Amicus Curiae Brief — Jackson v. Perry (Nos. 05-276, 05-204, 05-254, 05-439)

9

in such normal redistricting efforts,’ the impingement on

various voters’ First Amendment rights is justified in such

circumstances because drawing new lines also serves impor-

tant state interests.

But this is not the usual case. As noted above, redistrict-

ing in the modern era has been limited to those situations

where no valid map exists. Indeed, “[s}ince 1910, when the

House was fixed in size at 435, the norm has been that a cen-

sus is followed by reapportionment across states to fit the

population, and is followed in turn by redistricting within the

states. After 1910, no state undertook a second redistricting

within the 10-year period between censuses except when

ordered by the courts.” Norman Omstein, One Person, One

Vote Is Vital — When It's Applied Within Reason, Roll Call,

Dec. 14, 2005, at 2, available at 2005 WLNR 20068295. In

other words, redistricting has occurred when it needs to oc-

cur — usually when new census data render extant maps inva-

lid under the one-person, one-vote principle.

Here, by contrast, redistricting was undertaken even

though the existing Congressional map was valid and would

have remained so until the next census. See Tex. Att’y Gen.

Op. GA-0063 (Apr. 23, 2003) (concluding that State law did

not require a new map and that 2001 map would remain

valid until 2010 census). It was also undertaken without

reference to any new population data — and without any ef-

fort to obtain or create such data — that could in theory justify

a mid-decade redistricting. These differences are of pro-

? See Vieth, 541 U.S. at 285 (“The Constitution clearly contemplates

districting by political entities, see Article I, § 4, and unsurprisingly that

turns out to be root-and-branch a matter of politics.”); Miller v. Johnson,

515 U.S. 900, 914 (1995) (“[RJedistricting in most cases will implicate a

political calculus in which various interests compete for recognition”);

Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (“Politics and political

considerations are inseparable from districting and apportionment. . . .

The reality is that districting inevitably has and is intended to have sub-

stantial political consequences.”).

10

found consequence, because they squarely raise the question

whether any cognizable state interest was served by the

promulgation of a new map in 2003.

Indeed, the normal presumption that new maps are valid

should not apply here without (at the very least) a careful

examination of what interest the State has offered in place of

the valid interests at stake when redistricting to replace an

invalid map. The absence of those interests in the context of

replacing a valid map means that there is necessarily a new

balance of interests under this Court’s “flexible standard” for

measuring burdens on First Amendment rights under election

regulations.

Without the usual presumptions in place, heightened

scrutiny is triggered due to the burdens on expression inher-

ent in redistricting and present to a self-evident degree here.

Redistricting based on instincts of political self-preservation

or partisan gain implicates “the First Amendment interest of

not burdening or penalizing citizens because of their partici-

pation in the electoral process, their voting history, their as-

sociation with a political party, or their expression of politi-

cal views.” Vieth, 541 U.S. at 314 (Kennedy, J., concurring

in the judgment) (citing F’rod v. Burns, 427 U.S. 347 (1976)

(plurality opinion)). This is so because voters are entitled to

vote their conscience and to align with political parties that

share their views without the specter of viewpoint-based

government action predicated on the exercise of that expres-

sion. In this instance, the Texas Legislature chose to redraw

two-year-old district lines that had been drawn to reflect vot-

ing trends in the State and that had in the prior election pro-

duced results consistent with expectations solely and specifi-

cally to suppress further the representation of their political

opposition.

It is neither surprising nor significant that this Court has —

not previously employed this flexible standard in a partisan

gerrymandering case. This Court has often extended its First

11

Amendment jurisprudence in the past to account for new sets

of circumstances. See Denver Area Educ. Telecomms. Con-

sortium, Inc. v. FCC, 518 U.S. 727, 740 (1996) (“The history

of this Court’s First Amendment jurisprudence, however, is

one of continual development, as the Constitution’s general

‘command that ‘Congress shall make no law . . . abridging the

freedom of speech, or of the press,’ has been applied to new

circumstances requiring different adaptations of prior princi-

ples and precedents. The essence of that protection is that

Congress may not regulate speech except in cases of extraor-

dinary need and with the exercise of a degree of care that we

have not elsewhere required.”). Indeed, members of this

Court have already recognized the relevance of the First

Amendment in the partisan gerrymandering context. See

Vieth, 541 U.S. at 314-15 (Kennedy, J., concurring in the

judgment); id. at 324-25 (Stevens, J., dissenting).

