Justices Hint Texas Redistricting Will Stand

The Supreme Court justices signaled Wednesday that they were likely to uphold the partisan-charged, mid-decade Texas redistricting plan engineered by former House Majority Leader Tom DeLay.

DeLay’s plan gave Republicans six more seats in the U.S. House of Representatives and helped lock in the GOP majority. But it was criticized for its brazenness; district lines are usually drawn once a decade, after new census data show how the population has shifted.

Democrats and civil rights activists appealed to the high court to undo what they called the “partisan gerrymander,” saying it was unfair and threatened to poison politics in other states.

But during oral arguments Wednesday, most justices said partisanship was a fact of life in drawing electoral districts. Moreover, several said, Texas’ congressional districts now are no more skewed toward Republicans than the 1990s map was toward Democrats.

In congressional elections two years ago, about 60% of Texas voters chose Republicans, who won 21 of 32 seats. Most voters also picked Republicans in 2002, before the districts were redrawn, yet Democrats won 17 of the 32 seats.

Justice Anthony M. Kennedy, seen as a swing vote in the case, said he was not convinced the current plan was unfair. Had the Legislature not redrawn districts, it would “leave in place something that is slanted in favor of the Democrats,” he said.

“It seems to be odd” to say it is unconstitutional for a majority party to “correct” election boundaries that favored the minority party, he said.

It is an open secret in politics that redistricting can predetermine who will win. A skillfully drawn map can lock in a party’s congressional seats for a decade.

In 2001, Democrats controlled Texas’ Senate, Republicans the state House. The deadlocked Legislature could not redraw Texas’ congressional districts. So a panel of judges redrew the districts, making relatively few changes, and longtime incumbent moderate Democrats were reelected in 2002.

But in the same election, the GOP gained control of Texas’ Senate as well as the House, and DeLay urged the Legislature in 2003 to redraw the districts. His plan pitted incumbent Democrats against each other or moved them into heavily Republican districts, virtually ensuring their defeat.

The maneuver touched off a memorable Texas political brawl in 2003 as nearly a dozen Democratic lawmakers fled to Oklahoma on two occasions to deny the Legislature a quorum and prevent the plan’s implementation. Their effort ultimately failed.

Justice David H. Souter signaled he was not convinced Texas had crossed the line into unconstitutional action: “It is impossible to take partisanship out of the political process.”

And Justice Ruth Bader Ginsburg -- who, like Souter, has voiced concern about partisan gerrymandering in the past -- noted the Texas Legislature had adopted new districts once, not twice. “This was the first redistricting done by the Legislature,” she told a lawyer for the Democrats, suggesting it was not unusual or unprecedented.

The tenor of Wednesday’s arguments dashed the hopes of those who believed the Supreme Court might be ready to rein in partisan gerrymandering.

However, Kennedy and Justice John Paul Stevens said they were troubled by one aspect of Texas’ plan: Latinos were moved around by the GOP in southwest Texas and were not given a voting majority in one district.

In the past, Kennedy and the court’s majority have voted to strike down “racial gerrymandering” on the theory that the Constitution forbids the state from using race as a decisive factor in government decisions. It appears “race was used in a predominant and insulting way” in drawing certain Texas districts, Kennedy said.

His comment suggested that one or two districts might be declared unconstitutional -- justices mentioned Districts 23 and 25 -- because of the role race and ethnicity played in how the lines were drawn. District 23 tracks much of the Texas-Mexico border and is represented by Republican Henry Bonilla; District 25, a narrow swath running from Austin to the border with Mexico, is represented by Democrat Lloyd Doggett.

The state’s lawyers say such a decision would be limited and would not require redrawing districts statewide.

Partisan gerrymandering has troubled the court for decades, but justices have stopped short of striking down electoral districts for being too partisan.

In the 1980s and again in the 1990s, Republicans’ lawyers urged the high court to strike down electoral districts in California because of the advantage they gave Democrats. In the end, the justices took no action.

Two years ago, the justices took up a challenge to a Pennsylvania plan that gave the GOP a 12-7 edge in U.S. House seats even though the state leaned slightly Democratic. The court upheld the plan 5 to 4.

A decision on the Texas plan is expected in several months.