High court's hot potato: redistricting

A Texas case, argued Wednesday, could hand House seats to Democrats - or unleash more gerrymandering.

A high-stakes redistricting case is pushing the US Supreme Court into politically charged territory.

At issue: whether Republican tactics to redraw Texas congressional districts in 2003 violated election laws or the US Constitution.

A decision by the high court, which hears the case Wednesday, could have far-reaching political consequences.

Striking down the redistricting plan, which helped give the GOP a near 2-to-1 advantage over Democrats in the Texas congressional delegation, could bring as many as six congressional seats into play for the Democrats. They hope to seize control of the US House of Representatives in November. Upholding the plan, however, could unleash a new round of increasingly aggressive efforts by both Republicans and Democrats around the country to use partisan gerrymandering to try to establish one-party domination of local, state, and national politics.

"If the decision from Texas is upheld, it means effectively that state legislators can, at their will, redraw districts for purely partisan or special interest gain," says Steve Bickerstaff, a professor at the University of Texas School of Law and author of an upcoming book on the Texas redistricting effort.

Both sides bring sharply divergent perspectives about the case to the high court.

Lawyers for the Republicans say the redistricting plan was an effort to counteract decades of blatant partisan gerrymandering by Democrats when they controlled politics in Texas.

"This case is fundamentally about democracy," says Texas Solicitor General R. Ted Cruz in his brief to the court.

"Nonsense," replies Paul Smith in his brief on behalf of Texas Democrats. "This was not some bipartisan effort to reallocate districts equitably," he writes. "Orchestrated from Washington, it was one of the most notorious partisan power grabs in our history."

The saga of the Republican plan to redraw Texas voting districts has more twists and turns than a rattlesnake on hot asphalt. A primary architect of the plan, then House majority leader Tom DeLay, has since stepped down from his powerful post. He is facing both a tough reelection effort and a pending indictment on charges that he funneled illegal campaign contributions to Republican statehouse candidates who later voted for the redistricting plan.

Once Republicans took control of the Texas statehouse and redrew the political map of Texas, Democrats responded by going into hiding - twice - to prevent a quorum. First they retreated to Oklahoma, and later hid out in New Mexico.

Ultimately the plan was approved. The new districts replaced a plan drafted by a three-judge panel in 2001 after lawmakers had deadlocked on how best to redraw the Texas districts.

The case is actually four separate appeals consolidated for two hours of argument at the high court. It confronts three major issues. First, does the Constitution limit state lawmakers to redrawing election districts only once every decade following the new census? Or are they free to shuffle voting districts, as Texas Republicans did, whenever they perceive it might yield a partisan advantage?

Second, can a partisan gerrymander become so excessively political as to render it unconstitutional?

Third, did the Texas Republicans violate either the Voting Rights Act or the Constitution's equal-protection clause by allegedly diluting minority voting strength while redrawing election districts?

The first two issues offer the potential for landmark decisions should the high court unequivocally answer those questions in ways that apply across the country, legal analysts say. The minority voting-rights issue, while significant in the affected district or districts identified by the court, would merely involve the application of principles already established by the courts, analysts say.

"The area that could be a blockbuster - but I wouldn't want to bet that it will be - is the general question of gerrymandering," says Daniel Lowenstein, an election law expert at UCLA School of Law.

The Supreme Court last considered the issue of excessive partisan gerrymandering two years ago in a case involving a redistricting plan in Pennsylvania. In that case, the justices split on whether judges should be involved at all in second-guessing the partisan implications of drawing new voting districts.

Four justices said they should not be involved since there was no clear standard by which to determine when a plan is excessively political. Four other justices said they should be involved in policing such efforts, but they disagreed on what the standard should be.

Justice Anthony Kennedy - the potential swing vote in the Pennsylvania case - straddled the fence. Many analysts criticized him for saying that while he could not identify a standard to judge political gerrymandering cases, he wasn't prepared to close the door on the possible emergence of such a standard. Justice Kennedy may be the swing vote in the Texas case, too, they add.

The decision left lower court judges with even less guidance then they had before the Pennsylvania case. Some legal analysts say that perhaps Kennedy sees an opportunity to resolve that issue in the Texas case. But others say Kennedy would likely want to avoid that area of the law until the court is prepared to speak forcefully.