University of Pennsylvania Law School Professor
Wednesday, June 28, 2006 12:00 PM
Nathaniel Persily , professor of law at the University of Pennsylvania, was online Wednesday, June 28, at noon ET to discuss the Supreme Court's ruling in the Texas Congressional redistricting case.
The transcript follows.
Tampa, Fla.: Does this decision give a road mp to other states wanting to do the same thing? NY will have a Democratic governor, and possibly a Democratic Senate after Nov. California may well have a Democratic governor along with it's already Democratic legislature. Assuming NY or California law allows it, or can be changed to allow it, what could stop those two states from doing to the Republicans what Texas did to the Democrats?
I fear this decision may open the floodgates to the most partisan redistricting possible. I can't see the Court ducking this issue forever.
Nathaniel Persily: The truth is that the floodgates were already somewhat open and not many states have rushed through. Only Georgia had redrawn its maps in a similar fashion. Yes, there is a chance that NY and others might retaliate. But the Democrats have not retaliated yet in states, such as Illinois, where they could have. I would not expect a widespread spiral downward. Just isolated incidents when parties take control in competitive states.
Seabrook, Tex.: Is compactness no longer considered by courts in these cases? I live in DeLay's district which is a few miles wide and about forty miles long.
Nathaniel Persily: Compactness does form part of the basis of this decision. There is nothing per se unconstitutional about a noncompact district. If it is drawn for racial reasons, then it might violate the Equal Protection Clause. In this case, the Court held that the creation of a non-compact Latino district far away from another on that discriminated against Latinos violated the Voting Rights Act.
Washington, D.C.: Is there a case to be made that gerrymandering violates the "one man, one vote" principle?
Nathaniel Persily: Gerrymandering can violate the one person, one vote principle if it creates districts that have different populations in them. Here, the map, based on 2000 census data, had relatively equal numbers of people ion the districts. Plaintiffs' argued that the use of old census data was unconstitutional. The court held, however, that there is nothing per se unconstitutional about a mid-decade partisan gerrymander.
Arlington, Va.: Does this case open us up to redistricting at the state level every time one party gains control over another?
Nathaniel Persily: Several people are asking this type of question so let me elaborate. The Court did not hold that partisan gerrymanders are always constitutional -- only that this one was. Partisan gerrymandering claims remain justifiable -- meaning that people can still go to court and complain about them, but they will need to jump over some pretty high hurdles to prove their case. Here, the court said that the Republican map -- which overturned a map drawn by a district court and that favored current incumbents a disproportionate number of whom were Democrats -- did not constitute an unconstitutional partisan gerrymander.
Alexandria, Va.: How common was mid-decade redistricting in the 19th century?
Nathaniel Persily: There are a few instances of such redistrictings in the 19th century. In the 20th century they have been almost nonexistent except when a jurisdiction must redraw districts to comply with a court order.
Fairfax Station, Va.: Thank you for taking my question. Doesn't this ruling permit any state legislature to redistrict whenever they care to do so? Won't this result in whichever party currently has the majority to redistrict as soon as possible to maintain their party's majority and thus perpetuate one party rule for ever - or as close to this as possible? Thanks.
Nathaniel Persily: In theory, based on this decision a state could redraw its lines several times a decade. I still expect that to be rare. Inevitably, they will be sued -- if not on partisan gerrymandering grounds, perhaps on state law or Voting Rights Act grounds.
Chicago, Ill.: So how often can redistricting be done? If the law was once every 10 years, why wasn't what they did illegal (before the court ruling)?
I think Congressional districts should be drawn up without consideration to politics (such as in Iowa). Right now, we are not being served by districts that can be redrawn overnight without our input.
Nathaniel Persily: One of the difficulties is that even "neutral" districting plans have partisan effects. I have drawn several plans for courts -- sometimes ignoring politics as you suggest. And let me tell you, lots of people nevertheless complain. Iowa is a unique system and many states are trying to replicate nonpartisan redistricting systems. It turns out to be very difficult though. The people who draw the lines are either elected or appointed and neither process is immune from partisan impulses or control.
