On Wednesday, March 1, the Supreme Court heard two hours of oral arguments in the infamous Texas congressional re-redistricting case. The Court might set important precedents on partisan gerrymandering and the permissibility for states to redistrict more than once a decade. More likely, the Court will narrowly rule on race issues surrounding Texas minority-majority districts.
The Texas re-redistricting saga began in 2001 when a divided Texas legislature could not agree on a congressional map. A federal court then drew a map favoring the status quo, which enabled conservative Democratic incumbents to hold their seats in 2002. Rep. Tom Delay's money-laundering indictments relate to his efforts to secure a Republican legislative majority that would enable a re-redistricting for 2004. Democratic state legislators' highly publicized flights from the state to prevent a legislative quorum followed, but they were unsuccessful at blocking Rep. Delay's new map. Without the re-redistricting, in 2004 Democratic incumbents might have held on to perhaps five more congressional seats in Texas, making it slightly easier for Democrats to win a House majority in 2006.
The case now comes before the Court a second time. Despite recent Court turnover, Justice Kennedy represents the swing vote. In his separate opinion the first time the case was heard, Justice Kennedy indicated he wanted a partisan gerrymandering standard. But no new standard has arisen since. Despite the naked political power displayed in Texas, the justices' comments during the oral arguments indicate they are unlikely to find the Republican partisan gerrymander unconstitutional.
The Court is also unlikely to find re-redistricting unconstitutional. The justices' comments reflected a deference that the courts generally give to elected officials on political questions. This is unfortunate. Excepting constitutional defects with a map, the only reason for a state government to alter a legal map is for political purposes. If gerrymandering troubles Justice Kennedy, limiting states to one bite at the apple per decade is a sensible way to reduce political mischief.
Congressional re-redistricting has occurred in Georgia and Texas and state legislative re-redistricting has occurred in New Hampshire and South Carolina. This week Georgia enacted a new state legislative map that splits Clarke County, where the University of Georgia is located, to aid the election of another Republican state senator. Lacking Court intervention, more of the same seems in store where state law does not prohibit it.
If the Court overturns the Texas map, they will most likely do so on race issues. The justices probed the lawyers most deeply on race issues surrounding three districts.
First there is District 23, currently represented by Republican Henry Bonilla. While Rep. Bonilla is Hispanic, he is not supported by the Hispanic community; only about 30 percent voted for him in 2004. To aid his reelection, redistricting lowered the Hispanic voting-age population from 63 to 51 percent. The Court might rule here on the permissibility of mixed motivations of race and partisanship during redistricting.
Other issues arise with former Democratic Rep. Martin Frost's District 24, a minority-majority “coalitional” district where African Americans and Hispanics together comprised 61 percent of the voting-age population. This district was unraveled to pave the way for Rep. Frost's defeat. (Rep. Delay's vulnerability, besides the ethics issues, involves absorbing some of Rep. Frost's Democratic constituents into his district.) The Court might rule here on the protected status of such coalitional districts.
Then there is District 25, created to offset the loss of minority-majority District 24. District 25 strings together two Hispanic communities in the southern and northern ends of the district, which stretches from the Mexican border to Austin. Justice Kennedy seemed interested that District 25 was much less compact than the district it replaced, District 24.
If the Court overturns the map, they will likely do so quickly so a new map can be fashioned for this year's elections. Early voting for Texas' Tuesday, March 7 primary proceeded even as the Court heard the case. Beyond causing election administration headaches, overturning the map would result in new court-ordered primaries and may affect a limited number of election contests.
Those hoping the Court would boost Democratic chances to win a House majority in 2006 will be disappointed. Republicans can likely fashion a new map addressing any race-related defects without affecting the partisan composition of Texas' congressional delegation. At best, Democrats might get back Rep. Frost's seat or their chances might be improved in Rep. Bonilla's district.
Things could also get worse for Democrats: Republicans could use a court-ordered re-re-redistricting to shore up Rep. Delay, Rep. Bonilla, or even Rep. Henry Cuellar in his Democratic primary against former (and more liberal) Rep. Ciro Rodriguez, whom he defeated in 2004.
Reformers who hoped the Court might articulate a reasonable re-redistricting or partisan gerrymandering standard will be disappointed, too. Reform will have to come through state action. Despite redistricting reform defeats in California and Ohio last year, meaningful electoral reform activity continues there and elsewhere. But it will be a long road to remove politics from our election administration, as is done in every other advanced democracy in the world.
Michael P. McDonald is an assistant professor at George Mason University and a visiting fellow at The Brookings Institution. He studies American voting behavior and the electoral system.