October 18, 2004
Supremes order redistricting review
It ain't over yet.
The Supreme Court handed Democrats a victory Monday, ordering a lower court to reconsider a Texas redistricting plan that could give Republicans six more seats and a firmer hold on their majority in the House.
The decision won't affect next month's elections, though any GOP gains on Nov. 2 could be wiped out later if the plan ultimately is deemed unconstitutional.
In a brief order, justices threw out a victory for Texas Republican legislators, and ordered a three-judge federal panel in Texas to reconsider the issue.
``I see this as the Supreme Court punting right before the national election,'' said Richard Hasen, an election law expert at Loyola Law School. ``It buys the Supreme Court another term before it has to rethink the issue. Maybe by then we'll have a new justice or two.''
The Supreme Court has been divided on how much politics should be allowed in redistricting. In a 5-4 ruling last spring, justices left a narrow opening for challenges claiming party politics overly influenced election maps.
The court said Monday that the Texas map should be viewed again, in light of that decision.
The three-judge panel that upheld the map in January said that Congress -- not courts -- has the power to bar states from redrawing districts over and over. That panel will reconsider its decision.
The cases are Jackson v. Perry, 03-1391; American GI Forum of Texas v. Perry, 03-1396; Congresswoman Sheila Jackson Lee v. Perry, 03-1399; Travis County v. Perry, 03-1400; and Henderson v. Perry, 03-9644.
I do not believe that any GOP gains from the new map would be erased if it is eventually thrown out and the old map is restored. Other than Martin Frost, every single one of the endangered Democratic incumbents plus the retiring Jim Turner had been winning in districts that ran the gamut from lean-GOP to strong-GOP for years now. Once the advantage of their incumbency was removed, however, they'd have a very tough time winning it back, even in the old familiar places. And that was the point. As long as that new map was in place for this election, its main goal was accomplished. Democrats can mitigate that by holding at least some of their current offices (you
, of course), but there's nothing that any court can do now that will change the fundamental dynamic.
Posted by Charles Kuffner on October 18, 2004 to Killer D's
Kuff, the important thing to understand about this ruling is that it was a purely procedural one not a ruling "on the merits."
It's absolutely routine, when there's been an intervening Supreme Court decision (here, the Pennsylvania case, Vieth) to send an appeal back down to let the lower court further examine its decision in light of that intervening decision. It implies nothing about what's likely to happen, either back before the three-judge panel, or when the case goes back up to the Supreme Court.
Charles Soechting of course knows that, but it didn't keep him from I'm sorry, it's a word I hesitate to throw around carelessly, but there's no other word that fits here lying about the ruling to the AP, as republished by the Chron:
Texas Democratic Party Chairman Charles Soechting said the ruling should be at the forefront of voters' minds as they cast their ballots in the coming days.
"When the most radical Supreme Court in the nation's history rules that Tom DeLay and his co-conspirator Craddick went too far in their corrupt and ultra-partisan overreach, it is truly breathtaking," Soechting said. "DeLay and Craddick have created the most divided and partisan state government in history. It is time to restore integrity and balance in Austin."
The Supreme Court made no such ruling as that described by Mr. Soechting; in fact, the entire order is two sentences long, and neither mentions the merits of the case, much less DeLay or Craddick.
Politics being what it is, I expect Mr. Soechting to spin like crazy, to call Republican officials names, even to insult the Supreme Court. What I don't expect and what the Democratic Party should not accept is for him to flat-out lie to make this look like it was a ruling on the merits by the Supreme Court. I hope that responsible folks in the Texas Democratic Party will call him to account for this.
Unfortunately, there's a pattern of overt misrepresentation here. Recall the reason that Whitmire gave for returning from New Mexico? He read the actual transcript from the Laredo federal court hearing and realized that his own lawyers had misrepresented what had happened there to Whitmire and the other state senators who'd fled.
To get another take on today's decision from a very knowledgeable (and liberal-leaning but scrupulously honest) expert on election law, check Prof. Rick Hasen's blog. My own more extended take, which isn't much different from his, is here.
As for what's likely to happen after today's procedural ruling: The odds of the three-judge panel reaching any different result when it takes a second look at the Perry case are extremely slim because the Vieth case didn't make any new law. If anything, Vieth moved the Court slightly closer to ruling that these are "political questions" that aren't justiciable that is, that the courts shouldn't ever get involved in. Basically, the only chance that the 2003 map is going to be overturned would come about if someone presently on the Court has a serious change of heart, or some new Justices get appointed before this gets back to the Supreme Court.
Finally, I agree with your analysis, Kuff, re the probable scenarios even if the 2003 map were struck down. Even if it were, the relief ordered would probably still give the Legislature another chance to fix whatever were found wrong, rather than putting the 2001 map back in place.
I don't think the value of "incumbency" is so great for a one-term office-holder elected under conditions that have been found to be unfair, and facing a previous long-time incumbent. I would expect it to come out even.
But, of course, the current incumbents may have gone on to different lives in two years.
And Beldar, you're not quite right. The Supreme Court would not have remanded if Vieth could make no difference in the outcome (which is surely what the Republicans would have argued). So while it's a routine practice, it is not withouth significance.
David, I simply don't understand your comment.
Vieth produced no majority opinion. Its split of minority opinions produced no breakthrough new ideas. If anything, the fact that four Justices now think partisan gerrymandering is a nonjusticiable political question makes the only perceptible movement in precedent against any substantive review of the question.
Of course, I have to agree that there's a theoretical chance that the three-judge panel might do something differently. But I think it's an extremely remote chance, way less than one percent.
What's much more likely is that the three-judge panel will slightly revise its majority and dissenting opinions (with the dissent, in particular, citing the dissenting opinions in Vieth) and again deny relief to the plaintiffs. Then when the Supreme Court summarily affirms without oral argument or written opinion, there won't be the odd result of the Supreme Court having affirmed a three-judge panel ruling that failed to discuss an intervening (but practically useless) Supreme Court decision.
Do you see some different probability? Do you think the Hon. T. John Ward, relatively new United States District Judge, is going to write a new, blockbuster opinion that changes either of his colleagues' votes on the three-judge panel, or that switches Kennedy's vote and also picks up concurrences from four Justices who couldn't even agree on a common opinion to express their dissents? Or do you have some other scenario in mind?
In non-Voting Rights Act cases when there's been an intervening Supreme Court decision, it's still quite common for the Supremes to vacate and remand for further consideration, rather than saying "Ah, heck, that intervening decision isn't likely to make any difference in the way that the court of appeals would've handled this, so we'll just deny cert." That's true even when the intervening Supreme Court decision has materially changed or clarified the law which Vieth didn't do, by anyone's estimation. But in Perry, the Supreme Court can't just deny cert they have to ultimately affirm or reverse, even if without argument and written opinion. That makes it all the more compelling for form's sake that the original three-judge panel have had a chance to look at Vieth, and come to its own conclusion that, nope, Vieth didn't change anything, before the Supreme Court votes.