December 12, 2005
SCOTUS to re-review Texas redistricting

Here we go again.

The Supreme Court said today it would consider the constitutionality of a Texas congressional map engineered by Rep. Tom DeLay that helped Republicans gain seats in Congress.


Justices will consider a constitutional challenge to the boundaries filed by various opponents. The court will hear two hours of arguments, likely in April, in four separate appeals.

The legal battle at the Supreme Court was over the unusual timing of the Texas redistricting, among other things. Under the Constitution, states must adjust their congressional district lines every 10 years to account for population shifts.

But in Texas the boundaries were redrawn twice after the 2000 census, first by a court, then by state lawmakers in a second round promoted by DeLay.


The Texas case has been to the Supreme Court once before, and justices ordered a lower court to reconsider the boundaries following a decision in another redistricting case from Pennsylvania. Justices in that splintered opinion left little room for lawsuits claiming that political gerrymandering — drawing a map to give one political party an advantage — violates the "one-person, one-vote" principle protected in the Constitution.

However, now the court will have a chance to revisit that issue and the outcome could change because the court's membership is changing. Justice Sandra Day O'Connor is retiring, and Chief Justice John Roberts has been on the bench just a few months.

A lower court panel ruled that the map is constitutional and does not violate federal voting rights law.


Paul M. Smith, a Washington attorney representing challengers to the Texas map, told justices that the redoing of maps "is a symptom of the excessively partisan approach to redistricting now in vogue."

"When legislators choose to take such actions, they should be required to demonstrate some legitimate governmental purpose," he wrote in a filing.

The cases are League of United Latin American Citizens v. Perry, 05-204; Travis County v. Perry, 05-254; Jackson v. Perry, 05-276; GI Forum of Texas v. Perry, 05-439.

I've said it before and I'll say it again - it's too late for any court to give redress for this wrong, if it decides there was one. You can't give the defeated Congressmen their incumbency back, so even if you reinstated the old boundaries, most of them would be as big an underdog in a rematch election as any other challenger. Besides that, unless you ordered a special election the next chance to do anything about this would be 2008, since the case will be held after the primaries.

Still, that doesn't mean there shouldn't be a focus on why and how this came about. It's important to know that the decision by the staff attorneys at the Department of Justice to deny preclearance was not a close call (via Kos) and that the DOJ has since moved to eliminate staff opinions entirely (via The Stakeholder) in voting rights cases, thus leaving the decisions up to political appointees. Just because SCOTUS can't do anything to fix this doesn't mean nothing can be done.

Posted by Charles Kuffner on December 12, 2005 to Killer D's | TrackBack

Just because SCOTUS can't do anything to fix this doesn't mean nothing can be done.

One big thing can be done to win on political questions: Win Elections! :)

Posted by: kevin whited on December 12, 2005 1:29 PM

I'm kind of glad this came up, because I just spent the weekend typing one of those "voters' guides" into a spreadsheet, and looking at all those states' Congressional delegations got me to thinking about gerrymanders.

It occured to me that as gerrymanders go, Texas's doesn't look that bad at first glance: we Texans vote about 62% GOP, so if our delegation were selected by proportional representation, we'd have 20 R's and 12 D's. This gerrymander gave us 21 R's and 11 D's, which is pretty close. Certainly much better than Florida's 18R-7D or Michigan's 9R-6D gerrymanders.

Its problems, however, show up if you look closer. First, one Democrat, Chet Edwards, is on the razor's edge: if he hadn't drawn a candidate as abysmal as Arlene Wolgemuth, we'd be 22R-10D today. So it's a bit more biased than it first seems.

Then there's the problem of DINOs. The gerrymander couldn't come in under 10 minority districts (at least without violating the VRA so egregiously that even Ashcroft's hacks couldn't overlook it), but they did manage to change a couple of those districts enough to replace liberal Democrats with
substantially more conservative ones. So on any given vote, the Texas delegation usually has a Democrat or two (coughenrycuellarcough) lining up with a solid GOP bloc, giving us a de facto 22R-10D split anyhow.

Even worse, it's designed to keep Texas at that split, even if Texans trend significantly back toward the Democrats. That's the real unfairness.

Still, "unfair" doesn't necessarily mean "unconstitutional" (though with the political hacks at Justice concealing evidence from the courts, we certainly deserve another day in court). I'm encouraged that even after Veith, four Justices still want to take a look at this. But it's going to be tough convincing Kennedy (let alone O'Connor's replacement, whether or not it's "Scalito") that this gerrymander is so egregious as to violate the Constitution.

Posted by: Mathwiz on December 12, 2005 1:41 PM

The unique issue in Texas looks to be redistricting every time the State Legislature changed hands. It's required every 10 years after the Census but doing it more often, and only for partisan political purposes, is unprecedented in the last century. And has never been done under the Voting Rights Act.

Posted by: Wirro on December 12, 2005 2:26 PM