League of United Latin American Citizens v. Perry, consolidated with Travis County, Texas v. Perry, Jackson v.

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).