It’s Alive

How the redistricting battle was brought back from the dead.

Didn’t the redistricting controversy end three years ago?
Yes. And wasn’t Leatherface killed in The Texas Chainsaw Massacre III ? Redistricting battles, like great Hollywood slasher villains, have a habit of coming back to life. A recap of the recent theatrics: In 2001 the Legislature was unable to reach consensus when it tried to redraw Texas’s congressional districts based on the new national census. The task was then handed over to a panel of three federal judges, who created a map later that year. When the Republicans gained control of the Legislature in 2002, they argued that the map didn’t reflect their true voting power (the congressional delegation was still split 17—15 in favor of the D’s), so they designed and approved a new map in 2003. The result: R’s 21, D’s 11—and a series of relentless Democratic challenges in court.

How have the court challenges played out so far?
The Republicans have successfully defeated every one of them. However, a ruling last June produced seven appeals, and this March the Supreme Court heard four of them. In the Democrats’ corner were Travis County and the League of United Latin American Citizens, among others; in the GOP corner were the Bush administration, Texas attorney general Greg Abbott, and the Republican Party of Texas, among others. A ruling isn’t expected until June.

What arguments were presented against the GOP map?
Among the thousands of pages of appellant briefs, there is seemingly no end to the Democratic beefs. (Sorry.) Three are most relevant: First, the appellants argued that the map violates the Voting Rights Act, which prohibits the dilution of any minority group’s voting power. The removal of 100,000 mostly Hispanic voters from House District 23, represented by Laredo Republican Henry Bonilla, is one of several examples they cite. A second argument was that the 2003 map violates the Constitution’s “one person, one vote” equal-protection clause, because it was drawn mid-decade based on three-year-old data from the 2000 census. Specifically, Hispanic groups say the map doesn’t account for the 1.3 million new Texans—the majority of whom are Hispanic—who arrived in the state between 2000 and 2003. Finally, the appellants argued that the 2003 map represents unconstitutional partisan gerrymandering—defined in one brief as redistricting “enacted solely to skew future election results in favor of one political party.”

What was the Republican response?
First and foremost that they needed to fix the map because the 2001 redistricting plan “indisputably perpetuated an egregious Democratic gerrymander from the 1990s.” (Read: Two wrongs make a right.) They also claimed that they couldn’t have violated the Voting Rights Act because their map increased the number of minority-majority districts from eight—six Hispanic and two African American—to nine. Newly created House District 9, represented by Houston’s Al Green, added a third African American to the Texas delegation. As for whether the 2003 redistricting was politically motivated, the Republicans point out that the Constitution never specifically addresses the “fairness” of redistricting and does not prohibit redistricting from taking place in the middle of a decade either. (Read: We can do it because no one says we can’t.)

What was the Supreme Court’s stake in all this?
Given that the justices allotted an extra hour for the March hearing and that they upheld a contested map from Pennsylvania in 2004, it seemed unlikely that they took the Texas case just to repeat themselves. In the Pennsylvania case, the court was split over whether it had the right to intervene on the question of partisan gerrymandering. The deciding vote to affirm that map was cast by Justice Anthony Kennedy, whose opinion nonetheless left the door open for revisiting the issue. The Texas case was expected to offer a chance to do that. But during the March hearing, Kennedy, along with other justices, seemed skeptical that the 2003 map represented unconstitutional political gerrymandering.

What are the possible outcomes of this summer’s ruling?
The court could uphold the map, as many observers now predict. Or it could conclude that it contains violations of the Fourteenth Amendment; that scenario, however, wouldn’t mean throwing out the GOP map entirely. Rather, the Legislature could probably hold a special session and simply fix the districts in question. Or, in the most extreme and unlikely outcome, the court could conclude that the “one person, one vote” constitutional requirement has been violated or rule that this is a case of unconstitutional partisan gerrymandering—either of which could mean that it tears up the GOP map altogether.

Then what happens?
It’s anyone’s guess, but expect some chaos. After all, reverting to the 2001 map could help the Democrats chip away at GOP control of the House this fall. It would also make March’s party primaries irrelevant; new primaries in the old districts might be required. And between the incumbent Republicans who took office as a result of redistricting and the Democrats who lost their seats for the same reason, we could witness Texas’s nastiest game of musical chairs yet. Reverting to the old map is everyone in the GOP’s worst nightmare—except, that is, for Tom DeLay, the man who orchestrated the effort. DeLay generously gave up thousands of loyal Republican voters when his district was redrawn, and he is now in a close race. But if Texas uses the 2001 map this November, he is likely to have a better shot at survival. In other words, DeLay appeared to be dead, but prepare for his resurrection in the sequel.

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