A Post-Vieth Strategy for Litigating Partisan Gerrymandering Claims, 3 Election Law Journal 643 (2004)).

 

Sorry about the self-promotion, but I thought this might actually be useful to the conversation.

 

Jim

____________________________
James A. Gardner
Vice Dean for Academic Affairs and
Joseph W. Belluck and Laura L. Aswad
   Professor of Civil Justice
State University of New York
University at Buffalo School of Law
Room 316, O'Brian Hall
Buffalo, NY 14260-1100
voice: 716-645-2052
fax: 716-645-5940
e-mail: jgard@buffalo.edu
www.law.buffalo.edu
Papers at http://ssrn.com/author=40126

 

 

----- Original Message -----

From: Justin Levitt

To: Smith, Brad

Cc: Election Law

Sent: Wednesday, November 03, 2010 3:54 PM

Subject: Re: [EL] Redistricting in the wake of the mid-term election

 

One small point: Florida's amendment uses an intent standard, not an effects standard: no plan or district "shall be drawn with the intent to favor or disfavor a political party or an incumbent." 

Certainly, this will present some interpretive (and evidentiary) questions ... but it's not a philosophical impossibility (as an effects standard would be).

Justin

On 11/3/2010 12:05 PM, Smith, Brad wrote:

The Florida amendment is a nightmare: "compact," "does not favor or disfavor any incumbent or party" (yeah, find me that district.)  A smart court would rule that it is not adjudicable, but I suspect Florida's courts won't and now every redistricting will be done by the courts.

 

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

(614) 236-6317

http://www.law.capital.edu/Faculty/Bios/bsmith.asp

 

---

From: election-law-bounces@mailman.lls.edu on behalf of Michael McDonald
Sent: Wed 11/3/2010 2:42 PM
To: 'Election Law'
Subject: Re: [EL] Redistricting in the wake of the mid-term election

Reform also passed in Florida, passing a 60% threshold. This constitutional
amendment established a list of redistricting criteria. I suspect it will
have more effect on the state legislative redistricting since the state
Supreme Court has an automatic review of the legislative plans (the governor
has no veto role). But, unleash the lawyers on the congressional side. What
will be more interesting is that the Florida House will make a
internet-based public mapping tool available (an in-house creation) and will
accept public submissions. If the state legislature produces a congressional
redistricting plan that a high school student can beat on the criteria (or
anyone), unleash the lawyers!

There should be some fascinating redistricting politics this round, too.
I've been calling this election an embarrassment of riches for Republicans.
Look at the CD elections map at a news outlet like CNN. You'll see that
Republicans swept nearly every district they could in states like FL, OH,
PA, and TX. There are now severely lop-sided congressional delegations in
these states. How will the Republicans protect all their incumbents,
especially in these battleground states like OH and PA that are slated to
lose seats to apportionment? Add to this that the 2012 electorate will look
more like the 2008 electorate than the 2010 electorate. Of course, I'd
rather have control of the pen -- or computer -- than not, but it should be
interesting politics to see who ends up on the short end of the stick.

============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution

                             Mailing address:
(o) 703-993-4191             George Mason University
(f) 703-993-1399             Dept. of Public and International Affairs
mmcdon@gmu.edu               4400 University Drive - 3F4
http://elections.gmu.edu     Fairfax, VA 22030-4444

-----Original Message-----
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of
bruce@cain.berkeley.edu
Sent: Wednesday, November 03, 2010 1:35 PM
To: David Mason
Cc: Election Law
Subject: Re: [EL] Redistricting in the wake of the mid-term election

David


This is a nice breakdown, which among other things shows the significance of
California's decision to pass Proposition 20.  In effect it removes
53 seats from single party Democratic control, and creates the big gap
between Republican and Democratic controlled redistrictings.  This is the
problem with unilateral disarmament.  However noble the goal, it could cost
the Democrats nationally a few seats they might need in 2012 or whenver the
tide turns again.

