So I understand Peter Earle, a lawyer from Milwaukee, was "befuddled" by my testimony before the Joint Committee that the GOP redistricting plan is not vulnerable to legal challenge. In the midst of what was largely a partisan speech committed to political - as opposed to legal - argument(more of that "shame on you" schtick), Peter was asked about my conclusion that the plan would pass legal muster. In response, Peter said that he, as a "responsible lawyer" who adheres to the ethical standards of his trade(apparently unlike me) , does not understand how I could know that without taking more time to crunch the numbers.
I don't know Peter Earle. I think I met him for the first time when he introduced himself as I was leaving the hearing room. I know who he is and I think he may have been tangentially involved in a voting rights case that I handled a number of years ago. Although I'll put my legal chops up against Peter any day of the week, I won't question his competence or responsibility or adherence to the "ethical standards of the trade." I'll assume that he didn't really intend to question mine.
But if he is truly befuddled, he didn't listen very well. Peter doesn't bother to address anything I said about the redistricting plan so let me review why I can say what I did "responsibly" and "ethically." It is apparent, as we say in the law, that there are no material issues of fact.
I addressed three potential legal challenges. There is no question that the plan meets the requirement to equally populate districts. That's simple math.
But isn't a partisan gerrymander? That's the second area that I addressed. As I explained to the committee, I don't know the extent to which the plan favors the GOP or whether a more competitive plan could be drawn. I assume that it does favor Republicans and that one could draw more competitive districts. But, as I carefully explained with reference to controlling precedent, I don't need to know. Challenges to plans as partisan gerrymanders are effectively nonjusticiable. If Peter is even remotely familiar with the law in this area (and I'm sure he is), he knows that to be true and a complete response to the question he was asked would have included that concession.
Of course, I know his response will be that he wasn't talking about that - that he is only concerned about districts in the Hispanic community and whether there is a possible voting rights violation. That is the final area I addressed. I explained to the committee what the law is in that area, noted that the plan seemed to create an extraordinary number of African American majority districts and, depending on which of three alternatives are adopted, will create two Hispanic majority assembly districts for the first time. Because it seems unlikely that one could create more, I pointed out that, unless someone can demonstrate that additional majority minority districts could be created that are compact, contiguous and justified under the three part test that the courts use under section 2, the plan would not be susceptible to challenge.
And Peter Earle knows that. He also knows that the GOP has been in negotiation with the Hispanic community as to the precise contours of the majority Hispanic districts. His claim that he is unable to assess the possibilities for lack of access to publicly available census data and a software package strains credulity. He suggests that maybe it would be possible to create an Hispanic influence district, but, as he knows, there is no legal obligation to do so.
Beyond all that, this is a huge feint. As Peter knows, the GOP is more than happy to create majority minority districts. One of the ironic impacts of the manner in which doctrine under the Voting Rights Act has developed and of the political strategy of minority communities is that redistricting often results in alliances of Republicans (in whose interest it is to pack Democratic voters) and minorities who want to create magority minority districts (which, according to most experts, must actually contain a supermajority of minority voters) to be effectively majority minority.