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Redistrict Fight Will Go Before High Court

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Times Staff Writer

The Supreme Court agreed Monday to hear a constitutional challenge to the hotly disputed Texas redistricting plan engineered by former House Majority Leader Tom DeLay in 2003 that handed Republicans six additional seats in the U.S. House of Representatives.

In a surprise move, the high court said it would consider reining in the most extreme forms of partisan gerrymandering. The court previously has rejected such challenges, concluding it is impossible to separate partisan politics from the drawing of electoral districts.

But the Texas case stands out because Republicans pushed through the redistricting as soon as they gained control of both houses of the state Legislature -- just two years after a different redistricting plan based on the latest census, the traditional yardstick, had been approved by the courts.

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The challengers call it a purely partisan move that violated the Constitution because it deprived Democrats of a fair and equal chance to elect representatives of their choice. They say the new congressional boundaries were drawn to dilute the voting power of blacks and Latinos.

The justices said they would take up the legal challenge from Democrats and minority voters in the spring and rule by June.

The court’s move to hear the Texas case could spell trouble for the Republicans, who have controlled the U.S. House for a decade. If the justices strike down DeLay’s plan as unconstitutional, that could force political boundary changes in time for the 2006 congressional elections.

House Minority Leader Nancy Pelosi (D-San Francisco) called the Supreme Court’s action “a hopeful sign that the voting rights of millions of minorities will be restored.”

But Kevin Madden, a spokesman for DeLay, noted that the Justice Department and a lower court had upheld the redistricting plan. He also said the redrawn map reflected the GOP’s growing strength in the nation’s second-largest state.

“A history of gerrymandering efforts by Democrats in Texas had resulted in an unfair representation of Texas voters,” Madden said.

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Partisan gerrymandering is as old as the nation itself, a divided Supreme Court said last year, when it upheld a Pennsylvania plan that gave the GOP control of 12 of 19 congressional districts. The state’s voters were evenly split between Republicans and Democrats.

In a 5-4 decision, the court rejected a challenge to the Pennsylvania plan. Justice Antonin Scalia, writing the lead opinion, said redistricting was the business of politicians, not judges.

Justice Anthony M. Kennedy cast the deciding vote, but did so tentatively. He said partisan gerrymandering could be so extreme as to be unconstitutional if it deprived the minority of fair representation.

The four liberal justices said partisan gerrymandering should be struck down if it allowed the majority to rig elections in its favor.

Some election law experts said Monday’s action might signal that the court was ready to strike down the Texas plan.

“This is quite a surprise. Maybe Justice Kennedy has made up his mind,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles. It is plausible, Hasen said, that Kennedy could be attracted to the standard proposed by the challengers that would not forbid all partisan gerrymandering, but would bar a mid-decade remap to benefit the party in power.

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The term “gerrymandering” dates to 1812, when then-Massachusetts Gov. Elbridge Gerry supported the drawing of a salamander-shaped district to benefit his party.

In the 1970s and ‘80s, Democrats used creative line-drawing in several states, including California, to maintain their majority in the House. More recently, Republicans have done the same to give their candidates a comfortable majority when running for reelection.

Typically, states redraw their electoral districts once each decade, when new census data are released. Because populations shift, districts must be redrawn so they are roughly equal in population.

Texas, like California, has been growing, resulting in more seats in the House of Representatives. After the 2000 census, it was given two more seats, raising its total to 32. However, the Texas Legislature was divided. Democrats controlled the state House in Austin and Republicans controlled the state Senate.

The two sides were unable to agree on a new map, so a panel of three judges redrew the districts.

Under that map, 20 districts leaned Republican and 12 favored Democrats. Nonetheless, 17 Democrats were elected to the U.S. House in the fall of 2002, along with 15 Republicans. Among the winning Democrats were long-serving incumbents who prevailed because they attracted some Republican voters.

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But during that election, Republicans won the majority in the Texas House, so they controlled all parts of the state government. DeLay urged the Legislature to redraw its districts again to knock out six incumbent Democrats representing Republican-leaning districts.

That touched off a wild political battle as Democratic legislators fled Texas for Oklahoma to deprive the Legislature of a quorum to vote on the new boundaries. But DeLay’s plan ultimately worked.

The redrawn map was used in the 2004 elections. Eight million Texans were drawn into new districts, and the six targeted Democrats were ousted. The GOP won 21 of the state’s 32 congressional seats. The plan concentrated Democratic voters in fewer districts, but it also led to the election of an additional black representative to Congress.

The Washington Post reported recently that career lawyers at the Justice Department had objected to the plan and said it should be blocked because it diluted the voting power of blacks and Latinos. Under the Voting Rights Act, states with a history of racial discrimination in voting must submit their plans to the Justice Department before making changes in their electoral systems. Texas is among these states.

Despite the views of the staff, the Justice Department cleared the Texas plan. A three-judge federal panel also upheld it as constitutional.

Nonetheless, lawyers for the Democrats and some minority voters renewed their challenge in the Supreme Court. They urged the justices to rule that it was unconstitutional to redraw districts in mid-decade “solely to skew future election results in favor of one political party.”

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Since the Texas plan won approval, two other states -- Georgia and Colorado -- have moved to redraw their districts for the second time this decade.

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Times staff writer Richard Simon contributed to this report.

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