Vicious battles ahead after court OKs partisan gerrymandering
For several years, the Supreme Court has signaled that it is troubled by the amount of partisan, political maneuvering surrounding the congressional redistricting process. But in its latest voting rights case, the court upheld most of a controversial Texas redistricting plan, in a ruling that handed a major victory to the Republican Party and may lead to more bitter redistricting fights in the future.
The case was not a complete victory for Republicans or for the architect of the redistricting plan, former House Majority Leader Tom DeLay. The court held that the rare mid-decade redistricting, which increased the Texas Republican congressional delegation by six seats, failed to protect minority voters. In a 5-to-4 ruling, the court struck down one district near Laredo, Texas, under the 1965 Voting Rights Act because it diluted the voting strength of Hispanics. A federal court in Texas will now redraw the boundaries of that and surrounding districts.
But the court, in six opinions spanning 123 pages, rejected the broader challenge to the Texas plan, holding that there is nothing inherently unconstitutional about redrawing congressional maps in the middle of the decade in order to give one party a political advantage. The ruling opens the door for state lawmakers to redraw congressional maps whenever there is a shift in political power, instead of after the federal census at the start of each decade, as has been customary.
The ruling was a disappointment for reformers who hoped the court would rein in partisan gerrymandering, which has been blamed for a host of ills, from noncompetitive elections to increased animosity in Congress. Armed with sophisticated computer programs, legislators have drawn maps to create safe congressional districts with clear partisan majorities. And it has worked two years ago, nearly 98 percent of House incumbents won re-election.
As one North Carolina state senator put it, "We're in the business of rigging elections."
But the court, loath to involve itself too deeply in politics, has never agreed on what role it should play in limiting excessive partisanship. As in earlier cases, Justice Anthony Kennedy, writing for a plurality, held open the possibility that the court might someday declare partisan gerrymandering unconstitutional. But the court was unable to agree on any standard to judge "how much partisan dominance is too much," leaving many skeptical that it ever will.
"If you look at the last 20 years of history, the most reasonable conclusion is that the court is unlikely to intervene directly to stop partisan gerrymanders," says Adam Cox, a law professor at the University of Chicago.
Vicious battles ahead. With that in mind, the court's ruling may be seen as an invitation to take DeLay's hardball tactics to other states.
"The Republicans are obviously not going to be the only party to be taking a serious look at this," says Sarah Feinberg of the Democratic Congressional Campaign Committee. Mary Wilson, president of the League of Women Voters, says, "We now can expect an even more vicious battle between the political parties as they redraw district lines every two years for partisan gain."
Only a handful of states now have a strong enough Democratic majority to completely redraw congressional maps, though that may change after the November elections.
The 2003 Texas redistricting generated intense partisan distrust, with Democratic legislators fleeing across state lines to prevent the plan from passing. DeLay himself was later indicted on charges of illegally steering campaign contributions to Texas Republicans.
"If the lines are changing every two years, there's going to be a voter backlash," says Rick Hansen, an election-law expert at Loyola Law School. "The more it looks like the legislators are protecting themselves from competition, the more they could suffer at the ballot box."
A more likely scenario, says Robert Richie, director of the Center for Voting and Democracy, is that parties will tinker with individual districts, as has already happened in Georgia, rather than redrawing maps wholesale. "We certainly will see more of it," Richie says.
The DeLay plan itself was a response to the post-1990 redistricting in Texas, which favored Democrats, even though statewide and presidential polls showed the state trending strongly Republican. After the 2000 census, the two parties couldn't agree on a new map, and the task fell to a panel of federal judges. When Republicans gained control of the state government in 2003, they redrew lines once again.
Only two justices, John Paul Stevens and Stephen Breyer, found the entire plan to be unconstitutional. Justices Antonin Scalia and Clarence Thomas said the court should not hear partisan gerrymandering cases at all. The two newest members of the court, Chief Justice John Roberts and Justice Samuel Alito, declined to decide whether the court should ever hear such cases but ruled that there was no constitutional violation here.
On the Voting Rights Act claim, Kennedy, joined by Breyer, Stevens, Ruth Bader Ginsburg, and David Souter, held that the redistricting impeded Latinos' ability to elect candidates of their choice in Republican Rep. Henry Bonilla's district. The redistricting moved 100,000 Latino voters, who have become both more politically active and less likely to support Bonilla, out of Bonilla's district. in order to shore up support from Anglo voters
"In essence the state took away the Latinos' opportunity because Latinos were about to exercise it," Kennedy wrote.
The Voting Rights Act ruling, considered a surprise by many court-watchers, could be used to limit partisan gerrymandering, particularly in states like Texas where minorities tend to vote overwhelmingly Democratic. "I think the court is clearly troubled by these cases," says Nina Perales, the attorney for the Latino plaintiffs. "In a way, this is a roundabout way of setting some limits. The court is saying the state's policy cannot justify the effect on Latino voters."
But, for now, there seems to be little chance of a successful direct challenge to partisan gerrymandering in court. Says Thomas Mann of the Brookings Institution, "Those who are concerned about the way districts are drawn should abandon the courts."