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Saturday, July 01, 2006

Law - The Texas redistricting decision

Linda Greenhouse's wrote in the NY Times Thursday, in a story headlined "Justices Uphold Most Remapping in Texas by G.O.P.":

The ruling also cleared the way for other states to join Texas in adopting the approach that was challenged in the case: setting aside the tradition of redrawing Congressional districts only after the once-a-decade census, instead using a change of political control in the state governments as reason to reshape their maps. But there was no indication that there would be any rush to do so. * * *

With only Justice Anthony M. Kennedy joining both parts of the decision, the court looked in two directions in its most important voting rights case of the decade, rejecting the statewide gerrymandering claim brought by Democrats and other plaintiffs while accepting the Voting Rights Act challenge in southwestern Texas, brought by the Mexican American Legal Defense and Educational Fund. The case produced six separate opinions, a total of 123 pages.

On the gerrymander question, only two justices, John Paul Stevens and Stephen G. Breyer, found the Texas plan completely invalid, calling it a violation of "the state's constitutional duty to govern impartially."

Justice Kennedy's opinion for a plurality of justices — on two sections of the opinion he spoke only for himself — kept open the theoretical possibility that a partisan gerrymander might someday be found unconstitutional. But that prospect appeared remote. Despite finding that the Texas Legislature appeared to have acted "with the sole purpose of achieving a Republican congressional majority," Justice Kennedy said the case did not provide a "workable test" for deciding "how much partisan dominance is too much." * * *

Justice Kennedy's rejection of the statewide gerrymander challenge, brought by Texas Democrats and others, had the support of a majority of the court for his conclusion, but not for his analysis.

Justices Antonin Scalia and Clarence Thomas agreed because they believe, as they said in a case from Pennsylvania in 2004, that claims of partisan gerrymandering were categorically invalid and could never be considered by a federal court. * * *

Justices Souter and Ginsburg agreed with one relatively minor part of Justice Kennedy's analysis, his rejection of the argument that a mid-decade plan that relied on census data from the beginning of the decade, not taking account of inevitable population shifts, violated the constitutional requirement of one person one vote.

But on the more general question of how to assess a redistricting plan for impermissible partisanship, these two justices said there was "nothing to be gained" by revisiting an issue on which the court was deadlocked. They said they would keep the issue alive for future cases but would not express a view now.

With only Justices Stevens and Breyer voting to invalidate the Texas plan as an invalid gerrymander, that left the vote on the gerrymander part of the opinion at 5-to-2-to-2.

Here is the NY Times link to the opinion, LEAGUE OF UNITED LATIN AMERICAN CITIZENS et al. v. PERRY, GOVERNOR OF TEXAS, et al. [LULAC v. Perry], lia Findlaw.

Charles Lane and Dan Balz write for the Washington Post:

Seven justices rejected at least part of the opponents' broadest contention: that the entire Texas plan is unconstitutional because the legislature rewrote a previous court-drawn map, three years after the most recent census, out of nothing more than a desire for Republican advantage.

The seven justices gave widely varying reasons for rejecting the constitutional challenge, and the court did not quite say that no such challenge could ever succeed.

But with six justices producing 123 pages of opinions, without any five of them able to agree on how to define an unconstitutional gerrymander, politicians of both parties said that the ruling leaves the door wide open to attempts to copy the DeLay strategy in other states.

"Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen," said Rep. Rahm Emanuel (Ill.), chairman of the Democratic Congressional Campaign Committee. "That's the gift that the Supreme Court and Tom DeLay have given us." * * *

The main deterrent to gerrymandering could be the sheer political bloodiness of redistricting battles. In Texas, the GOP's plan was enacted after months of drama in which Democratic legislators twice fled the state in efforts to prevent it from being voted on.

"It's a traumatic thing to go through," said Benjamin L. Ginsberg, former general counsel at the Republican National Committee. "Even if there are a bunch of seats on the table, if you've got a governor and legislature that have a program they want to put through, it really does disrupt the rest of the legislative program."

From David G. Savage of the LA Times:
The Supreme Court gave politicians legal license Wednesday to aggressively redraw election districts to benefit the party in power, as it upheld the mid-decade redistricting plan engineered by former House Majority Leader Tom DeLay and other Texas Republicans.