For these reasons, the Texas Legislature’s decision to

draw patent viewpoint-based classifications during an un-

precedented mid-decade redistricting in which no new popu-

lation data was used requires the application of heightened

judicial scrutiny.

Il. THE TEXAS REDISTRICTING PLAN IS INVALID

UNDER THIS COURT’S FLEXIBLE STANDARD

FOR EVALUATING ELECTION REGULATIONS

Texas cannot identify a state interest that is sufficiently

important to justify the First Amendment burdens imposed

by the 2003 Plan. Between them, Texas and the court below

identified two purported state interests. Although the State

on remand principally asserted that its actions should be con-

sidered nonjusticiable, it also argued that it had a valid pur-

pose in realigning the map to make “Texas’s congressional

delegation more like Texas’s voting patterns.” See State

Defs’ Opening Br. on Remand, available at 2003 WL

24051486. The three-judge panel below endorsed that prin-

ciple and identified a second putative state interest: permit-

12

ting state Jegislatures to replace even valid court-drawn

maps. See Henderson v. Perry, 399 F. Supp. 2d 756, 767-69

(E.D. Tex. 2005) (political purposes) (citing Gaffney, 412

U.S. at 754); id. at 775-76 & n.82 (replacing court-drawn

maps) (collecting cases). Even if these ostensible interests

provided “rational” bases for legislation ~ which the Center

does not concede — they could not rise to the level of “impor-

tant” state interests satisfying any form of heightened scru-

tiny.

1. The only interes: actually advanced by the State of

Texas below was that of securing a “congressional delega-

tion more like Texas’s voting patterns” at a time when a cur-

rent and valid districting map was in effect. Put more di-

rectly, the State argues that it has an important state interest

in securing furtier partisan advantage for one political party

in the state’s congressional delegation over others. Such a

bare desire to advantage one political party and harm others

based on their political views is not even considered a le-

gitimate state interest, let alone an important one. A State

has no legitimate interest in the success of any particular

political party. See Abate v. Mundt, 403 U.S. 182, 187

(1971) (indicating that partisanship in favor of groups was

not a legitimate state interest sufficient to justify population

deviations among legislative districts); Kirkpatrick v.

Preisler, 394 U.S. 526, 534 (1969) (same). If this were not

so, then all sorts of discriminatory election laws might be

permissible. See Vieth, 541 U.S. at 312 (Kennedy, J., con-

curring in the judgment) (“If a State passed an enactment

that declared ‘All future apportionment shall be drawn so as

most to burden Party X’s rights to fair and effective repre-

sentation, though still in accord with one-person, one-vote

principles,’ we would surely conclude the Constitution had

been violated.”).

In addition, the fact that Texas frames its interest in elect-

ing more Republicans to Congress in terms of an interest in

13

better reflecting Texas voting patterns does not make the

asserted interest any more capable of surviving heightened

scrutiny. The notion that there is such a thing as a fairly

“balanced” map that accurately reflects statewide voting pat-

terns is illusory. A party’s share of the vote varies from race

to race and election cycle to election cycle, and which race or

aggregation of races constitutes the appropriate proxy essen-

tially is a matter of perspective. A state interest that is so

elusive and ephemeral by nature cannot be an “important”

state interest sufficient to justify burdening certain voters’

First Amendment rights. To hold otherwise would be to

invite States to draw new lines for every election cycle on

the grounds that — based on whatever race a State wished to

use at the moment — the new map better reflected statewide

voting patterns. Permitting States to re-redistrict whenever

they believed that the current map failed to sufficiently re-

flect statewide voting patterns would result in constant re-

redistricting that would wreak the kind of “chaos” on the

“democratic processes” that i is antithetical to the very pur-

pose of election regulations.’ Burdick, 504 U.S. at 433 (quo-

tation omitted).

