Court to hear Texas redistricting cases
on Dec 12, 2005 at 10:02 am
The Supreme Court on Monday — in a surprise order — agreed to rule on the validity of Texas’ 2003 congressional redistricting plan, a measure that resulted in the ouster of five Democratic incumbents, and helped solidify Republican control of the U.S. House of Representatives. The Court allotted two hours for oral argument, probably in April. (UPDATE: Hearing likely on March 1, see post above.)
Of the seven pending cases challenging the plan, the Court agreed to hear four. Those four raise all of the key issues at stake, including whether the Court can fashion a standard for judging when partisan gerrymandering is excessive, and whether it is unconstitutional for a state to undertake a new round of congressional redistricting within the same decade when a valid plan is already in place. In addition, the cases raise issues about race and ethnic bias in some of the new district boundary line-drawing. The three cases the Court did not grant raised overlapping issues.
Basically, the questions posed by the four cases break down broadly into four general areas of inquiry: validity of partisan gerrymanders, treatment of minorities under Section 2 of the Voting Rights Act, constitutionality of drawing bizarre districts in dealing with minority voters, and number limits on creation of minority-controlled districts. The Court did not rewrite the questions, thus leaving some confusion in defining what it will decide. A decisive negative ruling on any of the four general areas, though, presumably could invalidate the entire 2003 Texas plan, because all of its parts are interacting.
When the new cases are heard, the focus will be on Justice Anthony M. Kennedy, who provided the decisive fifth vote on April 28, 2004, to keep alive the possibility that a judicial standard could be developed to judge political gerrymanders’ constitutionality. He did so in the case of Vieth v. Jubelirer, a Pennsylvania congressional redistricting case.. After that, in October 2004, the Court sent the Texas redistricting challenges back to the U.S. District Court that had rejected those claims, with instructions to reconsider the plan in the light of the Vieth decision. The three-judge District Court on June 9 of this year again rejected the challenges, putting new emphasis this time on the claim of a one-person, one-vote violation in the partisan gerrymandering.
By the time the new cases come up for argument, there may be two new Justices joining in the review — Chief Justice John G. Roberts, Jr., of course, but also Justice-nominee Samuel Alito, Jr., if the Senate has confirmed him by then. Roberts replaces the late Chief Justice William H. Rehnquist and Alito would replace Justice Sandra Day O’Connor. Both of those had voted in Vieth to deny judicial review of partisan gerrymander challenges, but that view did not prevail then.
In its order Monday, the Court agreed to hear cases docketed as 05-204, an appeal by the League of United Latin American Citizens, 05-254, by Travis County, 05-276, by Eddie Jackson and other Democratic and minority voters, and 05-439, by GI Forum of Texas. The order was a surprise, for two reasons: the Court had never asked for a response from the state of Texas, which had waived that opportunity, and the Court had examined the question of hearing the cases six different times at its private conferences before noting jurisdiction and thus granting review. Both were unusual departures from the Court’s norms.
There were no decisions Monday in argued cases.
The Court also agreed to hear another case, to resolve a major issue in the law of civil racketeering lawsuits under RICO. The issue is whether a corporation and its agents can be sued as an “enterprise,” when they are acting only on that corporation’s affairs and are not linked to an outside business activity. The case is Mohawk Industries v. Williams, et al., 05-465, involving RICO claims that the large carpet and rug manufacturer depressed its workers’ wages by hiring illegal aliens to work for low pay.
Among the cases denied review, the most significant were three separate appeals claiming that it is illegal for publishers of magazines containing copyrighted articles or photos by freelancers to republish those in a new digital collection without permission of the freelancers, or payment of new fees to them. The cases were docketed as 05-490, 05-504, and 05-506. All involve the National Geographic Magazine’s republication of its prior issues in a new compendium, accessible digitally. The Second Circuit upheld the Geographic’s republication rights against infringement claims. The freelancers argued that the Geographic had collected more than $100 million in revenues from the new digital collections, without paying them any royalties for reissuing their works in a new format. The Circuit Courts are split on the legal treatment of those same works.
