[I rarely like to cross-post verbatim from my blog, but I noticed my fellow contributors here at BOR hadn’t posted yet on redistricting, so here is my massive missive Redistricting Roundup for your viewing pleasure. Not much commentary from me, mainly a digest of coverage and related links–VL]
Today was D-Day for Texas Redistricting opponents as attorneys opposed to the Tom DeLay engineered 2003 Congressional remap finally had their day before the U.S. Supreme Court.
People were reportedly lining up outside the court at 4 a.m. this morning to get the chance to witness history and a fairly unprecedented two-hour oral argument. A number of Texas officials were also reportedly in attendence including many members of the Texas Congressional Delegation.
I haven’t yet seen any photos or audio of oral arguments or press conferences or anything related, but the DMN’s Todd Gillman did file an audio report shortly before the oral arguments which can be heard here.
Obviously, media outlets from all over are covering this. Here are some snippits, links, background and what-not:
Houston Chronicle: Texas’ 2003 redistricting, orchestrated by former House Majority Leader Tom DeLay, was an egregious partisan power grab that violated the Constitution and federal law, challengers to the new map told the U.S. Supreme Court this afternoon in a case that could help determine control of Congress in November.
But Texas Solicitor General Ted Cruz, aided by a lawyer with the Bush administration, told the justices that the state’s election map was properly redrawn. The fact that Texas sent six more Republicans to Washington in the last election simply shows that the new map more accurately reflects the current voting choices of Republican-leaning Texans.
In an unusual two-hour afternoon session, the justices peppered each side with questions. But as the arguments dragged on, a few on the bench and many in the audience struggled to remain alert.
…
In previous cases, the high court has been reluctant to get involved in what is traditionally a political matter played out in state legislatures.
But centrist Justice Anthony Kennedy, who is expected to provide the decisive vote in these cases if they are close, has said there could be a case in which political map drawing gets out of hand, warranting the court’s intervention.
Today, however, the justice appeared unpersuaded that the Texas redistricting was egregious enough for the justices to get involved.
But Kennedy said he was concerned about allegations that the Texas map-drawers violated the federal Voting Rights Act by using race to redraw some lines.
In particular, he said several times, removing 100,000 Latino voters from the 23rd District in South Texas and then making sure the district remained 50.9 percent Latino was “an affront and an insult.”
But Chief Justice John Roberts asked what percentage of minority voters would be sufficient to deem the district majority minority.
“What’s the magic number?” he asked.
Still more:
AP: Texas Republicans were guilty of a naked political power grab when they re-drew congressional boundaries, the Supreme Court was told Wednesday in a case that could have a major impact on elections.
Justices are considering whether the Republican-friendly map promoted by former Majority Leader Tom DeLay is unconstitutional.
The 2003 boundaries approved by the GOP-controlled state Legislature helped the Republican Party pick up six seats in Congress, but it also led to serious woes for DeLay. He was charged in state court with money laundering in connection with fundraising for legislative candidates. He gave up his leadership post and is fighting the charges.
“The only reason it was considered, let alone passed, was to help one political party get more seats than another,” justices were told by Paul M. Smith, a Washington lawyer who represents the League of United Latin American Citizens, one of the groups challenging the plan.
“That’s a surprise,” Justice Antonin Scalia quipped. “Legislatures re-draw the map all the time for political reasons.”
But Smith said lawmakers should not be able to get away with drawing oddly shaped districts that protect incumbent Republicans and deny voters their chance to vote for other candidates.
…
At least 10 Texas lawmakers showed up Wednesday for an unusual two-hour Supreme Court session on the intricacies of political boundary drawing that could have a major impact on their elections and the balance of power in Congress.
“We would like to see some finality, not only for the people who run for office but for our people in our districts so they know who their member of Congress is,” said Rep. Gene Green, D-Texas, as he arrived for the arguments.
The session also drew Texas Railroad Commissioner Michael Williams and Republican National Committee Chairman Ken Mehlman.
While state Rep. Royce West, a Dallas Democrat, said allowing the map to stand would have serious ramifications for the country, Republican congressman Michael Burgess of Texas said overturning the map would have little effect because Texas remains a Republican state.
The case was expected to be a difficult one for the justices, who have struggled in the past to define how much politics is acceptable when states draw new boundaries.
