The Supreme Court-ordered review of the federal lawsuits filed against the Texas re-redistricting of 2003 is scheduled for tomorrow. SCOTUS has ordered the lower court to reconsider its ruling in light of the Vieth v Jubelirir case that it decided subsequently. Rick Hasen gives some background.
The case puts the lower court in a really tough position, because four Justices in Vieth ruled that partisan gerrymandering cases are non-justiciable, four dissenters proposed (at least) three different standards for judging the constitutionality of partisan gerrymander, and Justice Kennedy simply could not decide: he left the door open for future challenges, but rejected all the proposed standards that have been set forth so far.
One other thing to note is that the federal court is supposed to take the result of the 2004 elections into account. It seems to me that if at some point the new boundaries are eventually tossed on the grounds that they're too partisan to be legal, that could be a fatal blow to Tom DeLay (assuming he hasn't been indicted or voted out of office by then). His role in pushing for the new boundaries, and the fact that the GOP would have lost seats in the House otherwise, was frequently cited as a reason to support him during the DeLay Rule dustup. So what happens when that stone is removed from his foundation? Maybe we'll get to find out.
Attorney General Greg Abbott released a series of briefs late Friday afternoon, including a response to an amicus brief filed by University of Texas law professors, Travis County, and the League of United Latin American Citizens, who wrote that mid-decade redistricting should take into account the "phenomenal growth" and population shifts in Texas between 2000 and 2003.
The UT professors, along with Travis County and LULAC, argued that the state's redistricting plans violated "one person, one vote." As the minority population shifts and changes, those groups are no longer accurately represented by 2000 census data. The amicus brief argues that the state did not make a "good faith effort" to take those population shifts into account when the map was redrawn in 2003.
In its response, the state argues that a "one person, one vote" argument is "an undisguised attempt at a backdoor judicial prohibition on 'mid-decade' redistricting" that the court has already concluded was both legal and permissible. Decennial census data is considered "presumptively valid for redistricting," absent a substantial showing to the contrary. The state goes on to say the claim failed because the plaintiffs failed to meet the burden of pointing out any equal-population violation the new map created.
The brief cites a number of Supreme Court cases that support the use of decennial data as the 'best population data available,' lacking any replacement data of equal validity. The fact that the census data is the "best available" is undisputed, according to the state's brief, and the plaintiffs didn't offer an alternative or provide a map that demonstrates how the lines could have been redrawn for a fairer balance.
"That the University Professors and Travis County have not offered legal authority is no slight on their research skills," wrote the state in its brief. "Rather, it reflects that the rules they propose are both novel and contrary to law. Their arguments – by demanding a presumption of unconstitutionality – ask this Court to overrule binding Supreme Court precedent establishing that the burden of proof in equal-population claims falls on the plaintiff and the requirement that the plaintiff offer a means of achieving a lower population inequality."