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Monday, October 18, 2004

SCOTUS decision today on Texas redistricting case is no big deal

In a two-sentence order released today, the United States Supreme Court vacated the January 6, 2004, decision of the special three-judge Voting Rights Act panel from last January, pending before it under the name Jackson v. Perry, that had rejected challenges to the Texas Legislature's 2003 congressional redistricting.  The Supreme Court returned the Perry case to that same special three-judge panel "for further consideration in light of Vieth v. Jubelirer," the Supreme Court's own April 2004 decision in a redistricting case from Pennsylvania.

In an earlier ruling on January 16, 2004, the Supreme Court had refused to block the use of the 2003 map for the 2004 congressional elections, so today's decision cannot directly affect the upcoming election.

So what's this mean?  The Associated Press story on today's ruling, as republished in the online version of the Houston Chronicle (beware, the Chron has a nasty tendancy to edit, replace, or simply make content disappear at the same URL), spins this as if it were a big win for the Dems:

The Supreme Court handed Democrats a victory today, ordering a lower court to reconsider a Texas redistricting plan that could give Republicans six more seats and a firmer hold on their majority in the House.

I suppose from the standpoint of the Democratic plaintiffs, today's ruling is slightly better than a poke in the eye with a sharp stick.  But it's a shallow, technical, procedural, and — in all probability — a purely temporary victory for the Dems that at best gives them one more bite at an apple they've already gone hungry on before.

As I've written many times before (for example, here, here, and here), appeals from rulings of special three-judge Voting Rights Act panels are unusual creatures.  By statute, they skip the normal first level of appellate review in the United States Courts of Appeals, and shoot up directly to the Supreme Court.  Even more oddly, unlike most of the cases that come before the Supreme Court for consideration on a so-called "application for a writ of certiorari," the Supreme Court has no discretion to refuse to hear Voting Rights Act appeals.  That doesn't mean that the Supreme Court always holds oral argument and issues a full written opinion on those appeals — and in fact, usually it doesn't.  But its ultimate rulings on appeals in Voting Rights Act cases are "on the merits," rather than nonprecedential refusals to review the case (which is the correct characterization of the Supreme Court's denial of certiorari in the normal, non-Voting Rights Act cases).

Today's ruling, though, was not the Supreme Court's ultimate decision on the merits of the Texas case, but merely an intermediate and procedural one.  What's more, it was an entirely predictable one that, in and of itself, contains no signals as to what the Supreme Court might ultimately, someday, do with the case.

Instead, the Supreme Court's decision today is an absolutely routine recognition that when the three-judge panel made its decision in the Perry case on January 6, 2004, it did so without the benefit of the Supreme Court's later written opinion from the Pennsylvania case, Vieth.  It is absolutely commonplace — and an efficient use of the Supreme Court's limited time and resources — for it to refuse to make a ruling on the merits when the lower court's decision was written without benefit of an intervening Supreme Court decision.

Unfortunately for the Dems, there's absolutely nothing in the Supreme Court's multiple and fractured opinions from Vieth — none of which commanded a five-Justice majority of the Supreme Court — which makes it at all likely that the Perry three-judge panel will come to any different result than it did last January.  It's unlikely that the three-judge panel will hear more evidence; rather, it will probably simply revise its lengthy opinion to make appropriate references to the various plurality and dissenting opinions from Vieth and then, again, refuse to declare the Texas map illegal. 

At that point, the Dem plaintiffs can be expected to again appeal back to the Supreme Court — and again, that will be an "appeal as of right" that the Supreme Court will, by statute, have to consider on its merits.  But in all probability, unless there's an intervening change in the composition of the Supreme Court or a major change of heart by one of its members who voted in Vieth, the Supreme Court will simply affirm the three-judge panel's decision with a one-sentence order — most likely without hearing oral arguments and most likely without a full written opinion.  Having failed in Vieth to clarify or improve on the dog's breakfast of prior Supreme Court precedents on the permissible extent of partisan gerrymandering, there's absolutely no reason to think that the Supreme Court will try again, a mere year later, unless there's a new face on the Court.  Election law specialist Rick Hasen, whom I regard very highly, is quoted in the AP report with this statement:

"I see this as the Supreme Court punting right before the national election," said Richard Hasen, an election law expert at Loyola Law School. "It buys the Supreme Court another term before it has to rethink the issue. Maybe by then we'll have a new justice or two."

