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Electronic Roundtable '06

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Electronic Roundtable '06

How to Decide the Texas Redistricting Cases

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February 28, 2006

In this post, I consider how the Supreme Court should decide the Texas redistricting cases, focusing on the partisan gerrymandering claim, but noting the one person, one vote, Voting Rights Act, and racial gerrymandering claims. (I assume that readers have background on these issues from earlier posts here and elsewhere.)

For those who have been reading my earlier posts, my position on the partisan gerrymandering claim should be obvious: I think the Court should decline to strike down the Texas districts on these grounds. As I recently wrote in Slate:

Let's call what happened in Texas a naked power grab by a self-interested Texas legislature based on the determined effort of Tom DeLay. Should that power grab be unconstitutional, or instead merely a reason to vote out those legislators who supported the distasteful plan?

The problem with such reasoning is that it would invalidate most redistricting done by most legislators in the United States, which are almost always the product of self-interest. How do legislators draw districts? They must comply with the one person, one vote, equal population standard and the Voting Rights Act. State law sometimes imposes certain limits on legislative districts. Beyond that, most legislators care about getting themselves re-elected and securing party advantage. Redistricting is an inherently self-interested act, and if bad intent were the test for unconstitutionality, scarcely any districting plan enacted by a state legislature would be upheld. [Note: for more on why "bad legislative intent" should not be dispositive, see here.] Even so-called "sweetheart" or bipartisan gerrymanders would be constitutionally suspect, because they would be the product of legislative self-interest, too.

It is hard to believe that even an activist Supreme Court has the stomach to declare all legislatively enacted redistricting unconstitutional, so we might try coupling a "bad intent" test with a "bad effects" test: For example, if a state contains a majority of Democrats but keeps sending many more Republicans than Democrats to Congress, that might raise a constitutional problem. In those cases, the legislature was not merely acting in its own interest, but had also skewed the results. The trouble with applying this test in the Texas case is that there do appear to be more Republicans than Democrats in the state. The argument applied to Texas would have to be extended to something like a requirement of rough proportionality between a party's support and the shape of the congressional delegation: Texas deserves a majority Republican delegation, the argument goes, but not this big a majority. ...

The alternative to all this election-law activism is a more modest Supreme Court that acts only to preserve core equality rights, like the right to vote without having to pay a tax. When the court acts in a contested area like partisan gerrymandering, it imposes a one-size-fits-all solution on the entire nation that cannot be changed without a constitutional amendment. Rather than intervening, the court should be willing to let the political process work things out. Congress can pass legislation putting the brakes on partisan gerrymandering (at least when it comes to congressional redistricting) and states with the initiative process can enact redistricting reform. The political process is not, in other words, "stuck" in this area, as it was when the Warren Court set out the one person, one vote standard. Then, state legislatures had no incentive to reapportion grossly malapportioned districts that favored farm areas over urban and suburban areas. In contrast, election reform is now a common ballot topic in the 24 states with initiatives; some redistricting-reform initiatives pass and other fail. More states now have redistricting commissions, which generally seems like a good idea. But the commission structure and criteria for redistricting differ from state to state, and appropriately so.

One final point on partisan gerrymandering. Rick Pildes tries to minimize the scope of the argument he makes in his amicus brief filed in the Texas case. He emphasizes what I consider to be the backup argument in his brief: that the Court should craft a rule barring mid-decade redistricting (a point I discuss on its own merits below). But Rick's major argument in his brief goes much further. He argues: "The question before the Court should not be simply whether, under the Equal Protection Clause, one of the major political parties has been unconstitutionally discriminated against in districting, but whether Texas or any other state has the constitutional power intentionally and systematically to insulate congressional candidates and incumbents from contested elections. The Elections Clause grants no such power." This is a radical position, reading the Constitution to bar states from drawing congressional districts that are not sufficiently competitive. As I wrote in an earlier post: "[i]f Rick Pildes had his druthers, the courts would have the power to examine every redistricting of congressional districts done in every state every ten years to make sure that the plan is sufficiently 'competitive.' It is not clear how competitive districts would have to be-a problem that gives too much power on politically loaded questions to judges." Nor is it clear how competitiveness is to be balanced against other values. I would like to hear more from Rick or others about the details of such court interventions. Rick's response to my earlier posts is to call me a "Chicken Little," and to suggest that there is no basis to distinguish my arguments against court intervention in the partisan gerrymandering context from earlier arguments (from Justices Frankfurter and Harlan, and others) against court interventions for malapportionment or minority vote dilution. In fact, I devoted a whole book to discussing this question, The Supreme Court and Election Law, which tries to lay out the standards for appropriate Court intervention in the political process. I'll let readers of the book judge whether or not I set out an appropriate standard.

Finally, a few points on the other issues in this case. First, the Court may well be tempted to try to regulate political gerrymandering indirectly through holding that the Texas redistricting, coming mid-decade but using old census numbers, violates the one-person, one vote rule. Pam Karlan and Sam Issacharoff have explained the inadequacies of this approach, whether one wants the Court to police partisan gerrymandering more aggressively or not. Regulating partisan gerrymandering through the one person, one vote doctrine, however, may indeed be the most likely outcome of the case, giving Justice Kennedy a way to limit the Texas redistricting through a bright line rule (no mid-decade redistricting absent exigent circumstances) without opening up the courts to difficult partisan gerrymandering claims. There's an appeal to this kind of judicial minimalism for me, but it comes at the price of a rudimentary coherence of election law doctrine.

Almost lost in all the hoopla over partisan gerrymandering is a very important voting rights issue. The issue is complex and I won't go into the details here, but the bottom line is that the Supreme Court could use the Texas case to read section 2 of the Voting Rights Act in an appropriately expansive way to include claims by protected minority groups of a right to force states and local jurisdictions to create districts where they could have some influence (even if they are not large enough to force the creation of a majority-minority district). After the Supreme Court's recent opinion in Georgia v. Ashcroft recognized that such districts are relevant to assessing total minority voting power under section 5 of the Act, it seems only appropriate for such districts to be considered in section 2 cases as well.

In addition, the Supreme Court could use the Texas case to put an end to the unfortunate "racial gerrymandering" doctrine created by the Court in its 1993 Shaw v. Reno decision, a decision I have criticized in more detail elsewhere.

I don't expect the more conservative Roberts Court to take either of these steps. I expect the Court to hold that section 2 does not extend to influence districts, and to reaffirm the racial gerrymandering cause of action (though reject its application to the Texas districts in this case). Such a holding would be consistent with a more ideologically conservative Supreme Court, which I believe is on its way in the election law area.

In closing, because this may be my final post in this roundtable, let me thank the folks at the Moritz election law site for their hospitality. I have very much enjoyed participating in this roundtable, especially exchanging ideas with the other participating scholars. Although we may have disagreements, I have tremendous respect for their pathbreaking contributions to the field of election law.

I hope some readers of the Roundtable will visit the Election law blog for more of my commentary in the future.

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