Hold the Line
The Texas redistricting case is not a winner for Democrats.
Democrats around the country were delighted when the Supreme Court recently announced it would hear a set of challenges to the controversial Tom DeLay-inspired re-redistricting of Texas's congressional districts—a move that helped ensure continued Republican dominance of the U.S. House of Representatives. Supreme Court review holds out the hope that the court will strike down the districts, perhaps leading to some Democratic gains in Congress. But it is not at all clear that a ruling to strike down the districts is good for Democrats, or for the country as a whole, in the longer term. If the court begins to scour redistricting plans for partisan unfairness, it will be another step toward solidifying Supreme Court control of the political process—something that should seem a little less palatable to Democrats, if they think back to Bush v. Gore.
Democrats point to some of the more sensational details about the Texas redistricting. It occurred in the middle of the decade, as opposed to after the census as mandated by law, and overrode a court-drawn plan enacted after the state legislature could not pass a plan. Democratic legislators in the Texas legislature famously fled to neighboring states in an effort to deny the legislature a quorum to enact the re-redistricting. The Federal Aviation Administration, at Tom DeLay's request, became involved in tracking down planes transporting the legislators. In the 2004 election after the re-redistricting, Texas sent 21 Republicans to Congress and only 11 Democrats.
But Republicans tell a different story: that of a state grown increasingly Republican in orientation, yet still sending more Democrats than Republicans to Congress, thanks to an earlier Democratic gerrymander and a later federal-court-drawn plan that tried to stick to that gerrymander as closely as possible. To them, the DeLay re-redistricting was a corrective put into place once Republican legislators had gained control of the state legislature. In 2000, when Democrats sent 17 members to Congress compared to Republicans' 13, Republicans captured 59 percent of the vote for statewide office, as compared to the Democrats' 40 percent, according to the district court.
Both stories have some truth to them, but putting aside any differences over the nuances of the facts, we can still draw larger conclusions worth contemplating. Let's call what happened in Texas a naked power grab by a self-interested Texas legislature based on the determined effort of Tom DeLay. Should that power grab be unconstitutional, or instead merely a reason to vote out those legislators who supported the distasteful plan?
The problem with such reasoning is that it would invalidate most redistricting done by most legislators in the United States, which are almost always the product of self-interest. How do legislators draw districts? They must comply with the one person, one vote, equal population standard and the Voting Rights Act. State law sometimes imposes certain limits on legislative districts. Beyond that, most legislators care about getting themselves re-elected and securing party advantage. Redistricting is an inherently self-interested act, and if bad intent were the test for unconstitutionality, scarcely any districting plan enacted by a state legislature would be upheld. Even so-called "sweetheart" or bipartisan gerrymanders would be constitutionally suspect, because they would be the product of legislative self-interest, too.
It is hard to believe that even an activist Supreme Court has the stomach to declare all legislatively enacted redistricting unconstitutional, so we might try coupling a "bad intent" test with a "bad effects" test: For example, if a state contains a majority of Democrats but keeps sending many more Republicans than Democrats to Congress, that might raise a constitutional problem. In those cases, the legislature was not merely acting in its own interest, but had also skewed the results. The trouble with applying this test in the Texas case is that there do appear to be more Republicans than Democrats in the state. The argument applied to Texas would have to be extended to something like a requirement of rough proportionality between a party's support and the shape of the congressional delegation: Texas deserves a majority Republican delegation, the argument goes, but not this big a majority.
The Supreme Court wrestled with similar questions only last year in a redistricting case from Pennsylvania, Vieth v. Jubelirer, and the court split 4-1-4 on the issue. Four justices (including the late Chief Justice Rehnquist and Justice O'Connor, who likely won't be on the court to decide the Texas case) voted that all such claims should be "nonjusticiable," that is, unreviewable by the courts for a lack of any "judicially manageable" standard to separate permissible from impermissible partisan gerrymanders. Four dissenting justices put forward a series of alternative tests by which to judge partisan gerrymanders, with some more focused on bad intent and others on bad effect. Justice Kennedy, the swing voter, rejected all the standards put forward by the dissenters, but also agreed that these cases should still be heard, leaving the law in limbo. As a result, plaintiffs today get to raise their partisan gerrymandering claim in court, but no one knows what the legal standard is. The lower court in the Texas case said that the "light offered by Vieth is dim and the search for a core holding elusive."