Professor Hasen's more extended analysis is on his blog (hat-tip How Appealing, which also has more links to other press accounts):

What is the lower court to do? The lower court Justices [sic — Prof. Hasen clearly means the judges of the three-judge panel] already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with.

It's possible, I suppose, that the three-judge panel will sit on the remanded case for several months, pushing the next appeal back to the Supreme Court into the October 2005 term — by which time it's also conceivable that one of the present Justices might have retired and that a hypothetical President Kerry might have named and gotten confirmed a successor that would be more sympathetic to the Dems' views, or that (as Prof. Hasen speculates) Justice Kennedy might have changed his mind since Vieth.  But I frankly doubt that scenario, even if Kerry wins the presidential election.  I expect that the three-judge panel will ask for briefing in short order, and then issue its revised decision before the end of 2004 — in which case it will likely be calendared and decided on its merits in the Supreme Court before the end of the current term, by the same Justices who are now sitting.

Predictably — and reprehensibly — the AP report continues to misrepresent the basic facts of the Texas redistricting case:

States must redraw boundaries every 10 years to reflect population shifts found during the census. Five appeals over the Texas boundary-drawing pose an interesting question: Can political leaders of a Legislature force district drawing more frequently than once a decade, to make more seats winnable for members of their party?

This is nonsense.  There has only been one successful congressional redistricting done by the Texas Legislature since the 2000 Census, and that's the redistricting map passed in 2003.  The Dems, and their either ignorant or complicit spinners in the mainstream media, continue to shout the "multiple redistrictings in one decade" meme because it's a great way to villify Tom DeLay and all Texas Republicans — but it's completely bogus.

Bottom line:  Anyone who tries to tell you that today's Supreme Court ruling is surprising and important good news for the Dems doesn't know what they're talking about.  Personally, I'd give far better odds on the Red Sox winning this year's World Series.

Update (Mon Oct 18 @ 3:00pm):  Writing on NRO's The Corner, Jonathan H. Adler's take is very similar to mine (although much pithier).  His bottom line is "much ado about nothing."

A small nit:  Today's order doesn't actually direct "reconsideration," which might imply a need to make changes, but "further consideration."  I'm not sure whether SCOTUS always says "further consideration," but I seem to have a vague recollection that they do, in fact, sometimes say "reconsideration."

Update (Mon Oct 18 @ 3:45pm):  The relentless, counterfactual spin continues, as per the latest AP story, which recites that "Democrats hailed the ruling, calling it proof that the map is unfair to Texas voters":

Texas Democratic Party Chairman Charles Soechting said the ruling should be at the forefront of voters' minds as they cast their ballots in the coming days.

"When the most radical Supreme Court in the nation's history rules that Tom DeLay and his co-conspirator Craddick went too far in their corrupt and ultra-partisan overreach, it is truly breathtaking," Soechting said. "DeLay and Craddick have created the most divided and partisan state government in history. It is time to restore integrity and balance in Austin."

Shame on you, Mr. Soechting!  You're a lawyer, and from what I've heard of you, a good one.  You know what today's ruling means, and what it doesn't mean, and you know today's ruling bears zero resemblance to your characterization of it.  Call Republicans names; characterize the politics of the Supreme Court as you like.  But don't flat-out lie to the public about whether today's ruling was on the merits or not!

Update (Wed Oct 20 @ 11:20pm): The Sox' odds of winning the World Series are getting lots better.  Unfortunately for the Dem plaintiffs in Perry, though, I think the team of nine on the Supreme Court are somewhat more predictable than any team of nine on a baseball diamond.

