Don’t mess with Texas districts

IN A WEEK OR SO, the U.S. Supreme Court will again sink its teeth into the question of partisan gerrymandering when it hears arguments in the now-infamous, Tom DeLay-inspired Texas congressional redistricting case. Just two years ago, the justices tried to take a bite out of a similar case from Pennsylvania but found that they were so hopelessly fractured on legal doctrine they couldn’t produce a majority opinion.

So let’s admit it right up front: No one likes gerrymanders -- except the incumbents who are protected by them. But as controversial as the Texas remap was, courts shouldn’t get entangled in what the late Justice Felix Frankfurter called the “political thicket” of partisan redistricting. If political gerrymandering is a problem, it should be resolved by the voters, state by state and jurisdiction by jurisdiction.

The central issue before the court now is whether the Texas Legislature improperly redrew the state’s congressional districts in 2003 to favor Republicans. The plaintiffs argue, among other things, that the new plan violates the Constitution because it used out-of-date census data to configure voting districts for the sole purpose of gaining a partisan advantage. They contend that because so many new residents had moved into the state since the 2000 census was taken, districts drawn in 2003 using old data are malapportioned, thereby violating the legal principle of “one man, one vote.”

This much is true: The Texas mid-cycle remap was out of the ordinary, and DeLay made no secret of his desire to add Republicans to the Texas congressional delegation. But is that, per se, unconstitutional? No, it’s not.

In the 2004 Pennsylvania case of Veith vs. Jubelirer, Democrats challenged the constitutionality of the state’s congressional redistricting plan. Four justices -- Antonin Scalia, Clarence Thomas, William Rehnquist and Sandra Day O’Connor -- in essence argued that political gerrymandering claims shouldn’t be decided by the courts because no judge can identify discernible and manageable standards for adjudicating such claims.

The case was ultimately decided by Justice Anthony Kennedy, who provided the swing vote to dismiss the political gerrymandering claim. But he left open the possibility that he might wade back into another case if he could find “some limited and precise rationale ... to correct an established violation of the Constitution.” Texas Republicans are worried that Kennedy has found something in this case that he didn’t find in the Pennsylvania case.

No one can honestly dispute the fact that the motivation of the Texas Legislature in redrawing the state’s congressional districts in 2003 was to gain a partisan advantage. That’s fair game in politics. But did the plan result in a partisan gerrymander? If the best indicator of a gerrymander is an election outcome that is unrepresentative of the electorate, then the Texas plan engineered by DeLay actually fixed a previous gerrymander -- it didn’t create one.

A little Texas history will prove this last point. As Michael Barone’s Almanac of American Politics notes, the 1991 congressional redistricting map of Texas produced one of the most creative gerrymanders in the country “with incredibly convoluted lines ... [that] packs heavily Republican suburban areas into just a few districts.” When the Texas Legislature was unable to produce a new plan after the 2000 reapportionment, the job of redrawing the lines fell to a federal three-judge panel. Its plan re-created the 1991 lines, and every incumbent congressman won reelection in 2002. This plan resulted in the Democrats holding a 17-15 seat advantage in the Texas congressional delegation. However, 56% of all Texans that year voted for a Republican candidate to the House, and every one of the 27 statewide elected officials were Republican.

Fast forward to the 2004 election results after the new plan was enacted: Republican U.S. House candidates won 21 seats versus 11 for the Democrats. But this breakdown is perfectly fair, insomuch as President Bush and Republican congressional candidates earned more than 60% of the vote. The 2004 election results better reflected the electoral choices of Texas voters. In other words, no gerrymander here.

Gerrymander or no gerrymander, one thing remains clear: Courts need to stay out of partisan redistricting fights like the one in Texas. The voters are already trying to fix excessive partisan gerrymandering. Independent bipartisan or nonpartisan redistricting panels have been established as an alternative to partisan legislative redistricting in 12 states. If the courts get their fingers into this mess, there won’t be any incentive for more grass-roots reform.

Gerrymanders are barriers to competitive, democratic elections. But the only thing worse than a gerrymander is a judge trying to fix one. Let’s hope the Supreme Court knows that.