Rockville, Md.: Is there any hope that the Court will accept the "symmetry test" used by both sides' experts to find the 2003 map biased in favor of Republicans? Justices Stevens, Breyer, Ginsburg and Souter seemed to rely on it, but did they not reject something similar in Veith?
Nathaniel Persily: The symmetry test -- which suggests that a redistricting plan ought to treat each party equally -- appears to be specifically rejected by the Court. It was put forth by a group of prominent political scientists and I think the Court simply did not understand it.
Thanks for the questions. I look forward to doing this again soon.
McLean, Va.: Why is this a question only when Republican legislatures do it. Several years ago, I was living in Newport News when the Virginia Democrat controlled legislature did a huge Gerrymander in Newport News to get Bobby Scott elected. The best thing to do is for both parties to stop.
Nathaniel Persily: There is no question that gerrymandering is a bipartisan affair. Democrats do it; Republicans do it; anyone who has the power to draw district lines does it. In the famous 1982 districting of California, representative Phil Burton described his Democratic gerrymander as his "contribution to Modern art." During the 2000 redistricting cycle, Republicans were the principal gerrymanders because they were in a position to do so (in Ohio, Michigan, Pennsylvania, Florida, and later Texas). The Democrats did so in Georgia, Maryland and one or two other states.
Cambridge, Mass.: I'm from Austin so I've been following this for awhile. My district currently snakes from East Austin to the border. My question: do you have any idea how many other districts in South and West Texas will be affected by redrawing the 23rd district?
Also, how did the Supreme Court deal with the convergence of race and party issues. In Texas, the Democratic party has increasingly become a party dominated by Hispanics and African Americans. So where does political gerrymandering end and racial gerrymandering begin in this and other cases?
Nathaniel Persily: These are both very good and important questions. In general the court will leave it up to the legislature to decide how best to remedy the violation of the Voting Rights act that the Court found here. My guess is that the remedy will affect two or three districts. To address the Court's concerns some number of Hispanics will need to be placed back into Henry Bonilla's district (#23). The question is where to find them and how much to disturb other districts. If the Court draws the plan (because the legislature is unwilling to do so), it will usually try to take the most narrow path to remedying the legal violation.
Your question concerning the overlap between race and party is right on the mark. How can we separate partisan greed from racial discrimination when the majority of one party's membership is black or Hispanic? I view the Court's decision as having the somewhat perverse effect of racializing partisan conflict. By that I mean, the Court's failure to come up with an authentic partisan gerrymandering claim has led plaintiffs to come into court with the only claims that might win -- claims of racial discrimination (as well as one-person, one-vote and state law clamis). Whatever one might think of the Texas gerrymander from the standpoint of partisan greed, I think most people agree that Tom Delay would have done the same thing if he could have to white Democrats. (Indeed, all of the Democratic incumbents who were targeted were white.) But while the Court says partisan gerrymanders are (for the moment) OK -- you need to watch out if those partisan gerrymanders have racially discriminatory effects.
Bethesda, Md.: If a state re-drew a map mid-decade that had previously been drawn by the legislature rather than a court, would the challengers have a stronger claim? Would it appear to matter if it was a "corrective" redistricting?
Nathaniel Persily: I think that would be one way of distinguishing this case -- that the legislature was overturning a court's plan. But I don't read the court's opinion as saying there is really anything wrong with mid-decade gerrymandering. In essence, there is nothing in the Constitution that mentions districting at all -- and therefore, even less that limits it to a once-a-decade affair.
Wayne, Pa.: What does this mean for other states? Will they be able to redistrict any time they want?
Nathaniel Persily: I do not think the system will spiral outof control as a result of this decision. There are very few places where the Democrats could or would be willing to retaliate. They are additionally hindered by the fact that efficient Democratic gerrymanders often themselves discriminate against minorities in violation of the Voting Rights Act.
Having said all that, I view the Court as largely removing any constitutional constraint that may have limited gerrymandering to a once-a-decade affair.
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