The grant of a hearing in the Texas cases was a big surprise, because the court had considered whether to hear it six times in its conference before issuing its order, and it did so without asking the state of Texas to respond to the original pleading (after the state initially waived its right to do so). It also expedited consideration of the case and set it for twice the normal argument time on March 1.
The court's order could be a signal that Justice Kennedy has made up his mind one way or the other and is ready to provide some clarification of the law after the murky holding in Vieth. If not, the law would remain in limbo unless Chief Justice Roberts (or Judge Alito, if he is confirmed) supports the dissenters' view that courts begin to rein in some partisan gerrymanders.
A court striking down the Texas redistricting scheme on grounds that party interests were taken too much into account might have the short-term benefit for Democrats of giving more seats in Congress. But in the long term, Democrats should be wary of a Supreme Court that injects itself too heavily into the political process. The issue is not just the specter of the unusual circumstances of Bush v. Gore, where a 5-4 Supreme Court essentially ended the Florida recount in the 2000 election, handing the election to George Bush over Al Gore. A conservative court (again 5-4) also started striking down Democratic minority districts in the 1990s on grounds that race played too prominent a factor in redistricting. In those cases, beginning with Shaw v. Reno, the court struck down districts even though there was no proof that anyone's voting power had been diluted. The court was there concerned about appearances. The court also (yes, on a 5-4 vote) recently reinterpreted Section 5 of the Voting Rights Act to make it much easier for those jurisdictions with a history of racial discrimination to get their plans approved by the Justice Department.
More election-related activism is potentially on the way: The court this term will hear two campaign-finance cases, which could potentially open the door to its throwing out longstanding limits on corporate and union participation in the political process. And it's widely expected that the court will consider a major constitutional challenge to Congress' power to renew those provisions of the Voting Rights Act that come up for renewal in 2007.
The alternative to all this election-law activism is a more modest Supreme Court that acts only to preserve core equality rights, like the right to vote without having to pay a tax. When the court acts in a contested area like partisan gerrymandering, it imposes a one-size-fits-all solution on the entire nation that cannot be changed without a constitutional amendment. Rather than intervening, the court should be willing to let the political process work things out. Congress can pass legislation putting the brakes on partisan gerrymandering (at least when it comes to congressional redistricting) and states with the initiative process can enact redistricting reform. The political process is not, in other words, "stuck" in this area, as it was when the Warren Court set out the one person, one vote standard. Then, state legislatures had no incentive to reapportion grossly malapportioned districts that favored farm areas over urban and suburban areas. In contrast, election reform is now a common ballot topic in the 24 states with initiatives; some redistricting-reform initiatives pass and other fail. More states now have redistricting commissions, which generally seems like a good idea. But the commission structure and criteria for redistricting differ from state to state, and appropriately so.
There are other ways for the Supreme Court to decide the Texas case in favor of the Democrats without creating a broad right to contest partisan gerrymandering. It could craft a special rule for mid-decade redistricting. Or it might find a Voting Rights Act violation based on allegations that the plan discriminated against minority voters. We learned from documents recently leaked to the Washington Post that career attorneys at the Justice Department believed the Texas redistricting violated minority voting rights, and for this reason the Texas re-redistricting should have been denied preclearance under the Voting Rights Act, a determination later overruled by Bush administration political appointees. Although the DOJ decision itself is not before the Supreme Court, concerns about minority voting rights alone could provide a narrower basis for the Supreme Court to overrule the Texas case.
But Democrats claim grandly that they want standards to rein in partisan gerrymandering. They should be careful what they wish for. If the court strikes down the Texas plan as an unconstitutional partisan gerrymander, Democrats might not be as happy when the see the next election-law rulings by the Supreme Court. As the Roberts Court begins its foray into the political thicket, we should all hope it moves slowly and cautiously.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.