By clever line-drawing, DeLay and the Texas Legislature — with both houses newly under GOP control in 2003 — remade its delegation in Congress, turning a 17-15 Democratic majority into a 21-11 Republican majority in 2004.

The bold move signaled an escalation in partisan warfare.

Before, the redrawing of electoral districts had been a once-a-decade battle that followed the release of new census numbers. Under the Constitution, states are required to adjust district lines to account for population changes. Wednesday's ruling means they may redraw the lines whenever they choose, as long as they do not violate voting rights laws.

Legal experts and political strategists said the ruling would encourage Republicans in other GOP-dominated states to redraw their districts to gain more seats.

It is not clear whether Democrats will be able to do the same. In the ruling, the court emphasized that the Voting Rights Act generally forbade splitting up blocs of minority voters. That makes it harder to create more Democratic districts.

Mary G. Wilson, president of the League of Women Voters, called the decision "extremely disappointing," saying it would encourage politicians to become serial mapmakers. "We now can expect an even more vicious battle between the political parties as they redraw district lines every two years for partisan gain," she said.

The partisan nature of redistricting has inspired efforts to take the process out of the hands of lawmakers. Last year, California Gov. Arnold Schwarzenegger proposed to give a panel of retired judges the task of redrawing electoral districts, but voters rejected the idea. * * *

In the past, the Supreme Court has struck down "racial gerrymandering" and said the Constitution generally bars officials from making decisions based on race.

Politics is another matter, and although many Supreme Court justices have voiced unease over brazenly partisan gerrymandering, they have never struck down a redistricting plan as too partisan.

On Wednesday, a five-member majority said DeLay's plan, even if it were drawn for a purely partisan purpose, did not violate the Constitution and its guarantee of equal protection under the law.

The ILB has had a slew of entries on the topic of "redistricting" (use the search box to find them). This one, from Oct. 24, 2005, quotes from a Washington Post editorial:
Modern redistricting is a travesty. Politicians, using powerful computers, design districts that all but guarantee victory to one side or another. Sure, voters can go through the motions on Election Day, but few races are more than fictions. Sometimes the process is rigged to protect incumbents, sometimes to oust them, but maximizing competition and voter choice is never the goal when politicians get to draw the districts in which they or their friends will run. The result contributes to political polarization, since heavily Democratic districts tend to elect people far more liberal than average while heavily Republican districts tend to elect people far more conservative.
Well, there we are -- the Supreme Court has just said there is nothing wrong with redistricting for political advantage, even in mid-decade. So that leaves it up to us in each state.

The same Oct. 24, 2005 ILB entry links to a NY Times Magazine article titled "Who Should Redistrict?". The article explains that a commission may be the way to go, but there are infinite complexities to redistricting, even with commissioners with the most noble of intentions.

The drawing of legislative boundaries is one of the most politicized and corruptible practices in American-style government, and few people will say they approve of the gerrymandering it has unleashed. Boundary-rigging infamously kept blacks from gaining political power in the South. (One Mississippi district, mapped in the late 1870's with the single purpose of preventing the re-election of a black congressman, was 500 miles long and 40 miles wide.) In the early part of the 20th century, rural lawmakers held onto power by simply ignoring their obligation to draw new boundaries as people migrated to the cities and populations shifted, thus denying the swelling cities the political representation their numbers warranted.

The passage of the Voting Rights Act in 1965 and various rulings by the Supreme Court curtailed such egregious gerrymandering, but the practice endures -- sometimes to favor incumbents, sometimes to favor one political party over the other. Lawmakers now use finely tuned demographic information and advanced computer programs to create ''safe but slim victory margins in the maximum number of districts, with little risk of cutting their margins too thin,'' as the Supreme Court justice Stephen G. Breyer wrote last year in a dissenting opinion in a gerrymandering case, Vieth v. Jubelirer. That is what happened in California, where the deal worked out between the two parties created safe seats for incumbents. There was also, of course, the spectacle two years ago in which Tom DeLay, then the Republican majority leader in the House, orchestrated a mid-decade partisan gerrymander in his home state of Texas, which Democratic lawmakers tried to thwart by fleeing to Oklahoma and New Mexico. They failed, and of the seven incumbents defeated in Congress in 2004, four of them were Texas Democrats who had been placed in the newly rigged districts.