Bruce Cain
On Wed, 3 Nov 2010, David Mason wrote:

> Regarding the "TBD" states below.  At least in Virginia new districts
> will be drawn by the current legislature beginning in January. 
> Republican House and Governor, Democratic Senate), with the 2011 state
> elections contested under the new lines.
>
> On Wed, Nov 3, 2010 at 12:43 PM, Derek Muller <derek.muller@gmail.com>
> wrote:
>       On redistricting, I reached some slightly different numbers, but
>       I thought I'd share them and happily offer them as another data
>       point. I used the EDS figures, and I made a handful of
>       projections (CO and NY, among others).
>  
> Single District States (7): AK, DE, MT, ND, SD, VT, WY
>
> Commissions (88): AZ (9), CA (53), HI (2), ID (2), NJ (12), WA (10)
>  
> Democratic control (44): AR (4), IL (18), MD (8), MA (9), RI (2) [*1],
> WV (3)
>  
> [*1] Veto-proof Democratic majority
>  
> Divided control (104): CO (7), CT (5), FL (27) [*2], IA (4), KY (6),
> MN (8), MO (9), NV (3), NM (3), NY (27), OR (5)
>  
> [*2] Veto-proof Republican majority, but redistricting must adhere to
> nonpartisan standards
>  
> Republican control (163): AL (7), GA (14), IN (9), KS (4), ME (2), MI
> (14), NE (3) [*3], NH (2) [*4], NC (13) [*5], OH (16), OK (5), PA
> (18), SC (7), TN (9), TX (36), UT (4), WI (8)
>  
> [*3] Nonpartisan unicameral legislature
>  
> [*4] Veto-proof Republican majority
>  
> [*5] Governor cannot veto redistricting maps
>
> To be determined by 2011 elections (19): LA (6), MS (4), VA (11)
>  
> Derek
>  
> Derek T. Muller
> Visiting Assistant Professor of Law
> Penn State Dickinson School of Law
> Lewis Katz Building
> University Park, PA 16802
> 814-867-3411
>
>
> On Wed, Nov 3, 2010 at 12:25 PM, Rick Hasen <rick.hasen@lls.edu>
> wrote:
>
> NOVEMBER 03, 2010
>
>   Three Judge Court Refuses Intervenors' Request to Make Findings as
>   to any "Irregularities" in the Settlement in the Georgia v. Holder
>   Section 5 Redistricting Case
>
> A very interesting request denied.
>
> Posted by Rick Hasen at 09:14 AM
>
>   "The Impact of the 2010 Elections on the Impending Redistricting
>   Process"
>
> Nate Persily blogs. In addition, Justin's take on this question is
> here.
>
> Posted by Rick Hasen at 09:05 AM
>
>   Judicial Elections: The Crocodile in the Bathroom Just Got Sharper
>   Teeth
>
> The late great California Supreme Court justice Otto Kaus is perhaps
> best remembered nationally for a statement he made about judicial
> elections and the in terrorem effect of judges having to stand for
> reelection (even retention elections): ""You cannot forget the fact
> that you have a crocodile in your bathtub...You keep wondering whether
> you're letting yourself be influenced, and you do not know. You do not
> know yourself that well."
>
> Now, with the news that three Justices of the Iowa Supreme Court have
> been voted out of office because of their decision in a gay marriage
> case, I am sure many judges in states with judicial elections will,
> consciously or not, allow their fear of being voted out of office
> affect how they rule on hot button issues.
> Some say that the Iowa result is a good result because it means we are
> holding judges accountable. I disagree. Even in a world of judicial
> retention elections, in my view it is only proper to vote against a
> sitting judge when that judge has done something ethically improper
> (such as taking a bribe) or has consistently issued rulings that are
> unprincipled or intellectually dishonest. In contrast, reasonable
> justices can differ on the constitutionality of gay marriage bans, and
> a judge who votes one way or the other on that issue should not be
> voted out of office because of a single, principled vote.
>
> I think the Iowa result is only going to embolden groups to fight even
> harder in judicial elections next time around. Dahlia Lithwick and I
> tried to show how ugly the world of judicial elections has become.
> Voters in Nevada, who did not listen to Justice O'Connor's wake-up
> call, soundly rejected a ballot measure that would have moved the
> state from competitive elections to appointment followed by retention
> election. I am not aware of any state that has moved from any kind of
> judicial election toward either an appointment model or a federal
> model of appointment. So I'm not sure what the answer is, but I'm very
> pessimistic about how elected judges are going to be able to handle
> the pressure.
>
> Posted by Rick Hasen at 08:56 AM
>
>   Will Chair Issa's First Investigative Subpoena Target the New
>   Black Panthers Issue at DOJ?
>
> Al Kamen says "maybe."
>
> Posted by Rick Hasen at 08:35 AM
>
>   "Recount Redux: How this year's might look the same -- and a bit
>   different -- from 2008"
>
> Jay Weiner explains Recount 2.0 in Minnesota.
>
> Posted by Rick Hasen at 08:29 AM
>
>   "Portland voters rejecting Measure 26-108's publicly funded
>   campaign program"
>
> See here. In contrast, as I noted last night, the measure to get rid
> of Florida's public financing plan failed to attain the 60% necessary
> as a constitutional amendment.