Posted by Beldar at 01:08 PM in Politics (2006 & earlier), Texas Redistricting | Permalink


Other weblog posts, if any, whose authors have linked to SCOTUS decision today on Texas redistricting case is no big deal and sent a trackback ping are listed here:

» Others' Thoughts on the Texas Decision from Election Law

Tracked on Oct 18, 2004 1:50:14 PM

» Legal affairs from Julie Saltman

Tracked on Oct 18, 2004 2:53:25 PM

» Why dishonest reporting hurts us all from Media Lies

Tracked on Oct 18, 2004 9:01:10 PM

» Belder explains yesterday's U.S. Supreme Court sentences from blogHOUSTON

Tracked on Oct 19, 2004 9:47:10 AM

» The Chronicle weighs in on redistricting from blogHOUSTON

Tracked on Oct 20, 2004 10:10:24 PM

» The Chronicle weighs in on redistricting from blogHOUSTON

Tracked on Oct 20, 2004 10:10:25 PM


(1) John Jorsett made the following comment | Oct 18, 2004 2:05:14 PM | Permalink

"There has only been one successful congressional redistricting done by the Texas Legislature since the 2000 Census, and that's the redistricting map passed in 2003. "

Don't mean to be dense, but even though the earlier redistricting was done by judges, doesn't this mean that another redistricting, even by the legislature, would indeed be "multiple redistricting within one decade"? We in California had our bounadries redrawn by judges after the 1990 census because the legislature and governor were at war, and those were the accepted lines thereafter.

(2) Beldar made the following comment | Oct 18, 2004 2:38:16 PM | Permalink

Mr. Jorsett, you aren't being dense. But I perhaps was being too terse.

Texas picked up two congressional seats as a result of the 2000 census. Obviously a new congressional district map had to be created.

The Texas Legislature attempted to pass a redistricting bill in its 2001 session. The Dems blocked that bill, however, because they wanted to preserve a pro-Democrat gerrymander that dated back to the early 1990s, when they still controlled Texas government.

Accordingly, a three-judge panel convened under the Voting Rights Act did indeed make the minimal necessary changes in the existing map to permit the 2002 election to go forward. That panel expressly recognized that judicially accomplished redistricting bears no relation to redistricting done by state legislatures. Three-judge panels are ill equipped to make political decisions; they lack the tools, and they lack the political legitimacy because they are the least (small-d) democratic branch of either the state or federal government. The three-judge panel that made the provisional map used in the 2002 congressional elections expressly recognized that because it was making the minimum changes necessary, the net effect was to dramatically favor the Democratic party, and particularly its incumbents, even though that party had lost its majority-party status in the state. And of course, that explains the results of the 2002 congressional elections, in which the Dems elected 17 Congressmen (to 15 Republicans) out of a state in which the Democrats couldn't elect even a single candidate to any statewide office.

There's a good reason that both the federal and state constitutions place upon state legislatures the duty and obligation of redistricting. Yes, it devolves into partisan politics at its very ugliest — partisan gerrymandering is nothing new. But it is responsive to the public, and has political accountability that court-drawn maps can never claim. For evidence, you need look no farther than the 2002 election in Texas, when the voting public, in part in reaction to the stalemate from 2001, gave the Republicans majority control of both chambers of the Legislature and both the governorship and lieutenant governorship for the first time since Reconstruction. It took only one election cycle, in other words, for the public to rebuke the Dems for their obstruction in 2001. And it was the 2002 election results that enabled the passage of any legislative redistricting bill at all during 2003 (again despite the Dems' best efforts to preserve their previous gerrymander, which efforts included repeatedly fleeing the state, in violation of their oaths and written legislative rules requiring attendance, so they could destroy the required legislative quorum).

In fact, it's the Democratic Party that has been doing its damnedest to frustrate small-d democracy in Texas — to shelter behind the skirts of the undemocratic, unrepresentative, ill-equipped federal courts in order to preserve congressional seats for white male Democratic incumbents, for that's who the only "victims" of the 2003 redistricting were. They've continually exploited the general public's fuzzy understanding of our basic system of government in order to blast the Republicans with distortions and lies — the "multiple redistrictings in one decade" meme being only one of those.

I've written at considerly more, but similarly passionate, length about these topics throughout the past year (for example, here, here, and here), and indeed have an archive category in my sidebar specifically for my posts on the Texas redistricting.

(3) Demorep made the following comment | Oct 18, 2004 2:49:06 PM | Permalink

Half the votes in half the gerrymander districts is about 25 percent minority rule.

