The Texas redistricting case

The Supreme Court ruled Wednesday on the Texas redistricting case; early accounts of the decision are here:

Here is the Court's 132-page decision. It seems (there are six opinions) the court ruled that (1) multiple redistricting within an intercensal decade is permissible; (2) Texas's plainly political redistricting plan was nonetheless not a constitutionally impermissible gerrymander; (3) District 23 is unconstitutional, because redistricters reduced its Hispanic percentage for political reasons. Justice Anthony Kennedy seems to have provided the key vote on points (2) and (3).

My comments:

● Multiple redistrictings within a decade. On this issue I gather that the court ruled 7-2 that this is permissible. In my view, this was a no-brainer. The Constitution requires only that a reapportionment of House seats must take place every 10 years, after every decennial Census. (This provision was an innovation: No nation had a regularly scheduled census until the United States, and no nation had ever based representation in a legislature on a census.) Statute law requires redistricting within a state every 10 years, and long-settled Supreme Court case law, dating back to 1964, holds that the redistricting must produce equal-population districts.

Texas was redistricted for 2002 by a federal court, which applied a weird standard. The state's representation in the House was increased to 32 from 30 by the reapportionment that followed the 2000 Census. The court basically allowed the creation of two new Republican-leaning districts, but otherwise created districts that continued along the same lines as those drawn by the legislature for 1992 after the 1990 Census. The legislature and governor then were Democratic, and this was a Democratic partisan gerrymander that gave Democrats a majority of the state's House delegation even though by the mid-1990s large majorities of the popular vote for the House in Texas were cast by Republicans (Justice Kennedy begins his opinion by noting all this; he's not a political naif). The court ruled that Texas voters had a right to continued representation by incumbents who had built up seniority and could serve the interests of the state. Where the court found that right in the equal-population standard I cannot fathom. You can make arguments that it's a good idea for redistricters to favor incumbents and arguments that it's a good idea for redistricters to disfavor incumbents. But I don't think the Constitution comes out on one side or the other. That's a decision for politically elected representatives to make, not courts.

Anyway, the 2003 Texas redistricting, the product of the political entrepreneurship of former House Majority Leader Tom DeLay, adhered to the equal-population standard. It disadvantaged Democratic incumbents who had long been elected from districts that leaned Republican in presidential and other elections by removing areas they had long represented and substituting new territory, where they had a hard time winning over Republican-leaning voters unfamiliar with their records. Only one such Democrat, Chet Edwards, survived.

Texas is not the only state with a mid-decade redistricting; Georgia, where Democrats controlled redistricting for 2002, now has Republicans in control, and they redistricted in 2005. That redistricting may imperil Democrats John Barrow and Jim Marshall, but its main effect is to strengthen previously marginal Republican incumbents. Republicans tried a mid-decade redistricting in Colorado in 2003, but the state Supreme Court ruled that unconstitutional under the state constitution. That's a decision the U.S. Supreme Court can't touch, and anyway Republicans lost their majorities in the legislature in 2004.

Democrats are now threatening mid-decade redistrictings in states where they control the legislatures and governorships. But they don't stand to pick up many seats in this way. The biggest gains they stand to make would be in Illinois, which passed a bipartisan incumbent-protection plan for 2002. But scratch-my-back-and-I'll-scratch-yours politics is alive and well in Illinois, and Democratic Gov. Rod Blagojevich could lose in November. Democrats already have partisan gerrymanders in effect in Maryland and North Carolina: no possibilities of significant improvement there. They lack the state Senate in New York and the governorship in California (though that could change in 2006). There was a move in 2005 for a mid-decade redistricting in New Mexico. But the target there, Republican Heather Wilson, is already closely pressed in her marginal district, and she has the protection of Republican Sen. Pete Domenici, who seems to have prevailed on Democratic Gov. Bill Richardson not to support a redistricting in 2005. Richardson has plenty of reasons to cooperate with the high-seniority Domenici in a state with an unusually high amount of federal spending. If Democrats gain control in Ohio in 2006, a lively possibility, they might try to alter the incumbent-protection plan in effect there. But otherwise I don't see a large state that is likely to redistrict for 2008, and in small states there is no possibility of picking up more than one seat. It's the big states, like Texas, where significant gains can be made.

