October 18, 2004

Breaking News: Supreme Court Remands Texas Re-Redistricting Case in Light of Vieth

A.P. offers this early report. The Texas case was remanded to the three judge court to reconsider in light of the Supreme Court's partisan gerrymandering decision in April, Vieth v. Jubelirer.

I had predicted that the Court would summarily affirm the Texas case (unless the Court saw a Voting Rights Act problem), with dissents from the dissenters in Vieth. I based this prediction on the fact that four of the Justices in the plurality indicated in Vieth that partisan gerrymandering claims should be considered non-justiciable, and they pointed to the Texas re-redistricting in their opinion. Justice Kennedy was fully aware of the Texas re-redistricting case when he concurred, agreeing with the four dissenters that these cases were justiciable, but agreeing with the plurality that no one has yet found a way to separate out permissible from impermissible consideration of party identification of voters in redistricting.

This decision today is a punt by the Supreme Court, perhaps a prudential move in light of the upcoming presidential election. Most likely it reflects Justice Kennedy's continued internal conflict on the question of how to resolve these cases. What is the lower court to do? The lower court Justices already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with. It will be up to plaintiffs to come up with a new standard on remand to meet Justice Kennedy's standards. In my forthcoming Election Law Journal article, "Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims After Vieth," I argue that Vieth should be viewed as a placeholder decision. Likely the status quo (claims are justiciable, but no standard to use to judge partisan gerrymandering claims) will continue until we have a change in Court personnel, or until Justice Kennedy decides to finally commit in one direction or another.

In the meantime, the Texas races go forward under the re-redistricted lines. The New York Times today discusses those races, and at the very least, the lower court will have the benefit of this election to see precisely what the effect of the re-redisticting has been.

Posted by Rick Hasen at October 18, 2004 07:40 AM