But while it's easy to make a case against gerrymandering, it's much harder to say how districts should be drawn. Most states require that district boundaries be revisited every 10 years, after the release of new census data and the reapportionment of the country's Congressional seats. The creation of contiguous districts is the most widely accepted and uncontroversial criterion. Every state requires contiguity, and in 1842, Congress passed the first federal law that mandated the drawing of contiguous Congressional districts. A few other rules apply: the Supreme Court decisions of the 1960's forced Congressional districts to be roughly equal in population. The Voting Rights Act also prohibits ''retrogression'' in minority voting rights in certain states and the diluting of the political strength of minority communities anywhere. But beyond these piecemeal and often vague criteria -- contiguity, after all, can accommodate serpentine shapes -- legislators are free to create the maps as they see fit.

The Supreme Court has been little help in separating raw politics from mapmaking, with the justices disagreeing on how to deal with even obvious partisan boundary-rigging. In Vieth v. Jubelirer, Pennsylvania Democrats asked the court to overturn the state's redistricting plan, which was drafted by a Republican-led State Legislature and signed into law by a Republican governor. The new map gave Republicans the advantage in 12 of 19 Congressional districts, even though Democrats outnumbered Republicans statewide. Four of the justices held that redistricting was a political matter that could never be decided by the courts. Five justices agreed that excessive partisanship in redistricting could be unconstitutional, but they didn't settle on a standard for deciding when a party had gone too far. Ultimately, the court allowed the Pennsylvania map to stand.

The Vieth case helped push the issue of gerrymandering into the hands of activists who are pursuing reform one state at a time. Even before Vieth, six states had assigned the task of redistricting Congressional seats to officials outside the State Legislature, and 12 had done so for state legislative districts. In California, Proposition 77 would give mapmaking power to three retired judges chosen in a multistep, excruciatingly choreographed process meant to ensure that both parties are represented; in Ohio, the redistricting power would go to five citizens, with a judge from each of the two major parties choosing one of the panelists. Voters in Florida are expected to take up a redistricting measure next year that would create a 15-member citizen commission.

If these initiatives succeed, people who do not hold elected office will be the ones to weigh and balance competing interests. But as Larry M. Bartels, director of the Center for the Study of Democratic Politics at Princeton, points out, changing the mapmakers does not eliminate the vexing philosophical questions behind the mechanics of electoral mapmaking. ''Should they attempt to maximize the number of competitive races or to ensure that the partisan distribution of seats in the legislature appropriately reflects the partisan distribution of votes?'' he wrote in an e-mail message. ''Is it more important for districts to have precisely equal populations or to reflect 'natural communities' defined by political boundaries, media markets or other criteria? Should they attempt to keep as many people as possible in the same districts in order to facilitate accountability, or should each redistricting cycle be treated as a blank slate?''

In other words, what are the electoral building blocks of a representative democracy? The answers are not always obvious. In Arizona, an independent commission was given the power to create ''fair and competitive'' districts. That commission drew some districts with large Latino populations, with the stated goal of giving a historically underrepresented group a stronger voice. Some Democratic and Latino groups complained that the real intention was to dilute their strength in other districts. First the Department of Justice, and later the courts, sent the mapmakers back to the drawing board. ''The problem is that people have different expectations about the outcomes,'' Bruce E. Cain, who served as a special master for the Arizona redistricting, told me. ''You can change the process, but you can't take away the controversy.''

Independent redistricting wears the cloak of a good-government reform movement, but like most things in politics, its proponents have many motives. Schwarzenegger may truly believe that it's an affront to democracy to carve the state into safe districts for incumbents, but he would also benefit from a quick change in the cast of characters in the Democratic-controlled State Legislature -- preferably in time for a hoped-for second term. (He called a special election -- costing the state $45 million -- rather than waiting until the regular statewide elections next year.) In Ohio, the group pushing redistricting is a nonpartisan organization called Reform Ohio Now. But the Democrats and union officials who dominate the group also view new boundaries as a way to break the Republican hold on both the statehouse and the Congressional delegation, and to revive a lackluster Democratic Party.

In any case, engineering districts for the benefit of incumbents or political parties seems easier to accomplish than creating more competition. Despite all the work on a new Arizona map done by the independent commission, nearly half of the State Senate seats weren't even contested in last year's election, according to the Center for Voting and Democracy, which promotes competitive elections. In Iowa, where an independent commission serves in an advisory role and is often cited as a reform model, the group found that Congressional incumbents have still won 98 percent of their re-election bids since 1982. In the end, the process had changed but the results were much the same. [emphasis added]

There is much more to the NYT article, which was written long before this week's Supreme Court decision, and also before Proposition 77, the Califiornia commission plan, failed to gain voter approval.

