Burnt Orange Report

Handicapping Travis County v. Perry

By Jim Dallas

A quick skim of the briefs suggest this could be an interesting case.

The appellant's brief presents the following question:

Does the legal fiction of inter-censal population accuracy provide a safe harbor from the stringent one person, one vote constitutional rule for congressional districts when the state voluntarily redistricts mid-decade only to advance partisan objectives and not out of any judicial or other legal necessity?

The last time Texas re-redistricting came before the Court, it was remanded in light of the Court's decision that year in Vieth v. Jubilerir (2004). The controlling precedent here is probably not Vieth(which, to put it gently, was a case with a highly ambiguous outcome), but Cox v. Larios (2004) and Karcher v. Daggett (1983). These two cases are cited a bunch of times in Travis County's briefs. In Larios, the Court upheld a lower court decision which struck down a gerrymander in Georgia. In Karcher, the Court struck down a gerrymander in New Jersey. In both cases, the Court was persuaded that the only reason the plans deviated from "one man, one vote" was because of partisanship.

Another case that Travis County cites is Kirkpatrick v. Preisler (1969), which can be read as establishing a "best available data" rule. On the other hand, the best data, according to the Kirkpatrick opinion, for a 1967 Missouri remap was... the 1960 census data. I'm not sure if Kirkpatrick helps or hurts Travis County's appeal.

This could probably come out in a number of different ways; if I had to guess, I'd imagine it will come out 5-4. Which way, I'm not sure.

Update: I ought to add that in the last couple of years there have been at least a few law review articles that have come out advocating for a categorical "no mid-decade redistricting" rule. The Travis County case is certainly a new twist on "one man, one vote" but one with at least a little support out in the wider legal community.

Update 2: And of course, the Travis County case contains only one of the ten questions that will be taken up together.