The Court also denied review in two cases asking the Court to extend its Apprendi line of cases, on the role of juries in criminal sentencing, to the question of criminal forfeiture penalties. The cases were Tedder v. U.S. (05-312) and Braun v. U.S. (05-599).
In the Texas redistricting cases, the Court accepted for review a total of ten questions, but some of those overlap. Here are the questions granted, case by case, using paraphrasing:
05-204, LULAC v. Perry:
1. Does it violate one-person, one-vote standards for a state to use out-of-date Census data for redistricting, when the entire purpose of the new boundary-drawing is to gain partisan advantage, resulting in a partisan gerrymander?
2. Is proof of voting along racial lines overcome by evidence of partisan affiliation of black or Hispanic voters in analyzing a claim that minority votes have been diluted under the Voting Rights Act?
05-254, Travis County v. Perry:
Sole question: Does Texas’ 2003 congressional redistricting plan, replacing a valid court-ordered plan, satisfy one-person, one-vote principles, when the redisricting was done to gain partisan advantage and used 2000 Census data?
05-276, Jackson v. Perry:
1. Is it unconstitutional, under equal protection and the First Amendment, for a state to redraw lawful districting plans in the middle of the decade, for the sole purpose of partisan gain?
2. Does the Voting Rights Act’s Section 2 allow a state to destroy a district that black voters effectively controlled, merely because it is impossible to draw a district in which blacks have an absolute population majority?
3. Under redistricting principles, according to Bush v. Vera (1996), is it unconstitutional to create a bizarre-shaped congressional district with the aim of linking two Latino-majority districts separated by a 300-mile “land bridge,” simply to avoid a racial gerrymander claim, when the new district was crafted in order to promote the goal of maximizing partisan advantage?
05-439, G.I. Forum of Texas v. Perry:
1. Is political partisanship a sufficient justification, under Section 2 of the Voting Rights Act of the Constitution, for dismantling a Latino-majority congressional district so as to elect a preferred Anglo candidate?
2. Does Section 2 permit a state to eliminate a district with a black or Hispanic majority in one area of the state and create another such district elsewhere in the state?
3. Did the District Court here err by requiring that districts, to satisfy Section 2, must be more compact and offer more chances for minority-preferred candidates to win than would be the case under the challenged plan?
4. Does the number of districts that can be created with a majority of black or Hispanic voters set a ceiling on the total number that may be drawn in order to be proportional under Johnson v. DeGrandy?
(Response to comments: A number of helpful comments have been added below; several focus on the Court’s failure to ask for a response from Texas. It should be noted that when these cases were before the Court in the 2003 Term (and carried over to the 2004 Term), Texas also waived a response, but the Court asked for a response, and Texas filed a motion to affirm. Those cases, too, were up on jurisdictional statements. So, it may be significant that the Court did not follow the same practice this time. Perhaps one could speculate that the Court in one or more of its six Conference considerations had been thinking about summary affirmance, and for that did not need a response from Texas, but the dynamic changed later, with the Court majority moving toward granting review, and possibly it did not seem to make practical sense then to ask the state to file what the Court could presume to be a motion to affirm summarily. It should also be noted that, in the Court’s practice, it must act definitively upon jurisdictional statements; it cannot simply deny them, as it does petitions for certiorari. Thus, five Justices must agree on a disposition: noting jurisdiction [the equivalent of granting review], or acting summarily — to affirm or to dismiss for any of several available reasons. While it is accurate to speak of mandatory jurisdiction, the reality, in modern times, is that the Court has ways to avoid review if five Justices are not in favor of “noting” jurisdiction. Outside the comments below, some question has been raised about whether the Court agreed to rule on the Texas plan because of the recent revelations of political appointees at the Justice Department overruling the opposition of staff lawyers to the Texas electoral map. The Justices read the newspapers, but those developments were not before the Court in any formal way, so there is little or no foundation for believing that these events did have an influence.)
