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Wednesday, June 28, 2006 

LULAC Thoughts and Gerrymandering

As I read LULAC v Perry, I had many flashbacks to Vieth. It seems like the Court is still in the same position that it was two new Justices ago. Partisan gerrymandering is still a justiciable question, but there is still no test or standard that the Court accepts. Justice Kennedy is still holding out hope that someone, anyone will create a test that gets his stamp of approval. Don't hold your breath on this happening soon. From his statements in this opinion and in Vieth, I doubt Kennedy will find a test that he likes. He will keep brushing the proposed tests aside and settling these cases ad hoc.

The Court did say that mid-decade redistricting was okay, deferring to the state legislatures in this regard. Justice Kennedy's use of quotes from the Constitution in Part II-B are a sign that this is a settled issue. A majority of the Court will treat this type of redistricting as a hands-off issue. I'm not sure that this will cause a torrent of states to redraw their district lines mid-decade. The racial vote dilution avenue still seems to be a strong case to bring (at least for 5 members of the Court), so any hasty redistricting could be attacked on those grounds. However, if the legislatures are careful to not dilute the power of a racial vote, they may be able to pass the Court's non-test test.

The opinion by Chief Justice Roberts is especially interesting. He and Justice Alito disagreed with Kennedy's assertion that District 23 violated Section 2 of the Voting Rights Act. They had a very narrow reading of that Section. It was interesting that they did not discuss explicitly whether partisan gerrymandering was ever unconstitutional. The two new Justices are looking at precedent very carefully. This, paired with Justice Alito's concurrence in Randall, are a signal to parties before the Court: If you want us to overturn something, you better give us a good reason. I'd like to highlight one quote in particular from the opinion. "It is a sordid business, this divvying us up by race." This one little sentence in the last paragraph of his opinion may tell us a lot about the Chief's (and probably Alito's) views on race issues.

I won't go into the other four (shudder) opinions in this case. The SCOTUS blog has excellent analysis if you're really interested. Gerrymandering is such a strange issue. Many commenters on various websites, blogs, and message boards have been saying that it is one of the biggest problems with our political system. That argument certainly has merit. If you are looking for competitive races, then gerrymandering is a huge problem. I don't think that partisan gerrymandering is unconstitutional, though. The lack of any workable test (including Souter's weird five part test proposed in Vieth) is a signal that it is a political question that the courts should not answer. If you are really mad about gerrymandering, get mad at the legislatures not the Court.

In case you are wondering, the term "gerrymander" was named after Eldbridge Gerry creatively drew the Massachusetts districts in 1810. The term is a combination of his last name and the word "salamander", which is what one districts supposedly looked like. We have a long, proud tradition in this country of using political power to keep and maintain political power. Here is an artist's rendering of the original gerrymander...

Hey, we can top that. We've got two hundred years of experience and computers to help us gerrymander in modern times. Here are a few of my personal favorites. First, Los Angeles...

I think that some of those district shapes would qualify under the Court's old "uncouth" definition. The shapes of 38 and 39 are pretty interesting. My favorite one is 46. When you find it, keep looking. Because there's more of it.

Second, District 17 in Illinois...

Look at how narrow it is where it borders the southwest corner of Adams County. You've gotta love state legislatures. They sure can get creative.

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