Redistricting Case Presents Opportunity for Court

Some time during the next six months the U.S. Supreme Court will decide the single most important redistricting case of this decade – a challenge to the mid-decade Congressional redistricting plan adopted by the Texas Legislature in 2003 which resulted in a net gain of five seats for Republicans in the U.S. House of Representatives from Texas in the 2004 elections.

I was one of the Texas Congressman who lost his seat as a result of this plan.

The case, among other things, challenges the Texas plan as an unconstitutional partisan gerrymander. The Supreme Court will hear oral arguments in the case on March 1st and will decide it prior to the end of the court’s term in late June. Should the court overturn the plan, the consequences would be far reaching and could affect future redistricting in every state in the country.

To date, the Supreme Court has been unwilling to establish standards for an illegal partisan gerrymander, letting legislature wield political power at the will of the majority party, subject only to one-man-one-vote requirements and to the provisions of the federal Voting Rights Act designed to protect minority voters.

The court is being asked to rule out the Texas plan because it involved excessive partisanship in the way the lines were drawn. No one knows whether the court will use this case to finally enter the political thicket of partisan line-drawing.

The court divided 4-4-1 on an earlier case from Pennsylvania, leaving open the issue of whether or not it would ever invalidate a plan because of partisan gerrymandering. Chief Justice William Rehnquist and Justice Sandra Day O’Connor were on the side of not getting involved in the partisan gerrymandering issue, so their respective replacements will not alter the balance on the court on this issue.

The swing vote remains Justice Anthony Kennedy, who left open the possibility of the court throwing out a plan for partisan gerrymandering at some future date.

Interestingly enough, there is a way for the court to throw out the Texas plan without setting down a permanent standard for what constitutes partisan gerrymandering -- something the court may want to avoid while finding the Texas plan objectionable.

Here’s the legal argument, which is being made to the court, that could permit the court to toss the Texas plan and not make sweeping new law:

The court could find that voluntary (not as a result of a court order) mid-decade redistricting done to accomplish solely a partisan purpose is illegal because it violates the long-standing legal principle of one-man-one-vote.

Under the one-man-one-vote standard (established by the court in its 1962 case of Baker vs. Carr), Congressional districts must be equal in population based on figures from the census conducted every ten years right before new districts are drawn.

The Texas districts used for the 2002 elections (drawn by a federal court in 2001 after the state legislature deadlocked), were equal in population using figures from the 2000 census. New districts redrawn by the Texas Legislature in 2003 used census figures that were three years out of date and thus were not equal in population.

The census bureau makes regular update estimates in between censuses and its estimates were not used by the legislature in drawing the new districts. There has been considerable population growth in Texas since 2000 and thus the new districts violate one-man-one-vote.

This is an interesting legal theory and it would permit the court to invalidate mid-decade redistricting done for partisan purposes without having to rule on the configuration of the new districts and the motivations for the way particular lines were drawn.

The court could also avoid the larger partisan gerrymandering issue by ruling that districts in North Texas violated the voting rights of black voters and districts in South Texas violated the voting rights of Hispanic voters. This argument could be bolstered by a Justice Department memo, made public shortly before the court agreed to hear the case, that career lawyers in the U.S. Justice Department believed that the new lines violated the federal Voting Rights Act but were overruled by political appointees.

Should the Supreme Court throw out the Texas plan, it could order new primaries later this year (normal Texas primaries are in March) and order that the plan used in the 2002 elections be used for the 2006 elections. A similar approach was taken by the federal courts in 1996 when it threw out an existing Texas Congressional plan in the summer (after the regular primaries had been held) and ordered new primaries under a different plan.

Stay tuned. Interesting things could happen in Texas in the months ahead.

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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