With the balance of power on Capitol Hill potentially at stake, the Supreme Court today will hear a challenge to the 2003 remap of Texas House districts engineered by Rep. Tom DeLay (R), which resulted in a 12-seat swing in the Republicans’ favor in the 2004 elections.
If the court finds for the plaintiffs and immediately throws out a map that transformed Texas from a 17-15 Democratic majority in House seats to a 21-11 minority, Democrats, who now need to win 15 Republican seats to take over the House, could see that margin cut to as few as eight.
Some election lawyers believe this is a very real possibility — and Democrats are keeping their fingers crossed.
“The Texas delegation would look a lot different this Congress were it not for Mr. DeLay’s illegal and unconstitutional redistricting scheme,” said Jennifer Crider, spokeswoman for House Minority Leader Nancy Pelosi (D-Calif.). “If the court decides in the plaintiffs’ favor, it could expand the playing field for Democrats.”
Two election law experts placed the odds at even-money that the Supreme Court will rule in favor of the plaintiffs, although lawyers associated with the defense contend that most people who get to know the facts of the case walk away believing the state of Texas is likely to prevail.
Edward Foley, a law professor who specializes in election law at Ohio State University’s Moritz College of Law in Columbus, expects Justice Anthony Kennedy to be the swing vote and said the court’s ruling could focus on the constitutionality of redrawing Congressional districts mid-decade.
“I think we’re most likely to get a narrow ruling that’s directed at this mid-decade phenomenon,” said Foley, who plans to attend today’s two-hour hearing. “I think it’s quite a tossup. There’s a good chance it goes pro-plaintiff narrowly and a good chance it goes pro-defendant narrowly.”
If forced to predict, Foley said he would bet on the plaintiffs.
But lawyer Dale Oldham, former redistricting counsel for the Republican National Committee and the attorney for a group of political scientists who filed a brief with the court supporting the current Texas boundaries, said people whom he familiarizes with the facts of the case are often surprised, based on what they’ve read in the press, at what a strong legal position Texas is in.
“This map fairly allocates the Republican votes in Texas,” Oldham said. “Democrats got 39 percent of votes last time and got 34 percent of the seats. Put on a seats-vote curve, that would mean Republicans are a seat or two short under the current map.”
The Bush administration agrees and has filed a brief with the Supreme Court in support of the defense. Under the old map, 53 percent of Texas’ House seats were drawn for Democrats, even though they received only 39 percent of the vote in the 2004 Congressional elections.
The case against Texas’ mid-decade redistricting — the results of which more accurately reflect the state’s Republican tilt — is actually a collection of four legal challenges whose oral arguments have been consolidated for today’s scheduled 1 p.m. hearing before the Supreme Court’s nine justices.
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.
“The level of attention the issue is getting is at a peak since I’ve been following it,” said Tim Storey, a redistricting analyst for the National Conference of State Legislatures. “It’s somewhat of modern phenomenon to start with. Until the 1950s, it wasn’t a regular occurrence in many states.”
In Texas, after the Legislature failed to agree on a new Congressional map following the 2000 Census — the Constitution leaves the task of setting district boundaries to the states — a federal court stepped in and set the House lines for the 2002 elections.
Enter DeLay, then the Majority Leader, who in 2003 worked with Republican state legislators in Austin to replace the court-drawn map with districts that were GOP-friendly, and helped the party win five seats in the 2004 elections that Republicans might otherwise not have picked up. A sixth seat changed hands when Rep. Ralph Hall (R-Texas) left the Democratic Party.
Redistricted out of a job were Texas Democrats such as Martin Frost, the longtime Democratic point man on redistricting, and Nick Lampson, who is DeLay’s presumed opponent this year in Texas’ 22nd district. The 2003 remap also was drawn with an eye toward expunging Rep. Chet Edwards (D), but he survived to win re-election in the new Republican-leaning 17th district.
DeLay and other Texas House Members each gave up territory from their districts as they existed at the time in order to create the additional GOP districts, which Republicans say contributed to DeLay winning re-election in the previous cycle by the smallest margin of his 22-year Congressional career.
He won in 2004 with 55 percent of the vote.
Josh Kurtz and Lauren W. Whittington contributed to this report.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.