>
> Posted by Rick Hasen at 08:24 AM
>
>   Close Major Races Not Yet Decided/Recount Possible
>
> U.S. Senate, Washington State: Murray leading, likely to win with
> margin that would avoid recount.
>
> U.S. Senate, Colorado: Bennet ahead by about 7,000 votes with 87% of
> vote counted; automatic recount triggered if margin about 3,900 votes
> or less (the Denver Post has called this for
> Bennett)
>
> U.S. Senate, Alaska: "Write-in" is ahead of Miller by over 13,000
> votes. Though Miller has not yet conceded, and there doubtless will be
> a fair number of votes among the write-ins that election officials
> will not count for Murkowski (because voter intent was unclear), this
> one looks like it is beyond the margin of litigation (which is a good
> thing too, because a close race depending upon voter intent on
> write-ins could have been very ugly)
>
> Governor, Minnesota: Poor Minnesota. It looks like we'll have an
> automatic recount, because the Dayton-Emmer contest is within a half
> of a percentage point. From the Star Tribune story: "'It looks like
> it's recount part II: And this time it's personal,'
> said state Republican Party Chair Tony Sutton." Yes, it is a bad
> horror movie meets "Groundhog Day."
>
> In the end nationally, if things break in the Senate the way they
> appear to be breaking it will be Democrats with 53 in the Senate to 47
> Republicans in the House. The NYT now has Republicans +60 in the
> House, with 11 seats yet to be determined. That makes my predictions
> yesterday morning (Senate, 52-48; House, Republicans +65-70) pretty
> close, and closer than the 54-55 Republican House gain predicted by
> Nate Silver yesterday at the same time.)
>
> UPDATE: Ned Foley flags Connecticut governor's race as a "yellow
> alert" state.
>
> Posted by Rick Hasen at 08:19 AM
>
>   What Tuesday Means for Redistricting
>
> [Justin Levitt here, guest posting -- with thanks to Rick, as always.]
>
> As the red-eye flights of recount lawyers touch down Wednesday
> morning, attention will inevitably flow to the federal races still in
> overtime. But there is a bloody redistricting cycle just ahead with
> the potential to lock down Tuesday's gains for the GOP. And for those
> looking for ripples from yesterday's elections, there are a few state
> races, still too close to call, that deserve more attention for their
> impact on redistricting than they normally receive.
>
> A little context to convey the magnitude of Tuesday's political shift
> -- and the stakes of the elections still undecided -- for the coming
> redistricting cycle:
>
> In 2001:
> - 121 Congressional seats were drawn in states where Democrats
> controlled the redistricting process;
> - 95 seats were drawn in states where Republicans controlled the
> redistricting process; and
> - 212 seats were drawn in states with divided control. (7 states have
> one district apiece.)
>
> In 2011, based on the preliminary unofficial returns thus far from
> Tuesday's elections (nice summary here), and projections for the size
> of each state's 2012 Congressional delegation (contesting sources here
> and here):
> - 189 Congressional seats will be drawn in states where Republicans
> are likely to control the redistricting process;
> - 26 seats will be drawn in states where Democrats are likely to
> control the process;
> - 145 seats will be drawn in states with divided control . . .
> and
> - 68 seats, more or less, await the results of races that were too
> close to call early Wednesday morning.
>
> Of course, partisan control is hardly the only factor driving the
> redistricting process in many of these states, and I don't mean to
> imply that 189 seats drawn by Republican legislators will be drawn
> solely to maximize Republican electoral fortunes, or that they will
> yield 189 Republican seats -- not even close.
> History has shown, though, that unified partisan control often acts as
> a powerful thumb on the scales when district lines are drawn.
>
> More analysis of the most important still-undecided races for
> redistricting, and how we got to where we are now, after the jump. For
> more detail, there's a more complete description of the way that each
> state conducts redistricting in the Citizen's Guide to Redistricting
> (2010 update coming momentarily, I'm told); the Rose Institute also
> has a handy easy-reference map.
>
> Continue reading "What Tuesday Means for Redistricting"
> Posted by Justin Levitt at 04:49 AM
> --
> Rick Hasen
> William H. Hannon Distinguished Professor of Law Loyola Law School
> 919 Albany Street
> Los Angeles, CA 90015-1211
> (213)736-1466
> (213)380-3769 - fax
> rick.hasen@lls.edu
> http://www.lls.edu/academics/faculty/hasen.html
> http://electionlawblog.org
>
> _______________________________________________
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>
>
>
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>
>
>
>


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Justin Levitt

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Loyola Law School | Los Angeles

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