What did the Barrientos panel do with the "redistricting twice in a decade" claim?

Greg V left a comment to my post on Friday's ruling in Barrientos v. Texas asking for my "take" on the Dems' claim that it is "illegal to redistrict mid-decade," or as they've also phrased it, "more than once in a decade."  Greg frames the issue nicely:

My first reading suggested to me that the judges would not rule on whether or not mid-decade redistricting was legal until the Texas legislature had actually redistricted. But I doubt federal judges are so cruel that they would have refused to take the opportunity to advise the parties in this case that whatever map is drawn will be thrown out.

My take is sufficiently long-winded that I decided to put it into a new post rather than replying fully in a comment.  Executive summary:   The Barrientos panel didn't discuss this claim at any length, but it clearly rejected that claim on its merits.  It's good propaganda, but utter nonsense as a formal legal claim.

Did the Barrientos panel reach the merits of the "twice in a decade" claim, or refuse to consider that claim as unripe?

In general, courts are reluctant to give "advisory opinions" and refuse to resolve controversies unless they are "ripe."  If looked at in isolation, the key phrase from the Barrientos panel opinion that I quoted yesterday — "what will directly affect the voters in this state is a redistricting bill, not the mere consideration of such a bill or the process by which it comes to the floor of the Texas Senate" — looks like it could be a determination that the issues urged by the Dems aren't yet ripe for consideration.  If what the panel intended to say was, "This dispute isn't ripe yet, come back later," then its ruling would have very, very limited precedential value.  It wouldn't be a ruling "on the merits," but rather a refusal to make such a ruling yet.

But looking at the entire opinion in context, I think it's fairly clear that the panel was not basing its ruling on the ripeness doctrine. 

The Barrientos panel opinion certainly acknowledges that this is one of the Dems' two main arguments:

The complaint primarily attacks two events:   first, the decision by the state legislature to consider congressional redistricting legislation this year, notwithstanding that a redistricting plan has already been implemented this decade; and second, the declaration by the Lieutenant Governor that redistricting legislation would be considered in a special session without adhering to the so-called "2/3rd Rule."...

(Italics added by Beldar.)  The original complaint filed by the Dems purported to state four separate "counts."  Count I claimed that the defendants violated the Voting Rights Act of 1965 by failing to obtain preclearance required under section 5 for both the "twice in a decade" redistricting and the  abandonment of the so-called "2/3rds Rule."  Count II claimed that both the "twice in a decade redistricting" and the abandonment of the so-called "2/3rds Rule" had a discriminatory intent or effect in violation of the Act.  Count III reframed the same claims as being state action that abridged the plaintiffs' constitutional rights in violation of 28 U.S.C. § 1983.  Count IV was a muddled mess, but dealt solely with the Republicans' attempt to persuade the Texas Supreme Court to force the Dems to return to Austin — which entire count was mooted by the Texas Supreme Court's refusal to do so.  The Dems also had asked permission to file an amended complaint that would add a Count V, complaining about the prospect of the Dems being arrested and fined for their quorum-breaking flight to New Mexico.

The State's motion to dismiss never urged "unripeness" as grounds for dismissal, but rather attacked the Dems' claims "on the merits."  And so, too, did the panel's opinion get to the "merits" — even though almost all of the discussion appears to relate more directly to the "2/3rds Rule" claim than the "twice in a decade claim."

Certainly the relief granted to the Republicans on page three of the panel opinion went to the merits of both the "2/3rds Rule" claim and the "twice in a decade" claim:

The motion to dismiss claims under the Voting Rights Act is GRANTED.  We also DISMISS claims under 28 U.S.C. § 1983, insofar as Plaintiffs claim that the State's decision to consider redistricting legislation and the failure to adhere to the "2/3rd Rule" violate the First, Fourteenth and Fifteenth Amendments to the United States Constitution.

(Italics added by Beldar.) This effectively disposed of Counts I, II, and III of the Dems' complaint, with Count IV being moot, and the as-yet-unfiled Count V left for future determination.

So yes, I think that the panel did deal with the "twice in a decade" claim, and did so with a dismissal "on the merits," rather than on grounds of unripeness. 

So why didn't the Barrientos panel discuss the "twice in a decade" claim at more length?

My conclusion is that the "twice in a decade" claim is so stupid that the author of the opinion either forgot to come back to it (and neither of the other two judges caught and pointed out the omission), or else deliberately decided it wasn't worth much explicit discussion in what was intended to be a brief, interim opinion.  Either way, the judges must have thought it was a "no-brainer" — a piece of garbage that, as it turned out, didn't quite get neatly swept up.

