Analysis: Much of “DeLay map” may survive
on Mar 1, 2006 at 3:38 pm
The Supreme Court, showing few signs of reaching for a new consensus on the role it would allow partisanship to play in drawing new election districts, pored over the Republican-drawn congressional districts for Texas for two hours Wednesday. No one seemed near to gathering a majority for any new constitutional standard for judging party ambitions, and everyone who spoke up focused largely on the specifics of a plan crafted at the urging of Rep. Tom DeLay and national Republican party operatives that has produced decisive GOP gains.
Because a number of the Justices — including, notably, the potential swing voter, Justice Anthony M. Kennedy — seemed troubled about the legislature’s treatment of Latino voters in southwest Texas, that part of the “DeLay map” appeared to be in some trouble, perhaps necessitating some corrective that would affect adjoining districts, too, but not all 32 in the state. The overall plan, under challenge since it was crafted in 2003, appeared not to be vulnerable.
The main reason election experts, politicians and constitutional lawyers are interested in the Texas cases (four of them were consolidated for argument) is that they provide a new review of the validity of redistricting plans that one party pushes through mainly to maximize its own candidates’ success at the polls. But the Court has never settled on a constitutional principle for when there has been too much partisanship, and the key question going into the Wednesday hearing was whether Justice Kennedy has found a principle he can embrace.
The most telling comment by him came midway in the argument of the challengers to the Texas plan. Kennedy suggested that it would be “very dangerous” if the Court were to take away from state legislatures the authority to reopen a districting plan that was found to be excessively partisan. Leaving open the option of drawing new districts within a single decade, he said, would act as “a control mechanism,” with legislators on notice that if they “over-reached” in creating partisan advantage, that could be corrected. The comment suggested that Kennedy does, indeed, think that partisanship was, potentially, a constitutional problem and that legislatures needed flexibility to deal with it. His emphasis, though, was more on a legislative corrective than a judicial one.
At other points in the argument, Kennedy elaborated a bit on the thought, suggesting that if an existing plans “freezes in Democrats, or party X,” in a way that deviates noticeably from partisan registration in a state, that should not be left in place without a correction. If a court fashions a plan that freezes partisan advantage in that way, he said, that should be “a ground for a new legislature to act.” He expressed concern that that was exactly what had happened in Texas, when a court-drawn plan favored Democrats while the state moved more toward a Republican voter majority. The “DeLay map” was, in fact, a GOP-driven response to a court-ordered plan.
The challengers’ lead attorney, Paul M. Smith of Washington, D.C., tried energetically to defend the displaced court-ordered plan as fair. Experts who analyzed it, he said, found that 20 of the state’s 32 congressional districts under that plan actually had voted for Republican for statewide offices, yet six of those districts had split their votes and elected moderate Democrats for Congress. Those six were then targeted by the 2003 redistricting. Smith said that the GOP legislature then used “the mechanism of voting” to tell voters in those six districts that they can’t have Democrats representing them.
That argument seemed to make little headway with the Court, and Justice Antonin Scalia — a clear supporter of leaving the Texas plan as is — would later dismiss Smith’s defense by saying that politicians would be most interested in creating new districts that would ensure that their party’s voters did not elect candidates from the other party.
Even Justice David H. Souter, who favors some limit on partisan gerrymandering, argued that it is “impossible to take partisanship out of the political process,” and cautioned Smith that if pure partisanship were illegitimate, any manifestation of partisan spirit in politics would always be illegal.
Texas’ solicitor general, R. Ted Cruz, focused much of his argument on the claim that the court-ordered plan displaced by the “DeLay map” was “profoundly distorted” in favor of Democrats in a GOP-dominated state. That plan, he said, was “out of step with the demonstrated will of the majority, and let 44 percent of the voters control the delegation.” Those comments seemed sensible ways to pick up on the concerns Kennedy had expressed about leaving an excessively partisan plan in effect.
Cruz also had a basic constitutional point: that is, that legislatures, not courts, should be the primary actors in redistricting. If that primary responsibility were shifted to courts, he said, it would create “an incentive for every minority party to deadlock the system” in the legislature, leading the courts to step in and put into place their own preferences about redistricting.
Much of Wednesday’s argument — in fact, the bulk of it — focused not on the partisan gerrymandering issue, but on the specific validity of three districts in the “DeLay map” — one in Fort Worth area that was challenged for allegedly diminishing black voters’ political clout, the strung-out District 23 (Justice Stephen G. Breyer said it resembled a “long walking stick”) for Latino areas in the southwest, and a newly created Latino District 25 to help facilitate what was done in District 23. Of those three, only District 23 drew sustained critical comments from the bench. Kennedy, for example, said flatly: “That’s a problem for me.” He told Cruz that “you want the Court to say that it is permissible to take away enough minority voters to favor the [Republican] incumbent, but leaving enough to make it look good [as a Latino district].”
Bit parts in the lengthy hearing (unusual for its two-hour length, and for its occurrence after lunch) were Nina Perales of San Antonio, who made an unfocused argument that District 23 was an invalid racial gerrymander, and Deputy Solicitor General Gregory G. Garre, who was there to defend the validity of the three districts challenged under the Voting Rights Act.
