Supreme Court to weigh Texas redistricting

It has agreed to hear four cases on partisan shaping of districts.

The US Supreme Court has stepped smack into the middle of a highly contentious political battle in Texas over redrawn congressional election districts.

In a surprise move Monday, the justices announced that they would examine the constitutionality of a Republican effort in 2003 to redraw voting districts in a way that heavily favored Republican candidates. The plan, masterminded by then-House Majority leader Tom DeLay, helped the Texas GOP win a 2-to-1 advantage in congressional seats while igniting all-out partisan warfare with state Democrats.

In agreeing to hear two hours of argument in four different appeals dealing with the Texas redistricting plan, the high court is poised to confront to what extent the Constitution permits blatant partisanship in redistricting.

In addition, the court could use the case to confront whether districts can be redrawn whenever a state legislature wants or must only be redrawn once every 10 years, when new census data is available. The court will also examine to what extent the concept of one-person, one-vote supersedes partisan considerations in redrawing election districts.

"The problem in these cases is that fundamentally it is all just a matter of degree: How much partisanship is too much partisanship," says Nathaniel Persily, an election-law expert at the University of Pennsylvania Law School.

Election law experts say they were surprised the high court took up the issue after considering it in five earlier conferences without taking action. Some analysts said the decision might have been influenced by recent press reports revealing that career lawyers in the Department of Justice had objected to the 2003 Texas redistricting plan, but that those objections were overruled by political appointees at the department.

In addition to those reports, voting rights and redistricting have been very much in the news recently. Professor Persily called the confluence of events a "perfect storm" scenario.

Questions have recently arisen about the commitment of Supreme Court nominee Samuel Alito to the one-person, one-vote rule based on a memo he wrote while working as a lawyer in the Reagan administration. By accepting the Texas case, the high court has guaranteed Judge Alito will face even closer and more aggressive scrutiny on the issue in his confirmation hearings.

The Texas redistricting plan is also at the center of Mr. DeLay's September indictment for allegedly violating Texas campaign-finance laws. The campaign funds in question were being used to support Republican candidates for the newly drawn districts.

The case arises as DeLay's lawyers push for a speedy trial in Texas in the campaign-finance case and as the 2006 congressional elections fast approach. Arguments in the Supreme Court case are likely to take place this spring, with a final decision by late June.

The case is being closely watched because it could set a national standard for redistricting, a standard that could invalidate districts across the country.

Texas Democrats filed seven different appeals to the Supreme Court asking the justices to examine whether gerrymandering by the Texas Republicans was so tainted by partisan considerations that it violated the constitutional guarantee of one person, one vote.

The Supreme Court attempted to address the political gerrymandering issue in April 2004 in a case called Vieth v. Jubelirer. It involved a challenge to a redistricting plan drawn up by Republicans in Pennsylvania.

In that case the justices split 4-4 on whether the courts had authority to second-guess statewide redistricting plans. The court's conservative wing held that lawsuits challenging political gerrymanders were outside the court's power to address because no manageable standards exist to demonstrate when political considerations go too far in the line- drawing process.

The court's liberals disagreed. They said that some standard could be applied, but they could not agree among themselves on what that standard should be.

Justice Anthony Kennedy, the key swing vote in the Vieth case, sided with the conservative wing that the challenge to the Pennsylvania gerrymander should be dismissed. But he declined to join the conservative wing in foreclosing any future judicial involvement in policing political gerrymandering.

Now with the acceptance of the Texas case, all eyes are on Justice Kennedy.

"The decision to accept this case suggests that Justice Kennedy may have decided that some partisan gerrymanders go too far," Persily says. "Perhaps he has come up with some administrable standard to say when partisanship becomes too much partisanship."

Shortly after the court announced its ruling in the Pennsylvania case, the justices summarily affirmed the decision of a three-judge panel that had struck down a redistricting plan in Georgia. The panel had ruled that the newly drawn districts designed to favor Democrats violated the principle of one person, one vote.

When the appeal of the Texas case arrived at the Supreme Court, the justices remanded the matter back the three-judge panel in Texas with instructions that they should reexamine their decision upholding the redistricting plan in light of the high court's ruling in the Vieth case. It is unclear why the remand order referred only to the Pennsylvania case without mentioning the Georgia case as well.

Nonetheless, the Texas panel addressed issues raised in both cases and concluded that the 2003 redistricting plan did not violate constitutional safeguards. The court said there was no meaningful way to gauge a constitutional violation.

"We conclude that claims of excessive partisanship before us suffer from a lack of any measure of substantive fairness," wrote Judge Patrick Higginbotham for the three-judge panel.

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