Courts Have No Business Interfering with Redistricting
We've had lots of redistricting plans. First there was the plan that has been in effect since the 2000 census. Then the one drawn up by the Texas legislature. Then the one proposed by the plaintiffs who alleged racial discrimination. Then the one drawn up by the three-judge federal court in Texas. Then the one, no doubt, that will be proposed by the federal court in D.C. And then the one that sits in the imagination of the Justices of the Supreme Court, against which all of these have been measured.
All of these plans, and the multiple trips to multiple courts, only underscore that the courts should never have waded into the swamp of redistricting. Judges can enforce something clear, such as the one person one vote rule. But beyond that, judges have no competence and no neutral principle to apply to political races. A judge cannot claim that the Constitution provides a rule that dictates how many Republican and Democrat congressmen should be returned by Texas. A judge certainly cannot claim the Constitution tells us what the racial composition of the Texas congressional delegation should be.
And when it comes to drawing the districts, it gets even worse. A judge cannot claim that a neutral rule, derived from the Constitution, instructs us what shape individual districts should be, what proportion of races or partisan affiliation it should have, whether it should combine cities with farms, or suburbs with beaches. These decisions are inherently and wholly political, and the courts undermine their commitment to neutrality and fairness when they decided to enter this field. The best thing that federal judges could do is declare all of it a political question and leave it to those best suited to answer it under the Constitution: politicians.
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Comments:
Nov '10
Re: Courts Have No Business Interfering with Redistricting
Huzzah! Huzzah! And, again, Huzzah!
May '11
Re: Courts Have No Business Interfering with Redistricting
Whereas I agree that redistricting is a broken process, I question why you think a question must be based on the Constitution in order for a Judge to be competent to rule on it.
Re: Courts Have No Business Interfering with Redistricting
As usual when I read John Yoo, I find the argument so lucid and convincing that the only thing I'm unable to figure out is how anyone could possibly disagree.
Apr '11
Re: Courts Have No Business Interfering with Redistricting
I wonder if you could make an argument that courts could object if districts did not "roughly" yield the same number of Democrats and Republicans as their representation in elections.
If a state has a 60/40 D-to-R split in election turnout but a 90/10 D-to-R split in elected reps could a court say "something is wrong" and tell the legislators to redistrict?
Can of worms, problems with independents, but avoids the courts actually creating districts.
Oct '10
Re: Courts Have No Business Interfering with Redistricting
This reminds me of the attempt to deal with this in California, where now they have a commission, of sorts, that's supposed to draw the lines. I voted against it in the last election because it seemed too vague and ambiguous, what with the requirements to represent the demographics of the community. My crazy idea is to split every district 50/5o between the parties. Every district a battleground race!
May '10
Re: Courts Have No Business Interfering with Redistricting
Shouldn't the districts have roughly the same population?
May '10
Re: Courts Have No Business Interfering with Redistricting
I've teased out the principle.
When Democrats draw districts to their advantage, as has happened in Texas for over a hundred years, it's called "politics."
When Republicans do it it's called a "civil rights violation."
Apr '11
Re: Courts Have No Business Interfering with Redistricting
They do, of course, but what each party tries to do is cram all of their opponents into a few highly concentrated districts. Take two examples in a state that has four districts and is 50/50 D/R
Ex1: 4 districts each 50/50 D/R
Ex2: 1 district 80/20 D/R, 3 districts 40/60 D/R
May '10
Re: Courts Have No Business Interfering with Redistricting
Amen. While we're at it, I'll toss out another idea whose time has long since come: repeal Section 5 of the Voting Rights Act or apply it to everyone. The segregation I saw in St. Louis and Kansas City while growing up in Missouri is worse than anything I have seen after nearly 20 years in South Carolina, North Carolina and Georgia.
Sep '10
Re: Courts Have No Business Interfering with Redistricting
What we need is some sort of algorithm...
Re: Courts Have No Business Interfering with Redistricting
mesquito: I've teased out the principle.
When Democrats draw districts to their advantage, as has happened in Texas for over a hundred years, it's called "politics."
When Republicans do it it's called a "civil rights violation." · 4 hours ago
Awesome quote!
Re: Courts Have No Business Interfering with Redistricting
John Yoo:
I've often hoped that someone with a college research budget at his or her disposal would perform the following study:
Start at the top northwest corner of each state, and draw only a straight line box, growing the box proportionately in all directions until it contains 750,000 people.
Then look at the voting registrations for each new district you've created and see what you have.
You'd end up with people in a district with geography in common, and therefore common interests vis a vis rural vs suburban vs urban issues (my home district in New Jersey winds through 5 counties, picking off neighborhoods here and there to make the Democrat unbeatable).
Jun '11
Re: Courts Have No Business Interfering with Redistricting
Didn't Mr. Compassion sign the extension of the VRA for another 25 years?
Apr '11
Re: Courts Have No Business Interfering with Redistricting
Tommy De Seno,
I think that the only constitutional requirement is that each district have a similar population.
When you start dealing with the actual process of defining a district you will be inundated by groups that want a district defined so that Democrats, Republicans, Greens, Libertarians, Gays, Hispanics, Mormons, Fishermen, Mountain dwellers, Farmers, etc get their own representative.
Their demands are not unreasonable. You cannot just dismiss them.
This is why an "algorithm" is a nonsensical solution. It ignores the question, who defines the rules encoded in the algorithm?
BTW, the same difficulties surround defining boundaries for cities, counties, districts, states and even countries. Think of Kurds included in Iraq, etc.
Ultimately the determination of boundaries is a political process, not because its the best, but because the current alternatives are worse.