Justices cool to critics of '03 map

Paper: Austin American-Statesman (TX)

Date: March 2, 2006

WASHINGTON - U.S. Supreme Court justices on Wednesday appeared skeptical of whether Republicans' 2003 redrawing of Texas congressional districts was so partisan as to be unconstitutional, as claimed by Democrats.

At a two-hour hearing on the redistricting, the justices asked no questions about what Democrats had considered one of their strongest arguments: that the 2003 map wasn't based on up-to-date population data.

Several justices, however, focused their questions on GOP efforts to split Laredo between congressional districts to shore up a San Antonio-based incumbent, Henry Bonilla, while creating District 25, an Austin-to-Mexico district now represented by U.S. Rep. Lloyd Doggett, D-Austin.

The GOP removed 100,000 people, most of them Latinos, from Bonilla's district and replaced them with 100,000 Hill Country residents, most of them Anglo. To compensate, the GOP created the new District 25, which included large numbers of Hispanics along the border and in Southeast Austin.

"That justifies the creating of District 25?" asked Justice Anthony Kennedy, considered a swing vote on redistricting issues. "That, to me, is a serious . . . violation."

The court is considering whether the new districts diluted minority votes by splitting minority voters between some districts and packing them in others; whether the court has the right to intervene in partisan redistricting; and whether the map, which was redrawn in 2001 and 2003, can be altered more than once a decade if the main reason to do so is for partisan purposes.

A decision, expected by June 1, could ratify the 2003 map - or throw it out altogether if the justices decide it was unconstitutionally partisan or based on out-of-date numbers from the 2000 census. If the court finds evidence of racial gerrymandering, the justices could require the tweaking of a handful of districts in Austin, Dallas and South Texas.

The Democrats are asking the court to have congressional candidates run under the previous map, which was drawn by a panel of federal judges. That would invalidate the results of next week's primaries.

Wednesday's arguments came in an afternoon session attended by a handful of Texas legislators and many members of the Texas congressional delegation.

The 2003 redistricting, which was orchestrated by U.S. Rep. Tom DeLay, R-Sugar Land, and approved by the Texas Legislature, turned Texas' congressional delegation from a 17-15 Democratic majority to a 21-11 Republican majority. Austin was split among three districts.

The change helped Republicans increase their majority in the U.S. House and shored up DeLay as House majority leader until he was forced to resign last year when he was indicted on campaign-finance charges. His campaign activity was largely intended to help elect state lawmakers to approve the new map.

On Wednesday, the justices grilled lawyers Paul Smith, representing Democrats, and Nina Perales with the Mexican American Legal Defense and Educational Fund.

Perales accused Republicans of using race for partisan motives in violation of the 1965 Voting Rights Act, intended to protect minority voters.

Although Kennedy questioned whether Austin and border Latinos had anything in common other than their ethnicity, Justice Antonin Scalia seemed to support the state's argument that its motive in removing 100,000 Latinos from Bonilla's district was simply to remove Democrats.

"How can you possibly take out any other Democrats without taking out Latinos?" said Scalia, citing the overwhelming percentage of Latinos in Laredo.

Citing Bonilla's eroding support among Latinos over several elections, Perales countered: "You can't equate being Latino to being Democrat in District 23."

In the redistricting, Republicans left the district 50.9 percent Hispanic, which Perales argued gave "the false impression" that Bonilla, a Hispanic Republican, was elected from a majority-Hispanic district.

Chief Justice John Roberts pushed Perales to come up with a percentage that would have made the district go from "looking like a minority district" to "actually being one."

"You are asking us to draw a very fine line," Roberts said.

Texas Solicitor General Ted Cruz said the central issue is whether the Legislature or a court has the primary responsibility for redistricting.

He argued that the Legislature acted because the 2001 map drawn by a federal court continued the Democratic gerrymander of 1991.

Smith disputed that argument, claiming six Democratic incumbents won re-election under that map in districts where Republican voters dominated.

Justice John Paul Stevens discussed the legal requirement that congressional districts be physically compact. He told Cruz that he made a persuasive argument that the state can correct a past gerrymander but wondered whether the new map should be as compact as the one it replaces.

Cruz said the 2003 map, by any measure, is fairer than the one it replaced.

Justice Stephen Breyer questioned whether a Dallas-area district and the Austin-to-Mexico district were compact enough to pass constitutional muster. He described District 24 in Dallas as looking like "a long walking stick."

Several justices questioned the logic of Smith's argument that it was unconstitutional for Republicans to call for a second map just for political gains.

"Legislatures redraw the maps all the time for political purposes," Scalia said.

"It is impossible - and may be undesirable - to take the partisanship out of the political process," Justice David Souter said. "Even in districting."

Doggett, a former Texas Supreme Court justice, suggested not reading too much into questions from the bench.

"You can seldom read what the court is going to do based on the questions," Doggett said afterward. "I often asked questions that were opposite of what I thought because I wanted to test out my opinions, to see how strong they really were."

Doggett, who did not attend the Supreme Court hearing, said he "was glad that all of us in Travis County were getting our day in court that all of us have wanted for so long."

lcopelin@statesman.com; 445-2617

tcopp@statesman.com; (202) 887-8329

Author: Tara Copp and Laylan Copelin

Section: News

Page: A01