Taking the Re Out of Redistricting: State Constitutional Provisions on Redistricting Timing

Abstract

Since the 1960s, redistricting has largely been considered a decennial obligation tied to the release of new federal census data. Yet in 2003, the Texas legislature notoriously redrew in mid-decade its valid congressional districts, without any new census information. And while all eyes were on Texas, five other states also drew new congressional or state legislative district boundaries to replace existing legal maps. Though the Supreme Court has declined to limit mid-decade redistricting under the federal Constitution, many state constitutions regulate the timing of redistricting - and in most states, the constitutional language is sufficiently ambiguous to provoke an underappreciated dispute. This article examines in detail the states' constitutional language and case law regarding redistricting timing, to chart the likely fault lines of future attempts to re-redraw district lines. It examines the states in which legislatures have unambiguous latitude to do as they please, the states in which legislatures are unambiguously limited, and the vast ambiguous middle. The article also discusses some of the most common scenarios in which disputes over re-redistricting arise, and explores their implications for how ambiguous state constitutional provisions are likely to be construed. Finally, the article offers an assessment of the effects of overly frequent redistricting, and offers some tentative conclusions about the future of efforts to address the re-redistricting controversy, in Texas and beyond.

Keywords: election, district, redistricting, state constitution, mid-decade

JEL Classification: K19, K39, K40, K49