…
Two years ago, justices split 5-4, in a narrow opening for challenges claiming party politics overly influenced election maps. Justice Anthony M. Kennedy was the key swing voter in that case and will be closely watched in Wednesday’s argument.
Texas Lawyer has a take, too:
Justices on the U.S. Supreme Court peppered attorneys for Democrats and minority groups and the state’s lawyer with questions during arguments over Texas’ 2003 redistricting plan, which gave Republicans a 22-11 advantage in the state’s congressional delegation.
But as they listened to the March 1 arguments, the justices appeared more interested in whether the Texas Legislature violated the federal Voting Rights Act when it drew three districts in South and West Texas and the Dallas area and less interested in the partisan gerrymandering issue that some had believed was the reason the court agreed to hear the redistricting dispute.
“I think the way the arguments turned out, the voting rights issues are front and center, [and] that the justices heard loud and clear the message that you can’t manipulate voters on the basis of race,” Nina Perales, regional counsel for the Mexican American Legal Defense Fund, said in an interview following the arguments.
Perales joined Paul Smith, a partner in Jenner & Block of Washington, D.C., in arguing for the plaintiffs before the high court.
Ted Cruz, Texas’ solicitor general who argued for the state, downplays the court’s apparent interest in the plaintiffs’ allegations that the legislative map violates Article 2 of the Voting Rights Act with regard to Congressional District 23 in the western part of the state, District 24 in the Dallas area and District 25, which extends from Austin in the central part of the state to the Texas-Mexico border.
“The court is always thorough and careful,” Cruz said after the arguments. “It is their obligation to carefully scrutinize the record, to consider all the arguments raised by the parties, raised by the many amici who filed briefs. So the court did that here.”
The court heard arguments in four cases challenging the Texas redistricting plan: League of United Latin American Citizens et al. v. Perry, et al.; Jackson, et al. v. Perry, et al.; Travis County, et al. v. Perry, et al.; and G.I. Forum, et al. v. Perry, et al.
Prior to the arguments, most election law scholars had believed that the partisan gerrymandering would be the issue that would draw the court’s interest. In 2004, the Supreme Court split 4-1-4 in Vieth v. Jubelirer, a Pennsylvania redistricting case that raised the partisan gerrymandering issue.
In Vieth, four justices took the position that such claims are nonjusticiable, and another four justices said there could be too much partisan gerrymandering. Justice Anthony Kennedy was the “1” vote in Vieth. While Kennedy agreed that courts can consider partisan gerrymandering, he found that none of the tests suggested by four of his colleagues for measuring the gerrymandering are judicially manageable.
There was an indication early in the two-hour arguments in the Texas cases that some members of the court don’t take the partisan-gerrymandering issue seriously.
Smith contended that the only reason the Legislature redrew the congressional map in 2003 to replace a map that a three-judge federal panel had drawn two years before was so that one party could gain political advantage.
The Statesman had this to offer:
United States Supreme Court justices today appeared skeptical of Texas Democrats’ argument that Republicans’ 2003 redrawing of the state’s congressional districts on a political basis was unconstitutional.
“Legislatures redraw the maps all the time for political purposes,” said Justice Antonin Scalia
“It is impossible and undesirable to take the partisanship out of the political process,” said Justice David Souter. “Even in districting.”
The court today held a rare, two-hour afternoon session, hearing arguments on whether Texas’ congressional lines were unconstitutionally redrawn.
Based on what the court rules, Texas’ current congressional districts could be upheld — or several congressional districts could get tossed out even after voters elect candidates for them in next week’s primaries.
The court is considering whether the new districts diluted minority votes, whether the court has the right to intervene in partisan redistricting and whether the map, which was redrawn in 2001 and 2003, can be altered more than once a decade, if the main reason to do so is for partisan purposes.
Democratic attorney Gerry Hebert said before the hearing that the main argument to the Supreme Court is that the mid-decade redistricting was done solely for partisan purposes, to get rid of some of the state’s Democrats, which they argue is unconstitutional.
The 2003 redistricting map, which was orchestrated by U.S. Rep. Tom DeLay, R-Sugar Land, and approved by the Texas Legislature, turned Texas’ congressional delegation from a 17-15 Democratic majority to a 21-11 Republican majority and helped Republicans increase their majority in the U.S. House of Representatives.
Neither the Democrats nor attorneys representing Texas spent much time today on the question of whether mid-decade redistricting violated the principle of one-man, one-vote because the 2003 districts were based on three-year-old census numbers and might not have been equal in size.