2. The other interest offered by the court below fares no

better. The panel explained that it is “within the prerogative

> Of course, a State may attempt to achieve what it believes to be a

politically balanced map in the course of normal redistricting. See Gaff-

ney, 412 U.S. at 754. But merely because it is permissible for a State to

pursue such an end does not mean that political balance is an important

state irterest. Indeed, unlike the predicates for a traditional redistricting,

political balance is neither a constitutional nor a legal requirement. See

Davis, 478 U.S. at 130 (“Our cases, however, clearly foreclose any claim

that the Constitution requires proportional representation or that legisla-

tures in reapportioning must draw district lines to come as near as possi-

ble to allocating seats to the contending parties in proportion to what

their anticipated statewide vote will be.”); id. at 131 (“Gaffney in no way

suggested that the Constitution requires the approach that Connecticut

had adopted in that case.”).

14

of the state legislatures” “to draw their own map to replace

one imposed by a court.” Henderson, 399 F. Supp. 2d at

775. But the court strained to find any precedent to support

such a broadly framed proposition, settling instead for two

cases that involved court-made maps that — unlike the 2001

map — contained built-in expiration dates and another case

arising under circumstances entirely unlike those in this case.

See id. at 775 n.82 (collecting cases). It failed to identify any

precedent that demonstrates that a State’s purported interest

in permitting a legislature to replace a valid court-imposed

map is sufficiently important to justify the infringement of

certain voters’ core expressive rights.

To be sure, this Court has recognized that, in the absence

of an extant valid map, a new map drawn by a state legisla-

ture is preferable to one drawn by a federal court. E.g., Gaff-

ney, 412 U.S. at 749 (“Nor is the goal of fair and effective

representation furthered by making the standards of reappor-

tionment so difficult to satisfy that the reapportionment task

is recurringly removed from legislative hands and performed

by federal courts which themselves must make the political

decisions necessary to formulate a plan .... From the very

outset, we recognized that the apportionment task, dealing as

it must with fundamental ‘choices about the nature of repre-

sentation,’ . . . is primarily a political and legislative proc-

ess.”) (quoting Burns v. Richardson, 384 U.S. 73, 92 (1966),

and citirig Reynolds v. Sims, 377. U.S. 533, 586 (1964)); see

also Branch v. Smith, 538 U.S. 254, 262 (2003); Connor v.

Finch, 431 U.S. 407, 414-15 (1977). But that principle was

not abrogated here. The intervention of a federal court in

this case was made necessary only by the Texas Legisla-

ture’s inability to perform its duty following the 2000 cen-

sus. When the legislature is unable to complete its task in a

timely fashion, a court may step in and promulgate a new set

of lines. Connor, 431 U.S. at 415. The fact that there is a

preference for having legislatures rather than courts draw

district lines when new maps need to be drawn does not

15

mean the State has any interest, much less an “important”

one, in replacing a court-drawn map with one drawn by the

legislature.

Moreover, the insufficiency of this purported state inter-

est is further made apparent by the fact that the 2003 Plan

governed Congressional elections, matters which are not -

within a State’s unfettered discretion to regulate. The Texas

Legislature’s authority to draw the boundaries of Congres-

sional districts does not inhere in its sovereign power as a

State. Rather, this authority derives from the Elections

Clause of the United States Constitution, which permits

States to regulate only the “Times, Places, and Manner” of

elections for the U.S. House of Representatives. U.S. Const.

art. I, § 4. Importantly, this Court has made clear that a state

legislature’s power to regulate federal elections — including

its redistricting power — was not one of the powers “reserved

by” the States under the Tenth Amendment. Cook v.

