Thoughts on the Texas Redistricting Case Opinion

Clearly, in the Court's opinion, Justice Kennedy continues his quest to find a manageable standard for adjudicating partisan gerrymandering claims. While the Court ruled that there is no constitutional bar to re-drawing the district lines each and everytime there is a power shift in the state legislature, the real issue is that the quest to find a judicial standard for deciding these case will continue so long as the court looks at these kinds of cases through the lens of electoral or representational rights. A breakthrough in deciding these cases may come when the courts start looking at them as a procedural matter, rather than a substantive matter.

It is a simple matter of political power that redistricting, if done through a partisan legislative process, will always yeild a map that favors one party or the other, or results in a sweetheart deal where all incumbents are protected, to the detriment of competitive elections in most cases. When the make up of a state legislature changes hands, under this opinion, you can be sure that the new legislature will revisit district lines and seek to extend its power. But what if the procedure that is used to draw the lines is made more public, much more understandable and less prone to changes when the control of the legislature changes hands?

I once believed that independent redistricting commissions, like the one found in Arizona would be the ideal solution, and it still may. But if the state is determined to have the legislature do the job, let us make sure that the job is done well, according to an accepted procedure, and in public. Because of hte constitutional requirement of equipopulation as near as practicable, lines will have to be drawn, but they can be drawn in a manner that disregards political data in favor of data that is strictly based on the number of people and where they live.

The procedure would have to be based, initially, on currently avaialable geo-political boundaries, county lines, city lines, roads, rivers and the like. The process would then follow these steps.

1. Using a straight state map, the legislature would start by grouping counties together to achieve a district of nearly appropriate size. Counties with larger populations would be bisected in a manner that would yeild approximately equal size.
2. Once the counties are divided, movement of lines will have to occur in order to get the districts closer to size. The next step would be to move towns and immediately surrounding areas as necessary to move closer to the proper population.
3. If towns are not available to move, use natural geographical features, such as a stream or a lake. Thus everyone on the east side of Jones Creek will be in district 1, everyone to the west in district 2.
4. Once the geographical features are exhausted, the next step would be to look at man-made dividers, such as roads. For example, everyone north of Route 70 will be in district 3, those on the south in district 4.
5. Finally, if none of those work, neighborhoods and precincts should be moved as necessary.

One of the protections available in this method is that, while everyone in the legislature knows which counties, cities and even neighborhoods vote which way, the process is much more transparent and only when you get to the last step would things like partisanship carry more impact.

Do legislatures work in this manner? Most probably do and I do believe that most legislators seeks to do right by the state with the effort. But there is always that nagging doubt in the minds of most voters today about the potential for letting the desire for power influence the way lines are drawn. Having a clearly defined process can help alleviate the doubt--not eliminate entirely, but alleviate it.

So what is to stop this plan from being adopted--legislative self-interest for one. Two, the difficulty would be not only getting the legislature to pass such a process in the first place, but adhere to it. To achieve, this, I would like to see a provision that would require a super-majority to change the process. By super-majority, I am talking 75% of the legislature voting to amend the process. Thus, there would need to be a very broad consensus to change the procedure.

The impact on the courts would be to simply detemrine if the procedure was properly followed. Any state voter could bring a claim that says the process wasn't followed properly. If the state properly documented its efforts and decisions, the Court should face little difficulty in determining if a violation occured. Thus it is the process, not the outcome, that determines the validity of a redistrcting plan.

There is one really big obstacle in the way--the Voting Rights Act. For decades now, we have dealt with claims under the VRA that deal with indiviudal and group rights for representation. this geographic centered plan would jeopardize that line of precedent. But I do not fear such an issue. As I have described before, the VRA line of cases dealing with vote dilution, majority-minority districts and the impact on candidates selected in those disticts actually does more to harm democracy than it does to help it. For a plan based almost exclusively on geography, the VRA and the courts would have to abandon vote dilution and other VRA claims since they would damage the effort. A vain hope perhaps, but probably a necessity nonetheless.

Do I think that may plan is simplistic? Absolutely, and done so on purpose. Americans like fairness and fair play. Americans want things done in the open. But most of all, Americans want to abandon all the partisan fury in this area. A plan such as the one I outlined above produces a great deal of stability in districting plans. Even with partisan change in the legislature, a public plan based on geography rather than on voting behavior, while susceptible to some changes on the fringes is not likely to drastically alter the representation of most individuals until the next reapportionment.