Justices express skepticism in Texas redistricting case


WASHINGTON -- Supreme Court justices signaled yesterday that they are likely to uphold the Texas redistricting plan engineered in 2003 by former House Majority Leader Tom DeLay.

DeLay's plan gave the Republicans six more seats in the House of Representatives and helped lock in the GOP majority. But the plan was criticized for its brazenness, because district lines are usually drawn only once a decade after the new census shows how the population has shifted.

Democrats and civil rights activists appealed to the high court in hopes of undoing DeLay's plan, alleging that what they termed a "partisan gerrymander" was unfair and threatened to poison politics in other states.

But during oral arguments yesterday, most of the justices said that partisan politics is a fact of life in the drawing of electoral districts. Moreover, several said the current Texas congressional districts are no more skewed in favor of Republicans than the previous plan from the 1990s unduly favored Democrats.

Two years ago, about 60 percent of Texans voted Republican in the congressional elections, and Republicans won 21 of 32 congressional seats - about 67 percent. In 2002, before the districts were redrawn, Democrats won 17 of the 32 seats, even though a majority of Texans voted Republican.

Justice Anthony M. Kennedy, who was seen as a swing vote in the case, said he was not convinced that the current plan is unfair. Had the Texas Legislature not redrawn its districts, it would "leave in place something that is slanted in favor of the Democrats," he said.

"It seems to be odd" to say it is unconstitutional for a majority party to "correct" election boundaries that favored the minority party, he said.

It is an open secret in politics that the drawing of election districts can determine who wins. And a skillfully drawn redistricting plan can enable the majority party to lock in a certain number of congressional seats for a decade.

In 2001, the Texas Legislature was deadlocked and unable to redraw its districts. Democrats had control of the state Senate, while Republicans controlled the House.

When the Legislature failed to act, a panel of judges redrew the Texas districts. Their plan made relatively few changes, and it allowed longtime moderate Democrats to win re-election in 2002, even though their districts leaned in favor of Republicans.

After Republicans took control of both houses, DeLay moved in 2003 to redraw the districts. His plan pitted incumbent Democrats against each other, or moved them into heavily Republican districts, virtually ensuring their defeat.

Nonetheless, Justice Ruth Bader Ginsburg noted that the Texas Legislature had adopted new districts once, not twice.

"This was the first redistricting done by the Legislature," she told a lawyer for the Democrats, suggesting that it was not unusual or unprecedented.

Justice David H. Souter, who like Ginsburg has expressed concern about partisan gerrymandering in the past, also signaled that he was not convinced that Texas had crossed the line into unconstitutional action.

"It is impossible to take partisanship out of the political process," he said.

The tenor of yesterday's argument dashed the hopes of those who believed that the Supreme Court was ready to rein in partisan gerrymandering.

However, Kennedy and Justice John Paul Stevens said they were troubled by one aspect of how the Texas plan was drawn. Both said Latino voters were moved around by the Republican Party in southwestern Texas and were not given a voting majority in one district.

In the past, Kennedy and the court's majority have voted to strike down "racial gerrymandering" on the theory that the Constitution forbids the state from using race as a decisive factor in government decisions. It appears that "race was used in a predominant and insulting way" in drawing certain South Texas districts, Kennedy said.

His comment suggested that the justices might declare unconstitutional one or two Texas districts because race and ethnicity played too large a role in how the lines were drawn. Justices mentioned Districts 23 and 25 as of possible concern.

But the state's lawyers say that such a decision would be limited and would not require that districts be redrawn statewide.

The issue of partisan gerrymandering has troubled the court for decades, but the justices have always stopped short of striking down electoral districts for being too partisan.

In the 1980s and again in the 1990s, Republican lawyers urged the high court to strike down the electoral districts in California because they gave Democrats an unfair advantage. In the end, the justices took no action.

Two years ago, the justices raised the hopes of political reformers when they took up a challenge to a Pennsylvania plan that gave the GOP a 12-7 edge in House seats, even though the state leaned slightly Democratic. Nonetheless, the court upheld the Pennsylvania plan in a 5-4 vote.

A decision on the Texas plan is expected in several months.

David G. Savage writes for the Los Angeles Times.

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