The Implications of Legislative Power: State Constitutions, State Legislatures, and Mid-Decade Redistricting

Abstract

In the wake of the U.S. Supreme Court's splintered decision in 2006 in League of United Latin American Citizens v. Perry, future federal constitutional challenges to mid-decade redistricting appear to be dead on arrival. Yet, experience demonstrates that state constitutions may provide a viable alternative source for meaningful limits on the ability of states to engage in mid-decade redistricting. Indeed, in combination with constitutional language indicating the time at which redistricting should occur, the plenary nature of state legislative power compels the conclusion that state legislatures generally lack the power to engage in mid-decade redistricting. Many state supreme courts, including those of South Dakota and Colorado, have already reached this conclusion. This Note contends that other state courts should similarly interpret their constitutions to require redistricting after the national census and before the ensuing general election, and to prohibit redistricting at any other time.

Keywords: representation, apportionment, district, redistricting, state constitutions, mid-decade, constitutional law, gerrymandering, legislative power