« Hypothetical profiles in courage from the floor of the Senate | Main | Beldar predicts strange bedfellows will gang-rape insurance company »

Friday, June 10, 2005

Three-judge federal panel again tosses Dem complaints about 2003 Texas Redistricting

I. Introduction

When it comes to congressional redistricting law, as compared to someone like Rick Hasen — a law professor who studies and teaches the subject, and blogs about it as well — I am, admittedly, a dilettante. Put another way, neither side in the on-going legal struggles over Texas' congressional redistricting has been beating down my office door to hire me, and instead they've preferred, quite appropriately, to turn to genuine specialists in this arcane-but-important legal discipline.

But one of my goals as a lawyer-blogger has been to try to simplify — to translate, if you will — the legal concepts and events of that struggle into language that a diligent and well-educated nonlawyer can understand. I'm also a pundit, though, with a self-admitted political viewpoint; and I readily admit that my interpretation and commentary on those concepts and events reflects that viewpoint. In short, while I've been trying in my many, many posts on the 2003 Texas redistricting to give a layman-intelligible explanation of what's been going on in the court challenges to the 2003 Texas redistricting plan, I've also been arguing for the legal and practical fairness of that plan. I don't defend partisan gerrymandering as being a wonderful thing in the abstract; but given that it exists, I've been defending this particular exercise of it as being both fair and legal.

At the moment, I'm rubbing my eyes after reading 58 pages of very, very dense and very, very carefully crafted legal prose: yesterday's decision by the three-judge panel to whom the United States Supreme Court sent back the Texas redistricting case for reconsideration "in light of" the Supreme Court's 2004 decision in the Pennsylvania redistricting case, Vieth v. Jubilirer. It's tough sledding, folks — it presumes a whole lot of pre-existing knowledge on the part of its readers that, quite frankly, even most lawyers lack.

Now, I don't fault the judges for this, because a written opinion that was both comprehensive and user-friendly would have run into the thousands of pages, given the ground that this decision tries to cover. This is definitely MEGO-inducing ("mine eyes glazeth over") stuff. So it's also no surprise that the mainstream media — for example, the Associated Press, the Houston Chronicle, and the Dallas Morning News — don't tell their readers very much more that's obviously meaningful besides who won (the Republicans, again) and what both sides said about the result (Dems: "Just a way-station on the way back to the Supreme Court"; Republicans: "This ought to end it.") Prof. Hasen provides his initial short (but substantive) take — definitely better than the MSM's reporting — here, but it's still "inside baseball" that presumes a lot of pre-existing knowledge (and reasonably so, given his blog's intended audience of professionals).

So once again, while I invite you to read it for yourselves, I'll plunge into the dense prose to try to tell you what I believe has happened. And then I'll tell you what I think of it, and what I think is likely to happen next.

II. Who was on the three-judge panel, and what did it do?

Yesterday's decision was from the same three-judge panel that initially rejected the Dems' legal challenge to the 2003 Texas redistricting in a 127-page decision that I blogged about in January 2004: United States Circuit Judge Patrick E. Higginbotham  (appointed by Pres. Ford to the district court bench, elevated by Pres. Reagan to the Fifth Circuit), and United States District Judges Lee H. Rosenthal (appointed by Pres. G.H.W. Bush)\1/ and T. John Ward (appointed by Pres. Clinton).\2/

Yesterday's result — Dems lose — was the same. But unlike the January 2004 result, yesterday's ruling was unanimous among all three judges on the panel. This time, however, the main opinion for the panel was specifically identified as being written by Judge Higginbotham. (I'd have guessed as much from its style; and I suspect that again it was largely his own initial drafting, rather than coming from his law clerks.) Judge Ward, who dissented in part from the January 2004 decision, this time concurred fully in the result, but again wrote a separate opinion expressing his own views.

III. What did the three-judge panel say?

Of the U.S. Supreme Court's decision in October 2004 to send this case back to the three-judge panel for further consideration, I wrote "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." And as Prof. Hasen wrote then, and I agreed,

What is the lower court to do? The lower court [judges on the 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.

But no one can fault this panel for failing to give it the old college try. "The light offered by Vieth is dim," writes Judge Higginbotham dryly, and with considerable understatement he notes that "the search for a core holding is elusive." Politely but accurately, he adds: "This observation is not a criticism, but a recognition that Vieth reflects the long and twisting historical narrative of political gerrymanders in the United States."

