Texas cases may lead to limits on redistricting

07:42 AM CST on Wednesday, December 14, 2005

By ALLEN PUSEY and TODD J. GILLMAN / The Dallas Morning News

WASHINGTON – The Supreme Court may be ready to ask: When is politics too political? At what point has a voter lost his or her voice?

The Texas redistricting case poses tough questions to a court that has historically shied from purely partisan skirmishes over congressional map-making.

But in agreeing on Monday to review four challenges to the 2003 Texas remap, the justices will have plenty to consider – from the rarity of a mid-decade push to redraw districts to allegations of excessive partisan maneuvering.

By taking the Texas cases on an expedited basis – arguments are set for March 1, with a decision expected by summer – the court has signaled that it may be ready to set limits after decades of throwing up its hands.

"It is perfectly possible that the court looks at this as a rebuke to the partisan political process," said David Lublin, a redistricting expert at American University. "And if that's the case, there are lots of directions for them [the justices] to go."

Mark Braden, a former chief counsel to the Republican National Committee and an attorney at Baker & Hostetler in Washington, predicted that Texas Republicans would prevail. But he agreed that the court's speedy time frame suggests some sentiment for throwing out the map.

"Everybody in the business is watching it," said Mr. Braden. "It's a tricky issue. How much politics is too much politics?"

The four cases involve a variety of plaintiffs – anxious Democratic officeholders, individual minority voters, college professors and Latino civic groups.

One suit emphasizes the dilution of Hispanic votes in and around Austin. Another questions standards used to measure whether minorities in southeast Fort Worth were disenfranchised by the reconfigured lines. A third argues that the redistricting plan should have increased the number of Latino-majority districts in South Texas.

All of the cases question the timing of the 2003 redistricting – which came after a court-drawn statewide plan in 2001 – and the use of outdated statistics to the detriment of the state's fast-growing minority populations.

"There's a little bit of everything in these cases," said Sam Hirsch of Jenner & Block in Washington, who represents several groups of Democratic plaintiffs.

Republicans defend the plan on several grounds. They note that there is one more black House member than under the old plan and that the overall composition of the Texas delegation –21 Republicans out of 32, up from 15 – better reflects the state's demographics.

Vital to the challenge is its history. The 2000 census gave Texas two additional congressional seats that were included in the initial remap. The courts entered the fray after the Legislature, where Democrats controlled the House, couldn't agree on boundaries.

Republicans took control of both chambers in 2003 and almost immediately began to reconfigure the congressional districts. Their plan – the brainchild of then U.S. House Majority Leader Tom DeLay – passed in October 2003 after three special sessions and two boycotts by Democratic lawmakers who fled the state to stop deliberations.

Democrats challenged the redrawn districts, in at least seven cases. All were rejected by a three-judge federal panel – for the last time in June 2004. Earlier, the Supreme Court rejected a similar redistricting challenge in Pennsylvania.

In that case, a split decision, four justices decided that refereeing the results of excessive partisan politics was something that the courts shouldn't attempt. Writing for three colleagues, Justice Antonin Scalia noted that the court had been struggling since 1986 with ways to define and regulate the politics of redistricting, but no "judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged."

But Justice Anthony Kennedy, though he voted with Justice Scalia and the others to reject the Pennsylvania challenge, said he was unconvinced that a standard could not be found.

"In another case a standard might emerge that suitably demonstrates how an apportionment's de facto incorporation of partisan classifications burdens rights of fair and effective representation," Justice Kennedy said.

Some experts think that the Texas cases might be what Justice Kennedy had in mind.

"It would be the earthquake through the redistricting world if they decided to place any kind of limits on political gerrymandering," said Tim Storey, a redistricting analyst at the National Conference of State Legislatures.

"The people who do redistricting, what they want out of it is more clarification about what the states can and cannot do," he said. "Even if they uphold the lower court, that tells us a lot."

One of the cases involves a loss of clout by minority voters in predominantly black southeast Fort Worth. The Republican map carved out more than 80,000 voters from the old 24th Congressional District, held for 26 years by Dallas Democrat Martin Frost. Those voters are now part of another, predominantly white district, represented by Flower Mound Republican Michael Burgess, which stretches to the Oklahoma line.

When Mr. Frost was in office, black voters in his district were numerous enough to control the Democratic primary in what was a largely Democratic district. "We've gone from playing a critical role in determining who's going to be a congressman for our community to being reduced to our vote being meaningless," said state Rep. Marc Veasey, D-Fort Worth, whose state House district was almost entirely within the old Frost district.

Several of the suits challenge the Republican use of census data. Traditionally, redistricting occurs every 10 years following release of the federal census. Once a state's map passes muster, as the 2001 Texas map did, the courts will regard it as constitutional even if the state's demographics change dramatically over the next 10 years.

By redistricting in 2003, Democrats claim, Texas Republicans played by different rules. Not only did they ignore the 10-year formula, they used outdated census figures or unreliable population estimates for the updated map.

Steve Murdock, the Texas state demographer, agrees that the state's population has shifted dramatically since the last nationwide headcount.

In the four years after the last census, Texas grew by 1.6 million, Mr. Murdock said. Moreover, populations dipped in 103 of the state's 254 counties. Rural areas shrank. Suburbs and cities grew. As of last year, the state no longer had a white majority.

"We've certainly continued to diversify," Dr. Murdock said.

But even Census Bureau estimates wouldn't be precise enough to use as a basis for redistricting, which has become so intricate that data down to each city block come into play.

Political scientist Scott Adler, a redistricting expert at the University of Colorado, said whatever happens in the Texas cases, the court appears to be interested in looking at the issue from the perspective of voters.

"The partisanship part isn't anything new. That's been going on for decades, some would argue for centuries. The mid-decade thing, that's another issue," Mr. Adler said. Does it confuse voters and disenfranchise voters by creating this uncertainty as to where they are, who represents them?"

And even Mr. Braden, who thinks the court will be unable or unwilling to void the Texas map, said because of the uncertainty, the state's Republicans shouldn't count on using the existing districts in November.

"They should be worried," Mr. Braden said.

E-mail apusey@dallasnews.com and tgillman@dallasnews.com