On Friday, a three judge court hears oral argument in the Texas re-redistricting case on remand from the Supreme Court for reconsideration in light of Vieth. (You can find links to some of the briefs here and here).) I have now read the state’s reply brief and the reply brief of the Jackson/Democratic Intervenors.
The case puts the lower court in a really tough position, because four Justices in Vieth ruled that partisan gerrymandering cases are non-justiciable, four dissenters proposed (at least) three different standards for judging the constitutionality of partisan gerrymander, and Justice Kennedy simply could not decide: he left the door open for future challenges, but rejected all the proposed standards that have been set forth so far. I’m going to stick with my earlier view:

What is the lower court to do? The lower court [judges] 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.

It probably doesn’t matter much what the lower court does, besides collect information on what actually happened in the 2004 election under the new district lines. It will all come back to the Supreme Court. And what is the Supreme Court likely to do? I have given up predicting how Justice Kennedy might decide things, but let me discuss in more detail the other potential wrinkle: By the time the case makes it back to the Supreme Court, we may have a new Chief Justice. There has been a lot of talk about how conservative (e.g., on abortion rights) that new Justice might be, but it is not clear that a conservative would necessarily reject an invigorated partisan gerrymandering standard. Imagine, for example if Tenth Circuit Judge (and former professor) Michael McConnell gets the nomination. He’s written some very interesting stuff on redistricting, including Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 Harvard Journal of Law and Public Policy 103, 103-04 (2000). (McConnell was attacked for this writing when he was up for confirmation, in my view unfairly—Doug Laycock defended McConnell on this score—see page 2 of the linked document.) We could thus be in for a new partisan gerrymandering standard, something I don’t support but can foresee if there is a change in Court personnel in time. The Court could begin by adopting the position of the Jackson plaintiffs, that when a redistricting is done for the predominant (or sole) purpose of securing partisan gain, it should be struck down.