Next in Judge Higginbotham's opinion follow accurate descriptions of the various opinions from the fractured Vieth Court, and of the factual history in Texas of Democratic gerrymandering and Republican counter-gerrymandering as the parties have switched majority status over the last four decades. The context of the latter, though, can give the panel no help resolving the conflict and confusion within the former. The panel rejects — rightly and persuasively, I think — all of the suggested interpretations of Vieth and attempts to harmonize its conflicting approaches that were offered by the Dems. The panel opinion also has an interesting discussion of whether gerrymandering does or doesn't cause noncompetitive districts, but I think that's mostly an academic digression that's not key to any result that the panel reached.

So what "further consideration ... in the light of Vieth" could the panel give to its own January 2004 ruling upholding the 2003 Texas redistricting? Well, since Vieth produced no "core holding," the panel here ultimately resorts to the roughest — but in my view, the only appropriate — use of that precedent. In a nutshell: Since the partisan skew resulting from the Pennsylvania gerrymander was worse than the partisan skew resulting from the Texas gerrymander, and since the Supreme Court left the Pennsylvania gerrymander in place anyway, yesterday's opinion says this panel won't overturn the Texas gerrymander for being "too partisan." Here's the panel's own explanation:

In short, under the plan passed by the Pennsylvania General Assembly and upheld by the [Supreme] Court in Vieth, the party that garnered, on average, less than half the vote in statewide races was able to capture nearly two-thirds of Pennsylvania's congressional seats. In contrast, the plan passed by the Texas legislature resulted in the election of twenty-one Republicans and eleven Democrats to the House of Representatives in 2004, when the Republican Party carried 58% of the vote in statewide races and the Democratic Party carried 41% of the vote.

... [I]f the effects of the Pennsylvania plan did not provide a basis to find excessive partisanship in redistricting, it is hard to see how the effects of the Texas plan make it constitutionally offensive.

That's the nub of this 58-page decision, friends and neighbors.

The Dems, anticipating the likely result of this brutally simple comparison, had labored mightily to persuade the panel that the result of Vieth ought not dictate the results reached by this panel. But they utterly failed to persuade the panel to reconsider the original rejection of the Dems' "twice in one decade" argument from the Dems' first challenge to the 2003 Texas redistricting, which the Dems launched before the third legislative special session in 2003 had succeeded in passing a plan. This is no surprise: the Dems had no precedent for that argument then, and had none now either.

But the Dems, supported by an amicus group of "University Professors"\3/ had made another ingenious and ultimately disingenuous attempt to distinguish the Texas situation from Pennsylvania's. The "one person, one vote" ("OPOV" for short) line of Supreme Court cases, they argued, effectively prohibited the Texas Legislature from doing their mid-decade redistricting based on three-year-old results from the 2000 Census. The Dems knew, of course, that — as Judge Higginbotham's opinion also recognized — it would be impossible for Texas to duplicate the national Census mid-decade and solely within Texas, so the effect of this proposition would be to indirectly prohibit all mid-decade redistricting. But the Supreme Court has approved many redistrictings that were based on more than two-year-old Census data — specifically including redistrictings done by state legislatures wishing to replace (as here) an earlier-in-that-decade court-crafted map. And in fact, even if redistricting is done in an -01 year, the data from the previous year's Census will already be substantially inaccurate. Therefore, in the panel opinion for yesterday's majority, Judges Higginbotham and Rosenthal refuse to allow the perfect [i.e., mathematical precision based on absolutely current census data] to become the enemy (actually, the assassin) of the good [i.e., our system's deliberate historic choice to prefer that redistricting be done by (democratic) state legislatures rather than (un-democratic) three-judge federal court panels].\4/

Judge Ward's special concurrence buys into this pitch, but basically says that only the Supreme Court has the power to turn it into binding law. As such, I'm quite certain that it will be the cornerstone of the Dems' inevitable appeal back to the Supreme Court — which leads to my next topic.

IV. What will happen next?

The one thing that is absolutely certain is that the Dems will make good on their announced and inevitable intentions to appeal yesterday's ruling back to the Supreme Court. For obscure reasons unique to voting rights cases that I've explained before, the Supreme Court cannot just refuse to rule on the merits of that appeal by issuing one of its typical "cert denied" orders. But while it must (in theory) address the merits of yesterday's ruling, the Supreme Court need not grant oral argument or write a full-blown opinion (or more likely in any of these cases, set of opinions). And I predict that the Supreme Court will, in due course and in no particular hurry, summarily affirm yesterday's ruling without either entertaining oral argument or explaining their decision.