Gralike, 531 U.S. 510, 522 (2001) (“Because any state au-

thority to regulate election to those offices could not precede

their very creation by the Constitution, such power ‘had to be

delegated to, rather than reserved by, the States.’”) (quoting

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 804-05

(1995)). Just as important, “the Framers understood the

Elections Clause as a grant of authority to issue procedural

regulations, and not as a source of power to dictate electoral

outcomes, to favor or disfavor a class of candidates, or to

evade important constitutional restraints.” Thornton, 514

U.S. at 833-34 (emphasis added). By definition, a State can-

not have an important interest in permitting the legislature to

craft a map that “dictate[s] electoral outcomes” when a valid

court-crafted map already secures the State’s other legitimate

interests.‘

* This is not to say that a State can never have an interest in permit-

ting a legislature to replace a court-drawn map. The Center does not

dispute that a legislative map that replaced a court-imposed one could be

16

3. Finally, even assuming that. one of these asserted

state interests was sufficiently important to justify replacing

the valid 2001 Plan with a new Congressional map, the 2003

Plan if not narrowly tailored to that purpose. As noted

above, election regulations that burden voters’ First and

Fourteenth Amendment rights are evaluated under a flexible

standard and the constitutional harm inflicted should not

significantly exceed the important state interest being served.

Burdick, 504 U.S. at 434. In drafting the 2003 Plan, how-

ever, the Texas Legislature utilized 2000 census data — data

which was by then three years out of date. In so doing, the

Legislature not only burdened certain voters’ fundamental

rights, but it also drew districts in a manner wholly indiffer-

ent to the one-person, one-vote constitutional requirement.

Even if “partisan balancing” or legislative prerogative is a

sufficiently important ground for redrawing a valid Congres-

sional map, neither supposed interest can justify drawing a

new map that makes no effort to ensure actual population

equality exists between Congressional districts.’

valid, even if done mid-decadr if it advanced an important state interest,

such as updating population aata, without unnecessarily classifying vot-

ers on the basis of their expressive rights.

* The Center does not suggest that the 2001 Plan's districts presently

contain equal populations or that they contained equal populations at the

time the 2003 Plan was enacted. Rather, it merely points out that, at the

time the 2001 Plan was put in place, that Plan created districts with equal

populations based on population data that was valid for that redistricting.

In contrast, the 2003 Plan used population data which, for the reasons set

Sees eaeion ebtaa teats cain te dines exis tn 3000 Fe

Thus, regardless of the extent to which the districts under the 2003 Plan

actually deviate from population equality, the fact remains that the 2003

Plan was enacted without any regard for the one-person, one-vote consti-

tutional requirement and without any effort to minimize actual population

deviations. The Center merely posits that a mid-decade redistricting that

involves the redrawing of valid district lines should not be deemed to be

sufficiently tailored to an important state interest absent an effort to cre-

ate actual population equality.

17

IIL.THE FLEXIBLE STANDARD IS NEITHER

UNLIMITED NOR UNMANAGEABLE AS AP-

PLIED TO THE REDISTRICTING PLAN IN THIS

CASE

The foregoing framework for analyzing mid-decade par-

tisan gerrymandering claims is both limited in application

and sufficiently manageable. For the reasons stated above,

this Court’s flexible standard, which it has already applied in

the context of other election regulations, has limited applica-

bility to a map promulgated to satisfy a State’s obligation to

comply with one-person, one-vote requirements. That inter-

est is concededly a compelling one, and in such cases the

federal courts cannot “tie the hands of States,” even though

the new maps “will invariably impose some burden upon

individual voters.” Burdick, 504 U.S. at 433. Indeed, it is

uncertain whether this framework would even result in the

invalidation of all mid-decade redistricting plans.

In addition, the standard is also a manageable one. This

Court already has a wealth of experience in applying the

flexible standard to other election regulations that burden

voters’ First Amendment rights. That precedent provides

guideposts for applying the test in a consistent and predict-

able way. Furthermore, in contrast to the standard partisan

Court to judge how much partisanship is too much. Instead,

this Court merely needs to examine whether a State can pro-

vide an important state interest that would justify redistrict-

ing when a valid map was already in place.

