New Justice May Play Role in Gerrymander Case

Some time early this fall, the U.S. Supreme Court will make a monumental decision, which could dramatically affect congressional politics. The court will decide whether or not to take a serious, detailed look at Tom DeLay’s 2003 gerrymander (search) of the Texas congressional delegation.

The threshold issue being determined involves whether the court will accept the case and set it down for oral argument during its 2005-06 term. If the court agrees to hear the case and if the court ultimately throws out DeLay’s plan-- which netted House Republicans six seats during the 2004 elections-- the ripple effect will be far-reaching indeed.

Plaintiffs from Texas are challenging the plan as being an illegal political gerrymander. The court during its last term took a look at the case and sent it back to a three-judge constitutional court in Texas for further review. That three-judge court (two Republicans and one Democrat) had initially approved the plan but the Supreme Court asked the lower court to take a second look in light of a recent Supreme Court case from Pennsylvania on the same subject. The three judge court held additional hearings on the matter and then rubber stamped its earlier decision.

The case from Pennsylvania dealt with a similar dramatic change in Congressional districts, which netted Republicans additional seats in the 2002 elections. In that case, the court split 4-4-1 and upheld the Republican plan. Four justices said the court should not even consider political gerrymandering cases, four judges said the court should, and one justice (Kennedy) said it was theoretically possible for the court to consider such a challenge if the proper standard could be determined but that the Pennsylvania case was not an appropriate one for action by the court.

If the court agrees to a full hearing in the Texas case and then throws out the Texas plan, it will make new law by establishing a standard for judging political gerrymanders. Interestingly enough, Justice O’Connor was among the four justices who didn’t think the court should even consider this type case, so her replacement (if confirmed in time to be involved in the threshold decision on whether or not to take the case), will not alter the balance on this particular issue. It’s really all up to the swing justice – Kennedy.

Political gerrymandering is as old as the Republic; however, Tom DeLay and Texas Republicans took it to new extremes in 2003. Not only did they draw new districts with the clear intent to radically change the balance in the Texas delegation, they did it in mid-decade after a constitutional plan (approved by the Supreme Court) had been put in place and used for the 2002 elections. By tradition, districts are drawn once every 10 years and not just because one party gains control of a legislature as the Republicans did in Texas in 2002.

There is nothing in the U.S. constitution that prevents districts from being redrawn every two years, but the clear tradition in our country has been that once every 10 years is enough. However, that particular issue will not be decided by the court if it takes the case.

The stakes are enormous. Republicans in the U.S. House actually lost seats nationwide in 2004 when you factor out Texas. Only after you consider the results of the Texas gerrymander, did Republicans eek out a narrow gain in seats in 2004.

If the court throws out the Republican Texas gerrymander, elections in either 2006 or 2008 (depending on what the court would decide) would be held under a different plan – perhaps the plan used in 2002 that elected 17 Democrats rather than 11. Republicans could hold onto some of these seats (incumbent Republicans would be running for re-election) but they wouldn’t keep all of them.

Also, any decision throwing out DeLay’s plan could have other far-reaching effects. A number of states (some controlled by Democrats and some controlled by Republicans) are currently considering mid-decade redistricting plans. Though the Court would not necessarily prohibit this practice, any such decision might dampen legislatures' enthusiasm for reopening plans now.

Additionally, there is a growing movement nationwide to turn Congressional redistricting over to bi-partisan commissions during the next regular round of line drawing (2011-12). Putting limits on partisan gerrymandering by legislatures might be just what is needed to put this movement over the top.

Keep an eye on the Supreme Court. Big changes might be in store for the way Congressional and legislative lines are drawn.

Martin Frost served in Congress from 1979 to 2005, representing a diverse district in the Dallas-Ft. Worth area. He served two terms as chairman of the House Democratic Caucus, the third-ranking leadership position for House Democrats, and two terms as chairman of the Democratic Congressional Campaign Committee. Frost serves as a regular contributor to FOX News Channel. He holds a Bachelor of Journalism degree from the University of Missouri and a law degree from the Georgetown Law Center.

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