It's theoretically possible, of course, that the arguments of the amicus University Professors (as embraced by the Dems) will persuade the Supreme Court to hold oral arguments and to make new precedent. It's possible that by some sort of miracle, a coalition of at least five Justices (perhaps including one or more new Justices by then) will coalesce out of the chaos that ruled in Vieth. Impassioned briefs will indeed be written and filed (and impressive legal fees will indeed be charged and paid for them). But as Judge Higginbotham's opinion notes, the University Professors' argument "as presented comes unadorned with supporting case citations." This is a polite way of saying: "Cute, guys, but you're just makin' this stuff up as you go, and you can't point to any other court that's already done what you're asking us to do now." That doesn't bode very well for the Dems' chances in their next trip back to the Supreme Court.

Realistically — and on this, I think even the Dems' lawyers would agree, if you could ever get them to be privately candid on this subject — the Dems' chances have gone from "long-shot" to "moon-shot" status. The fat lady sang a long time ago in this opera, and all that's left are some assorted violas and bassoons still squawking because they won't/can't/don't want to admit that the conductor has already left the podium. The 2003 Texas redistricting map will almost certainly remain in place for the rest of this decade.

Gerrymandering causes perennial (or at least decennial) bloodbaths not just in Texas but elsewhere, so the Supreme Court will have many future occasions to reconsider Vieth and to provide something more coherent than its "dim light." But Beldar sez: Don't hold your breath for the next five years (unless you're working and getting paid by the hour to do so).


\1/Disclosure: As I've noted before, I practiced law with Lee Rosenthal for several years at Baker Botts in the 1980s; I like and admire her greatly; and I still consider her a friend (although we've had no social contact for many years, and I only rarely appear before her professionally these days).

\2/As I've also written before, I think it is facile, misleading, inaccurate, and insulting to suggest that the results of these cases correspond directly to whether the panels are composed of appointees of Republican or Democratic presidents. But those appointments are objective bits of information, and some folks insist on making arguments from them (nevertheless often misstating those objective facts in the process).

\3/The question "What left-wing domination in academe?" is even funnier, of course, than "What liberal bias in the mainstream media?"

\4/I recognize that in writing a sentence like this one, I'm utterly failing — alas and alack, mea culpa maxima! — in my goal of translating the panel's dense legal prose into clear lay language. At least my version is boiled down to one obscure paragraph, though, instead of filling multiple pages.

Posted by Beldar at 03:15 PM in Law (2006 & earlier), Politics (2006 & earlier), Texas Redistricting | Permalink


Other weblog posts, if any, whose authors have linked to Three-judge federal panel again tosses Dem complaints about 2003 Texas Redistricting and sent a trackback ping are listed here:


(1) Birkel made the following comment | Jun 10, 2005 6:18:21 PM | Permalink

An unsurprising result but thanks for bringing it to your readers' attention.

(2) Greg Wythe made the following comment | Jun 11, 2005 7:39:10 AM | Permalink

Despite the legalism of the plaintiffs, I'm not entirely sure that a positive outcome is defined by undoing the 2003 trainwreck so much as it would be to declare mid-decade re-redistricting unconstitutional. In short, it's a crime without an effective remedy.

Reading Vieth, I've got to think it's a longshot that there's even 5 votes that are willing to declare that, but then again, Veith was something of a blank slate - it effectively discarded Bandemer and replaced it with ... well ... nothing.

Coupla thoughts based on the discussion of this recent decision, though ... the OPOV mandate still strikes me as perhaps the strongest case against re-redistricting in general. What's to stop a redistring in 2XX8 that tries to account for population shifts that aren't recorded in the constitutionally mandated census, which is the official record by which redistricting occurs?

Basically, I think this theoretical point might be something along the lines to which the ultimate SCOTUS decision ends up declaring re-redistricting unconstitutional (which I *do* think has 5 votes), but without applying a remedy to Texas (which I *don't* think has 5 votes).

But what do I know, I'm an even bigger dilettante on this subject.

(3) Beldar made the following comment | Jun 11, 2005 9:41:41 AM | Permalink

Greg, even if we're both dilettantes, I, at least, think your comment is a very good one. To your question —

What's to stop a redistring in 2XX8 that tries to account for population shifts that aren't recorded in the constitutionally mandated census, which is the official record by which redistricting occurs?

— the panel's explicit and specific answer in Thursday's opinion was: "Congress, but only if it wants to."

One of my big points — which I'd characterize, actually, as a correction of disinformation that the Dems have so aggressively peddled — is that what happened in 2003 wasn't a "re-redistricting." That term presumes that what the Balderas federal panel (which also included Judge Higginbotham) did in 2001 after the Texas Legislature deadlocked is equivalent to a redistricting by a legislature. And it's not.