Real minority rule math is much worse due to plurality nominations by special interestt gangs in primaries.

Basic P.R. -

Party Seats = (Party Votes x Total Seats) / Total Votes

A math formula too difficult for MORON judges and EVIL party hacks to understand ???

(4) Hugh Brady made the following comment | Oct 18, 2004 3:38:18 PM | Permalink

Sorry, wrong again. The Democrats didn't block congressional redistricting in the 2001 session. The entire redistricting strategy for the Republicans was masterminded by Sen. David Sibley of Waco, who was responsible for killing legislative redistricting in the Senate and informed the Lt. Gov. and the Speaker that Congressional redistricting would end up the same way if it came over from the House. The idea all along was to get legislative redistricting in front of the Legislative Redistricting Board, which was dominated by Rs, and get congressional redistricting to court. The court plan was supposed to produce a majority Republican delegation, and but didn't because folks like Chet Edwards, Jim Turner, and Charlie Stenholm have done a damn fine job of representing their people. As for protecting white democrats, Texas Democrats want to have a party that at least tries to represent everyone...Tom DeLay's aide explicitly stated that their goal was to ensure that whites equated the Democratic party with blacks and browns forever.

(5) John Jorsett made the following comment | Oct 18, 2004 3:42:27 PM | Permalink

Re: Comment #2: Wow, quite a story. Not having followed the Texas redistricting saga in detail, it's a bit like walking into a movie already underway. Many thanks for bringing me up to speed.

I wish the California legislature would be delivered a similar comeuppance. Their gerrymander has resulted in the most extreme elements having safe seats, both in the CA legislature and the Congress. They continually vote for legislation that 70% or more of the electorate opposes -- the driver's licenses for illegals is one example -- and never seem to pay a price. Even the handful of Republicans can hide under their desks when a controversial measure comes their way and not lose their seats.

(6) Beldar made the following comment | Oct 18, 2004 4:13:58 PM | Permalink

Mr. Brady, the Dems did block redistricting in 2001. The Republicans didn't have the majority they needed in both chambers to persist over their efforts, and so declined to call repeated special sessions that would never have produced a bill. The Dems pilloried Gov. Perry for not calling special sessions in 2001, then for calling them in 2003. You also write:

The court plan was supposed to produce a majority Republican delegation, and but didn't because folks like Chet Edwards, Jim Turner, and Charlie Stenholm have done a damn fine job of representing their people.

That's just stupid, sir. I'm sorry to be so blunt, but there's no other word for it. No court-designed redistricting is going to grind political sausage in the way a legislature does; and you'll look in vain for any language in the 2001 Barrientos decision about what a "damn fine job" any incumbents have done. If those Democratic congressional incumbents were so sure they'd continue to win after the packed Republican voters were distributed more equitably, they wouldn't have been urging their state legislator counterparts to flee to New Mexico and Oklahoma to destroy quorums in 2003. And read the Barrientos decision to see how uncomfortable those judges were with being forced to draw up a new map, and their vocal recognition that they were ill-equipped to do so, and that the result of their minimalist activities were anti-democratic because they'd have the effect of giving the Democratic Party a result it never could have achieved on its own in the Legislature, other than by stalemating the Legislature to preserve Martin Frost's pro-Dem gerrymander from the 1990s.

As for your race-baiting, take it to DU, sir, where people believe that sort of stuff as an article of faith regardless of the facts. The facts, as found by the three-judge panel in Perry, were that the new map was motivated solely on the basis of voters' political alignment — with the exception, of course, that the districts of minority Democratic incumbents, the sacred cows of the redistricting process, couldn't be touched (which is why the incumbents who took the hits were all white male Democrats). Quoting from the three-judge panel's opinion at page 28:

The myriad decisions made during [the 2003 map's] creation were made in spite of, and not because of, its effects upon Blacks and Latinos.

If that had not been the case — if the Dems had any proof to back up their shrill claims of "racism" — their Voting Rights Act claims would have been sustained instead of rejected. Instead, the Dems' own witnesses admitted that it was voting patterns — and not race used as a clumsy proxy for them — that drove everything the Republicans did.

