BeldarBlog

There was nothing "culpable" about the 2003 Texas redistricting

I'm angered to read the following passage in a very silly and badly informed article called The End of Gerrymandering, and in particular, I'm dismayed to read it in the Weekly Standard:

But Republicans have not been without culpability, especially in recent years. The mainstream media has naturally sought to highlight this, especially the "DeLay Plan" to gerrymander Texas to the GOP's advantage mid-decade without even waiting for a new census. This occurred in 2003, when the Texas legislature, newly controlled in both houses by Republicans, redrew lines established by a court in 2001 after legislative deadlock. The gerrymander, which created several more GOP-leaning seats in the Texas delegation, ultimately was upheld by the U.S. Supreme Court. Incoming Obama chief of staff Rahm Emanuel, then chairman of the Democratic Congressional Campaign Committee, opined: "Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen. That's the gift that the Supreme Court and Tom DeLay have given us."

I have several questions for the authors, Christian Whiton and Larry Greenfield: Why do they think it was appropriate for the citizens of our nation's second most populous state — a state that has trended Republican since the early 1990s, and been solidly Republican for more than a decade — to continue to live with a pro-Democratic gerrymander from the 1990s that no longer remotely reflected Texas' majority-Republican status? Why should we have to continue to submit to a Congressional district map that was specifically designed to give, and in fact gave, Democrats a majority of Texas' seats in Congress when not a single Democrat could win election to a statewide post?  Why should we pretend that a three-judge federal court — one whose judges candidly and expressly recognized their own lack of political legitimacy, since it was comprised of unelected judges holding life tenure from the single branch of the state or federal government least responsive to small-d democracy — was entitled to have its decision (which made the least possible changes necessary to the 1990s pro-Democratic map to accommodate Texas' new seats due to the 2000 Census) written into stone?

Why, in short, are Christian Whiton and Larry Greenfield swallowing hook, line, and sinker the most incredibly misleading anti-democratic clap-trap of the disingenuous Hard Left (viz: Rahm Emanuel!), describing as "culpable" a readjustment of Texas' districts to closely reflect modern-day Texans' own voting patterns?

What Rahm Emanuel meant was that Tom DeLay and the Supreme Court had given lying Democrats like him a fact-pattern that they could continue to twist, in order to mislead people into thinking that a legitimate democratic process reflecting the wishes of a majority of Texas voters, as expressed through their elected state legislators and governor, was instead a racist and improper one.

I expect better of the Weekly Standard's editors than to print this kind of drivel. The byline tells us that "Christian Whiton is a State Department political appointee. Larry Greenfield serves on the Resolutions Committee of the California Republican Party. The views expressed are their own." But that frankly doesn't excuse the fact that this piece goes out of its way to insult the citizens of Texas and their duly elected state leaders.

Far outside the Beltway, here in Texas, we don't see a problem with our own elected officials — rather than even very good federal judges — drawing our Congressional district map. Culpable? No, that's democracy. That's why America has a Census every ten years, and that's why redistricting is supposed to be done by the combined action of state legislatures and state governors thereafter. Indeed, the voters of Texas reacted to the Dems' 2001 stonewalling in the state legislature by electing more Republicans, who as a result were able to break the Dems' attempts to stonewall and boycott in 2003. There's nothing wicked about voters punishing a party which was badly abusing even its minority status; rather, it's a text-book example of the success of representative democracy.

(The rest of the Whiton and Greenfield piece expounds the great virtues of the new system just passed into law for California that is supposed to make redistricting "nonpartisan." That's about as clever, and is about as likely to be effective, as passing a constitutional amendment requiring state legislators or state governors to be "wise." Redistricting is inherently a political exercise. Moreover, Supreme Court precedent and civil rights legislation, most prominently the Voting Rights Act of 1965, make it impossible for states to redistrict in a random, apolitical fashion anyway: Even if they try to avoid partisan issues, the law's assumptions (among them the repugnant proposition that only Democrats can represent blacks and hispanics) and repercussions will require them to consider the political effects of their actions. I have no confidence that the new California plan will work; indeed, California seems to me and many of my fellow Texans to be most useful as the political laboratory for testing out the most conspicuous failures that the other 49 states can then observe and avoid.  (See point #5 here.) But I wish them luck in what I nevertheless believe to be an impossible and unrealistic task, and I would thank those like Whiton and Greenfield who believe otherwise to withhold their insults to the State of Texas at least until the day — indeed the decade, or two — in which the new California plan has proven itself to be an even arguably viable alternative.)

I blush ...

... at the last sentence of this post. Thank you, Mr. Ponnuru.

But it is true that I'm available, even to Dick Morris, at a much lower hourly rate than Dick Morris.

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.

In a victory for (small-d) democracy, Texas voters "re-enfranchised" in Congressional elections

Tonight the tenacious and pernicious effects of a pro-Democratic gerrymander dating back to 1991 were finally erased.  Due to the successful redistricting completed by the Texas Legislature in 2003 — the first and only redistricting completed by that body, in the due performance of its assigned duties under the state and federal constitutions, to account for the results of the 2000 Census (and Republicans have pledged that there will not be another until after the 2010 Census) — Texas' congressional representation in the next Congress will now reflect the Republicans' strong majority-party status in this state.  Republicans will hold 21 of 32 Congressional seats, or 66 percent of the total.  Dubya pulled just over 61 percent state-wide, suggesting that the pro-Republican tilt to the 2003 map is pretty mild and reasonably accurately reflects Texas' overall Republican-Democratic voter proportions.

