Who gets to recall?

We've heard a lot of misplaced criticism about proposals to hold recall elections in newly drawn districts. Here's the crux of the problem.

Those legislative districts that existed before this year's redistricting are unconstitutional in the sense that they violate the principle of "one man, one vote." In keeping with that principle, the United States Supreme Court has made clear that legislative districts must be equal (or nearly so) in population. The old districts - drawn following the 2000 census - are no longer equal.

But the courts have recognized that it makes no sense to have district lines continually redrawn to keep the number of voters in each equal. So they have required this to be done only every ten years after the census. They have also recognized that it takes some time after the census to accomplish redistricting so they have permitted a certain passage of time before elections must be conducted in the newly drawn districts. There is even some authority for conducting special elections in old districts (if, for example, a legislator dies, retires or takes a new job) after the new lines have been drawn but before the first election cycle to which they have been made applicable. Whether that authority is correct or could be applied to a series of recall elections is a question that may be litigated some day, but my purpose here is not to comment on whether the recall elections must be held in the new districts (or even whether they can be) but whether they should be.

The newly enacted redistricting law states that it, as to special or recall elections, it "first applies" to "office filled or contested concurrently with the 2012 general elections." That is awkward language. The GAB reads it to mean that any recalls that take place prior to November 6, 2012 must take place in the old districts. There is, however, potential ambiguity in application of the statute to "offices." One might, for example, read the statute to mean that the statute first applies to any recall or special election for an office that is to be filled or contested in the November 2012 general election. If that's so, then any Senator who is up for reelection in November 2012 or thereafter would be subject to recall in the new district. Nevertheless, I should note, and the GAB relied in part upon, the fact that Governor Walker ordered in September that a special election in the 95th District take place in the old district.

But if the redistricting bill was written to apply for the first time to the November 2012 elections that doesn't mean that it cannot or should not be changed. To be sure, as long as this is what the law says, the old district lines should be used absent a finding that it would be unconstitutional to do so (see above), but we're interested here in what ought to be rather than what currently is. The legislature and Governor can change the law if they want to.

We can readily dismiss Mike Tate's complaint that this would amount to "changing the rules." So what? Redistricting always changes the rules. Changing the rules in this way is, in fact, constitutionally required - at least for the November 12 election cycle and thereafter. Changing them sooner is arguably more faithful to the constitutional guarantee of "one man, one vote" and, even if a court would not require it, it may well be a good thing to do. More on this later.

Blogger Tom Foley says that it shouldn't be done because there is a challenge to the current redistricting plan pending in federal court relying on a three judge panel's refusal to dismiss the case last Friday. But this doesn't get us far. The decision in Baldus v. Brennan was in response to a motion to dismiss the complaint. Without getting into procedural niceties, it does not tell us whether the challenge is strong or weak - only that it might prevail if the plaintiffs can prove their allegations. The survival of a motion to dismiss alone provides no basis for holding the recalls in the old districts.

For the Baldus case to be relevant, the plaintiffs would have to show that they have a reasonable probability for success on the merits. That hasn't yet happened and for reasons I'll get to when I post on that case, they are unlikely to be able to do so.

So the question becomes one of policy. Is it right or wrong to use the new districts? Is the question one of anything other than who is able to exercise their political will?

The answer comes to us - albeit unintentionally - from Jay Bullock (who I understand met my daughter-in-law recently). Jay thinks it wrong that the Republicans are trying to prevent the Democrats from flipping districts in 2011 so that the winners will have the advantage of incumbency in 2014. This, I'm guessing he'd say, frustrates the will of the people. He's wrong for at least two reasons.

First, the exercise of popular sovereignty that Jay wants to defend would be undertaken in a district that is no longer in compliance with the principle of one man, one vote. We allow the incumbent to continue to represent the district - i.e., we don't require that all legislators immediately face reelection - for practical reasons. But that doesn't mean that there is a right to that continuity or that it would be wrong to move up the effective date for the new districts.

Second, when there is an interim election, there may be - if not actionable equal protection problems - a peculiar bit of unfairness at work in permitting recalls in the old districts. The new districts are, the GAB tells us, "in effect" in the sense that each legislator now represents the constituents in the newly formed districts (and, thus, can use state funds to communicate with are represent them). The "new" residents in an incumbent's district has no other representative. He or she is no longer a constituent of his or her old state Senator and one could not expect that old Senator to be responsive in the way that politicians are responsive to their constituents.

So let's use an example. Senator Leah Vukmir now represents the people of her newly drawn district. Why should only some of her constituents get to vote on whether she will be recalled? Why should people that she no longer represents get to vote on that question. We allow her to continue to serve without facing the voters until 2014as a pragmatic matter but it is not "fairer" to do so and, in fact, may be unfair. If we are going to hold a new election, the defense from pragmatism is weakened if not eliminated altogether.