Naked City

On Jan. 9, plaintiffs' attorneys in the federal lawsuit over congressional redistricting, following a pro forma rejection from the federal district court, filed an appeal with the U.S. Supreme Court for a stay or an injunction of the new plan, upheld in district court Jan. 6. The plaintiff's appellate brief argues that the 2-1 lower court decision erred in failing to overrule the map as a middecade "extreme partisan gerrymander"; that it misread legal precedent concerning the Voting Rights Act and therefore allowed the dismantling of protected minority influence districts; that it mistakenly considered only "intentional" discrimination as a potential violation of the VRA; and that it allowed an impermissible "racial gerrymander" in the creation of new "Hispanic opportunity" District 25, stretching from Northeast Austin 300 miles to McAllen and the Mexican border.

The brief justified a stay pending appeal of the verdict to the full court on these grounds because, it argues, more damage will be done by allowing congressional elections to proceed under the new map than to leave in place the map drawn in 2001 by a federal court. If the court agrees to take the case, the brief asserts, it should maintain the prior districts while it considers the evidence. At worst, that would mean a two-year delay in implementing the new map -- while allowing the March 9 primary to proceed using the new map would lead to yet more disruption of Texas elections in 2006 if the Supreme Court throws out or orders further changes to the plan.

Asked about the odds on the appeal, attorney Renea Hicks, who represented the city of Austin and Travis Co. as plaintiffs before the district court, said, "I'm not optimistic but I'm not pessimistic. This map is a more blatant partisan gerrymander than the Pennsylvania case [currently pending at the Supreme Court], and there are Voting Rights Act issues connected to Georgia v. Ashcroft [the decision last year that established a precedent for protecting minority "influence" districts]. And Judge [T. John] Ward's dissent, now that I've had a chance to review it in detail, is much broader than has been reported. There are arguments here for a stay ... clearly the map turns black voters into cannon fodder in the politically partisan redistricting, and that's very troublesome."

The request for an appeal initially rests with Justice Antonin Scalia, who has court responsibility for Texas. His decision is expected shortly -- the congressional filing deadline is Friday, Jan. 16. The court could also reject the stay, but agree to take the case (perhaps combining it with the Pennsylvania case), and the elections would proceed under the new map, pending the court's decision.