The Redistricting Rematch

Election law experts are split on just how significant the Supreme Court's decision this week to remand the Texas redistricting case back to a three-judge district court panel might be.

In his press conference earlier this week, Attorney General Greg Abbott called the two-line decision a "routine procedural step" taken when deciding court cases of a similar nature – in this instance, the Pennsylvania partisan gerrymandering case of Vieth v. Jubelirer, which the Supremes decided after the three-judge district court panel upheld the Texas map. As such, the remanding doesn't reflect any judgment on the merits of the case, Abbott told the assembled journalists. "Indeed, if the Court believed that Texas redistricting were improper, it could easily have set the case for briefing and argument, which it did not do," Abbott said. "We are confident that the three-judge court will reaffirm its decision that the redistricting plan passed by the Texas Legislature is entirely constitutional."

In other words, the state wins, just as the state of Pennsylvania won in Vieth, Abbott says. But those who follow election law don't all agree with that assessment. Nate Persily, an election law expert at the University of Pennsylvania School of Law, says the Court ruling actually might mean the justices are ready to tackle the issue of partisan gerrymandering, but they just don't know how. If so, it could open the floodgates on new cases from Florida, Michigan, and (once again) Pennsylvania as well as Texas. The high court is saying "'We don't know how to resolve these issues. District Court, give us some ideas how to resolve this case,'" Persily said. "That's consistent with Vieth v. Jubelirer in the sense that the court really has no answer. Vieth was an incomprehensible jumble of opinions from five different justices, with Justice (Anthony) Kennedy telling the lower court to think about the case in First Amendment terms."

Rick Hasen, a professor at Loyola Law School in Los Angeles, had expected the court to summarily affirm the Texas case; he thinks the remand may reflect Kennedy's ambivalence on gerrymandering. In his separate opinion on Vieth, Kennedy supported his four colleagues who supported the state's map – who, indeed, argued there was no such thing as unconstitutional partisan gerrymandering – but only because Kennedy could find no compelling First Amendment argument presented in the case, specifically an argument about right of association – whether a person's rights were infringed by redrawing district lines, the same as when a Republican boss fires a Democratic worker.

Hasen does not find the "right of association" argument particularly compelling. Instead, he calls Vieth a "placeholder decision," intended to acknowledge that the Supreme Court has no clear guidelines to suggest on partisan gerrymandering – clearly, it exists, but is it the Court's role to limit it? – but that it might want to reconsider the issue.