CONCLUSION

For the foregoing reasons, and for the reasons stated by

appellants, this Court should reverse the ruling of the District

Court and remand the case with instructions to reinstate the

valid map promulgated by the Eastern District of Texas.

18

Respectfully submitted,

JEFFREY M. WICE WALTER DELLINGER

P.O. Box 42442 (Counsel of Record)

Washington, D.C. 20015 JONATHAN D. HACKER

(202) 494-7991 MATTHEW M. SHORS

CHARLES E. BORDEN

GEOFFREY M. WYATT*

O”’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

*admitted only in New York:

supervised by principals of the firm

Attorneys for Amicus Curiae

Dated: January 10, 2006

Inu The

Supreme Court of the United States

+

EDDIE JACKSON, et al.,

Appellants,

Vv.

RICK PERRY, et ai.,

Appellees.

On Appeal From The

United States District Court

For The Eastern District Of Texas

S

BRIEF FOR AMICUS CURIAE NEIL H. COGAN

IN SUPPORT OF APPELLANTS

NEIL H. COGAN

WHITTIER LAW SCHOOL

3333 Harbor Boulevard

Costa Mesa, CA 92626

(714) 444-4141 ext. 111

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUG.............:0ceceseseseseeeseeceeers 1

SUMMARY OF ARGUMENT. ..........c:cccssesesecescecesseseeeees 1

RRR AT BNA RT EOE EN 3

I. LEGISLATIVE DISTRICTING AND REDIS-

TRICTING SHOULD AFFORD AFFECTED

GROUPS A FAIR AND ADEQUATE OPPOR-

Il. THIS COURT SHOULD REVERSE AND

REMAND FOR A TRIAL ON WHETHER THE

REDISTRICTING PROCESS WAS FAIR, AD-

EQUATE, AND UNDICTATED.................0000-0+00+

IIE cxecesescorreninrenenievnntminenaciniibetinnetanseitunanion

3

ii

TABLE OF AUTHORITIES

Page

CASES

Davis v. Bandemer, 478 U.S. 109 (1986) .......2..se:sseesseee0 1,3

Vieth v. Jubelirer, 541 U.S. 267 (2004)... eee ceeeeeeeeees 1,3

OTHER AUTHORITIES ;

Adam Nagourney, The New York Times, February 7,

BOSS, Basthow A, w. WD, O00. 1 oceccoocccescccessscosssrvonsecesseseveccees 4

Austin American-Statesman, April 25, 2003, Metro/

baie aetet IG ccctsrecceesncinnsaresavenicnsiceninianeasencacvcaiee 10

Fort Worth Star Telegram, April 24, 2003, Final

Edition, Metro Section, p. 4............:scccsssseresssssseseeeecerecees 8

Issacharoff, Gerrymandering and Political Cartels,

pe Fe GY eee 6

Note, Toward a Greater State Role in Election

Administration, 118 Harv. L. Rev. 2314 (2008)............... 5

Pildes, Forward: The Constitutionalization of Demo-

cratic Politics, 118 Harv. L. Rev. 28 (2004) ................ —

‘The Dallas Morning News, April 23, 2003, Second

Edition, News Section, p. 5A..........cccccccccccscsessssssseesseereeees 8

The Dallas Morning News, October 16, 2003, Texas

asthe, 0. GA. scsississcssscccasncssscestccsscussomanasseassastansiitacia il

The Houston Chronicle, February 10, 2003, ane

Boy De BB ccnsccrtivrcsscecitpapriecsneyanvetpinpinitpiigincintapimmidgenien 7

The Houston Chronicle, February 22, 2003, Section

Bis A Bip a censoniniassincsnssascesineenenabinaenisatuvasasnntsanadabenideennesnsaedetees 8

