Among many important cases that the Supreme Court will be considering this spring is the Texas redistricting case, LULAC v. Perry. The litigants claim that the Texas redistricting plan of 2003 unfairly suppresses the political opposition and deprives millions of state residents of any effective franchise. But as we say in Texas, "This dog won’t hunt." In fact, a close examination of the facts reveals that this suit is most likely a case of partisan sour grapes.
The Supreme Court will be looking at three specific issues: the question of what standard should be used in judging whether partisan gerrymandering is excessive; whether it is lawful for a state to undertake more than one round of congressional redistricting in a single decade and finally whether the plan itself properly complies with the Voting Rights Act.
But what’s really at stake here is whether state legislatures should have the primary right to draw their own state redistricting plans or whether the plans should be decided by judges as a result of the legal machinations of partisans and special interests.
First a little bit of history. Since the late 1980s the state of Texas (like many of the states of the South) has experienced a significant tilt toward the GOP and each subsequent year Texas voters have moved more in the GOP’s direction. Starting at the top and slowly filtering down, Texas shifted from being a state that supported conservative Democrats to one which supports conservative Republicans. Much of this loss for Democrats in Texas can be laid at the hands of the leftward lurch of the national party in the 60’s and 70’s.
But whatever the cause the dramatic shift is real. Since 1972, Democrats have carried Texas in a presidential election once. And while at one time the party was competitive in gubernatorial races, Democrats have been able to win the governor’s race only once since 1986. Finally, by 1994 the meltdown was nearly obvious to everyone once no Democrat was able to get elected in Texas to any statewide office that year or any since.
Masking the hemorrhaging of the party’s appeal across the state, Democrats prized the sizeable number of Congressional seats they held. Even here the cracks were showing. The GOP received upwards of 55% of all Congressional votes cast throughout the 1990’s even though they held fewer than 40% of Congressional seats.
How was it possible that Democrats could hold a near supermajority of Congressional seats in the midst of a GOP upswing state-wide? One word: gerrymandering. The Almanac of American politics called the state’s map the “shrewdest gerrymander of the 1990s.”
Where were the voices criticizing this state of affairs? Ironically when it was the GOP which suffered there were no charges of disenfranchisement by electoral watchdogs. No one filed lawsuits arguing that the political opposition had been unfairly suppressed. The national media didn’t carry front page stories lamenting the unfair treatment of Republicans in Texas.
And this state of affairs would have continued for at least another decade if not for the seismic earthquakes that hit Austin when in 2000 and 2002 first the State Senate and then the State House shifted from Democrat to Republican control. Happening for the first time in 130 years, it eliminated any possible doubts about the GOP’s dominance in the state once and for all.
In 2001 the newly elected Republican state senate pushed for a balanced redistricting plan but because Democrats in the House were able to use a variety of obstructionist tactics to create a legislative deadlock that effort was stymied. This meant that a judicial panel would draft the state’s redistricting plan. And you guessed it, the panel kept the Democrats gerrymander largely in place.
But after 2002 when both Houses were under GOP control the state legislature decided that it would develop its own plan. And after a series of negotiations (during which Democrats in the state House and Senate fled the state in a desperate bid to prevent the state from acting) the Texas legislature finally passed a redistricting plan into law.
It is this map (passed by the bona fide state legislature) which is being challenged. This map increased the number of African-American majority districts and the number of majority Hispanic districts. It also shifted a majority of seats from Democrat to Republican control. And if the suit is successful the map and these seats will be eliminated.
So why the lawsuit? Because the plan no longer favors Democrats. Instead of giving Democrats nearly 2/3 of the seats while requiring them to obtain less than half the votes, the newly enacted plan districts is lot more equitable giving the GOP 60% of the seats matching more closely the 55% majority GOP preference by Texas voters.
And what about the claim that Texas is getting two bites at the redistricting apple? Not true. The U.S. Constitution explicitly vests this authority in the state legislature, not unelected judicial panels. The 5th Circuit Court of Appeals acknowledged that this was Texas’ first plan and that the plan in place was an interim plan created by the federal courts. And just because it wasn’t until 2003 that Texas finally adopted a plan, doesn’t mean the state should lose. After all, the U.S. Constitution places no restriction on the timing of redistricting.
The Justice Department formally cleared this plan as lawful under the Voting Rights Act. To bootstrap their case, the lawsuits supporters have attempted to twist the VRA in order to find a violation. Rather than protect minorities voting rights, they argue that the interests of political parties should be protected – even though doing so could come at the cost of losing minority seats. But the VRA has never been construed by Courts to protect political parties and it shouldn’t be.
When all is said and done the Supreme Court is likely to uphold Texas’ redistricting plan. To do otherwise would confound the purpose of the VRA and most importantly prevent Texas voters from having a congressional map that elects representatives more in sync with their own philosophy.