Oral argument: March 1, 2006
redistricting, gerrymandering, minority vote dilution, census, equal protection, first amendment, voting rights act
After a decades-long dominance of the Texas congressional delegation by Democratic representatives, the Republican Party won a majority of seats by virtue of new Congressional district lines as reflected by the state's population growth in the 2000 Census. However, the legislature failed to redistrict the state in time for the elections, which were then governed by a district court-drawn plan. After the elections, the new Republican majority engaged in a rare mid-term redistricting plan to replace the court's map. A number of individuals and organizations sued to prevent the redistricting on a variety of grounds. The Supreme Court will decide the constitutionality of the Texas redistricting plan under analyses of due process, equal protection political, racial gerrymandering, and the Voting Rights Act.
League of United Latin American Citizens v. Perry (No. 05-204)
1. Whether the 2003 Texas Congressional Redistricting Plan (Plan 1374C), adopted and developed using outdated, inaccurate 2000 Census data and resulting in malapportioned districts, in violation of one person, one vote when measured against 2003 Census data, and when “the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage” and when such purpose is realized, is an unconstitutional political gerrymander.
2. Whether proof of racially polarized voting is overcome by evidence of partisan affiliation of minority voters in the analysis of the second prong of Gingles in a minority vote dilution claim.
Travis Co., Texas v. Perry (No. 05-254)
Does the Texas legislature’s 2003 replacement of a legally valid congressional districting plan with a statewide plan, enacted for “the singleminded purpose” of gaining partisan advantage, satisfy the stringent constitutional rule of equipopulous districts by relying on the 2000 decennial census and the fiction of inter-censal population accuracy?
Jackson v. Perry (No. 05-276)
1. Whether the Equal Protection Clause and the First Amendment prohibit States from redrawing lawful districting plans in the middle of the decade, for the sole purpose of maximizing partisan advantage.
2. Whether Section 2 of the Voting Rights Act permits a State to destroy a district effectively controlled by African-American voters, merely because it is impossible to draw a district in which African-Americans constitute an absolute mathematical majority of the population.
3. Whether, under Bush v. Vera, 517 U.S. 952 (1996), a bizarre-looking congressional district, which was intentionally drawn as a majority-Latino district by connecting two far-flung pockets of dense urban population with a 300-mile-long rural “land bridge,” may escape invalidation as a racial gerrymander because drawing a compact majority-Latino district would have required the mapmakers to compromise their political goal of maximizing Republican seats elsewhere in the State.
GI Forum of Texas v. Perry (No. 05-439)
1. Whether political partisanship is sufficient justification, under section 2 and the Constitution, for dismantling a Latino-majority congressional district in order to elect the Anglo-preferred candidate.
2. Whether section 2 permits a state to eliminate a majority-minority district located in one area of the state and create another majority-minority district in a different area of the state.
3. Whether the District Court erred by requiring section 2 demonstrative districts to be more compact and to offer greater electoral opportunity to minority voters than the corresponding districts in the challenged redistricting plan.
4. Whether the number of majority-minority districts that can be created in the state functions as the upper limit of permissible political opportunity when assessing proportionality under Johnson v. DeGrandy.
Does the Texas legislature’s 2003 congressional redistricting plan unconstitutionally discriminate on the basis of race, constitute unconstitutional partisan gerrymandering, and/or dilute the voting strength of minorities in violation of the Voting Rights Act; and can states redraw congressional maps twice in the same decade when a valid plan exists?
The U.S. Constitution requires states to reapportion their respective congressional seats based on population changes reflected by the U.S. Census Bureau’s decennial census. See U.S. Const. art. I, § 2. The 2000 decennial census reflected a population growth in Texas entitling Texas to two additional seats in the House of Representatives. See Session v. Perry, 298 F. Supp. 2d 451, 457 (E.D. Tex. 2004), cert. granted sub. nom,League of United Latin Am. Citizens v. Perry, 126 S. Ct. 1295 (2006). Because of the additional allotment of representatives, Texas had to redraw its districts to meet the constitutional requirement of one-person, one-vote. See id.; see also U.S. Const. art. I, § 2.