The Houston Chronicle, April 23, 2003, 3 Star

iam, BeBe A, Oi FF wnccccnnsensverntssntenmerecinnarncesmssenseses 8

The Houston Chronicle, May 6, 2003, Section A, p. 1....... 10

TABLE OF AUTHORITIES — Continued

Page

The New York Times, May 13, 2003, Section A, p. 24....... 10

The New York Times, May 15, 2003, Section A, p. 1......... 11

The New York Times, May 22, 2003, Section A, p. 16....... 11

The New York Times, May 27, 2003, Section A, p. 24....... 12

The New York Times, July 12, 2003, Section A, p. 7

i IIIa Si ciseneontomneeadennabboceanepnceiagnumntedantendsetsimtninbionii 11

1

INTEREST OF THE AMICUS

Neil H. Cogan has taught federal and state constitu-

tional law since 1973.’ He is the editor of The Complete

Bill of Rights (New York: Oxford University Press, 1997),

Contexts of the Constitution (New York: Foundation Press,

1997), and The Complete Reconstruction Amendments

(New Haven: Yale University Press, forthcoming 2007), as

well as unpublished course materials on constitutional

law. He has maintained an interest in structural issues

arising from the decennial census, reapportionment, and

districting since 1979, when he was Scholar-in-Residence

at the United States Department of Justice and partici-

pated in advising the Attorney General regarding the

then-pending litigation arising out of the 1980 United

States Decennial Census.

Amicus files this brief in support of Appellants and

has obtained the consent of all parties to do so.

+

SUMMARY OF ARGUMENT

From Davis v. Bandemer, 478 U.S. 109 (1986),

through Vieth v. Jubelirer, 541 U.S. 267 (2004), this Court

and the lower federal courts have focused on outcomes in

adjudicating the constitutional fairness of partisan gerry-

mandered districts. In Vieth, the Court was divided be-

tween a plurality convinced that there are no judicially

manageable standards available to adjudicate whether

outcomes are fair, and five concurring and dissenting

' This filing is written solely by the undersigned. Its printing is

supported solely by his scholarship support account.

2

Justices convinced that manageable standards can be

developed. The plurality believed that the Court should

abandon its role in reviewing partisan gerrymandered

districts, while the five Justices believed that the Court

should continue review.

Amicus respectfully submits that this Court should

not abandon its role. To the contrary, amicus submits that

the Court should consider, in addition to outcomes, the

process by which the outcomes were rendered. Process of

course is an inherently judicial role, which fits neatly

within Article I's process-oriented framework. Moreover,

recent developments — the availability of instantaneous

districting, the prospect of biennial redistricting, the

negligible shifts in party turnover, and the heightened

intrusion of federal officials and their PAC allocations -

impel a turn to process.

Amicus submits that a focus upon a fair and adequate

districting process, including such issues as adequate

notice, competent access, full participation, open delibera-

tion, and undictated resolution, might encourage the

development of judicially manageable substantive stan-

dards.

The peculiarities of the process in the instant case

make a process-directed remand appropriate. There was

inadequate attention in the District Court to the extraor-

dinary role of the Majority Leader and the use of PAC

allocations, and to the absence of fundamental indicia of

fairness. These matters impinge significantly on the

legitimacy of governance.

3

ARGUMENT

I. LEGISLATIVE DISTRICTING AND REDIS-

TRICTING SHOULD AFFORD AFFECTED

GROUPS A FAIR AND ADEQUATE OPPOR-

TUNITY TO PARTICIPATE IN AN UNDIC-

TATED PROCESS

In Davis v. Bandemer, 478 U.S. 109 (1986), a plurality

of this Court wrote, correctly in the view of amicus, that

the federal courts should recognize claims of unfairly

partisan gerrymandering. In the nineteen years since

Bandemer, neither the Court nor the lower courts have

clarified the basis for the claim of unfairness or the stan-

dard by which the claim will be determined. In Vieth v.

