Rick Hasen's web log
June 09, 2005
Some Initial Thoughts on the Texas Decision
[UPDATE: I have enabled comments.] I have had a chance to skim the decision of the three-judge court rejecting partisan gerrymandering and one person, one vote challenges to the Texas re-redistricting, on remand from the Supreme Court to reconsider in light of Vieth. Some initial and very tentative thoughts:
1. All three judges agree that the standard plaintiffs came up with could not be distinguished from the standards identified and rejected by the Supreme Court in Vieth. (The concurring judge on the panel had different views on the permissibility of re-redistricting mid-decade in light of one person, one vote requirements, but believed the issue was not properly before the court on remand.)
2. As I suggested months ago, the judges saw their task as essentially giving Justice Kennedy a chance to reconsider whether there is a judicially manageable standard for separating permissible from impermissible use of party in drawing district lines. After recounting the holding of Vieth, the majority writes: "While the state's contention that most, if not all, of [plaintiffs] arguments have been rejected by a majority of the Court [in Vieth] is strong, we decline to stop there, given the unusual fracture of the Court in Vieth. We can only fairly read the remand to suggest that the Justice providing the fifth vote sees the possibility of a workable standard emerging from this case, the rejected allegations of the complaint in Vieth aside." (pdf at 11).
3. The majority engages in an extensive discussion of the lack of connection between the plaintiffs' individual rights claims and the claimed structural defect in the redistricting: the absence of competitive districts. The court sees little connection. It notes the lack of competitive districts in Texas for 4 1/2 decades, and notes that non-competitive districts can emerge from both bipartisan gerrymanders and even lines drawn by "neutral" redistricters. In short, it sees no connection between the competitiveness issue and the partisan nature of the redistricting. (see part C, beginning at page 30 of the pdf)
4. The court engages in a very interesting discussion of the mid-decade redistricting argument (part IV, beginning on page 36 of the pdf). Particularly interesting is the court's discusion of how OPOV acts as a legal fiction, given changes in population throughout a decade. The court also turns the tables against the university professors who brought the argument forward in their amicus brief, citing Prof. Sandy Levinson's North Carolina article on OPOV against the argument advanced in the brief.
5. As I have stated, I would not expect this lower court opinion to have much influence on the Supreme Court. It just bought Justice Kennedy another year to think about things, and with a possible replacement of the Chief Justice with a Justice such as Judge Michael McConnell (whose work is cited by the three judge court), there's the possibility that Justice Kennedy's vote would not be needed to overturn the results of Texas. But with the timing of things at the Supreme Court, that might not happen even in time for the 2006 elections.
Gerrymander Math 101-
Just over half the votes in just over half the gerrymander districts = just over 25 percent ANTI-democratic minority rule --- falsely assuming that there are only 2 candidates and an exactly equal number of actual voters in each district. See Justice Stewart in Lucas (1964) - a mere 41 years ago.
Texas U.S. Reps. Nov. 2004 election
VOTES PCT PV
4743160 64.0 32 WIN- 11 D, 21 R
2082323 *28.1 17 LOW WIN- 11 D, 6 R
2736542 *36.9 17 LOW R WIN
----------------------------------
7410749 100.0 32 PRESIDENT VOTES (PV)
* ANTI-DEMOCRACY MINORITY RULE PERCENTAGES
Democracy via P.R. ---
Party Seats = (Party Votes x Total Seats) / Total Votes
Math that is much too complex for New Age plaintiffs and judges -- esp. appellate judges.
Posted by: D.R. at June 10, 2005 10:17 AMProf. Hasen, I don't disagree with any of your initial observations.
My own longer and probably less astute take is here, the nub of which is:
Since the partisan skew resulting from the Pennsylvania gerrymander was worse than the partisan skew resulting from the Texas gerrymander, and since the Supreme Court left the Pennsylvania gerrymander in place anyway, yesterday's opinion says this panel won't overturn the Texas gerrymander for being "too partisan."Posted by: Beldar at June 10, 2005 04:12 PM
Actually, on further reflection, I have one quibble:
You refer to this lawsuit as a challenge to the "Texas re-redistricting." Perhaps your use of that term was just due to haste.
But I really think it's misleading, and it's been deliberately used with that intent by opponents of what happened.
Calling the map passed by the Texas Legislature in 2003 a "re-redistricting" implies that the Texas Legislature had already done one redistricting after the 2000 Census. It hadn't: The Dems had successfully logjammed the Republicans' attempts to redistrict in 2001.
Yes, a three-judge panel (that included Judge Higginbotham) did the minimum constitutionally required to create and place the two new districts mandated by the 2000 Census in the Balderas decision. But as that decision recognized, and as Judge Higginbotham quite clearly restated in Thursday's opinion, that court decision was in no way comparable -- and certainly not equivalent -- to a normal redistricting performed by a state legislature. To the contrary, it effectively perpetuated Martin Frost's gerrymander from 1991.
There has been exactly one redistricting in this decade by the Texas Legislature, and calling that a "re-redistricting" misleadingly suggests otherwise. If you accept the basic premise that the people ought to have at least an indirect voice in this process through representative democracy -- and surely, Prof. Hasen, we can agree on that -- then we ought to clearly distinguish between a "redistricting" performed by a state legislature and a "redistricting" done by a panel of three unelected, life-tenured federal judges (especially ones like those who comprised the Balderas panel, who were loudly protesting that they lacked the skills and the political legitimacy to even try to represent the public will in what they were doing).
Posted by: Beldar at June 11, 2005 08:09 AMThat's quite a "quibble" there, Beldar. And I disagree. The term "re-districting" does not necessarily imply that the Texas Lege had already drawn a map. I don't know why you would insist that it does. It does imply that a new map was legally drawn, and used. It was.
Furthermore, do you have any evidence for your claim that "The Dems had successfully logjammed the Republicans' attempts to redistrict in 2001"? if so, we'd all like to see it.
Finally, I'd like to point out that Tom DeLay's, Rick Perry's, and Speaker Craddick's insistence that the Texas Lege waste a whole bunch of taxpayer money through one regular session and three special sessions to re-draw these districts had NO popular support. The only people upset with the map drawn by the 3-judge panel were a few Republican politicians. And what they have done is set a nasty precedent: if your party has a majority in the Texas Lege, feel free to re-district. I'm wondering if the Democrats, whenever they regain a majority in the Lege, might just feel like re-districting a time or two themeselves. And the Republicans will have no reason to complain, since they did it, and they only did it because they could get away with it.