Josh Douglas’s essay for the Washington Monthly:

“State courts committed to upholding the ideals of democratic representation within their state constitutions should adopt a presumption of unlawful partisanship for a mid-decade redistricting and invalidate these maps.

Three aspects of state constitutions support a presumption of unlawful partisanship.

“First, nearly every state constitution includes a commitment to democracy and popular sovereignty. As law professors Miriam Seifter and Jessica Bulman-Pozen have shown, these state constitutional provisions express a commitment to the people as supreme. A mid-decade redistricting, conducted solely to achieve a partisan end, flips that principle on its head. Politicians are punishing the people for their previous choices by changing the maps. These states have no legal compulsion to do so, as they are not responding to a court order about an earlier map and do not need to adjust the lines to fix population inequality. They simply want to skew the results.

“Second, some state constitutions tie the timing of redistricting to the census. For example, Missouri’s Constitution says that the legislature shall draw congressional districts after ‘each census . . . is certified to the governor.’ The Missouri Supreme Court, in a case called Preisler v. Doherty in 1955, ruled that this provision means that redistricting may occur only once per decade following the census ‘because the decennial census is made the basis of reapportionment.’

“Finally, mid-decade redistricting inherently violates the principle of one person, one vote and the requirement of equal population between districts. States use census data to draw new lines, and of course, those districts will become less equal throughout the decade as people are born, die, and move. Yet the new maps rely on outdated census numbers, making them unequal. …

“A state would need to provide a non-political justification for changing its map in the middle of the decade. Perhaps a natural disaster caused a major population shift, and the districts are woefully unequal, causing skewed representation for the rest of the decade (though the state would need accurate data on population shifts to better comply with population equality). Maybe a state enacts an independent redistricting commission and wants to have that commission redraw a previous legislatively-drawn gerrymander. Most of the time, however, this presumption should lead a court to invalidate a mid-decade redistricting, which will hopefully discourage states from engaging in the practice in the first place.”