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If the court sides with the plaintiffs — who argue that the 2003 remap was excessively partisan, disenfranchised minority voters in violation of the Voting Rights Act and based on outdated census information — the court could order a number of remedies, none of which are certain.
The court could immediately scrap the current map and order Texas to revert back to the court-drawn boundaries of 2002 for this year’s elections — a move Foley said is not unrealistic, as the justices must have known this was a possible outcome when they agreed to hear the case.
The court could scrap the current map but remand the case back to a lower federal court, where the Texas Legislature might be ordered to submit a new map, either in time for this year’s elections or for 2008. It also could issue a ruling in principle that disparages the phenomenon of mid-decade redistricting but allows the current map to stay in place through the end of the decade.
“What I suspect will happen is, they will come out with a narrow opinion saying that mid-decade gerrymanders that are solely justified as an effort to maximize partisan gain are unconstitutional,” said Nathaniel Persily, a law professor at the University of Pennsylvania and expert on drawing district boundaries. “The effect it has on the current lines and the upcoming elections depends on when they issue an opinion.”
Persily said the court, if it agreed with the 2003 map, simply could have affirmed it by not taking the case, adding that the later in the year a ruling is issued, the less of a chance there is that a pro-plaintiff decision would affect the November elections.
The redrawing of House seats is constitutionally mandated to occur every 10 years using the demographic data gleaned from the decennial U.S. census, with the next one set for 2010.
But action in a number of states has been putting that mandate to the test, including a failed attempt by California Gov. Arnold Schwarzenegger (R) last year to change — in time for this year’s elections — the way his state draws its districts. There is now a bill in the California Legislature that would reform the redistricting process, removing it from the hands of state lawmakers, though if passed and signed by the governor it would not take effect until after the 2010 Census.
Ohio last November also saw the defeat of a ballot measure that would have overhauled the redistricting process.
Meanwhile, the Republican-dominated Georgia Legislature is in the process of redrawing two state legislative districts this year with an eye toward ensuring the GOP holds those seats, while Republicans in Colorado are challenging the boundaries of their state’s Congressional districts, which were drawn by a state judge after the Legislature was unable to agree on a map.
In the Colorado case, the Supreme Court last month overruled a federal court, deciding that in fact the plaintiffs do have the right to file a lawsuit challenging lines that have been in place since 2002.