January 17, 2004

The Texas Redistricting Stay Denial and the Outcome in Vieth

"Beldar" (Bill Dyer) of the Beldar Blog collects news stories about the Texas redistricting suit and offers some detailed analysis of what it means for the pending Supreme Court redistricting case of Vieth v. Jubelirer here. He writes:

    I also believe that if the US Supreme Court intends to write dramatic new law in Vieth that overrules Bandemer and substantially restricts partisan gerrymandering in any important way, then the same Justices who cast preliminary votes to that effect after oral arguments in Vieth almost certainly would have voted to grant the Texas plaintiffs' motion for an emergency stay pending appeal. If they know the law is about to change in a way that would make what the Texas Legislature did in 2003 illegal, then they almost certainly would have voted to ensure that the 2004 elections in Texas would take place either under whatever new law they intend to announce in Vieth, or else under the pre-existing 2001 map rather than permitting the 2004 elections to proceed under the Legislature's 2003 map that was approved by the three-judge panel applying the Bandemer plurality standard.

I think this probably overstates it a bit. There could be factual issues that distinguish Vieth from the Texas case, meaning that the Justices could decide the Texas redistricting is permissible even under a new standard that might be crafted. Or, more likely, the Justices may not be willing to inject more uncertainty into the Texas redistricting process this year, leaving room to make changes for the 2006 elections if necessary.

That is not to say that the Court is in fact likely to give more teeth to partisan gerrymandering in Vieth. Reports from oral argument suggested the Court is likely to either solidify the toothless Bandemer standard or to hold partisan gerrymandering claims nonjusticiable altogether. Indeed, in reviewing the content of the 2004 election law supplement, I was reminded that the two Justices who wanted a hearing in a similar Michigan case---O'Lear v. Miller---were Justices Breyer and Stevens. It appears from the Vieth oral argument that they were the ones pushing for a stronger partisan gerrymandering standard. Probably they attracted two more votes to revisit the issue, but do not have the votes to overturn Bandemer.

Posted by Rick Hasen at January 17, 2004 11:13 AM