The Balderas panel recognized that, and Thursday's opinion repeated the point: The 2001 panel ruling did the minimum necessary to create two new districts for the two new Congressional seats mandated by the 2000 Census, but it made no effort to do the sort of comprehensive reconsideration of the pre-existing map (basically Martin Frost's pro-Dem gerrymander from 1991) that would allow the public to have a say through representative democracy. And that's exactly why in the 2002 election, Dems were able to retain a majority of Congressional seats in a state in which they couldn't elect a single candidate in statewide races. Thursday's opinion includes an express recognition that from the Republican viewpoint (which I share), the 2003 "train wreck" as you call it was actually remedial — fixing the effects left over from 1991 that had become increasingly pernicious as the state became more and more majority-Republican.

I agree that it's politically unwise and bad as a matter of policy for a legislature to attempt redistricting twice within a decade. Lt. Gov. Dewhurst apparently agrees, and has gone on record as saying he'd block any further attempts at redistricting by the Texas Legislature before the 2010 Census (although he may or may not be in a position to make good on that promise.) And I'd support a federal statute by which Congress prohibited that practice. (While they're at it, I'd like to see Congress also re-visit the issue of whether I and everyone else in Texas and several other states still deserve to be tagged with the title of "presumptive racist" by Section 5 of the Voting Rights Act, notwithstanding the fact that our grandfathers and great-grandfathers may, collectively, have well deserved that tag in 1965.)

But I don't think that anything in the current law would prevent a state legislature from doing that. And the dicta in Judge Higginbotham's series of opinions (I think they're all largely his handiwork, although some of them are per curiam) flatly says that a state legislature could do that without violating the law.

(4) Birkel made the following comment | Jun 11, 2005 4:04:26 PM | Permalink

Greg Wythe,
I don't think Congress will step into this breach. After all, the federal courts have order re-re-redistricting plans several times in Southern states where majority-minority districts have been required.

(The NC legislature redrew the infamous I-85 district twice after their first plan didn't include a majority-minority district. Their second plan was deemed unconstitutional because of the size and shape of the I-85 district. And their third plan was accepted.)

The courts are therefore in a bit of a tight spot if they wish to create bright-line rules about districting, IMO.

And Beldar I'm with you about the presumptive racist issue. Thankfully Justice O'Connor signalled that affirmative action (and by extension likely Section 5 of the VRA) would at some point be ripe for overturning. That's from the UofM case, IIRC. (Bollinger was a named defendant if anybody tries to search for it.) We'll see how long it takes.

(5) Neo made the following comment | Jun 12, 2005 10:27:08 PM | Permalink

I recall living through the Pennsylvania redistricting and reading Judge Rambo's decision. I forget all the math but it read something like for districts that had 120,000 in population, because the error in the total numbers between districts was +- 120 or 0.1% it was obviously unequal.
I personally believe that more than 120 folks have moved about in the time between the decade census and the redistricting, so this tight measurement of 0.1% seemed just plain silly. Meanwhile, the confusion that it generated in terms of which districts actually existed and who were the proper candidates in which wards was unbelievable, so the "plain silly" became the ludicrous.

(6) D.R. made the following comment | Jun 13, 2005 3:19:16 PM | Permalink

The New Age math MORON plaintiffs and judges in gerrymander cases are unable to note that just over half the votes in just over half the gerrymander districts is about 25 percent ANTI-Democracy minority rule.

The remedy is proportional representation-- regardless of ALL of the MORONS in gerrymander cases.

Basic P.R. ---

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

Difficult ONLY for math MORONS, in low and high places.

(7) T-Flip made the following comment | Jun 16, 2005 1:39:53 PM | Permalink

One complication to D.R.'s simplistic math is that you actually have to be able to draw the districts you intend to give to each party. The Voting Rights Act necessitates the creation of a substantial number of minority districts, which in current Texas demographics means you are creating a substantial number of overly Democratic districts. Subsequently, in the rest of the state you no longer have the orginal Democrat-to-Republican proportionality nor do you have the geographic proximity of largely Democratic populations.

How creative should we be in drawing lines to meet a quota and what statistics should we use to determine if the districts will, in fact, perform as desired.

(8) D.R. made the following comment | Jul 14, 2005 12:17:36 PM | Permalink

Responding to T-Flip --

The MORONS in gerrymander cases do not have any brains to attack the constitutionality of single member districts.
A legislative body exists only because ALL of the Electors/Voters can not assemble in person.

The comments to this entry are closed.