An additional reason that I strongly suspect this opinion was the personal handiwork of Judge Higginbotham is that it only cites one case — Presley v. Etowah County Commission, 502 U.S. 491 (1992) — as precedent.  That is a mark of a writer who is extremely confident that he's right on the law, and who feels no need to dress up his own writing with lots of citations in order to look confident.  And as the opinion recites, it is brief, and it obviously was prepared in a hurry to respond to the parties' needs.  If the panel in fact ends up exercising the opportunity it reserved to "issue a more detailed opinion hereafter, if appropriate," it probably will spend at least a few sentences separately addressing the "twice in a decade" claim.

But why is throwing out this claim such a "no-brainer"?

The "twice in a decade" claim makes a pretty good throw-away line in propaganda for the public's consumption because they can claim this is "unprecedented" and that there's a "plan already in place that has been declared legal."  But for this claim to have any merit as a legal argument, you have to presume that redistricting by a court is equivalent to — just as good as, just as legitimate as, and a completely acceptable substitute for — redistricting by a legislature.  That's just a laughable proposition to anyone who's read any of the Supreme Court's redistricting cases.  As I've blogged before, the federal judges themselves are intensely aware of the fact that the Civil Rights Act of 1965 requires them to intrude on a function that is intended, for excellent reasons, to be the province of state legislators.  They correctly view their role as being solely to determine whether constitutionally- and statutorily-protected voting rights have been violated, and if so, to do the minimum necessary to fix that problem, and then to get the hell out of Dodge. 

Sometimes fixing the problem requires them to actually write a new districting map — as was true in the case of the Balderas panel in 2001, which faced upcoming 2002 Congressional elections in which Texas had two new seats in the US House of Representatives for which the Texas Legislature had yet to create any districts whatsoever by the end of the 77th Texas Legislature.  The political process had deadlocked; the Governor had recognized that and announced that he wasn't going to call a useless special session; and so the three-judge panel had to find a place to stick two new districts and make the resulting necessary adjustments to equalize the populations of the others.  And that's what the panel did, but then it stopped — even though it recognized that the effect of stopping at that point had unintentionally but inevitably heavily favored the Dems — because it knew that a panel of three federal judges lacks the tools, the wisdom, and most of all the "political legitimacy" to do the kind of full-scale redistricting that legislatures do.

It seems to be true, as the Dems are asserting in both Texas and Colorado, that there's no direct historical precedent for a state legislature doing a full-scale redistricting in the same decade in which a federal court has previously done "some" redistricting.  So there is not a case that's directly on point to prove conclusively that it can be done — nor is there a case that's directly on point to prove that it can't be done. 

This was, however, one of the questions put to Texas Attorney General Greg Abbott last spring, and his formal written opinion concluded with no hesitation that

Texas legislators are entirely free to replace the court-ordered plan in Balderas and, as the court urged in McConnell, "continue efforts to fulfill their constitutional duties" as elected representatives to enact a congressional redistricting plan that comports with section 5 of the Voting Rights Act.

The Dems like — and have frequently cited (in a sort of telling of half-truths) — the other half of Attorney General Abbott's opinion, which was that if the Legislature didn't act, the map drawn by the Balderas panel would, by default, remain in effect until replaced by either a new legislatively or judicially drawn map, presumably after the 2010 Census.

But as to this part, they've yet to come up with any coherent argument to show that Attorney General Abbott is wrong and to support their "twice in a decade" claim than "it's never been done before."  That claim is given extremely shallow treatment in the Dems' court papers, with absolutely no citation to any case or statute or any other authority.  The Republicans court papers essentially ignored it as well.  And although the transcript from last week's hearing on September 11 isn't on file yet, I suspect that this claim also received minimal discussion at the hearing. 

Finally, although there's not any precedent directly on point, Attorney General Abbott's opinion cited and relied heavily on dicta — sort of an advisory opinion that wasn't directly necessary to the ruling but was thrown in anyway as part of a larger discussion — from the US Supreme Court's decision in Reynolds v. Sims, 377 U.S. 533 (1964), in which Alabama had gone six decades without a legislative redistricting:

Limitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system, although undoubtedly reapportioning no more frequently than every 10 years leads to some imbalance in the population of districts toward the end of the decennial period and also to the development of resistance to change on the part of some incumbent legislators. In substance, we do not regard the Equal Protection Clause as requiring daily, monthly, annual or biennial reapportionment, so long as a State has a reasonably conceived plan for periodic readjustment of legislative representation. While we do not intend to indicate that decennial reapportionment is a constitutional requisite, compliance with such an approach would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation. And we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable. But if reapportionment were accomplished with less frequency, it would assuredly be constitutionally suspect.

377 U.S. at 583-84 (italics added by Beldar).  So in a case in which the Supreme Court directly held that once in 60 years isn't enough, and that less often than once in 10 years is "constitutionally suspect," the Supreme Court also strongly hinted that even legislative redistricting more than once in a decade would be okay.  If it would be okay for a legislature to itself redistrict more than once in a single decade, then surely — as in Texas and Colorado — it would be okay for a legislature to thoroughly redistrict after a three-judge panel had done minimal redistricting earlier in the same decade.