The Texas legislature failed to adopt a redistricting plan before the 2002 elections, and the task fell upon the United States District Court for the Eastern District of Texas. See Henderson v. Perry, 399 F. Supp. 2d 756, 763 (2005), cert. granted sub. nom,League of United Latin Am. Citizens v. Perry, 126 S. Ct. 1295 (2006). With the new, court-drawn district plan in place for the 2002 elections, Republicans won the two additional House seats and gained a majority hold for the first time over the Texas Legislature. See id. at 763–64.
In 2003, Republicans sought a mid-decade redistricting. See Brief for Appellants on the Merits at 6. After three special sessions called by Republican Governor, Rick Perry, and despite Democratic efforts to deny a quorum, the Texas Legislature, controlled by Republicans, adopted Plan 1374C. See id. at 6–8; Appellee’s Merits Brief at 8–9. The plan led the Republicans to gain six seats in the 2004 elections, capturing twenty-one of the thirty-two congressional seats. See Henderson, 399 F. Supp. 2d at 764.
Several dozen individual voters and officeholders, as well as some minority and civil-rights organizations filed suits in the U.S. District Court for the Eastern District of Texas, asking the court to invalidate Plan 1374C and to enforce the 2001 court-drawn plan. See Brief for Appellants on the Merits at 10–11. A three-judge panel of the district court upheld Plan 1374C, finding that it did not violate the United States Constitution, that it complied with section 2 of the Voting Rights Act, and that the Texas Legislature has the authority to draw new districts pursuant to a federal court’s plan. See Session v. Perry, 298 F. Supp. 2d 451, (E.D. Tex. 2004), cert. granted sub. nom,League of United Latin Am. Citizens v. Perry, 126 S. Ct. 1295 (2006).
While an appeal was pending in the U.S. Supreme Court, the Supreme Court issued an opinion in Vieth v. Jubelirer. See Henderson, 399 F. Supp. 2d at 759. In Vieth, the Court affirmed the decision of a three-judge court rejecting a challenge to a Pennsylvania redistricting plan that allegedly violated the one-person, one-vote requirement of the U.S. Constitution. See id. Subsequently, the Supreme Court remanded the Texas redistricting cases to the three-judge panel in the district court for reconsideration in light of Vieth. See id.
On remand, the three-judge panel affirmed its earlier judgment and denied all relief requested by plaintiffs. See id. at 778. Following the judgment on remand, eight direct appeals were filed in the U.S. Supreme Court. See Appellee’s Merits Brief at 17. The Supreme Court noted probable jurisdiction over four of the appeals and consolidated them for argument. See Supreme Court Docket.
The Supreme Court’s decision in this case will clarify the scope of a state legislature’s right to engage in redistricting activities and will significantly affect the rights and protections afforded to general voters and especially to minority voters in national congressional elections.
Redistricting has always been a confusing and contentious practice in the political process. A line of Supreme Court decisions have worked to restrict the use of gerrymandering to dilute minority voting strength (see Thornburg v. Gingles, 478 U.S. 30 (1986)) requiring redistricting to preserve an Equal Protection mandate of one-person, one-vote (see Karcher v. Daggett, 462 U.S. 725 (1983)) and upholding the rationale of using redistricting to protect partisan election interests, see Vieth.
Of direct consequence in this case are the representation interests of voters in Texas. The Court will decide whether a voluntary, mid-decade legislative redistricting to replace a court-drawn redistricting violates voters’ rights. Narrowly drawn, this question could be applicable only to the specific circumstance of the right of an elected legislative body to replace an interim plan established by a non-elected court. But more broadly, it may implicate how and for what motivation a legislature may redistrict, and if the Court rules heavily in favor of the state, it may legitimize general off-census redistricting. The result of such a ruling could be to permit majority parties in mid-term elections to solidify their advantage by immediately redrawing district lines to bolster the margins of close election districts without taking into account population and demographic shifts occurring since the last census. See Jackson Appellants’ Brief at 14.
