High Court Hears Texas Redistricting Case
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The U.S. Supreme Court today enters the politically charged arena of Congressional redistricting. The high court hears arguments on the legality of the 2003 Texas redistricting, a plan bitterly contested by Democrats that resulted in Republicans gaining six seats in the U.S. House of Representatives. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG reporting:
The plan was the brainchild of then House Majority Leader Tom DeLay, who had a razor-thin majority to work with in the House of Representatives in Washington. DeLay's idea was to undo the redistricting plan drawn by the federal courts in 2001 after the state legislature failed to come up with a plan, and to substitute a new plan redrawing district lines to virtually assure Republicans six additional House Seats from Texas.
To that end, DeLay aggressively raised money to elect enough Republican State legislators to pass the new reapportionment plan. And in 2002, Republicans took control of both state legislative bodies. Democrats in the state legislature fought back, even fleeing the state to deny Republicans a quorum. Latino and black voters objected to the plan, claiming it diluted their voting strength.
But the Justice Department in Washington ruled that the plan did not violate the Voting Rights Act, and finally, after a long struggle, the new plan was enacted. For Tom DeLay, in the end, the plan turned into quicksand, forcing is resignation as House GOP Leader. He now faces a felony charge that he laundered money, in violation of state law, in order to elect the state legislature that implemented his redistricting plan.
The House Ethics Committee has reprimanded him for improperly using a federal agency to locate some of the Democratic state legislators who'd fled the state during the legislative fight over the plan. And it's now been disclosed that the career lawyers in the Justice Department unanimously recommended that the plan be rejected as a violation of the Voting Rights Act.
That recommendation, however, was overruled by Bush political appointees in the Justice Department, thus allowing the plan to go forward. That brings us to the case being argued today. Democrats, minority groups, and some local governments are challenging the plan as an unconstitutional, and they say, unprecedented in modern times mid-decade political gerrymander; a gerrymander that features, among other things, three so-called bacon-strip districts that stretch 300 miles, almost from one end of the state to the other.
The hurdle the Democrats face is that the Supreme Court has resisted getting in to the question of what is excessive political gerrymandering. Justice Sandra Day O'Connor, a former state legislator, once told her court colleagues that any state legislator who did not engage in political gerrymandering should be impeached.
Two years ago, in a Pennsylvania case, she was one of four justices who said that, in their view, political gerrymanders are not reviewable by the courts. Four justices voted the other way. One of them, Justice John Paul Stevens explained in a speech last summer, that partisan gerrymandering means that instead of voters choosing their legislators, legislators choose their voters.
Justice JOHN PAUL STEVENS (U.S. Supreme Court): The ever increasing use of such tactics has had an insidious effect on the quality of the legislative process, making primary elections more important than general elections, favoring extremists over moderates in both parties, and generally making confrontation seem more acceptable than compromise.
TOTENBERG: The man in the middle is Justice Anthony Kennedy, who in the Pennsylvania case, sided with O'Connor and the other conservatives, but left the door open on the overall question. Enter the Texas redistricting case. As it comes to the court today, it is one of those glass half full or half empty propositions. What happened in Texas is that in 2001, after the decennial census, the Republicans, who control the governorship and the State Senate, but not the State House, did something of a Texas two-step.
Instead of redistricting at both the federal and state levels, as is usually the case, they left federal redistricting to the courts, and then later, when they had uniform control, they did a second redistricting. In 2001, the federal court drew Congressional district lines based on what it called neutral principles to accommodate population growth, natural geographic lines, minority voting strength, and to prevent any two incumbents from being forced to run against each other.
In the end, the court plan mirrored the partisan makeup of the state, with 20 of the 32 districts leaning Republican. Republicans did not appeal the plan, and it went into effect in the election of 2002. But ticket splitters in six Republican-leaning districts continued to elect popular Democratic incumbents. And in 2003, the state legislature, now completely controlled by Republicans, passed the DeLay redistricting in place of the core plan.
So raw was the flexing of political power, that the expert witness used by the state in the 2001 court case, Rice University political science professor John Alford, crossed over to work for the Democrats in their challenge to the new plan.
Professor JOHN ALFORD (Political Science Professor, Rice University): There is simply no interest by the Republican leadership and the state in drawing the kind of compromised plan they would have to draw in 2001. They basically would welcome the intervention for the court in drawing a plan, so that they could draw a plan in a more friendly legislative environment after they had redistricted the state legislature.
TOTENBERG: But Republicans saw the new plan as righting an old wrong; that wrong being the Democratic gerrymander of 1990.
State Solicitor General, Ted Cruz.
Solicitor General TED CRUZ (Republican, Texas): The plaintiffs in this case are arguing to preserve a 15 year old redistricting map that was described by neutral observers as the quote, "the shrewdest gerrymander in the country."
TOTENBERG: The federal court, he maintains, set in stone that Democratic gerrymander by preserving, as much as possible, all incumbent districts.
Solicitor General CRUZ: In the last three elections, Republicans earned 58 percent, 57 percent, and 59 percent of the statewide vote. And yet, for all of them, until the new map was passed, the Democrats maintained a locked-in majority in the congressional delegation.
TOTENBERG: Paul Smith, who represents the Democrats, counters that 60 percent of the districts had a majority of GOP voters.
Mr. PAUL SMITH (Lawyer, Jenner and Block Lawfirm): To say that it perpetuated the Democratic dominance is to say, we don't like the fact that these Republican voters out there are voting for these Democratic incumbents.
TOTENBERG: In the Supreme Court today, Justice Kennedy is expected to be the focal point.
In the Pennsylvania case in 2004, he wrote that he might well vote to find a partisan gerrymander unconstitutional if some limited and precise rationale were found for defining how much politics is too much.
So today, lawyers representing Democrats and minorities will try to persuade the court that the Texas second redistricting fits into a clear and narrow category of unconstitutional behavior, and that the remedy is simple: go back to the court-drawn plan.
The Democrats do not argue that mid-decade redistricting is, per se, unconstitutional. Rather, they say there has to be some legitimate governmental reason to justify it. Something like a major population shift.
Duke law professor Walter Dellinger has filed a brief siding with the Democrats.
Professor WALTER DELLINGER III (Law, Duke University): The basic case against this legislative districting is simply that it was entirely based on partisanship, not largely, not predominantly, but entirely.
TOTENBERG: Indeed, the lower court, though it upheld the DeLay redistricting, found it was based on single-minded partisanship, and quoted the Republican lieutenant governor who testified that political gain for the GOP was 110 percent of the motivation for the plan.
The State of Texas, backed by the State and National Republican Parties, counters that nothing in the constitution prevents a state legislature from substituting its plan for a court-drawn plan. Solicitor General Cruz.
Solicitor General CRUZ: What the plaintiffs are trying to do here is shut down the ability of the voters to elect a congressional delegation that reflects their views and preference.
TOTENBERG: That, he says, defies the principles of democracy, and substitutes the courts judgment for the elected legislature's.
The Democrat's lawyer, Paul Smith, counters that if there is to be a second redistricting, the constitution requires some rationale other than partisan advantage, and here there is none. Indeed, that the census figures used in the GOP redistricting were out of date.
Mr. SMITH: They're drawing districts, some of which are 50 or 100 thousand persons larger than others.
TOTENBERG: And that, he contends, violates the principle of one-man, one-vote. Now, the Supreme Court will decide.
Nina Totenberg, NPR News, Washington.
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