A reader from Lafayette wrote me last evening when he saw my post saying that I was disappointed by the Supreme Court's opinion:

I am looking forward to your post tomorrow on the "very disappointing" U. S. Supreme Court decision in LULAC v. Perry. I share your disappointment, although it may or may not be for completely different reasons.

I was hoping for one of those thrilling, historic, once-in-a-generation decisions in which our Supreme Court speaks with clarity, principle, and purpose about the basic tenets of representative democracy. This is a mission that only the U.S. Supreme Court can fulfill, because it is supposed to be beyond partisan politics. It is the duty that the framers placed upon the members of that court. It was their responsibility, as it should always be, to remind Americans that the principles of this democracy are more than just words learned in elementary school. "One person, one vote" should be more than a catchphrase. It is a fundamental right of all Americans that should have been proudly and boldly reaffirmed in this decision. None of these justices did so. Instead, the decision is a nearly indecipherable hodgepodge of criss-crossed majorities, none of which carries an issue in dispute with sufficient decisiveness that any of us can be confident what the law in this area will be when the next two new members of the court, whoever they might be, are someday confirmed.

Let's be direct: gerrymandering is wrong. Is that even in dispute? Does anyone really disagree? It is wrong because it represents an abuse of governmental power by those who seek to serve their own interests by preserving their party's control. It is designed to preserve that control even after the opposing party becomes a majority by diluting the participation of that majority in the governmental process. That Texas Republicans were "only getting even" for decades of gerrymandering by Texas Democrats may well be true. But that doesn't make it right. Gerrymandering of electoral districts impinges upon the liberties of all Americans to participate in their governance. That is what I had hoped the Supreme Court would say. Not a single justice of the court did.

I'm a Republican. Perhaps I should be happy that there are six more Republicans in the U.S. House of Representatives right now than there might have been without the mid-decade redistricting in Texas. But I would be happy to have those six seats at risk if only the gerrymandered districts in California, New York, Michigan, and other states, were also required to be redrawn fairly. Is there anything more contrived and contorted than the shape of the current Indiana 4th Congressional District? Who drew this cartographic abomination? Only a mapmaker with a supercomputer and the goal of forcing two incumbent Republican congressmen to run against each other could have come up with this one. Moreover, the creation of such distorted district shapes deprives voters of a sense of community. Voters in Loogootee and Monon may share a Congressman (for now), but each knows that it is the result of manipulation and contrivance done to enhance and preserve the power of someone they probably never had the opportunity to vote for or against.

State government in Indiana might be much more responsible, responsive, and interesting to watch if House districts weren't drawn to protect Democrats and Senate districts were not drawn to protect Republicans, as they currently are. As district lines are presently drawn, there may be no more than 4 House seats really at issue in a typical election. Imagine having all 100 House seats legitimately at issue every 2 years. Oh, hold it -- that's the way it's supposed to be, isn't it!

If only the Supreme Court justices had used this opportunity to rededicate government at all levels to service to the people. But they didn't. Not a single one.

My take for Indiana? As the reader from Lafayette writes, the answer will not be coming from the U.S. Supreme Court.

That leaves, as I see it, a constitutional amendment establishing a redistricting commission as the only answer remaining. The proposed amendment will need to be passed by the General Assembly in 2007, and again in 2009, and then go to the voters at the next general election thereafter. So the timing is bad. And as the NYT article shows, a commission will not be a cure-all.

But with the Court's ruling last week, the creation of a redistricting commission seems to be the only alternative to the staus quo. What we all learned in school is that here in the United States, your elected officials answer to the voters and if you are not happy, you can throw them out. But that is not often the case. Most legislators are in "safe" districts, so safe that the other party often may not even put up an opponent.

True, two high-profile state senators were defeated, to the great shock of most, in the past two years. But both Senators Borst and Garton were defeated by primary opponents, members of their own party, who had the support of unhappy voters who also were members of the same party. These defeat would have been extremely unlikely to happen in the general election.

Posted by Marcia Oddi on July 1, 2006 03:20 PM
Posted to General Law Related