The Court’s decision will also heavily impact the voting power of racial minority constituents within Texas and other states. If the Court finds for the state that its gerrymandering was partisan in nature and not aimed at diluting racial minority voting power, the precedent of the case would provide a powerful weapon to majority governments hostile to these minority voters, by providing a universally-available justification for harmful redistricting—nearly all redistricting is performed with the underlying purpose of solidifying support for majority-party candidates and incumbents; claiming that race is a blind byproduct of such a legitimate (or nonjusticiable) process would be convenient indeed. See LULAC Appellants’ Brief at 3–4.
The breadth of the Supreme Court’s ruling may also affect the protection afforded to all minority voters under Section 2 of the Voting Rights Act, see 42 U.S.C. 1973 (2004). The district court in Session found that minority voters could not establish themselves as voting as a racially-polarized bloc under the first prong of the Gingles test if they can instead be shown to have voted along partisan lines. See LULAC Appellants’ Brief at 28–29. Presumably, this significantly increases the burden on minorities seeking protection under the Voting Rights Act, as their only recourse would be to prove racially discriminatory intent under Gingles. See id. Considering the underlying partisan-political motivation at the heart of all redistricting efforts, clear indications of discriminatory intent as opposed to political motivations are likely very rare. It is likely that a Supreme Court decision affirming the district court’s holding for the state on the Voting Rights Act claim would thus seriously impede efforts by minority voters in any state to claim racially-motivated disenfranchisement in violation of the Act in both regular and mid-decade redistricting efforts.
Political gerrymandering has long been tolerated by federal courts on the premise that today’s minority party who complains of unfair treatment will be tomorrow’s majority drawing the new district lines. Thus, many courts have disposed of challenges to redistricting plans essentially saying ‘when you win the next election, you can do it, too.’ Nevertheless, despite precedent indicating that the notion of redistricting absent illegitimate motivation is not unconstitutional, the Supreme Court has since established limitations on exactly how far a party can go with respect to redrawing district lines. See Davis v. Bandemer, 478 U.S. 109 (1986); Vieth v. Jubelirer, 541 U.S. 267 (2004). These limitations are derived from both the Voting Rights Act and the Fourteenth Amendment. The principle limiting concept is the idea of “one person, one vote”–a phrase that has become a mantra in redistricting cases. Wesberry v. Sanders, 376 U.S. 1 (1964). “One person, one vote” requires congressional districts, to the extent possible, to be equally populated so that each vote carries with it the same amount of influence at the ballot box. For example if one district had 10 voters and another had 1,000, then each vote in the first district would unfairly be worth 10% of the ultimate outcome while each vote in the second would be worth less than 1%, which is unconstitutional. The other key limiting principle, derived from the Equal Protection clause of the Fourteenth Amendment, prevents politicians from using invidious racial classifications while designing and implementing redistricting plans.
The Supreme Court addressed these issues directly in Bush v. Vera, another Texas redistricting case. 517 U.S. 952 (1996). There, the Court struck down another Texas redistricting plan in violation of the Voting Rights Act and inter-related Fourteenth Amendment concerns. The Court held that although redistricting along purely partisan lines was acceptable, redistricting along purely racial lines was not. Id. Moreover, the Court stated that although districts could be shaped in a non-conventional manner in order to comport with the Voting Rights Act requirement that minority voting blocs not be diluted, a truly unconventionally shaped district would be suspect. The Court’s decisions left us with a few guiding principles: race may impact a redistricting plan, but only if racial sorting is a by-product of what is actually partisan classification. Id. Districts shapes can be bizarre, but not too bizarre. Id. Thus, while the Court’s precedent in this area provides guideposts as to what was and was not constitutionally acceptable, the exact contours of the analysis remain quite unclear. This case pushes the Court to clarify exactly what is, and is not, acceptable with regard to redistricting.
