Thursday, March 02, 2006

More RE: Redistricting and the law

There actually is some precedent, albeit persuasive precedent only, for the proposition that redistricting should only occur after the decennial census. First, some factual background:

In 2002, after the 2000 census, Colorado's legislature failed to perform its duty under the state constitution to redistrict after Colorado had gained a House seat. A suit was filed that sought the courts to redistrict in light of the legislature's failure to do so; the courts did so, and the 2002 elections went forward with the districts as drawn by the courts. In 2003, the legislature finally got off their ass and drew new districts. Another suit sought to enjoin enforcement of the new legislatively drawn districts and instead keep the court-drawn ones in place. The Supreme Court of Colorado struck down the new districts and kept the court-drawn ones, intepreting Article V, Section 44 of the Colorado Constitution (which says that the legislature is supposed to redraw the districts after each census) to mean that the ONLY time redistricting could happen was after the census. Therefore, the Court found, the districts drawn in 2003 were invalid. See Salazar v. Davidson, 79 P.3d 1221 (2003). There is now a challenge to that finding pending in federal court, based on U.S. Constitution, art 1, Section 4, which gives state legislatures exclusive power over Congressional elections; the argument is that art 5 section 44 of the Colorado constitution, as interpreted, is unconstitutional under the U.S. Constitution because it takes control of Congressional elections away from the Colorado legislature. See Lance v. Dennis, 546 U.S. ____ (decided February 21, 2006) (holding that the current suit is not procedurally barred by the prior state court case). New Hampshire has also found that Congressional redistricting can only happen after the census pursuant to its constitution, although under a similar scenario as described above that also occurred there, the Supreme Court of New Hampshire found that their legislature didn't lose its chance to do its once-every-10-years redistricting just because the session expired, and therefore allowed redistricting done at the 2004 session. See In re Below 151 N.H. 135 (2004).

So back to Georgia. All of the above is to say this: Georgia's constitution has a similar provision with regard to state legislature redistricting. Georgia Constitution, Article III, Section II, Paragraph II (The apportionment of the Senate and of the House of Representatives shall be changed by the General Assembly as necessary after each United States decennial census.) So, if the Supreme Court of Georgia interpreted that provision the same way that the supreme courts of Colorado and New Hampshire intrepreted their provisions regarding Congressional elections, they would find that the ONLY time redistricting could be done is as necessary after the census. What's more, if the Court did rule that way, the federal case in Colorado would have no effect, because the U.S. Constitutional provision regarding Congressional elections would not come into play when dealing strictly with Georgia legislature elections. Such a finding would invalidate the recent rending of Athens in twain.

Now, what are the chances that the Supreme Court of Georgia will rule that way? Your guess is as good as mine. It would be a case of first impression as far as I know in Georgia, and the Court has some new personnel that I don't really have a good read on yet.


Fishplate said...

The apportionment of the Senate and of the House of Representatives shall be changed by the General Assembly as necessary after each United States decennial census.

Does it say anywhere "only after each Census"? That makes a difference to me...The Ga. Constitution puts the Legislature in charge, only requiring examining the need for redistricting every ten years, but not precluding it at any other time.

I seem to recall that there exists some terminology regarding laws that were ?inclusive? or ?exclusive?, in other words a way of differentiating whether legal language considered only things that were expressly allowed vs. only things that were expressly prohibited... Is there some way of defining the Georgia Constitution in this way?

DoubleDawgDareYa said...

The language of the Colorado and NH constitutional provisions are nearly identical and do not contain the word "only" either. The courts in those states read the provisions with the "only expressed allowed" version of your doctrine choices above. I would have to do some additional research to see how the Georgia Supreme Court has read similar constitutional provisions in the past; I would imagine some have been read each way. Context matters.

Usually, the more specific a drafter (of a constitution, statute, whatever) is, the greater the presumption is that he did not intend the things he left out. The more general, the more room for interpretation.

Of course, even that can cut both ways, as you demonstrated above. For example, I could see an argument that the drafters of the Georgia Constitution went to the trouble of requiring redistricting after every census, which is fairly specific; therefore, if they had envisioned redistricting being done any other time, they would have included that too. On the other hand, as you seem to argue above, they didn't include the word "only" or any other limiting language as to when the legislature "may" redistrict. So you could argue that they can do it whenever they want, so long as they at least do it after every census (and of course that comports with actual practice up until this point in history as well).

Like I said, I don't have any notion that this argument is gonna carry the day; I was just pointing out that it has in a slightly different context in a couple of other states.

Dawg Corleone said...

Forget the word "only;" define "after."

Literally speaking, every day is "after" the census. Seems to me that SB 386 is redrawing "after" the census, unless we put some legal definition on when "after" ends.

DoubleDawgDareYa said... this "as necessary" following a census?

Dawg Corleone said...

"Necessary" is entirely subjective. Republicans could argue--and they are arguing--that it was "necessary" to fix the overtly partisan maps that were drawn in 2001.

Publius said...

Beating the drum again...

This underscores the pressing need for redistricting reform right now. Because you know that if the Democrats win a majority in 2006, they'll turn around and redistrict again, to undo the overtly partisan maps that the GOP drew. And the Democratic maps of 2007 will also be partisan, and so on and so on.

DoubleDawgDareYa said...

Yeah, they can argue it, but with all due respect it's a bullshit argument. Redistricting is "necessary" after a census because the population has changed, often adding or removing a seat or two on the Congressional level, and certainly requiring adjustment of the state districts. Political gerrymandering is not "necessary." Just because the meaning of a word can be debated doesn't mean that any proposed definition is acceptable. That is what courts do, ultimately; come to a conclusion on such questions. Of course, every time they do, they get branded as "activist."

Now don't get me wrong, I'm still not saying the suit's gonna work. I think it will likely go down because of what fishplate said; even though a post-census redistricting is required, there is no language prohibiting it at other times. But your construction of the post-census requirement is ridiculous. The language clearly requires a post-census redistricting to adjust based on the census results.

What if the recent redistricting hadn't passed? If it's "necessary", wouldn't the General Assembly have been neglecting a constitutional duty? It says they "shall" do it as "necessary". The kind of redistricting that just happened is clearly discretionary, and therefore does not fall within the mandatory post-census clause.

However, as I said above, I'm still looking at the court probably saying that, since there is no explicit prohibition of other redistricting, it can be done. But what do I know.

And of course all this assumes that this is in fact the argument that will be made (first of all it assumes the suit is filed, which we don't know yet either). So I guess we should just wait and see what develops.