UT law professor Mitchell Berman makes the case in this op-ed that SCOTUS will use the Texas redistricting lawsuit Jackson v. Perry to do what it chose not to do in Vieth v. Jubelirir and set a judiciable standard for partisan redistricting efforts. The key: mid-decade redistricting, which he thinks they may rule cannot be done strictly for partisan ends.
The Texas case, Jackson vs. Perry, offers just such an opportunity. Like Vieth, it presents a textbook example of partisan gerrymandering — one so egregious that the state itself admitted that maximizing electoral prospects for Republican candidates was “the single-minded purpose of the Texas Legislature.” But the Texas reapportionment has a new characteristic that is potentially even more dangerous: It was adopted mid-decade to replace valid, court-approved district lines.
Redistricting had always been a once-in-a-decade affair — a necessary response to population changes revealed in the decennial census. But in 2002, Colorado Republicans shocked observers by abandoning this tradition, redrawing the state’s congressional districts barely a year after new districts had been adopted. Although a state court invalidated that gambit, Texas — where Republicans had just taken control of both houses of the Legislature — followed suit last year. Republicans in Georgia and Ohio have made noises about doing the same; Democrats in California, Illinois and Oklahoma have as well.
This difference between the Texas and Pennsylvania gerrymanders serves up precisely what the Vieth case didn’t: a judicially manageable standard. The court should declare that mid-decade redistricting is unconstitutional when adopted by a single-party-dominated legislature, unless narrowly tailored to achieve a compelling interest.
True, this test would address only a piece of the partisan gerrymandering problem, leaving unanswered what courts should do about partisan gerrymanders enacted during the ordinary decennial cycle.
But it is a critical piece nevertheless. Decennial gerrymanders are self-limiting because, over a decade, voters die, move, even change political views. The mere passage of time reduces its power. But by gerrymandering more frequently, in mid-decade, legislatures restack the deck.
We’ll see. Unanswered for me is what practical effect this would have in 2004. I don’t see any way that the new Congressional lines can be undone now. Even if you restored them for 2006, what good would that do any incumbent who loses in the meantime? Or would the court essentially rule that the Texas GOP can get away with it this once, but no one else can? I agree that this is a good, reasonable, and easy-to-define and understand standard that SCOTUS can set, but I’m hard pressed to see what difference it’ll make.
One other thing: Will we get to see this op-ed in any Texas papers? I’d love to know if the LA Times was this UT prof’s first choice, or if they were just the first to have a spot open in their queue. I guess we’ll see if it appears elsewhere soon enough – frankly, this looks like a Sunday piece for the Chron. Besides, they had other important articles to run today.
Thanks to reader JD for the tip.