Partisan redistricting has been around forever, probably since the ancient Sumerians fudged the border around the Zagros Mountains to dilute the voting power of those pesky Assyrians. (Fraysters: I made that up.)
It hardly bears saying that the chief object of political power is maintaining and expanding political power. And the framers, who worried about this tendency, drafted Article 1, §4, granting state legislatures the initial power to draw federal electoral districts but allowing Congress to "make or alter" those districts if it wished. While the courts have interceded in cases of racial gerrymandering, the Supreme Court has never been able to clarify (despite loads of mulling) what role it might play in cases of purely political, partisan gerrymandering. The legal problem is, in effect, that partisan politics is fine, until it isn't. But no one knows where that line is, or what to do when it's breached.
In 2004, the high court assessed a partisan gerrymander out of Pennsylvania. Its decision in Vieth v. Jubelirer revealed the breadth of the problem. The four conservative justices insisted that the issue was "non justiciable," meaning the courts had no role to play in these fights. The four liberal justices said the matter was indeed justiciable, then laid out a raft of different standards for testing the claims. Anthony Kennedy agreed with the conservatives on the specifics of the Pennsylvania claims, but refused to close the door on all future claims of unconstitutional partisan gerrymanders. He urged that a standard to evaluate them in the future might be found. The question in today's argument in League of United Latin American Citizens et al. v. Perry et al. is whether that standard has magically emanated from the vast fog of "puzzlement and consternation" that is redistricting law.
The 2000 census revealed that Texas had the right to two more seats in the House of Representatives. The divided Texas legislature couldn't agree on a redistricting plan and the infighting and backbiting led to a judge-fashioned plan. After the 2002 midterm elections, the GOP gained control of both houses of the state legislature and the governor's office. A new map was drawn in 2003 that, seemingly overnight, led to a six-seat gain for the Republicans. An array of plaintiffs challenged the plan, arguing that it violates the principle of one man, one vote; constitutes an unconstitutional political gerrymander; constitutes an unconstitutional mid-decade redistricting; and dilutes minority votes. The district court found none of these claims had merit.
In a special two-hour afternoon session today, the four consolidated cases with their distinct claims are jumbled together like constitutional fruit salad. There is some confusion among justices and advocates alike as to when we are talking about equal-protection claims or the Voting Rights Act, District 23 or District 25, the LULAC claims or the GI Forum claims. One good rule of thumb when you are dealing with consolidated cases is to at least unconsolidate the analysis. Paul Smith has the first 40 minutes to represent the groups opposed to the Republican gerrymander. He argues that there was "only one reason for the redistricting plan, that was to maximize the number of Republicans" in the Texas delegation.
Chief Justice John Roberts immediately challenges him: If the only reason for the gerrymander was to gain political advantage, doesn't it follow that there was no discrimination based on race? Roberts presses Smith on the notion that some uses of racial gerrymandering are required by law and others are prohibited.
Smith points out that the decision to redraw the Texas map was "lacking in a legitimate purpose. There was already a lawful map in place. The only reason it was passed was to help one political party get more seats than another." Justice Antonin Scalia—who thinks politics is best served in a dirty mug—quickly quips, "That's a surprise!"
Justice Kennedy, the focus of all attention today, says: "You tell us a partisan gerrymander is bad. But then you tell us you can't correct it when it happens." He says that absent the Republican redistricting plan, the old Democratic gerrymander from 1990 is "frozen." Justice Stephen Breyer cites "factual evidence" in the record that the pre-existing Democrat-driven gerrymander was "much worse."
Scalia asks for Smith's constitutional authority for the proposition "that the only reason legislatures can reapportion districts is that there has been a census." Kennedy adds that a hard and fast rule enforcing decennial redistricting would be very dangerous. It would give legislators incentive to "overreach" and take away an important "control mechanism" to correct for that. Smith responds that there are "precious few examples" of mid-census redistricting; that the tendency is to leave the lines as they are drawn, "even if drawn by the court."
Scalia snaps, "I like how you slipped that in." He says—of redistricting done by courts—that it's a "shame for the democratic process that there are districts that have never been drawn by the people."
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.
Gregory G. Garre has 10 minutes to represent the Bush administration and Smith has four minutes for rebuttal. He warns that if the Texas gerrymander is approved, the country will be launched down a "dangerous road," wherein there's a "partisan festival" of gerrymanders, tit-for-tat around the country.
When the session ends, one thing is clear: That magical legal standard for judging when political partisanship has crossed from ordinary to impermissible? It's not been pulled out of any top hats here today. There's little to suggest that Kennedy's changed his mind after Vieth, although it also seems clear he's not yet quite ready to fling up his hands and walk away. It must be hard to just shrug and concede that even the slimiest of ideological sleaziness might, from now unto forever, just be known as "politics."