Friday, March 25, 2011

Fayetteville to the 4th: It's legal

Posted By on Fri, Mar 25, 2011 at 6:29 AM

fayettevillemap.jpg

Jay Barth, professor of politics at Hendrix College, has volunteered a useful article explaining why — however much some people may not like it — that there's no legal disqualifier in the proposed congressional redistricting that moves a portion of Washington County, including Fayetteville, into the 4th District.

Barth is a Democrat, yes. But read on. The U.S. Supreme Court has ruled definitively — in the case of a Republican plan drawn for overt partisan gain in Pennsylvania — that political motivations don't invalidate redistricting plans. Equal distribution of population is the paramount concern

In other times, with other issues, it would be Republicans decrying those who want to use the courts every time they don't like the way a decision turns out in a representative body. Barth concludes:

The best way for Arkansas’s Republicans to reshape district lines in their favor is to win control of state government by the time the next redistricting process takes place. (A more complex issue is whether they could do that before the next Census, as the Texas legislature—driven by House Majority Leader Tom Delay—did in the middle part of the last decade.) For this is an area where elections truly have consequences.

UPDATE: Fayetteville chamber of commerce chief Steve Clark is blasting his members with notes to pressure Sen. Sue Madison and Rep. Greg Leding of Fayetteville to come out against the bill. He casts Madison as the pivotal vote in Senate committee, though the plan always seemed likely to require a majority Senate vote for removal from committtee. The murderers' row of Republicans, plus the state Chamber of Commerce, opposing the inclusion of Fayetteville amounts to the strongest recommendation for the plan. Anything the chamber opposes just about has to be good for the general public.

It’s Not Pretty, But It’s Politics:
Why Partisan Gerrymanders Aren’t Unconstitutional

Jay Barth

As the so-called “Fayetteville finger” redistricting plan has gathered steam in the state legislature, some—most prominently GOP state chair Doyle Webb—have suggested that they will consider taking such an obvious political gerrymander to court. They’d be smart not to waste any energy on it.

In a 2004 ruling, the U.S. Supreme Court essentially closed the door to lawsuits questioning the constitutionality of partisan redistricts (a tradition as old as the Republic). That precedent, Vieth v. Jubelirer, would drive any Arkansas case. The Vieth case emanated out of an aggressive gerrymander after the 2000 census by the Republican-controlled state legislature of Pennsylvania’s congressional districts. Because the state was losing seats in Congress, the use of new technological mapping tools and the strategic pitting of Democratic incumbents against each other meant major gains for the GOP in the immediate aftermath of the redistricting. Democrats in the state cried foul and, specifically, cried that their Equal Protections rights had been violated.

The Democratic plaintiffs in the Vieth case had some hope that the Supreme Court would see things their way because of a 1986 Indiana case in which a majority on the Supreme Court had said that partisan gerrymandering did indeed raise Equal Protections concerns. Even more important, the Court majority in the Indiana case (Davis v. Bandemer) dramatically shifted from previous courts in saying that the issue was not inherently a “political question” (that is, an issue to be dealt with by elected bodies and not by courts). Thus, the Davis court gave a green light to Equal Protections litigation when persistent, aggressive partisan gerrymandering could be shown. Reformers hoped that when an aggressive gerrymander, like that in Pennsylvania, came to the Court, a new day would dawn and partisan gerrymandering would go the way of districts where urban voters were undervalued and districts driven by racial considerations.

All the justices in the Vieth case bemoaned the ugliness of the politics that had driven the redistricting process and four liberal justices actually said that the plan was unconstitutional, with different logic driving their separate decisions. But, the decisive justices in the Vieth case said that there was simply no usable rule that could be established for gauging where partisanship in districting is bad enough to be unconstitutional. Justice Kennedy—in his usual role in the middle on the Court—said that he’d be willing to be open to such a rule being established in the future but had little hope that it could happen.

Congressional redistricting can’t violate the “one-person, one-vote” rule laid down by the Supreme Court in the 1960s. And, those plans can’t be driven by considerations of race or ethnicity that favor either the majority or the minority. But, when it comes to partisan politics, the Constitution ultimately doesn’t come into play. As Justice Antonin Scalia wrote in Vieth:

Is the regular insertion of the judiciary into districting, with the delay and uncertainty that brings to the political process and the partisan enmity it brings upon the courts, worth the benefit to be achieved…? We think not.

The best way for Arkansas’s Republicans to reshape district lines in their favor is to win control of state government by the time the next redistricting process takes place. (A more complex issue is whether they could do that before the next Census, as the Texas legislature—driven by House Majority Leader Tom Delay—did in the middle part of the last decade.) For this is an area where elections truly have consequences.

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