Petitioners contend that Texas has simply gone too far with this redistricting plan. They assert that the redistricting plan is so highly manipulated, based on such outmoded information, occurs at such an odd mid-term time, and has such improper racial undertones that the Court should find it unconstitutional. Thus, although they acknowledge judicial deference to a purely political gerrymander at such times when redistricting naturally occurs, they assert that the totality of oddities in this case overwhelm the political defense of the state of Texas and overreach the limits of constitutional permissibility. As stated by one of the attorneys, “I think there are situations in which you have a political motive overarching the entire map…but at the same time that pushes you to do some things which could violate the [Constitution].” Transcript of oral argument at 15.
The petitioners use each oddity to attack the premise that the redistricting was performed for legitimate reasons on purely political grounds. The petitioners assert that the plan patently violates the limiting principle of “one person, one vote.” Petitioners contend that the legislature deliberately and invidiously chose to use outmoded census data instead of using current data which, if assessed against the district plan, would violate the “one person, one vote” concept. Furthermore, they characterize the rarity of a legislature taking on the redistricting issue mid-term without being prompted by a major population shift or the release of new census data as highly suspect. The petitioners also address the racial issue. Although they acknowledge that Bush v. Vera validates political classification even along racial lines, they contend that race cannot be used as a proxy for partisanship, as was done here. 517 U.S. 952 (1996).
The Texas legislature, on the other hand, asserts that it had many valid reasons to engage in the redistricting at issue – the predominant motivation being political. Brief for Respondents at 68. The District Court agreed with this position and Texas enjoys their support on this appeal. Session v. Perry, 298 F. Supp. 2d 451, 470 (E.D. Tex. 2004) (“There is little question but that the single-minded purpose of the Texas Legislature in enacting [this redistricting plan] was to gain partisan advantage.”). Therefore, the argument goes, it follows that all of the petitioners’ concerns with regard to race, numbers, and shape fall away- because it is well-settled that redistricting along purely political lines is acceptable—and the Court’s own precedent directly upholds that view. This so-called “political defense” to redistricting claims receives great deference from the Court in light of prior case law and became a feature at the oral argument of this case. (See the comments of Justice Scalia at oral argument pushing counsel for the petitioner to “acknowledge that political motivation is fine.” Transcript of oral argument at 16.)
Texas also responds to the other accusations in kind. First, it addresses the mid-term redistricting problem by highlighting the highly unusual series of events which led to the highly unusual result of tackling the redistricting issue mid-term. Indeed, as highlighted in the “Factual Background” above, the legislature was not simply re-designing an existing legislative redistricting plan. They were, in fact, addressing a court-designed plan that resulted from their own inability to reach a conclusion in the prior legislative term. As such, the respondents contend that there was nothing untoward driving the move for redistricting. In fact, Texas asserts that the legislature, not the courtroom, is the proper forum for fashioning political districts. Thus the actions of this legislature were not merely tolerable, they were mandated by legislative function. Second, it defends its use of the year 2000 census data by explaining that the court-drawn plan being replaced also used this data, so the replacement plan should use the data as well. According to the state, its use of the same data as the court’s plan reflected a wise policy judgment, not an improper motivation. Brief for Respondents at 73. Finally, it contends that race did not play an impermissible role in shaping the redistricting plan since the plan was shaped along party lines, not racial ones (harkening back to the political defense outlined above).
Ultimately, this case will require the Court to revisit its precedent and clarify exactly what redistricting limits, if any, the Constitution requires. A decision for petitioners will leave legislatures wondering once again what the acceptable limits of gerrymandering are. A decision for respondents, on the other hand, would validate the deference afforded to political concerns and give legislatures broad leeway in enacting redistricting plans in the future.