Jubelirer, 541 U.S. 267 (2004), a plurality of this Court

wrote that the federal courts should no longer recognize a

_ claim because of the difficulty of formulating judicially

manageable standards; however, five concurring and

dissenting Justices, in four opinions, wrote that the

federal courts should continue their attempt to develop

such standards.

Respectfully, amicus agrees with commentators who

have suggested that the Court not diminish its role in

protecting the democratic functioning of our institutions.

See, e.g., Pildes, Forward: The Constitutionalization of

Democratic Politics, 118 Harv. L. Rev. 28 (2004). While it is

most tempting to accede to Justice Frankfurter’s warning,

the dangers to legitimacy that unfairly partisan gerry-

mandering are causing to our democracy counsel other-

wise. It is respectfully submitted that there is a

breakdown in the functioning of the districting process

itself and there are special dangers emanating from the

heightened intrusion of incumbents and powerful federal

officials in that process. And it is painfully unclear

4

whether ordinary political forces can overcome entrenched

power and money to provide a democratic fix.

With the advance of technology, the ability of Wash-

ington officials to become the chief architects of districting

and redistricting has become manifest. While it once took

months of effort by local workers to draw legislative lines,

advances in computer technology now allow partisans in

Washington to produce dozens of maps at one sitting.

Lines can be drawn from Austin to the Rio Grande and

transmitted to the Texas Speaker and Lieutenant Gover-

nor more quickly than the time it takes for a Justice to

walk from the Court to the Capitol. Short a few votes of

carrying their agenda, the Speaker and the Majority

Leader in the United States House of Representatives

might well redraw legislative lines and transmit them to

their partisans in legislatures controlled by their parties.

This makes the prospect of biennial redistricting a likely

event in many states and localities.

The mischief is exacerbated by the current state of

political affairs. Congressional districts have been drawn

with such precision that there is little partisan turnover.

For example, it is reported that “in the 2004 Congressional

elections, only 13 seats in the House changed hands, and

four incumbents were defeated in the general election.”

Adam Nagourney, The New York Times, February 7, 2005,

Section A, p. 19, col. 1. In their home districts, Representa-

tives are drawn principally to their “base” rather than to

all their constituents, see id., and in Washington they have

become complicit in political polarization not experienced

since the debate over Abolition.

Further, while Representatives have historically been

interested and involved in decennial districting and

5

redistricting, technology permits them and their party

leaders to be involved intimately and repeatedly. They can

draw lines that will guarantee their party's victory and

will guarantee their enemy’ defeat. Ominously, the

availability of money — not just traditional pork for con-

stituents, but PAC money raised by Washington officials

and their aides and distributed to state legislative cam-

paign coffers — is particularly coercive, enabling Washing-

ton to dictate state redistricting.

Amicus submits that the effect on the legitimacy of

the democratic process is too ominous for the Court to

abandon the field. While it is true that there are some

reform initiatives that have succeeded, see Note, Toward a

Greater State Role in Election Administration, 118 Harv. L.

Rev. 2314 (2005), nonetheless the power of incumbency

and money are far too great to be sanguine about a prob-

able grassroots solution. Amicus does not suggest that this

Court order solutions outside the legislature, such as by

commissions or committees, but he does suggest that this

Court should order that districting be governed by a

process that is fair, adequate, and undictated.

This is not to disparage the attention of the courts and

parties to equal protection and First Amendment issues,

but rather it is to suggest that the Court should seriously

consider structural issues. Article I in its language recog-

nizes the primary role of the States in forming districts

and, particularly by the words “manner of holding elec-

tions,” emphasizes the role of process. Because technology

and money are shifting that traditional state role to

Washington and are altering “manner” to results, it is

appropriate for this Court to address the structural issues.

6

Respectfully, amicus submits that it violates the

structure of Article I for federal incumbents and powerful

federal officials to dictate the districting or redistricting

process. See Issacharoff, Gerrymandering and Political

Cartels, 116 Harv. L. Rev. 594 (2002). Further, amicus

submits that it violates the structure of Article I's “man-

ner” delegation for the States to draw political lines

through a process that is not “fair and adequate” to the

task. Amicus suggests that a fair and adequate process

includes reasonable notice when the process will begin; an

opportunity to participate (including timely availability

and adequate review of plans); access to data, technology,

and expertise; open and on-the-record hearings; and

unbiased consideration and decision about plans.