I have a low tolerance for people who cry "racism" and paint with a broad brush, sir. I have little sympathy for Dems who insist that only white male Democrats can properly represent blacks and hispanics (see, e.g., Lloyd Doggett, one of the above-referenced white male incumbents who pushed out minority candidates that were expected to vie for the seat he's now running for as your party's nominee). I suggest you try to be a bit less offensive if you intend to continue commenting here. Or stick to lobbying.

(7) antimedia made the following comment | Oct 18, 2004 8:50:44 PM | Permalink

The Democrats' behavior in the Texas redistricting mess was reprehensible, not to mention puerile. In fact, for the first time in my life I'm considering voting a straight, Republican ticket, as a protest against the despicable behavior of Democrats nationwide and the childish behavior of Democrats here in Texas.

(8) Steven Jens made the following comment | Oct 18, 2004 11:25:33 PM | Permalink

When I heard about the order, I immediately thought, "I'll bet Beldar will have something worth reading on the matter." Thanks.

To clarify something for my legally-untrained mind: how much precedential value can a Supreme Court ruling have if there's no majority opinion? Does this order have much real purpose beyond stalling?

(9) Beldar made the following comment | Oct 18, 2004 11:57:37 PM | Permalink

Steven, that's a good question, for which unfortunately I don't have a clear answer. Vieth didn't make things more muddled because they were already thoroughly muddled by the pre-existing Supreme Court case on the murky limits, if any, on partisan gerrymandering, Davis v. Bandemer from 1986 — which was also a fractured decision in which no single opinion commanded a five-Justice majority. The shortest way to summarize things is that if there are circumstances in which partisan gerrymandering goes "too far," no modern Supreme Court decision has found it yet. The Pennsylvania redistricting, like the one in Texas, was overtly and explicitly partisan in intent, but a divided Court upheld it, and there's no reason to think that a Court majority will overturn the Texas redistricting unless there's a change in the composition of the Court or a major change of heart by some of the current Justices.

Bottom line: I'm not sure about "purpose," but today's decision is unlikely to have any different effect besides stalling.

(10) Ian made the following comment | Oct 19, 2004 11:23:01 AM | Permalink

Could you answer a question for me? I'm rather ignorant in this area, but one thing I've heard about the redistricting is that it breaks Austin (which is obviously a cohesive left-leaning distict) up into several small chunks and packs them into rural districts, so the net result is to outweigh the democratic vote in Austin by the republican rural vote in surrounding areas. That doesn't seem honest or fair to me, no matter whose right it is to draw the congressional map. But then again, I don't really know anything about it. Could you elaborate?

(11) Dave made the following comment | Oct 19, 2004 11:55:55 AM | Permalink

Hugh Brady is wrong. During the 2001 regular session, the House speaker (a Democrat) refused to allow the House Redistricting Committee (chaired by a Republican-in-name-only) to introduce and pass a congressional plan out of committee before the deadline for floor action, which was 17 days before the end of the session. However, on the last weekend of the session, the speaker directed the committee chairman to conduct an impromptu meeting where Martin Frost's congressional plan was distributed to members 3 hours before the meeting. No public testimony was allowed, no amendments were allowed, and two points of order were rejected by the House parliamentarian -- the only time she had EVER attended a committee hearing.

It was the DEMOCRATS who did not want a congressional plan to come out of the Legislature. The last-weekend meeting was SOLELY to try to give the Frost plan a leg up when the federal three-judge panel crafted the boundaries for the 2002 election.

Go to Volume 5, Issue 36

Quorum Report subscribers can also read the postings during that time period to confirm the sequence of events.

In response to Ian's question, Travis County used to be in two districts -- one wholly contained in the county, the remainder attached to Lamar Smith's San Antonio-based district. The new map makes Travis County the largest part of three districts -- connected to San Antonio, Houston, and Edinburg respectively. Part of the purpose was to create an additional Hispanic district in South Texas (SE Austin has a large Hispanic population), and part of it was to get a second congressman from Travis County.

