Texas Redistricting Plan Gets High Court Review

The Supreme Court is hearing arguments about the legality of a 2003 Texas redistricting plan that allowed the GOP to add extra congressional seats... and ultimately landed Rep. Tom DeLay (R-TX) in legal trouble. Legal analyst Dahlia Lithwick of Slate and Madeleine Brand discuss the proceedings.

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MADELEINE BRAND, host:

To politics and the courts, now. The Supreme Court today tackles the controversial Texas redistricting plan. Three years ago, Republican lawmakers redrew congressional districts, and picked up six seats. That redistricting also helped lead to the downfall of former House Majority Leader Tom DeLay.

DeLay goes on trial next year on charges he illegally funneled corporate money into local elections, all with an eye toward gaining more seats for Republicans.

The court today has scheduled a rare two-hour session for oral arguments. Joining us to talk about the case is Dahlia Lithwick, who covers the Supreme Court for the online magazine, Slate, and for us here at DAY TO DAY.

And Dahlia, this is a very, very complicated case, and it has lots of twists and turns. And so, can you boil it down for us in 20 seconds or less?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Sure, Madeleine. This involves a 2003 gerrymander, as you said, by a Republican-dominated Texas state house that changed the, sort of, shape of the congressional delegation from Texas overnight.

What was a little fishy about the gerrymander was that it wasn't a census year, so it was an off-year gerrymander. It disregarded a judicially crafted map that had been in place.

And also, I think it's a little upsetting, because career lawyer that the Department of Justice had said, no, no, this gerrymander doesn't work. It dilutes minority votes. And yet, political appointees over them approved it, anyway.

So, among the questions the court's going to try to look at are, is the constitution and/or voting law violated by gerrymanders that are off-year, that are clearly political and partisan in nature, and that may dilute minority votes.

BRAND: Dahlia, the court has decided a gerrymandering case recently. So, why is it taking up this case again?

Ms. LITHWICK: Well, this has everything to do with the composition of the courts, and very little to do with the law, Madeleine. There was a 2004 case out of Pennsylvania that surrounded a Pennsylvania gerrymander.

And the court, and remember, this was the Rehnquist court, not the Roberts court, split. They split on whether these cases could be decided, and a standard for resolving them.

You had four of the justices saying these cases are non-justiciable. It doesn't matter how bad the gerrymander is. It's not the court's place to get involved. Four justices said not only are they justiciable, but we need to get involved here today in Pennsylvania. One justice, Justice Anthony Kennedy, said, well, I'm not going to say they're non-justiciable. I'm not going to say there's never going to be a gerrymander that the court can't look at. I am going to say this is not the case.

He essentially said, show me the money. Bring me a really, really bad gerrymander, and then I can figure out if it's justiciable or not. This may be that case.

BRAND: So, if the court does rule against Texas' plan, what does that mean for Texas? Will they just go back to the early lines?

Ms. LITHWICK: Well, that's the really sticky wicket. You know, there's a primary on March 7th in Texas that's going to happen long before the court hands down a decision in this case.

So then, the huge question becomes, if the court does strike it down, and the court figures out some kind of remedy, and nobody knows what that remedy could be, what do you even ask for?

Some people are saying, we want to return to the judge-made regime. Some people are saying, we need a brand new regime. And some people are saying, well, maybe it will just go back to the Texas legislature, and they'll figure out a new map.

But this has less to do with the actual politics of what happened, and everything to do with how deep the court can wade into something that it may not be able to resolve.

BRAND: And, let's not forget, this is an election year. So, if the court does strike down this law, does that mean that this could affect the 2006 congressional races, most notably, Tom DeLay's own re-election?

Ms. LITHWICK: That's the sort of funny irony in this case. One of the big problems for Tom DeLay is that he is now facing a challenge by a democrat who was ousted because of the redistricting that he engineered.

DeLay would probably do much, much better under the old system than he will under the system that he cooked up.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine, Slate, and for us here at DAY TO DAY. Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine.

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