Texas redistricting: counting the votes

The Supreme Court’s decision on Wednesday in League of United Latin American Citizens v. Perry (05-204) and three companion cases on the Texas congressional redistricting plan is a composite of six opinions and a widely distributed array of votes on a handful of major issues, and subparts of those issues.

Taking the opinion by Justice Anthony M. Kennedy announcing the outcome of the case, and using the Court’s headnotes as far as they go to record the votes, it is possible to approximate what the Court decided, and how the votes stacked up on each part of the Kennedy opinion.

Whatever the actual vote count is, two things of substance are apparent. First, a partisan gerrymander claim is even more a forlorn hope now than it was after such claims barely survived scrutiny in the Court in the 2003 case of Vieth v. Jubelirer because Justice Anthony M. Kennedy has raised the bar a good deal higher on such claims and rejects the genuinely creative effort to fashion a new standard of uncontitutionality; and, second, a mid-decade redistricting of a state’s congressional delegation is likely to become increasingly attractive to partisan legislators if they can simply find ways to partially shroud that stark political motivation.

Here is a summary of the ruling, and the votes on its parts:

Part I — the history of congressional redistricting in Texas and of the litigation over it.
The vote is probably 5-4, but may be 9-0.
Justice Kennedy has the explicit support of the Chief Justice and Justice Alito, because the Court says so. He may also have the sympathetic support of Justices Scalia and Thomas because they find no fault with the District Court ruling in the case, which discussed that history at some length.
He may not have the support, however, of Justices Breyer, Ginsburg, Souter and Stevens, because the Kennedy tale of the history is somewhat tendentious, using more disapproving language of what the Democrats did when they had the power, setting the stage for a more tolerant view of what the Republicans did with their turn.

Part II Subpart A — the issue of the validity of partisan gerrymandering is not in this case, but it remains open and thus is not totally foreclosed.
The vote is probably 5-4.
Kennedy has the support of Breyer, Ginsburg, Souter and Stevens for the proposition that this kind of claim is not foreclosed, and the Court counts all four of those as joining. But Breyer and Stevens find the issue present in the case, and they resolve it against the Texas plan.
He may not have the support of the Chief Justice and Alito, because they say the issue is simply not in the case, and they take no position on whether it is still open. (Later, they do support Kennedy on the outcome on the partisan gerrymander issue [see below]).
He does not have the support of Scalia and Thomas, who would never entertain a partisan gerrymander claim.

Part II Subpart B — redistricting is better done by state legislatures, and would routinely be permissible even if a legislative plan undoes an existing and valid court-drafted plan.
The vote might be 9-0, but realistically could be 5-4.
Kennedy has a majority, not explicitly listed by the Court. He seems to have the sympathetic support of the Chief Justice, Alito, Scalia and Thomas, since they are satisfied that the Texas plan properly displaced an existing court-drafted plan.
He may not have the support of Breyer, Ginsburg, Souter or Stevens, because they conclude that the displacement of the court-approved plan in this case was at least questionable, if not downright invalid.

Part II Subpart C — partisan advantage was not the sole motivation for the Texas redistricting, the resulting plan more closely reflects the actual statewide voting power of the two major parties and, even if the motive was alone partisan gain, a plan would be invalid only if it harmed the rights of the disfavored party’s members to equal representation.
The vote was 5-4, but might be only 5-2-2.
Kennedy has the support of the Chief Justice and Alito because they embrace the outcome though not the rationale regarding the partisan gerrymandering claim, and the support of Scalia and Thomas because see they would not allow any partisan gerrymandering claim.
He does not have the support of Breyer and Stevens, because they find an unconstitutional partisan gerrymander in the Texas plan. He does not have the support of Ginsburg and Souter, because they say they are not discussing the partisan gerrymander issue. But they also refuse, explicitly, to join in Kennedy’s conclusion on what might be required to prove a gerrymander claim if partisan gain were the sole motive. Although insisting they were only suggesting a view they might state in the future, it perhaps can be taken as a partial dissent on this Subpart.

Part II Subpart D — the Court rejects a second partisan gerrymandering claim asserting that a mid-decade redistricting plan is invalid if done for partisan reasons, and it actually results in a violation of the one-person, one-vote rule principle of population equality among districts.
The vote is 7-2.
Kennedy has the support of Ginsburg and Souter, according to the Court’s count.
He also has the votes of the Chief Justice and Alito because they support the outcome on the partisan claims, if not the rationale, and of Scalia and Thomas, because they would reject all partisan gerrymander challenges.
He does not have the support of Stevens, who explicitly embraces this second theory. Breyer does not join Stevens on that point, but he endorses the Stevens view that the entire plan is an unconstitutional partisan gerrymander.

Part III — a new District 23 designed to salvage a seat for Republican Rep. Henry Bonilla is illegal under the Voting Rights Act’s Section 2, because it dilutes the votes of Latinos in the former district; the invalidation of District 23 probably also necessitates a redrawing of District 25 because that was crafted to make the new 23 work legally.
The vote is definitely 5-4.
Kennedy has the explicit support, according to the Court, of Breyer, Ginsburg, Souter and Stevens.
He does not have the support of the Scalia and Thomas, because they reject all Voting Rights Act challenges, and the Chief Justice and Alito note their explicit dissent from this Subpart.

Part IV — a new District 24 does not violate the Voting Rights Act’s Section on vote dilution.
The vote is 5-3 for sure, but probably is 5-4.
Kennedy has the explicit support of the Chief Justice and Alito, according to the Court’s count, and the clearcut support of Scalia and Thomas because they reject all Voting Rights Act claims.
He does not have the support of Ginsburg and Souter, because they note their dissent on the Voting Rights Act conclusion, or of Stevens, because he would find the new District 24 unconstitutional as a partisan gerrymander. Breyer does not appear to have taken an explicit position on District 24 alone, but does say that the entire plan is an invalid partisan gerrymander.