These are judicially manageable standards to imple-

ment and review. And, once in place and operation, they

may lead to judicially manageable standards regarding

outcomes. Importantly, their implementation will strengthen

the legitimacy of the districting process and the elections

the national perception of the legitimacy of legislation and

governance generally.

Il. THIS COURT SHOULD REVERSE AND RE-

MAND FOR A TRIAL ON WHETHER THE RE-

DISTRICTING PROCESS WAS FAIR, ADEQUATE,

AND UNDICTATED

If the media reports are correct, the instant case may

be an example of a redistricting process that was heavily

influenced, if not dictated, by federal officials and their

access to money, and that was conducted in a manner that

was not fair and adequate. It appears, for example, that

legislative redistricting following the judicial districting

7

was not initially on the 2003 Texas legislative agenda, but

that the United States House Majority Leader, Mr. Tom

DeLay, did more than simply recommend that redistricting

be on the agenda. According to The Houston Chronicle, in

a February 10, 2003 report:

U.S. House Majority Leader Tom DeLay’s be-

hind-the-scenes pressure on Texas legislators to

redraw the state’s congressional districts to favor

more Republicans is not gaining support in the

Capitol.

Lt. Gov. David Dewhurst called congressional re-

districting as welcome as a “contagious flu” and

did not even bother to appoint a Senate redis-

tricting committee.

House Speaker Tom Craddick last year said he

did not want to take up congressional redistrict-

ing if the issue was dead in the Senate. But when

he appointed committees Jan. 30, he named a

redistricting committee at the urging of DeLay,

Capitol sources told the Houston Chronicle.

The Houston Chronicle, February 10, 2003, Section A,

p. 13.

Two weeks later, The Houston Chronicle reported:

Texas House Redistricting Chairman Joe Crabb

has asked state Attorney General Greg Abbott

whether lawmakers have a legal) obligation to re-

draw the state’s congressional districts. ©

Crabb, R-Houston, asked if the Legislature must

draw new maps this year since it failed to in the

year following the census.

8

Does the Legislature have a mandated responsi-

bility to enact a permanent map for the electoral

period 2003 through 2010? Crabb asked in his

Feb. 11 letter to the attorney general.

U.S. House Majority Leader Tom DeLay, R-Sugar

Land, has been pushing state Republican leaders

to draw new congressional districts to give the

GOP a majority of the state’s U.S. House seats.

The Democrats currently hold a 17-15 majority.

The Houston Chronicle, February 22, 2003, Section A,

p. 30.

Two months later, on April 20, 2003, The Dallas

Morning News reported that Mr. DeLay’s aides had sev-

eral redistricting plans “under consideration.” Second

Edition, News Section, p.5A. On April 23, 2003, The

Houston Chronicle reported that a Democratic member of

the Texas House Redistricting Committee, Rep. Richard

Raymond, declared that Speaker DeLay’s aides had drawn

up “at least 10 different congressional maps,” and that Mr.

Raymond had asked Rep. Crabb for access to them. The

paper reported, however, that Rep. “Crabb had filed a bill

re-establishing the existing lines” and “has said he has no

intention of taking any action on congressional redistrict-

ing unless Texas Attorney General Greg Abbott tells him

he has to.” Rep. Crabb denied that he had received any

maps from Mr. DeLay or his aides. The Houston Chronicle,

April 23, 2003, 3 Star Edition, Section A, p. 27. See Fort

Worth Star Telegram, April 24, 2003, Final Edition, Metro

Section, p. 4 (“In published reports, state Rep. Joe Crabb,

the head of state House redistricting panel has said he

won't proceed with congressional redistricting unless he is

compelled to by the attorney general.”).