Remember Texas? You know, that state where the governor and Republicans in the Senate were trying to ram through a reapportionment bill over Democrat protests, up to and including fleeing to another state? They very kindly decided to back off the national stage for a while, in order that the lunacy in California could distract people from the fact that the Democrats had decided that the more effective way to fight the case would be to let the law pass, and then take it to court. And my goodness, but Texas has finally let a promisingly entertaining little genie out of its hellish little bottle, hasn't it?
HoustonChronicle.com - Texas lawmakers' job finally over -- but not the hard feelings: The Texas Senate ended a third special legislative session Sunday with a final shudder of partisan anger as it sent Gov. Rick Perry a Republican congressional redistricting plan. Perry has said he will sign the redistricting bill, which is designed to give Republicans a majority in the Texas congressional delegation. Democrats have vowed to challenge the plan in court. There also was some cross-rotunda sniping Sunday as the House sent Perry a sweeping government reorganization bill. Some House members complained that the bill was passed under threats that the Senate would kill the redistricting bill.
So let me get this straight-ish: the Republican-dominated Texas Senate threatened the Republican-dominated Texas House by saying that if the House didn't pass the governmental reorganization act, the Senate would kill the redistricting act. My, but politics in Texas are peculiar, aren't they? I mean, in most states, you just don't have parties threatening themselves in quite this way.
... Lawsuits to halt the use of the plan in the 2004 elections are expected to be filed before this week is out. "We believe this map is not fair. We believe this map is not legal," said Senate Democratic Caucus Chair Leticia Van de Putte of San Antonio. Democrats claim the map dilutes minority votes in violation of the federal Voting Rights Act. [Lt. Gov. David] Dewhurst said he believes the map will withstand federal court scrutiny. Sen. Royce West, D-Dallas, said he believes Democratic governors across the nation will now feel obligated to do congressional redistricting in their states to make up for the seats lost to Republicans in Texas. "We let the redistricting genie out on the entire country," West said.
To be sure, this is only true if the plan survives the courts. First, it needs to survive Justice department review, given that Texas is still under the Voting Rights Act consent decree. Given that the concept of the current Justice department giving this anything more than cursory review before approving the plan is utterly laughable, again, that throws it back into the courts. Regardless of who wins or loses the first and second rounds of court battles, this will certainly make it to the Supreme Court. (Where, of course, the ever so impartial Justice department will weigh in on the side of the right of Texas to do its reapportionment however and whenever it pleases.) Other states may be likely to hold off until the Court decides before making too many efforts in this direction; after all, if the Court shoots Texas down, then they'll have wasted all that time and effort. On the other hand, if the Court gives Texas' antidemocratic little plan its blessings -- which is not terribly likely (one hopes) -- then the interesting question will be: in Democrat-leaning states, can the Democrat governors and legislatures reapportion enough seats in enough ways to make up for the loss of Texas' seats, or even exceed them? Put another way: is it possible that, eventually, Texas' desire to strengthen the Republican majority in the house could actually lead to its loss? (And purely a side note: if this goes through, it's likely to lead to a very impressive kerflaffle in California, as the Democrat dominated house and legislature tries to remake their national representation. Just imagine the fun as the lege tries to convince Republican Arnold to sign that bill.)
Why, one might wonder, is it likely that even if the Justice department signs off on the plan, the Supreme Court may shoot it down?
Travis caught in remap crossfire (Austin Statesman-American, October 9, 2003): .... "My goal was to defeat as many Democratic incumbents as possible in order to give us five or six additional seats," said state Rep. Phil King, R-Weatherford, the House's chief mapmaker. "I would suspect that (any Democrat) who is not in a minority district would have a very competitive race." [...] The map unveiled Thursday allows Republicans to increase the GOP base for U.S. Rep. Henry Bonilla, R-San Antonio, by moving Democratic-leaning Latinos out of his district. To protect against criticism that the move harms Latinos' voting rights, the mapmakers paired those voters with some Central Texas voters in a new, Latino-dominated district that runs from Central Texas to the Mexican border.
It turns out that partisan gerrymandering is one of the specific grounds for challenging a redistricting plan.
How to Draw Redistricting Plans That Will Stand Up in Court Peter S. Wattson, Senate Counsel, Minnesota: ... Partisan Gerrymandering is a Justiciable Issue: ... Davis v. Bandemer involved a legislative redistricting plan adopted by the Indiana Legislature in 1981. Republicans controlled both houses. Before the 1982 election, several Indiana Democrats attacked the plan in federal court for denying them, as Democrats, the equal protection of the laws. The plan had an overall range of 1.15 percent for the Senate districts and 1.05 percent for the House districts, well within equal-population requirements. The plan's treatment of racial and language minorities met the no-retrogression test of the Voting Rights Act. The Senate was all single-member districts, but the House included nine double-member districts and seven triple-member districts, in addition to 61 that were single-member. The lower court found the multimember districts were "suspect in terms of compactness." Many of the districts were "unwieldy shapes." County and city lines were not consistently followed, although township lines generally were. Various House districts combined urban and suburban or rural voters with dissimilar interests. Democrats were packed into districts with large Democratic majorities, and fractured into districts where Republicans had a safe but not excessive majority. The Speaker of the House testified that the purpose of the multimember districts was "to save as many incumbent Republicans as possible."
That said, partisan gerrymandering isn't grounds for succeeding in a lawsuit.
The Supreme Court, in an opinion by Justice White, held that the issue of fair representation for Indiana Democrats was justiciable, but that the Democrats had failed to prove that the plan denied them fair representation. The Court denied that the Constitution "requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be," since, if the vote in all districts were proportional to the vote statewide, the minority would win no seats at all. Further, if districts were drawn to give each party its proportional share of safe seats, the minority in each district would go unrepresented. Justice White concluded that: "[A] group's electoral power is not unconstitutionally diminished by the simple fact of an apportionment scheme that makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause. . . . Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole. (Emphasis added.) . . . Such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.
THAT said, it does look like the Texas plan would fail that test. The plan was specifically designed to frustrate the will of the majority of Texas voters, who decided of their own free will to send Democrats to Congress when they could have sent Republicans. Not only that, but because the Texas Legislature did not hold public hearings on much of the process, that would seem to be effective denial -- not only to a minority of voters, but to all voters in Texas -- to influence a substantial portion of the political process.
In any event, the appeals are likely to be somewhat expedited, given that they're intended to take effect before the next election. It will somehow need to get to the Court in time to have a final opinion issued no later than March, when the Texas primaries take place.
An interesting side issue: According to the New York Times article (registration requred), Texas voters are understandably livid about what's been done to them without their consent. The Republican members of the Texas lege have quite possibly handed their voters a club with which they may well be beaten out of office. Even if the gerrymander stands and results in reliably Republican districts, the voters may decide that, yes, Republicans are quite nice ... just not THAT one.
Posted by iain at October 13, 2003 12:50 PM
