Redistricting Case Is Court’s Chance to Stop Partisan Excesses

Iraqis shouldn’t be too embarrassed if a few tallies look suspicious or some ballots disappear as the votes are counted in their landmark election last week. More than two centuries after we began the experiment, the U.S. is still trying to iron out all the kinks in its own democracy.

Case in point: the Supreme Court’s decision last week to hear a suit challenging the map Texas Republicans drew for the state’s congressional districts. This case could spur a landmark decision. It offers the court an opportunity to rein in some of the partisan excesses that are staining the redistricting process and producing races so one-sided that they often deny Americans the opportunity to cast meaningful votes for the House of Representatives.

History suggests the court will move cautiously. But by highlighting the problems with redistricting, it may help prompt a long-term discussion about restructuring the badly broken system for electing House members.

The Texas case traces back to 2001. Every 10 years, after the census measures the changes in population, the number of congressional seats is reapportioned among the states; each state then must draw new congressional districts to reflect its new total and population shifts inside its borders.

Like many states where power is divided between the parties, Texas stalemated over redistricting in 2001 because the Republican governor and the GOP-controlled state Senate couldn’t reach an agreement with the Democratic state House. So a federal district court panel drew new lines. In 2002, that map allowed Republicans to win the two new seats the state gained after the 2000 census. But overall, Democrats maintained a 17-15 edge in the state’s congressional delegation.

Republicans felt that result flouted the state’s growing tilt in their direction. So House Majority Leader Tom DeLay (R-Texas) led a successful campaign to elect a Republican state legislative majority that would draw new lines. (The fundraising for the effort generated the allegations behind DeLay’s recent money-laundering indictment.) With control of the Legislature, Texas Republicans drew new maps for House districts that produced a 21-11 GOP advantage in the 2004 election.

The Texas GOP’s “re-redistricting” shattered a long-standing truce between the parties. Not since the 19th century had a state redrawn its congressional lines more than once in a decade solely to benefit one party against the other, notes Thomas E. Mann, a senior fellow at the Brookings Institution think tank and co-editor of “Party Lines,” a new book on redistricting. Once Texas kicked in that door, Republicans in Georgia and Colorado followed (though state courts blocked the Colorado effort).

Both parties, not to mention ordinary Americans, should feel threatened by this trend. If states routinely tear up their district lines when one party gains an advantage, it will be disruptive, confusing and unfair to voters and office-holders. And a dominant lesson of the past generation is that unless the parties are barred from using a weapon, they will.

The Texas case allows the Supreme Court to stop this escalation in the political wars. But it’s far from clear the court will step in. Starting in 1986, the court has consistently held that partisan exploitation of redistricting theoretically could be so egregious that it violates the Constitution and must be overturned. But in practice, the court has never rejected a plan because it excessively benefited one party over the other.

The court set its most recent standard in a 2004 decision involving the last Pennsylvania redistricting. In that case, Justice Anthony M. Kennedy filed the controlling opinion in a 5-4 decision upholding the map. Kennedy reaffirmed the possibility that the court might someday overturn a redistricting plan as excessively partisan. But he backed the Pennsylvania districts and concluded that to be invalidated a map must be “unrelated to any legitimate legislative objective.”

That’s the formidable hill confronting those challenging the Texas plan. They argue that by definition, redrawing district lines mid-decade to improve one party’s prospects meets Kennedy’s test.

“Any law must serve some public purpose, and helping one political party at the expense of another is not a public purpose,” says Paul M. Smith, the Democrats’ lawyer in the case.

But the Texas attorney general has argued that the Legislature had a legitimate purpose in redrawing the lines before the next census: overcoming the lingering effects of the gerrymander Democrats imposed when they controlled state government during the 1990s.

The state maintains that the federal judges who drew the new lines after 2000 perpetuated too much of that old map because they avoided large changes to avoid appearing biased.

Many experts see the Supreme Court’s decision to take this case, which also raises issues of minority representation, as a signal Kennedy wants to impose some limits on partisan manipulation of redistricting.

But it’s also easy to see Kennedy concluding that Texas’ argument about overcoming an earlier gerrymander provides enough of a legitimate legislative objective to cross the threshold for acceptable plans he established in the Pennsylvania case.

However the court rules, reformers should begin encouraging Congress to consider national redistricting standards that would increase electoral competition and reduce partisan finagling. Political reformers have focused solely on a state-by-state approach. But the twin defeats of redistricting reform initiatives in California and Ohio this year dramatize the problem with this effort: in any state, the dominant party will always seek to block reform as a threat to its dominance. And it will usually succeed.

Obviously, congressional intervention on redistricting isn’t coming any time soon. But then again, not long ago most would have said the same thing about an election in Iraq.