Naked City

The Texas redistricting case had plenty of high drama – a mid-decade power grab by Republicans, the Ardmore and Albuquerque exiles of the Killer D's, the defeat of the most senior Democratic members of the Texas Congressional delegation last November – but it's still uncertain whether the facts also created a test for partisan gerrymandering.

A three-judge panel ruled last year that the Texas Legislature had the right to redraw the state's congressional district lines, no matter how messy or partisan that process might get. Redistricting is political by nature. But in an unexpected twist last fall, the U.S. Supreme Court vacated the Jackson v. Perry judgment and sent the case back to Texas, asking the panel to reconsider its decision in light of Vieth v. Jubilirer, a crucial Pennsylvania redistricting case.

A number of the attorneys at last Friday's hearing in Dallas, like Jose Garza, who was representing the League of United Latin American Citizens, admitted to the court that they were uncertain what to argue. Redistricting cases are, at least on the face of it, about how the voting strength of minorities is being diluted. Suddenly, lawyers who prepared entire cases on opportunity districts and changing demographics were being asked to create a test on how far is too far – politically.

Attorney Paul Smith, who represented the Jackson plaintiffs, proposed that redistricting should not be done for the sole purpose of adding partisan congressional districts when a valid congressional map is in place, separate and apart from any other consideration.

"Let's assume that under your approach, the sole intent for redistricting was because of lust in their hearts," Judge Lee Rosenthal said. "That's politicians acting like politicians for a political purpose." In other words, the Republican-drawn map was "business as usual" at the Capitol. Attorney Nina Perales of the GI Forum argued that redrawing the lines in the name of politics still ended up disenfranchising Hispanic voters and led to the dismantling of Congressional District 23, a minority opportunity district. Still, it wasn't a test the panel conceded held much water if the congressional map still met voting rights muster.

Only one argument appeared to hold the ear of the court on Friday. UT law professor Lucas Powe, who filed an amicus brief along with other UT law professors, argued that new congressional lines mid-decade violated the "one-man one-vote" provision under the law. Powe argued that a state's interests never subordinate the rights of the individual to fair representation. New mid-decade plans must use accurate demographic data in order to make sure the state has not infringed on individual rights.

Most legal scholars don't know what to make of the Vieth decision, a split decision of conflicting views from the Supreme Court on whether a partisan power grab should be mediated by the courts under any circumstances. Justices weren't satisfied that Pennsylvania redistricting met that test for gerrymandering. Texas will be next.