BeldarBlog

The blogosphere digests yesterday's court ruling upholding Texas redistricting

I've written more about the 2003 Texas redistricting battle — in the Legislature, the courts, and the arena of public opinion — than I have about any other topic since I started blogging late last summer.  For those who've followed the story, this has been political theater of the highest (and lowest) caliber, with twists and turns aplenty, heroes and villains, comedy and drama, perfidy and steadfast perseverance.  And having been so immersed in it, I admit to being surprised and slightly puzzled when folks from out-of-state seem to be sort of slow to snap to the huge national political implications of what's been happening.

Thus, I'm fairly surprised that National Review Online's realtime multi-writer blog, The Corner, has so far managed only one twenty-word post on yesterday's ruling in Session v. Perry.

By contrast, UCLA law professor and blogger Stephen Bainbridge snapped to the national significance:

This is a VERY big deal. It means a likely shift of up to 7 House of Representative seats to the GOP. Given how few House seats are truly competitive, the recent debate among the Democratic presidential candidates as to which one of them has the best chance of rewinning Congress for the Democrats would seem to have been mooted.

VodkaPundit Stephen Green recognizes that this is a big deal but — perhaps due to a key factual misapprehension — makes an observation that I, and many of his knowledgeable commenters, think is way off the mark:

What the Republicans have done is throw away 200-plus years of national precedent: we only redistrict after a census. Should the Democrats take charge, even for a single session, you can bet they'll go for some sweet, sweet payback.

Short term gain: Republicans will get 5-7 new safe seats in Texas.

Long-term loss: This will come back to bite them on the ass.

Damage done: Now every state will be going through nasty redistricting fights, every time the majority changes. Currently, we only have to go through these fights every ten years, and usually only in states which gain or lose seat in Congress. "Now," said the sage, "things will be worse."

Now, it's true that the first twenty pages of yesterday's decision was devoted to finally putting to rest the Dems' claim that some provision in the US Constitution, federal law, or state law barred "mid-decade redistricting."  And the panel also noted (at pp. 20-21) that the Dems had made policy arguments that "may be" persuasive — for instance, that "frequent redrawing of district lines will undermine democratic accountability and exact a heavy cost on state independence as federal congressional leaders exert their influence to shape state districting behavior" — but that such policy arguments ought to be directed to Congress, rather than to courts in the first instance.  So yes, there's nothing — except tradition and simple aversion to continuous political blood-feuding — to prevent other state legislatures from redistricting more than once a decade.  But that was also true before the 2003 efforts in Texas; it's always been true.

What's significant, as various of VodkaPundit's commenters immediately pointed out, is that the 2003 redistricting was the first successful legislative redistricting in Texas since the 2000 census.  We have not violated the "one redistricting per decade" tradition, but rather have vindicated the very important constitutional principle that it's (small-d) democratic state legislatures, rather than panels of unelected and ill-equipped federal judges, whose duty it is to do redistricting in the first place — once each decade.  Texas Lt. Governor David Dewhurst was widely quoted after the third and ultimately successful special session of the 2003 Legislature as saying that even if the courts overturned the plan it had just passed, he had no intention of revisiting the subject of redistricting before the 2010 Census' results are in.   Perhaps VodkaPundit didn't simply didn't know these facts, and likewise didn't understand that the alternative of not redistricting was to leave in place a pro-Democratic gerrymander dating back to 1991, and to ignore the intervening 2002 election in which Texas voters eliminated the divided state government that had allowed the Dems to deadlock the 2001 attempts to redistrict.

James of Outside-the-Beltway grasps and articulates these distinctions.  And Patterico's Pontifications also links to my post from last night with kind words for my analysis, which I appreciate.  Likewise, Kevin Whited provided has provided some apt analysis and a kind link to my post, although he professes (somewhat tongue-in-cheek, I think) to have become bored with the whole topic months ago.  Mark Hardin also has a post up in which he laments the ugly face of racism.  And Owen Courrèges shares my annoyance with the Chronicle's misreporting and was also kind enough to provide a link to my post from last night.

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Update (Sun Jan 11th @ 2:30pm):  Hugh Hewitt also gets it for the Weekly Standard and on his own blog.  The Corner and NRO appear to remain uninterested, which continues to boggle my mind.

But what about the rights of Mister Britney Spears?

I am one of those dirty old men who is fascinated with Britney Spears.  (Daniel Drezner appears to be another.)  And somehow I find it touching, even endearing, that Britney decided during a New Year's celebratory revelry in Las Vegas to wed a boy of her own age from her hometown, and even poignant that she quickly relented to obtain not a divorce, but an annulment.  (Her initial decision may have been influenced by more than holiday good spirits: compare her signature on the application for the wedding license, reportedly obtained in the wee small hours, with her signature on the annulment application.)

One must marvel at the efficiency of the Las Vegas family court:   her application, filed at 10:12 o'clock a.m. on January 5, 2004, had been granted by written order filed at 12:24 o'clock p.m. on that same day.  This was no doubt facilitated by the approval of her short-time spouse, whose signature appears on the Decree of Annulment.  Yet his signature is as the "Defendant in Proper Person," which is to say, pro se and without the appearance or representation of separate counsel.  (Ms. Spears' attorneys, who also signed off on the decree, quite properly are identified as representing only her.)