The justices, though, spent a substantial part of the hearing questioning the decision to alter minority voting percentages in congressional districts in the Dallas-Fort Worth area and in South Texas.
They also raised questions about Travis County, which was split among three districts, and whether the new districts — including one that stretches from Austin to the Mexico border — violated minority voting rights.
That largely Hispanic district was created by Republicans to make up for taking 100,000 largely Hispanic Laredo-area voters from Republican Rep. Henry Bonilla’s district, which stretches to West Texas.
Nina Perales, one of the Democrats’ attorneys, faced tough questions from Chief Justice John Roberts on whether the removal of 100,000 Hispanics from Bonilla’s district actually constituted illegal racial gerrymandering. Because the Hispanics were voting solidly Democrat, he asked whether it could be considered a removal of Democratic voters rather than minority voters.
The redistricting still left 50.9 percent Hispanics in that district. Roberts asked Perales to define what percentage would have made the redistricting constitutional.
“So what is the number? Somewhat more than 51 percent because you’re saying that’s a constitutional violation,” Roberts said.
But Justice Anthony Kennedy, considered a key swing vote on redistricting issues, questioned the state’s rationale for shoring up Bonilla’s district with Republicans to help him win re-election.
“That justifies the creating of District 25 (the new Austin-to-Mexico district)? That, to me, is a serious . . . violation,” he said. The court’s decision is expected by June. If it rules that the districts were drawn unconstitutionally, the map might have to be re-drawn — leaving candidates in affected districts in limbo.
But Hebert said if the court rules in the Democrats’ favor, their legal team will ask the Supreme Court to direct Texas to use the more Democratic-friendly 2001 map for this 2006 election cycle.
Texas found itself in similar straits in 1996, when the Supreme Court ruled 5-4 in Bush v. Vera that three of Texas’ districts were unconstitutionally racially gerrymandered. That ruling led to November special elections in 13 Texas congressional districts, which were affected by changes to the first three, and December runoffs in four of them.
As president, George W. Bush has appointed two of the new justices who will hear Texas’ latest redistricting challenge, Chief Justice John Roberts and Associate Justice Samuel Alito.
Roberts has had some experience in Texas redistricting issues. In 1984 as an aide to Reagan White House counsel Fred Fielding, he helped edit a reply from Fielding to then-state Rep. Patricia Hill, who was challenging the state’s redistricting plan.
“As you know, the voting rights act imposes a burden on the state of Texas to demonstrate that redistricting plans do not have the purpose and will not have the effect of denying or abridging the right to vote on the basis of race, color or language minority status,” according to the reply.
And, The Paris News tracked down Max Sandlin and got his comments on the case:
“I am very optimistic,” Sandlin said. “I believe the Supreme Court confirmed that Tom DeLay’s (U.S. Rep. R-Sugar Land) redistricting was clearly unconstitutional when they set the case for argument.”
Finally, Lyle Denniston of SCOTUS Blog offers this on the Redistricting cases:
The Supreme Court, showing few signs of reaching for a new consensus on the role it would allow partisanship to play in drawing new election districts, pored over the Republican-drawn congressional districts for Texas for two hours Wednesday. No one seemed near to gathering a majority for any new constitutional standard for judging party ambitions, and everyone who spoke up focused largely on the specifics of a plan crafted at the urging of Rep. Tom DeLay and national Republican party operatives that has produced decisive GOP gains.
Because a number of the Justices — including, notably, the potential swing voter, Justice Anthony M. Kennedy — seemed troubled about the legislature’s treatment of Latino voters in southwest Texas, that part of the “DeLay map” appeared to be in some trouble, perhaps necessitating some corrective that would affect adjoining districts, too, but not all 32 in the state. The overall plan, under challenge since it was crafted in 2003, appeared not to be vulnerable.
The main reason election experts, politicians and constitutional lawyers are interested in the Texas cases (four of them were consolidated for argument) is that they provide a new review of the validity of redistricting plans that one party pushes through mainly to maximize its own candidates’ success at the polls. But the Court has never settled on a constitutional principle for when there has been too much partisanship, and the key question going into the Wednesday hearing was whether Justice Kennedy has found a principle he can embrace.