(12) Dave made the following comment | Oct 19, 2004 12:00:27 PM | Permalink

One more thing. The federal panel's 2001 ruling said that they thought their plan would produce 20 Republicans in the Texas delegation. It produced 15.

The panel also thought their plan would add a black and a Hispanic to the Texas delegation. It did neither.

(13) ELC made the following comment | Oct 19, 2004 1:09:54 PM | Permalink

"Three-judge panels are ill equipped to make political decisions; they lack the tools, and they lack the political legitimacy because they are the least (small-d) democratic branch of either the state or federal government." All of that applies to SCOTUS, too, and it doesn't stop them from making political-social-cultural decisions all the time.

(14) Beldar made the following comment | Oct 19, 2004 6:27:53 PM | Permalink

ELC, you're of course correct that courts, especially federal courts, make political-social-cultural decisions all the time.

Redistricting, though, is at the very core of the political decisionmaking process. When federal courts venture into that territory, they're playing with the bones upon which the entire body of institutional checks and balances are built. And historically, they've therefore been — quite properly — reluctant to do so. Personally, I agree with the four-Justice block in Vieth who argued that the question of partisan gerrymandering is a "political question" from which the courts should retreat, trusting instead in state legislatures to do their assigned constitutional jobs, and in the voters to correct them when and if they err. In that view, the courts' only function is to redress the increasingly rare situations in which redistricting is based on impermissible motivations (mainly race).

I'm not particularly a fan of Tom DeLay's, but one can detest his style while still admitting his partisan effectiveness. DeLay, I believe, doesn't give a rat's behind, one way or the other, about the skin color of the congressman or the voters who elected him; he just wants that congressman's vote, and he wants it reliably. Slowly, but increasingly (and commendably), race has become an inexact proxy for predicting votes, either from congressmen or from the voters who elect them. And were it not for the originally well-intentioned and necessary but now distortive effects of the Voting Rights Act, I believe redistricting would have become a genuinely color-blind.

Yes, there was a day in the south, including in Texas, when politicians and the white majority they represented deemed it more important to keep a black or hispanic out of office than anything else, and racial gerrymandering was the tool used to accomplish that noxious purpose. And yes, there's an increasingly tiny, bigoted group of whites who still feel that way. I condemn those of either party who want to exploit that remaining vestige of racism; I'm equally contemptuous of a Republican who says, "We want white people to identify the Democratic Party with blacks and hispanics" as I am of a Democrat who says "Only Democrats can effectively represent blacks and hispanics." That's ugly, bigoted thinking from either side; but it's not only morally corrupt, it's increasingly politically ineffective.

And that's why — despite occasional throwback comments that one side or the other seizes upon for race-baiting arguments — the 2003 redistricting in Texas was, to the extent allowed by the Voting Rights Act, done on the basis of "Republican households" and "Democratic households," not white, black, or hispanic households. That's why the three-judge panel found, correctly based on the nearly undisputed evidence, that partisanship, not racism, drove all the line-drawing decisions.

Finally, Ian, as I understand it, the splitting of Travis County was deemed essential in order to increase the number of minority-viable districts; the alternative, geographically more compact districts, would have ended up causing Voting Rights Act problems in the Valley. There's no small irony in the fact that Travis County was splintered to promote more likely-Democrat-leaning districts. But it's easy to understand how some folks nonetheless feel slighted as a result of the necessary trade-offs. On the whole, despite the long skinny districts necessary to accomodate the Valley and Voting Rights Act concerns, the 2003 map generally improved district "compactness" — fewer looping, squiggly "salamander-looking" districts than historically have been the case.

(15) Doug made the following comment | Oct 19, 2004 7:42:28 PM | Permalink

Read with interest your take on phrasing of "further consideration" vs. "reconsider".


"But the justices ordered the panel to reconsider that decision in light of the Supreme Court's own decision six months ago in a redistricting case from Pennsylvania."

"Instead, the order to reconsider the decision keeps the case alive and strongly suggests that Justice Anthony M. Kennedy, who cast the swing vote in the Pennsylvania case, agreed with its four dissenters that there is more to say about partisan gerrymandering and the Constitution."

NYT says reconsider twice and never uses "further consideration". It may be a small snit but is it useful to spin the story.

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