Which leads one to wonder (at least if one is both dirty old man and lawyer): between January 3rd and 5th, did Ms. Spears really have no income?  Do none of her recording deals compensate her on the basis of records sold per day?  Does she get no advertising endorsement fees based on the play of her Pepsi commercials? 

Nevada, where the couple was married, and Louisiana, where they both purport to reside, are both community property states.  Absent a pre-nup to the contrary, her income during the marriage, if any, presumptively became community property.  The application for annulment alleges that "Plaintiff Spears is not currently pregnant," which the groom presumably may be in a position to know something about without professional assistance.  But what about the assertion that "there is no community property to be divided by the Court"?  Is that really true, and was the unrepresented groom adequately assured of that proposition?

I ask these questions with tongue planted firmly in cheek, if you can't tell.  Just as I'm touched that her impulsive act was with a hometown boy rather than some other media star, I'm willing to assume — and I want to believe — that the young man in question wasn't after two days of her superstar income, but genuinely just wanted to make her happy.  I'll grant them both credit for the maturity needed to bail out promptly and with as little fanfare as possible.  And if I had the chance, I'd buy the young man and myself a pair of cold beers to cry into while I told him about my own divorce, which took something longer than two-and-a-quarter hours.

Yowch!

This is fair (and very funny) criticism!  I'm vaguely flattered that Another Rice Grad would notice, especially at that time of the morning.

Texas redistricting Plan 1374C is legal, sez court in Session v. Perry — map decisions made "in spite of, and not because of," their effects on minority voting

I've spent the last two and a half hours plowing through the 127-page opinion of the three-judge trial court panel in Session v. Perry, the consolidated challenges to the Texas Legislature's 2003 Congressional redistricting law as reflected in Plan 1374C. 

My preliminary conclusion is that the panel majority pretty much got things right.  And I feel a great deal of sympathy and empathy for all three judges on the panel and their law clerks:

• As it's developed, voting rights law is a dog's-breakfast of subtleties and contradictions — a body of law that makes antitrust or securities laws seem straightforward and simple by contrast.  This court was not writing on a blank slate or anything remotely close to that.  Rather, Circuit Judge Higginbotham and District Judges Rosenthal and Ward had to try to harmonize and apply a tangle of precedents that sometimes seem to have almost nothing in common with one another except for their good intentions and their collective opacity.

• Moreover, the facts these judges had to deal with are voluminous and fiendishly complicated — and the large number of parties, each with its own team of self-important lawyers providing its own slant on the law and the evidence, doubtless compounded rather than eased that problem.

• Compound that with pressure — the certain knowledge that what you're writing has to be written and released quickly, and that there is a one hundred percent certainty that it will be scrutinized, picked apart, and distorted both in the popular press and in an appeal-as-of-right to the US Supreme Court — and the prospect of creating a jeweled Swiss-watch of an opinion, an elegant piece of writing that both whirs smoothly and sings, becomes very small indeed.

Nevertheless, from a stylistic standpoint, I am gravely disappointed at the panel's work product — as, I suspect, are the judges and law clerks themselves.  Both the majority and dissenting opinions badly needed a good editor to make what they were doing and saying clear, comprehensible, and (most importantly) digestible in smaller chunks. 

The unfortunate result is that the popular press and punditry — and hence the public at large, who certainly can't be expected to parse these 127 pages — are not given the tools necessary to reach an informed opinion about either the majority or the dissent's bottom-line results.  So those who thought redistricting was an abomination before this ruling will almost certainly continue to think that — and those who didn't, won't.

The Dallas Morning News has the best of the initial press reports, and the Houston Chronicle's report also attempts to give specifics, albeit in a more jumbled fashion.  The Austin American-Statesman, Fort Worth Star-Telegram, and San Antonio Express-Times have so far done little more than report the outcome.  Blogger Charles Kuffner, who's done the blogosphere's best job of consistently collecting timely links relating to the Texas redistricting struggle throughout, disappointedly notes the ruling and promises "plenty more" on it tomorrow.

The closest the majority opinion comes to a grand and overarching explanation is this:

We hold that Plaintiffs have failed to prove that the State statute prescribing the lines for the thirty-two congressional seats in Texas violates the United States Constitution or fails to comply with § 2 of the Voting Rights Act.  We also reject Plaintiffs' argument that the Texas Legislature lacked authority to draw new districts after a federal court drew them following the 2000 census.

