March 02, 2006,
The Democrats continued to use race as a weapon in their fight against the Texas redistricting effort Thursday at the U.S. Supreme Court. That redistricting, led by Tom DeLay, redrew the electoral map in Texas to remedy years of Democrat gerrymandering, which even liberal justice Stephen Breyer called "much worse" than the new map. Or as Justice Antonin Scalia put it, "There is less divergence [under the new map] than the old map it just happens to go in favor of the majority."
The tactic appeared to backfire, as most of the justices seemed unprepared to overturn the judgment of a lower court that no violations of the Voting Rights Act had occurred. That didn't stop attorneys for several Democrat-leaning groups from trying to convince them otherwise. Nina Perales, an attorney for G.I. Forum (a Latino veterans group), argued that the Texas state legislature used race to create a "razor-thin" majority of Hispanic voters in Texas congressional district 23. This might be a nominal majority, she argued, but it was not enough to allow Latinos to elect their candidate of choice.
Chief Justice John Roberts asked, if 51 percent is not enough to elect their candidate of choice, what's the magic number the Court should use as a standard to guide it through these cases in the future. Perales said that the number would be different for each district apparently whatever percentage is necessary to elect a Democrat.
Under this interpretation of the Voting Rights Act, if Democrats gerrymander a map by maximizing minority districts that vote Democrat, then those districts can never be changed. If Republicans come to power and try to change the map, they are accused of violating the act by diluting the minority vote.
There was a tense moment during the oral arguments when Justice Scalia, who disagrees with the idea that courts should get involved in these partisan redistricting cases, challenged Perales on this double-standard. Near the end of her allotted time, Perales said that upholding the Texas redistricting plan would give states "free rein to use race to manipulate outcomes."
"Of course you want to use race to manipulate outcomes," Scalia replied. "Just sometimes."
Besides race, the Democrats argued that there was no need to draw a new map and that, therefore, the redistricting was entirely motivated by partisanship. After the 2000 census found that Texas was entitled to two more seats, the divided state legislature couldn't agree on a plan, so a federal court had to step in and draw one for it. However, the court-ordered map perpetuated the Democrats' unfair advantage in the state despite getting a minority of the overall congressional vote, Democrats were a majority of the Texas congressional delegation for years.
Texas solicitor general R. Ted Cruz argued that the boundaries needed redrawing in order to ensure that "a majority can elect a majority." When asked to respond to this, attorney Paul Smith argued for the Democrats that under the old map, several majority-Republican districts were electing "moderate or conservative Democrats." Unfortunately for him, this argument didn't seem as popular with the justices as Cruz's, which came with a nice set of facts and figures to back it up: Prior to the redistricting, about 40 percent of the overall congressional vote was sending a majority of the congressional delegation. Under the new map, the 60-percent majority sent the majority in 2004.
Case closed? Maybe not. In a concurring opinion in a redistricting case two years ago, Justice Anthony Kennedy left himself open to the argument that legislatures can go too far when they seek to gain a partisan advantage through the redistricting process. Nevertheless, in that opinion he argued that before the Court could rule on such cases, it needed to find a standard for determining when a partisan redistricting was too partisan. As Justice David Souter pointed out yesterday, "It's impossible to take all partisanship out of the political process." If redistricting is necessary, partisanship is the unattractive, but unavoidable, consequence.
Kennedy rejected the Democrats' argument on Thursday that this redistricting was unnecessary. He said there were "grounds for the new legislature to act" if the old gerrymandering was especially pernicious, and he warned that if redistricting were limited to only once every 10 years, the party in power at the time would be tempted to "overreach" in order to maximize its temporary advantage.
Despite the Democrats' attempts to use litigation and the race card to win a battle they couldn't win politically, the redistricting plan that cost Tom DeLay his position as House Majority Leader appears to have survived a major challenge Thursday. But even though almost the entire Texas congressional delegation attended the oral arguments, he wasn't there to see it. He probably felt that his presence would be an unwelcome distraction from the story that really mattered, which is that the redistricting plan that he fought for finally gave Texans representatives who represent them.
Stephen Spruiell reports on the media for National Review Online's Media Blog.