By Jane Roh, ,
Published December 21, 2016
A protracted, ugly and occasionally comical Texas political fistfight came before the Supreme Court on Wednesday, and it was far from clear how the justices would approach a resolution.
In a rare two-hour afternoon argument session, attorneys took turns trying to persuade the high court to invalidate or uphold a Republican-drawn redistricting map for the state.
Calling the map a blatantly partisan maneuver designed to give Republicans a clear majority of legislative seats, plaintiffs' attorney Paul M. Smith accused Lone Star lawmakers of "segregating the population by race and by political affiliation in non-competitive districts" in a manner "wholly lacking any legitimate public purpose."
The high court has never established guidelines for partisan gerrymandering. But in its last significant gerrymandering case, Vieth v. Jubelirer, a majority of the court in 2004 said it was possible to develop a standard dictating when excessive partisanship violated the Constitution.
In a decision prior to Vieth, a district court said that the purpose of the Texas map was blatantly partisan, but found that it passed legal muster. After Vieth, the district court reconsidered the new map and again found it was sound, this time stating that redistricting for purely partisan reasons was not unconstitutional.
Meanwhile, Texas lawmakers were duking it out over the new plan. In 2003, a group of 50 Democrats ran for the border rather than allow a vote on the plan. Texas Republican Gov. Rick Perry dispatched sheriffs to track down and arrest the MIA lawmakers, who eventually returned to Austin and allowed the bill to pass.
The Supreme Court agreed to hear arguments for three consolidated lawsuits over the plan last December. Interest in the outcome of the decision is intense among the nation's lawmakers as well as those following the trials and tribulations of Texas Rep. Tom DeLay, the former majority leader who was the architect of the Texas plan. DeLay faces criminal charges for allegedly violating the state's campaign finance laws.
Texas is one of nine states obligated by Section 5 of the Voting Rights Act to present all redistricting and voting-law changes to the Department of Justice for approval. The states covered by Section 5, which include Alaska and Mississippi, have a history of voting discrimination or under-participation from voters.
Though the Department of Justice signed off on Texas' plan, a memo leaked to The Washington Post in December revealed that several attorneys believed the plan was illegally tilted against black and Hispanic voters.
Smith told the justices on Wednesday that lawmakers "intentionally" drew up the plan to weaken the minority vote in several districts and thus ensure Republicans safer political waters.
But several justices were unsure how to determine whether Texas Republicans had racial considerations on the brain when drawing the map, especially since redistricting in general for party advantage is commonplace in American politics.
"It seems very odd for you to be telling us that partisan gerrymandering is improper or say it is improper to address it," said Justice Anthony Kennedy, referring to Texas' previous redistricting map, which was drawn by Democrats when they were the state's majority party.
Kennedy is viewed as the swing voter in this case because of his concurring opinion in Vieth, in which he expressed ambivalence about the idea of partisanship as a disqualifier.
"The key is convincing Kennedy you need to have a test," said Ronald Keith Gaddie, a political scientist at the University of Oklahoma who served as a consultant on the map for Texas Republicans.
The plaintiffs' arguments were twofold: that Republican lawmakers violated Sections 2 and 5 of the Voting Rights Act and that their intent, which was purely partisan, was not a legitimate reason to redraw the map.
Justice David Souter asked Smith why he accepted the Democrat-drawn map of 1991 but believed the Republicans' 2003 plan was illegal.
"We tolerate some consideration of race and of politics, but that is a radically different usage of the rational basis test than when it is solely partisan,” Smith responded, adding that partisan gain was not a legitimate justification for government policy because it does not serve the public.
A very complicated but important aspect of the argument made by the lead plaintiff, League of United Latin American Citizens, related to a reversed racial expectation.
Texas Attorney Gen. Ted Cruz did not deny that state Republicans sought to cushion Republican Rep. Henry Bonilla when they reconfigured District 23. Though Bonilla is Hispanic, he did not enjoy overwhelming support from his majority Hispanic constituents, and in 2002 won re-election by a margin too thin for the party leadership's taste.
Republicans later carved out a swath of this district, which included Bonilla's challenger's hometown, in which 100,000 Hispanics lived. As a result, District 23 was left with a "razor-thin" Hispanic majority, said Nina Perales, also arguing for the plaintiffs.
"The state used race not only to protect an incumbent but to give the false impression of Latino support for that incumbent," said Perales, who is regional counsel for the Mexican American Legal Defense and Educational Fund.
Justice Antonin Scalia wondered what was wrong with Republicans wanting to remove Hispanics from District 23 because they tend to vote Democratic.
"You're saying if I've made an assumption about how solvent [Hispanics'] voting patterns are you're saying I've made a racial decision?" he asked.
"The state removed Latino voters from District 23 because they were Latinos," Perales replied.
Later, Scalia's lack of sympathy for Perales' argument led to a snappish exchange.
"Isn't the district 90 percent Latino? How can you take anyone else out?" he asked.
"That's exactly my point..." Perales began to respond.
"That's my point, too," Scalia said, cutting her off.
Texas Republicans claim that they compensated for Bonilla's district by redrawing District 28, in which they connected two distant Hispanic-majority communities. The result was a dumbbell-shaped district of questionable validity, as Department of Justice lawyers and other experts have found.
"It's about a cluster of Hispanics in south Austin and a cluster on the border and a bunch of empty districts joining them all together. The court has said that is suspect," said John Alford, political scientist at Rice University in Houston.
"Once the process was started by the desire to buttress Republican districts, the question still is regardless of that, how cognizant of ethnicity can you be in crafting a district," Alford said. "How distorted can a district become when the purpose is to capture a particular race or ethnicity?"
In other words, the justices were asked to decide if Texas Republicans violated Hispanics' rights in the redistricting, and whether racial considerations can ever be used in redistricting, even if it may be intended to enhance a minority's ability to elect the candidates of their choice.
Calling redistricting the "neurosurgery of political science," Gaddie said the justices may decide to get out of the game altogether.
"We've come out of a long era of incumbency into a partisan era. Tit for tat — that's the game here," he said, referring to partisan redistricting as a political reality. "We've got to re-learn being nice. Just because it's unsavory doesn't mean it's illegal."
But foes of the plan and its masterminds need not despair. In a "final irony," Gaddie said, DeLay will likely lose a re-election fight to former Rep. Nick Lampson, who lost his last re-election bid in part because of the new map.