Translation:  The State wins and the Plaintiffs lose on all the claims the Plaintiffs had asserted.  That much is abundantly clear.  But what's missing is an elegant, eloquent paragraph or two right up front that explains why.  Instead, we get this:

We decide only the legality of Plan 1374C, not its wisdom.  Whether the Texas Legislature has acted in the best interest of Texas is a judgment that belongs to the people who elected the officials whose act is challenged in this case.  Nor does the reality that this is a reprise of the act of the 1991 State Legislature weigh with the court's decision beyond its marker of the impact of the computer-drawn map.  The extraordinary change in the ability to slice thin the lines brings welcome assistance, but comes with a high cost of creating much greater potential for abuse.  Congress can assist by banning mid-decade redistricting, which it has the clear constitutional authority to do, as many states have done.  In Texas, the phenomenon is new but already old.  The larger lesson of 1991 and 2003 is that the only check upon these grasps of power lie [sic] with the voter.  But, perversely, these seizures entail political moves that too often dance close to avoiding the recall of the disagreeing voter.  We know it is rough and tumble politics, and we are ever mindful that the judiciary must call the fouls without participating in the game.  We must nonetheless express concern that in the age of technology this is a very different game.

Huh?  The first two sentences are fine, and indeed appropriate.  Starting with the next sentence, however, this just gets weirder and weirder.  With all due respect, "the impact of the computer-drawn map" is not a real issue here, folks, any more than the impact of the word-processing software that allows judges and their clerks to create and edit these 100+ page opinions.  The "phenomenon" is "new but already old"?  What kind of Carlos Casteneda mumbo-jumbo is that?  And what exactly are the "political moves" that "too often dance close to avoiding the recall of the disagreeing voter"?  I'm sorry, this stuff is just bizarre nonsense that doesn't belong anywhere in a judicial opinion, and especially not in on page two in a highlighted position.

If you want to find the nub of the majority's rationale, you have to dig deeper, down to page 24:

There is little question but that the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage....  With Republicans in control of the State Legislature [after the 2002 election], they set out to increase their representation in the congressional delegation to 22.  As we will explain, all that happened thereafter flowed from this objective, with the give-and-take inherent in the legislative process along the way.  The result disadvantaged Democrats.  And a high percentage of Blacks and Latinos are Democrats.

(Emphasis added by Beldar.)  There ya go.  Those are the key facts found by the court based on the evidence presented at the trial, and from those facts flows the conclusion that the Plaintiffs should lose.  As to the significance of this finding and the result, the best "big picture" explanation is on page 28:

While keenly aware of the long history of discrimination against Latinos and Blacks in Texas, and recognizing that their long struggle for economic and personal freedom is not over, we are compelled to find that this plan was a political product from start to finish.  The myriad decisions made during its creation were made in spite of, and not because of, its effects upon Blacks and Latinos.  To find otherwise would frustrate the fundamentals of Washington v. Davis and inject the federal courts into a political game for which they are ill-suited, and indeed in which they are charged not to participate under the most basic principles of federalism and separation of power.  Concluding that the [racial] purpose requirement of the Equal Protection Clause was met on these facts would pass redistricting from the state legislatures and redistricting boards to the federal courts....

(Emphasis added by Beldar.)  That is the high-point of clarity and elegance in the majority opinion.  Would that it had been on page one or two.

District Judge T. John Ward dissented in part.  It's important that dissenting opinions, to be effective, be short and punchy and crystal-clear.  His, unfortunately, isn't.  He apparently agrees with the majority that the Plaintiffs' Equal Protection Clause claims weren't proved, and that legislative redistricting in 2003 (notwithstanding the 2001 judicial redistricting) was okay.  He agrees that no Voting Rights Act violation was shown as to Districts 18 and 30; also concurs in the majority's judgment rejecting claims surrounding Districts 1, 2, 4, 9, 10, 11, 17 & 24; but dissents insofar as Judges Higginbotham and Rosenthal rejected the Plaintiffs' claims regarding District 23 on grounds that the new map impermissibly "traded off" the rights of minority voters in former District 23 for those of minority voters in new District 25.  I'm unpersuaded, but I will also confess that by the time I got to the twenty-seven pages Judge Ward tacked onto the end of the majority opinion, I was running out of intellectual gas to process any more. 

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Update (Weds. Jan. 7th wee small hours):   I just re-read the newer version of the Houston Chronicle's article and I'm fairly miffed at reporter R.G. Ratcliff for (again) letting his liberal biases show through.  The subheadline reads, "Legislative process draws justices' rebuke," and his first sentence reads, "A federal court Tuesday upheld a Republican congressional redistricting plan against claims that it harms minority voting rights, but it sharply criticized the process of adopting the map as a threat to the system of fair elections."  Leave aside that there are no "justices" anywhere in sight — the panel comprised two US District Judges and one US Circuit Judge, each of whom would promptly correct you if you referred to him or her as "Justice."  What's important is his gross error in describing anything in the opinion as a "rebuke" to the legislative process or a "threat to the system of fair elections."  That's just wishful thinking and a complete fabrication. Even in the weirdest part of the opinion (which I quoted above), none of the judges say there is a "threat to the system of fair elections."  To the contrary, both the majority and dissenting opinions say that if Texas voters don't like the Legislature's efforts at redistricting, they can fix the problem at the polls by electing different state legislators.

The fact that the opinion is long or confusing doesn't justify just making stuff up that you wish it said!

Update (Weds. Jan 7th 11:35am):   Due to popular demand I've enabled comments for this thread.  And Kuff, as promised, has lots of good quotes and links with press reactions to yesterday's decision and the political aftermath regarding who's now going to run against whom and where.