In redistricting case, judge decides to punt on third down

After reading reams of court papers and listening to about three hours of arguments from some of Nevada’s top legal talent, Carson City District Judge James Todd Russell decided to punt.

Instead of telling the panel of three “special masters” that will actually be drawing the long-overdue political maps where to start, what to do or how to do it, Russell essentially left them in charge.

Republicans, for example, say the process should start with the maps approved by the Legislature in 2001, because those are the last ones approved by duly elected lawmakers and signed by a governor. Democrats, by contrast, say the masters should start with maps approved by a Democratic majority in 2011 but vetoed by Gov. Brian Sandoval, because they have the virtue of including up-to-date census numbers. And the secretary of state’s office offered a novel suggestion, too: Start from scratch with a blank slate.

Judge Russell told the panel they could do whatever they wanted.

Instead of ruling on the question of whether the Voting Rights Act compels the drawing of a Hispanic majority congressional district, Russell said the masters should determine whether the facts and the law require it.

And in this case, that’s no small task. Republicans contend that a Hispanic district is mandatory under the law. (To be sure, Sandoval — a former attorney general and U.S. District Court judge — vetoed the Democratic majority plans in May because they didn’t contain a Hispanic district. Said the governor: “The redistricting plan reflected in this bill does not comply with the [Voting Rights] Act.”)

But Democrats argue such a district can’t be drawn, because there are not enough eligible Hispanic voters to make up a majority, because there’s no history of political discrimination in Nevada and because there’s no showing that a white majority keeps Hispanics from electing candidates of their choice.

Attorney Mark Hutchison, representing clients including the Nevada Republican Party, say that simply drawing fair districts will naturally result in a Hispanic district. Democrats aren’t so sure. But now they will have to make their case to the special masters instead of the judge, who may or may not agree when it comes to approving the final map.

It would have been nice — and certainly a lot easier on the masters — had Russell made a call on that issue.

About the only issue Russell did settle in his order — sort of — was the mini-controversy over “nesting,” the practice of making a single state Senate district out of two Assembly districts, so the lines overlap. Democrats favored it, but Republicans didn’t, arguing the Legislature hasn’t practiced “nesting” for the past 20 years. Russell said the masters “may consider” that approach. (Note that he didn’t require it, however.)

As a counterbalance to the wide latitude Russell offered his panel of masters, however, he gave them precious little time to do their work. They’ll hold public hearings in Las Vegas Oct. 10 and Carson City Oct. 11 and must submit the maps to the court by Oct. 21, just 10 days later. A final hearing is slated for Nov. 16.

Russell’s approach doesn’t give the masters carte blanche, however. The judge will hear final arguments at that November hearing, and he may yet make changes as a result of arguments from the parties. And the Nevada Supreme Court will almost certainly weigh in as well, if either Democratic or Republican attorneys are dissatisfied with Russell’s final order.

But until that time, less is apparently more.

 

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.