Simultaneous Opening Briefs Filed in Texas Re-Redistricting Cases on Remand

You can find the Jackson Plaintiffs/Democratic Intervenors brief here (see also the accompanying declaration) and the state's brief here. (I will post other briefs if I receive them electronically.) Simultaneous reply briefs are due later this month.

The question is what Vieth means, given Justice Kennedy's concurrence. The Jackson/Democratic Party brief says that upon careful examination of the opinions in Vieth, it has uncovered a standard: five Justices (the four dissenters plus Kennedy) agree that an unconstitutional political gerrymander occurs when three conditions are met:

1. That the map-drawing decisions made in at least some districts cannot be explained as springing from efforts to obey legal mandates or to follow traditional nonpartisan districting principles like compactness, contiguity, respect for political subdivisions and natural barriers, or other neutral state traditions;
2. That the departures from traditional districting principles can be explained as driven by an agenda of achieving partisan advantage because they serve to maximize the impact of votes cast for the favored party’s candidates or minimize the impact of votes cast for the disfavored party’s candidates; and
3. That the departures from traditional districting principles in the service of a partisan agenda were intentional.

Unsurprisingly, the state puts Justice Kennedy on the side with the plurality in Vieth as stating that there is no standard for the three-judge court in Texas to apply:

The divergence between Justice Kennedy and the plurality is one of temperament, not reasoning. While the plurality would hold that political-gerrymandering claims are inherently nonjusticiable, Justice Kennedy would "err on the side of caution" by allowing for the possibility of federal court intervention at some future time should a consensus eventually emerge on "suitable standards with which to measure the burden a gerrymander imposes on [a] representational right." That time is not now; the ink is barely dry on Vieth, and no such consensus can be said to have emerged.

UPDATE: I have now posted the Travis-Austin brief here.

Posted by Rick Hasen at December 7, 2004 02:21 PM