REDISTRICTING NORMS AND THE LAW

Rick Hasen doesn't agree with the editors over at the NYT, who castigate the Texas Republicans for redistricting as soon as they got into power, even though Dems had just done so and the norm seems to have been redistricting once in a decade. For him, it's all about politics anyway, at least above the threshold allowed by relevant state law. Matthew Yglesias provides a kind of counter with the following Balkin-esque point: "When substantial groups of people start regarding their entire job as a nihilistic pursuit of partisan advantage, the whole thing breaks down."

I guess a question I would put to Rick Hasen would be the following: based on your experience studying the field, how often have the bare requirements of state law served as the exclusive guideline in state redistricting matters? In the Texas and Colorado controversies currently brewing, one claim that the Dems have made is that relevant norms, rather than (at least in the Texas case) relevant state law, haven't been followed by the party in power. Is this just whining by a losing party, then? Or is it a more fundamental complaint that one could link with Balkin's and Yglesias's fears that some sort of tacit understanding has been broken by an excessive search for partisan advantage? The ability to have tacit understandings between party elites -- or trust -- is something that Balkin claims is required for two-party systems -- or at least this two-party system -- to work well over the long term.

One of the reasons for Delay's efforts is the razor-thin partisan balance in the electorate; having had precious few opportunities to exercise majority control in Congress over the past 50 years, Republicans are understandably anxious to solidify whatever narrow majority they have. Bitter fights over narrow gains are to be expected. Add to that recent Republican assertiveness (which I would probably -- tongue-in-cheek -- interpret in a Nietzschean fashion, at least with respect to the House, by looking at the psychological nastiness that being in the minority party for too long can engender), and you probably do get a breakdown in trust. But the trust that was visible in the House, to the extent that there was any, at least pre-1994, probably had to do with the particular institutional arrangements that the Democrats had built up there: candidates were primarily individual policy entrepreneurs, party wasn't that important, and major legislation got passed primarily through logrolling and smoothing passage with pork rather than through common commitment to principle. Trust works there because there is individual electoral advantage at stake and everyone knows it. You can certainly like that system of legislating, but it's not one that has much to do with ideas, and it's also one that voters would ritually slaughter in each round of public opinion polling on corruption in Congress (exempting their respective representatives, of course!).

So contra Yglesias, it's not really nihilism, but principle that leads to nasty Republican tactics. Granted, in Delay's case, the principle can be summed up as "government is evil, unless it's engaging in economic infrastructure development, military affairs, or building prisons." But that's still a principle. If there's a problem with respect to institutions working well, it's probably more due to Republican ideology than in a breakdown of norms of trust. [Balkin probably wouldn't disagree here, but it's still an interesting question: is trust a function of the lack of ideology? Then we've got a potential post-WWII, "end of ideology" argument on our hands, and that's a bit weird.} And as far as Delay is concerned, of course, the institutions are probably working just fine: the Texas Republicans just need to push a little harder next time, and, after all, the Pres got his tax cut. He may be hanging the House Republicans out to dry by praising the Senate plan, but that's nothing that a little Texas BBQ can't fix. . .