The most telling comment by him came midway in the argument of the challengers to the Texas plan. Kennedy suggested that it would be “very dangerous” if the Court were to take away from state legislatures the authority to reopen a districting plan that was found to be excessively partisan. Leaving open the option of drawing new districts within a single decade, he said, would act as “a control mechanism,” with legislators on notice that if they “over-reached” in creating partisan advantage, that could be corrected. The comment suggested that Kennedy does, indeed, think that partisanship was, potentially, a constitutional problem and that legislatures needed flexibility to deal with it. His emphasis, though, was more on a legislative corrective than a judicial one.
At other points in the argument, Kennedy elaborated a bit on the thought, suggesting that if an existing plans “freezes in Democrats, or party X,” in a way that deviates noticeably from partisan registration in a state, that should not be left in place without a correction. If a court fashions a plan that freezes partisan advantage in that way, he said, that should be “a ground for a new legislature to act.” He expressed concern that that was exactly what had happened in Texas, when a court-drawn plan favored Democrats while the state moved more toward a Republican voter majority. The “DeLay map” was, in fact, a GOP-driven response to a court-ordered plan.
The challengers’ lead attorney, Paul M. Smith of Washington, D.C., tried energetically to defend the displaced court-ordered plan as fair. Experts who analyzed it, he said, found that 20 of the state’s 32 congressional districts under that plan actually had voted for Republican for statewide offices, yet six of those districts had split their votes and elected moderate Democrats for Congress. Those six were then targeted by the 2003 redistricting. Smith said that the GOP legislature then used “the mechanism of voting” to tell voters in those six districts that they can’t have Democrats representing them.
That argument seemed to make little headway with the Court, and Justice Antonin Scalia — a clear supporter of leaving the Texas plan as is — would later dismiss Smith’s defense by saying that politicians would be most interested in creating new districts that would ensure that their party’s voters did not elect candidates from the other party.
Even Justice David H. Souter, who favors some limit on partisan gerrymandering, argued that it is “impossible to take partisanship out of the political process,” and cautioned Smith that if pure partisanship were illegitimate, any manifestation of partisan spirit in politics would always be illegal.
Texas’ solicitor general, R. Ted Cruz, focused much of his argument on the claim that the court-ordered plan displaced by the “DeLay map” was “profoundly distorted” in favor of Democrats in a GOP-dominated state. That plan, he said, was “out of step with the demonstrated will of the majority, and let 44 percent of the voters control the delegation.” Those comments seemed sensible ways to pick up on the concerns Kennedy had expressed about leaving an excessively partisan plan in effect.
Cruz also had a basic constitutional point: that is, that legislatures, not courts, should be the primary actors in redistricting. If that primary responsibility were shifted to courts, he said, it would create “an incentive for every minority party to deadlock the system” in the legislature, leading the courts to step in and put into place their own preferences about redistricting.
Much of Wednesday’s argument — in fact, the bulk of it — focused not on the partisan gerrymandering issue, but on the specific validity of three districts in the “DeLay map” — one in Fort Worth area that was challenged for allegedly diminishing black voters’ political clout, the strung-out District 23 (Justice Stephen G. Breyer said it resembled a “long walking stick”) for Latino areas in the southwest, and a newly created Latino District 25 to help facilitate what was done in District 23. Of those three, only District 23 drew sustained critical comments from the bench. Kennedy, for example, said flatly: “That’s a problem for me.” He told Cruz that “you want the Court to say that it is permissible to take away enough minority voters to favor the [Republican] incumbent, but leaving enough to make it look good [as a Latino district].”
Bit parts in the lengthy hearing (unusual for its two-hour length, and for its occurrence after lunch) were Nina Perales of San Antonio, who made an unfocused argument that District 23 was an invalid racial gerrymander, and Deputy Solicitor General Gregory G. Garre, who was there to defend the validity of the three districts challenged under the Voting Rights Act.
Check out the summary of the consolidated cases on redistricting (from an old BOR post for more.
Related Links:
The infamous DOJ memo on Texas redistricting
Redistricting Case Resource Center (briefs, etc., via Jenner & Block)
Previous Annex Redistricting Coverage
Lone Star Project Redistricting Memo
Google News: Texas Redistricting
Yahoo! News: Texas Redistricting
Google Blog Search: Texas Redistricting
Technorati: Texas Redistricting
NPR’s Day To Day: Texas Redistricting
Burnt Orange Report’s Redistricting Archive
