Supreme Court Hears Texas Redistricting Case

The U.S. Supreme Court hears arguments on congressional redistricting. At issue is the 2003 Texas redistricting plan orchestrated by former House Majority Leader Tom DeLay. That plan resulted in Republicans picking up six seats in the U.S. House of Representatives.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block. Today the Supreme Court again took on the politically charged question of legislative redistricting, and when, if ever, it is too partisan to be constitutional. At issue today was the legality of the 2003 Texas redistricting plan. It was the brainchild of then House Majority Leader Tom DeLay, and it resulted in Republicans picking up six seats in the House. NPR's Nina Totenberg has our report.

NINA TOTENBERG reporting:

The redistricting plan involved something of a Texas Two-Step. Usually new districts are drawn by the legislature and signed by the governor after the decennial census. But in 2001, the Republicans controlled the state Senate and governorship, but not the House. So rather than compromise with the Democrats, they let the courts draw the new district lines. And then, after the next election, when the GOP uniformly controlled the state legislature, the GOP majority drew new district lines, new lines that resulted in a gain of six GOP seats.

While Tom DeLay was the architect of the plan, he was nowhere to be seen at the Supreme Court today. That's likely because, for him, the plan turned into political flypaper, ultimately forcing his 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 in furtherance of the plan, and it's now been disclosed that, although the Justice Department's career lawyers unanimously concluded that the plan violated the Voting Rights Act, that conclusion was overruled by Bush political appointees in the Justice Department.

None of this unpleasantness got even a mention at the oral argument in the Supreme Court. Lawyer Paul Smith, representing the Democrats, said the DeLay redistricting is unconstitutional because the lower courts found it was undertaken for purely partisan reasons. And, Smith contended, a mid-decade redistricting can only be undertaken for some legitimate governmental reason, not just to help one party gain an advantage. Justice Ginsburg: you treat this as a second redistricting. But it's the first done by the legislature. Answer: the legislature deliberately failed to come up with a viable plan in 2001. In short, said Smith, it took a dive.

Justice Scalia: doesn't the court-drawn plan just institutionalize the earlier 1990 Democratic gerrymander? Answer: that's factually not so. Under the court-drawn plan, 20 of 32 districts were Republican-leaning. Yes, Smith conceded, moderate Democrats in six of those 20 districts continued to get elected. But in all other races in those same districts, Republicans won between 55 and 70 percent of the vote. Chief Justice Roberts: well, if you think that there was a prior Democratic gerrymander in 1990, can't the new party in power redress that? Answer: they should not be able to after a court-drawn plan is in place. They should have to wait until the next census, said Smith. Either that, or they should get new census numbers. Otherwise the new mid-decade districts violate the principle of one man, one vote.

No one was particularly surprised by any of the comments made by the court's conservatives, even its newest conservative justices. In the past, they have all expressed, in one form or another, the view that partisan gerrymanders are constitutional, while the court's more liberal justices have expressed a contrary view. In the middle has been Justice Anthony Kennedy. But today he seemed unsympathetic to the notion that purely partisan gerrymanders are unconstitutional. It seems to me very odd to say that partisan gerrymandering is bad but you can't redress a prior gerrymander, he said at one point. And when lawyer Smith contended that redistricting should generally be a once a decade activity, Kennedy responded with overt skepticism.

Arguing the other side of the case, Texas Solicitor General Ted Cruz said that the central issue is which institution is appropriate to draw district lines, the courts or the legislature? And the legislature, he said, is the elected body. Justice Stevens interrupted. Is your opponent right that the court-drawn plan had 20 Republican-leaning districts out of 32? Answer: yes. Question: does that sound like a Democratic gerrymander? Answer: if one looks at the other states, this is the most anti-majoritarian map in the country, given the strong Republican alignment in the state. The current map, he maintained, is fairer than the prior map.

But if Solicitor General Cruz had been counting on Justice Kennedy's support after hearing his skeptical questions of the Democratic lawyer, Cruz was mistaken. What bothered Kennedy was clearly not partisanship but what the justice saw as possible racism in the line drawing. Kennedy asked particularly about a district in which 100,000 Hispanic voters were moved from one district to another so as to ensure that a Republican incumbent had a safe seat. Kennedy: it seems to me that is an affront and an insult. A decision in the case is expected by summer.

Nina Totenberg, NPR News, Washington.

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