●Justice Kennedy, in the Texas case as in the 2004 Pennsylvania case, Veith v. Jubilirer, insists that some partisan gerrymanders can be unconstitutional but that this one isn't. That means there aren't five votes for the proposition—the sensible proposition, in my view—that redistrictings cannot be declared unconstitutional for their partisanship. Chief Justice Roberts and Justice Alito seem to lean that way but don't commit themselves. But Kennedy's position seems more theoretical than real. I've been following redistricting closely since the 1960 census cycle, and I can't imagine redistricting plans more partisan than those Kennedy approved in Pennsylvania and Texas. What plan could possibly dissatisfy him? The practical result, I think, is that redistricters will have the leeway to be as partisan as they like (or as bipartisanly pro-incumbent-protection). But these cases will also, alas, be litigated—which means that they are subjects to the whims of judges who happen to be picked, or cherry-picked, to decide the cases. That means that you will have the possibility of off-the-wall decisions like the one that produced Texas's districts for 2002. A more sensible result would be to say that if the plan meets the equal-population standard, it's OK. As I've argued before at greater length, changes in political opinion that ordinarily occur within the 10-year intercensal period can undermine the partisan purposes of any gerrymander. Redistricters can tilt the field, but the voters have their final say and the power to undo their work.

●The Voting Rights Act and the 23rd District of Texas. Here Kennedy appears to have provided the decisive fifth vote for the proposition that the Hispanic (or black) percentage in a district can't be substantially reduced without violating the Voting Rights Act. This is a mischievous ruling, in my opinion. But it's not clear, from the early accounts of the decision at least, how far it will go. Kennedy did not find fault with the 24th District, where the black and Hispanic percentages were reduced to the clear partisan disadvantage of (white) Democrat Martin Frost. Frost gamely chose to run in the Republican-leaning 32nd District and, despite a valiant campaign, was defeated. The reduction of the Hispanic percentage in the 23rd District helped Republican Henry Bonilla, who was nearly defeated in 2002 by a heavy outpouring of Hispanic voters in Webb County (Laredo)–spurred by the gubernatorial candidacy of Laredo banker Tony Sanchez. The Democrat who nearly beat him was Henry Cuellar of Webb County. In 2004, Cuellar ran in the redrawn San Antonio-to-Laredo 28th District and narrowly defeated incumbent Ciro Rodriguez in the Democratic primary. Liberal Democrats were outraged: Rodriguez had a left-liberal voting record; Cuellar was more moderate, and had been appointed secretary of state by Republican Gov. Rick Perry. In 2006, Cuellar won a rematch with Rodriguez in the Democratic primary by a larger margin than two years before.

I see nothing in the early accounts that indicates that the Supreme Court requires a redistricting of the 23rd District for 2006. The primary was already held in March. But it seems to me that the Republican legislature can easily address the problem here, by giving Bonilla more Hispanic precincts in San Antonio while giving Cuellar more territory in Webb County and in the lightly populated counties to the west. This could probably be done without hurting Bonilla (remember, his biggest problem in 2002 was Webb County) and without hurting Cuellar (who would be less vulnerable to a primary challenge with fewer San Antonio precincts).

In the long run, however, the effect of Kennedy's fifth vote for the proposition that the Hispanic (or black) percentage cannot (or sometimes cannot) be reduced will be productive of more litigation, to no clear partisan purpose. On balance, this probably helps Democrats—but remember that it was Frost, not Cuellar, who required more Hispanic voters to win the general election, and Kennedy didn't give Frost those voters. Republicans have sometimes joined with black and/or Hispanic legislators to draw districting plans with large numbers of black and Hispanic voters concentrated in a few districts, which become safely Democratic, but whose voters aren't available to help elect Democrats in adjacent districts. So on partisan terms this seems something of a wash.

But it will also provide an argument for Republicans who want to hold up reauthorization of the Voting Rights Act in the form passed through the House Judiciary Committee by Chairman James Sensenbrenner. They fear that a Sensenbrenner-drafted provision will provide courts an excuse to rule that reduction of Hispanic and/or black percentages in a district cannot be allowed if it would reduce the influence of Hispanic and/or black voters there, with "influence" being defined as the ability to elect a candidate of their choice, that is, a Democrat. This would be a one-way partisan ratchet, tending to perpetuate Democratic districts and making it harder to create marginal or Republican districts. A rebellion by many House Republicans has led Speaker Dennis Hastert to keep reauthorization of the Voting Rights Act off the floor—an embarrassment, given that he promised to pass it—and perhaps delay reauthorization until 2007, when the current act expires.