Hey, court: It doesn't get better than this

Paper: Fort Worth Star-Telegram (TX)

Date: March 5, 2006

On Wednesday, the Supreme Court heard oral arguments in a series of cases challenging the congressional map that resulted from the infamous Texas redistricting battle of 2003. The court now has an opportunity to take a small but significant step to return sanity to the way that congressional districts are drawn across much of the nation.

As a resident of Travis County, which is one of the petitioners in this case, I can witness firsthand the absurdity of the current map. My home near Lake Travis is in U.S. Rep. Lamar Smith's district, the population base of which resides primarily in the San Antonio suburbs. A short drive through Austin allows me to visit a district that includes the outskirts of Houston (Mike McCaul) and one that stretches 300 miles to the Mexican border (Lloyd Doggett).

Because of this, there is no single representative advocating for metropolitan Austin in Washington. Instead, there are three men who, when making decisions, have to care just as much about Houston, San Antonio and South Texas, which might have entirely different priorities.

The reason for these contorted districts is obvious in this court case: to dilute the voting power of Travis County, long a mother lode of Democratic votes. Using sophisticated statistical computer models, Republicans "cracked and packed" Democratic voters throughout the state — cracking solid bases such as Travis County into weaker sections and packing other Democratic voters into super-majority districts to make neighboring Republican-leaning districts more winnable. It's a tried and true formula that has been used elsewhere by Democrats (Georgia, California, Maryland) and Republicans ( Pennsylvania, Colorado, Michigan) alike.

But in their zeal to redraw Texas' electoral map and maximize their party's representation in the congressional delegation, Rep. Tom DeLay and the state Republicans have gone too far — and, depending on the increasingly fickle views of Justice Anthony Kennedy, the Supreme Court might agree.

Kennedy was part of a majority in the 2004 case of Vieth vs. Jubilirer, which held that Pennsylvania's contorted redistricting plan was not unconstitutional. Unlike the other four justices in the majority — William Rehnquist, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas — Kennedy did not rule unequivocally that gerrymandering for partisan purposes is always acceptable. A district map could be struck down, he wrote, if its creation was "unrelated to any legitimate legislative objective."

Kennedy, in effect, left the door open for a case that would allow the court to set a standard for what constitutes an unconstitutionally partisan redistricting. And Travis County, in the Texas case, presents just such a standard: "judicially unforced, voluntary redistricting after the first post-census congressional election cycle directed at increasing one party's position among the state's congressional delegation" is prohibited.

The basis for this is that such a redrawing violates the court's "one man, one vote" constitutional standard because it is based on outdated census data that does not accurately reflect current population distribution. The last census of Travis County showed a population of 812,280 on April 1, 2000. By July 1, 2003, the Census Bureau estimated the county's population had grown to 854,407 — that's 5 percent more people than the legislature accounted for when congressional maps were redrawn. If the state were to attempt redistricting even later in the decade, as would be allowable under the its theory, the distortions could be even greater.

Modifying a district map based on old population numbers will adversely affect people in districts that have seen significant growth since the most recent census — a clear civil rights violation that makes their votes worth less than others.

Although this standard obviously wouldn't do away with contorted partisan districts completely — those created under the normal redistricting time frame would stand — it would at least strike down insidious mid-decade redistricting.

Constitutional issues aside, such practices confuse voters by constantly shifting district lines and enflaming political passions by encouraging endless district-map battles. A previously unheard-of tactic, mid-decade redistricting is catching on, having occurred recently in Texas, Georgia and Colorado (although state courts already have struck down Colorado's plan). Nipping this destructive practice in the bud would be a welcome development.

The Texas attorney general argues that the redistricting was necessary to fix partisan gerrymandering that occurred under Democratic legislatures — and his position found some support during oral arguments from justices in the Vieth majority, including Kennedy. But this reasoning is just a legal fig leaf: The solution to one contorted districting map is not a new, equally flawed one.

Of course, the best way to bring sanity to this redistricting mess would be for states — or Congress — to reform the way that congressional maps are drawn, taking the process out of the hands of state legislatures.

Six states currently have systems that put district-drawing in the hands of independent commissions, although partisan influences still often creep in. Iowa has the only truly nonpartisan process, in which maps are drawn by legislative staff without the use of any political or election data — as anyone who looks at Iowa's simple, blocky congressional map is sure to discern.

Unfortunately, recent attempts in California and Ohio to pass ballot measures mandating nonpartisan map-drawing were strongly opposed by the majority parties and defeated at the polls. And in Congress, where protecting incumbency has been refined to an art, attempts to pass reform legislation are going nowhere fast.

So, for now, a Supreme Court decision reining in partisan gerrymandering is the best hope for progress — and Austin's best hope for going back to being represented by a single congressional seat, one once held by Lyndon Baines Johnson and Jake Pickle.

And even if the two new justices, Chief Justice John Roberts and Associate Justice Samuel Alito, side with the Vieth majority (as they seem likely to do), the decision will still likely rest in Kennedy's hands.

During arguments, members of the court showed concern about Voting Rights Act violations in several districts but spent little time discussing the partisan nature of the whole redistricting process. Kennedy expressed doubt about creating a broad rule, as he said it would be "very dangerous" if the court were to prohibit legislatures from midterm redistricting of plans that were found to be excessively partisan. But what's really dangerous are legislatures that can open the redistricting can of worms at any time, for any reason.

In his Veith opinion, Kennedy speculated that there could be a case that sets a standard for unconstitutional abuse of redistricting powers. If he doesn't think the Texas plan fits the bill, he may never find a case that does.

Anthony Zurcher is editor in chief of Supreme Court Debates magazine. Anthony Zurcher is a writer and editor living in Austin.

Author: ANTHONY ZURCHER

Section: Weekly Review

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