an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Impact of the 2010 Elections on the Impending Redistricting Process
Much will soon be written about the effect of yesterday's elections on the 2010 redistricting process. Here are just a few random tidbits (of relevance both to law and politics) gleaned from the results.
2. The Alabama House and Senate, Indiana House, Iowa House, Maine House and Senate, Michigan House, Minnesota House and Senate, Montana House, New Hampshire House and Senate, North Carolina House and Senate, Ohio House, the Pennsylvania House, and the Wisconsin Assembly and Senate all have flipped from Democrat to Republican. See results and a map from the National Conference of State legislatures.
3. Although a few House races remain too close to call, it appears that since 2002 about 105 congressional seats (24% of total) have had a Republican and a Democrat representative at some point in the redistricting cycle. I don't know how this compares to previous cycles, but the number of "switches" over the course of the decade gives a sense as to how successful the 2002 gerrymanders were. As far as I can tell, one cannot say that incumbents in states with bipartisan or incumbent-protecting gerrymanders were safer than those in partisan gerrymandered states. I think this is true even accounting for the fact that "in-party" members might have been placed a greater risk than "out party" members in partisan gerrymandered states. In other words, although in some states partisans spread their supporters to thinly and therefore lost seats as a result, that was not uniformly true (compare Pennsylvania with Florida). Nor was it consistently the case that incumbent-protecting gerrymanders were equally successful (compare California with New York).
4. My best guess, however, from the lessons learned this redistricting cycle is that we should expect even greater incumbent protection in the upcoming redistricting as Republicans cement their gains, particularly in the Midwest where they will control the process, rather than seek out new opportunities. (As many have written, bipartisan gerrymanders are sometimes the most rational and successful form of partisan gerrymandering.) New opportunities will come their way, in any event, when the census reveals reapportionment totals that transfer seats from the Northeast and Midwest to the South and Southwest. Texas, for example, may gain four new congressional seats. (Note, however, Florida passed a redistricting initiative that, by its terms, attempts to constrain the use of partisanship or incumbency in the linedrawing process.)
5. Speaking of Texas, it is interesting to note that the Latino-majority district (Texas 23) that was redrawn following the Supreme Court's decision in LULAC v Perry has now switched back into Republican hands. I will be interested to see whether exit polls reveal that Latinos split their vote between Ciro Rodriguez (the incumbent) and Quico Canseco. Also, Solomon Ortiz appears to be losing the 27th Texas congressional district, of which Latinos comprise over 70% of the district's population.
6. William Jefferson's old district in New Orleans has returned to the Democrats, with Joseph Cao losing to Cedric Richmond. After the 2000 Census, this was a 64% African American population district (with 638,000 people in it). According to recent estimates from the 2006-2008 American Community Survey, only 431,000 people remain in the district (post-Katrina) and it is down to 57.6% African American. Without getting too far into the legal issues, Louisiana will prove to be one of the more interesting states when it comes to enforcement of the Voting Rights Act in the upcoming redistricting.
There is a lot more to say about the effect of these elections on redistricting -- for example, how the governors' races in certain states have now made partisan gerrymanders or impasses more likely. For now, the next relevant shoe to drop will be the apportionment estimates the census will deliver in about two months.