Justice David Souter probes whether all partisan redistricting is wrong, or just some kinds. What if it's done for partisan purposes, within the other constitutional constraints? Smith says that would just tell the majority party to go a little less crazy. Souter responds that "it's impossible to take all partisanship out of the political process."
Nina Perales then has 20 minutes to represent the GI Forum of Texas, which also opposes the redistricting. Her argument is limited to a challenge of one of the districts, District 23, as an unconstitutional racial gerrymander. She argues that the GOP moved 100,000 Latinos out of one voting district to create a "razor-thin" Latino majority to give a "false impression of Latino support."
Scalia and Kennedy rough her up with questions about what it would mean if the GOP assumptions about race and voting patterns were a mistake. What if they indeed shuffled Latino voters around, but only on the mistaken assumption that they only vote for Democrats? Scalia asks how you can remove voters from a district that is 92 percent Latino without taking out a substantial number of Latinos.
"That's my point," says Perales.
"It's my point, too!" retorts Scalia.
Perales says the only purpose of gerrymandering District 23 was to "punish Latinos for voting against [Henry] Bonilla [a Republican]." Justice Samuel Alito comes back with his only question of the day: "If the only purpose was to punish voters for getting rid of Bonilla," he asks, how does that violate the Constitution?
Ted Cruz, the solicitor general of Texas, is given 50 minutes to defend the redistricting plan. He does a great job with his main theme—that the legislatures, and not the courts, are the institutions vested with redistricting authority. He also pounds away on the theme that the Texas plan was merely a reasonable correction for what he calls the most "profoundly counter-majoritarian map in the country." He insists that when only 41 percent of Texans controlled the Congressional delegation, a central principal of democracy was violated: "that a majority can elect a majority."
When John Paul Stevens (on fire this afternoon) asks whether the new redistricting plan can be explained by anything other than politically partisan motives, Cruz slides into parliamentary debate mode, ticking off—in one breath—a "syllogism," a "false dichotomy," and a "predicate."
Stevens, Breyer, and Kennedy go on to express real concerns about the seemingly racial nature of the gerrymander in District 23. Kennedy asks if taking away just enough Hispanics so that it looks like you have left a Hispanic majority is permissible, since it "seems like an affront and an insult."
When Stevens suggests yet another possible standard for testing gerrymanders, Scalia challenges him. Stevens says he is suggesting a "safe harbor."
"A safe harbor from a non-standard," laughs Scalia.