My title for this post is tongue-in-cheek.  Those who've read my many, many past posts on the Texas redistricting will know that I've consistently objected to Democratic claims that redistricting — even highly partisan gerrymandering — "disenfranchises" voters.  Disenfranchisement means depriving someone of his right to vote.  Redistricting/gerrymandering doesn't do that; under both the old map and the new map, essentially every eligible voter in Texas who wanted to do so, was indeed able to cast his or her vote and have it counted.  One has a sacred right to vote, but one doesn't have a sacred right to have his or her preferred candidate win.

What the 2003 redistricting accomplished — within the limits imposed by the Voting Rights Act, which essentially transformed minority-race Democratic incumbents into untouchable sacred cows whose districts must remain gerrymandered to ensure their perpetual re-election — was to unpack Republicans (who'd previously had their votes purposefully diluted by the pro-Dem gerrymander in 1991) into a larger number of districts. 

The sacrificial lambs of the 2003 Texas redistricting and the 2004 Congressional election thus became incumbent white male Democrats who — stripped of their own gerrymandered advantages — turned out not to be so well beloved by their new mix of constituents as they'd claimed they would be.  Charlie Stenholm, Max Sandlin, Nick Lampson, and (most sweetly, because he was the architect of the earlier pro-Dem gerrymander) Martin Frost took dirt naps.  Another white male Dem incumbent, Chet Edwards, is leading as I write this, and if he indeed wins that will show that the redrawn districts were not entirely uncompetitive.  White male Dem incumbent Lloyd Doggett won, as expected — but only after moving to run in a new district that was created with the expectation that it would be Democratic-leaning and that the Dems would pick a hispanic candidate.  (El Patron Doggett used all of his many advantages of incumbency, fund-raising, and name recognition to squash his Democratic primary opponent, former judge Leticia Hinojosa; I'm still waiting for the Dems to scream "racism" and "sexism," but there's been a strange silence.)

I've consistently maintained that the Dems' resistance to redistricting was profoundly anti-(small-d)-democratic.  Yes, gerrymandering is brutal; yes, we should consider some sort of redistricting reform (although I've yet to see a plan that I could endorse unreservedly).  But tonight's Texas Congressional election results can be traced directly back not to the decisions of Texas voters who in 2002 put both chambers of the Legislature and the Lieutenant Governorship and Governorship into the hands of the Republicans.  Tom DeLay merely guided his statehouse colleagues in using the voting majorities that Texas voters had placed into Republican hands. 

As I wrote on October 18th, I believe that the nominally still-pending legal challenge to the 2003 map will be summarily rejected again by the three-judge panel that approved that map in January, and that the panel's decision will then be summarily affirmed, probably without oral argument or written opinion, by the Supreme Court.  Edwards' win effectively drives a final coffin nail into the argument that the Dems have no chance of prevailing in any of the non-minority-incumbent redrawn districts.

I'm well pleased.  It was a good night for small-d democracy in Texas.

(Footnote for out-of-state readers who remember Ra^thergate:  David Van Os, one-time lawyer for CBS News source Bill Burkett, was soundly trounced (60/40) in his race for a Texas Supreme Court seat by superbly qualified incumbent Scott Brister.)

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.

US Supreme Court votes 9/0 to AFFIRM first Texas redistricting case, but the Houston Chronicle claims the Court "refused to hear" it

In the space of a two-sentence lede in a story tonight headlined "U.S. Supreme Court hands defeat to Texas Democrats," the Houston Chronicle's R.G. Ratcliffe managed both to demonstrate his liberal bias and to completely misreport what the Court did today about Texas redistricting:

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership ran over them in a push to pass congressional redistricting last year.

The high court refused to hear a three-judge panel decision against Senate Democrats last year when they unsuccessfully sued to halt a redistricting debate.

"Ran over them"?  And some people seriously ask, What liberal media bias?

If this were an op-ed, or even something labeled "news analysis," then that sort of value judgment might be acceptable.  An equally slanted version of this sentence from the opposite (that is, conservative) perspective might read: 

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership finally rescued the principle of majority-vote representative democracy from legislative anarchy in their efforts to meet the Texas Legislature's constitutional duty to pass a congressional redistricting plan last year.

I think that's actually closer to the truth.  But how about something that's factual without implying any value judgments or grinding any political axes, like this:

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership overcame the Dems' lengthy procedural efforts to block a simple majority-rule vote in the Republican leadership's push to pass congressional redistricting last year.

Having demonstrated his obvious political bias in his choice of loaded language for his first sentence, however, Mr. Ratcliffe proceeded to completely misreport what the Supreme Court actually did! 

Any first-year law student who's studied basic citation form or gotten a passing grade in his federal procedure class — and certainly any of the fine lawyers who are available, even eager, to help explain things to the Chronicle staff — would take one look at what the Court actually wrote today and immediately recognize that this language is emphatically not a "refus[al] to hear a three-judge panel decision against Senate Democrats last year":

Appeal — Summary Disposition

03-756   BARRIENTOS, GONZALO, ET AL. V. TEXAS, ET AL.
The judgment is affirmed.

This item was at the very top of today's list of decisions — all by its lonesome under a bold-face heading.  You'd think that alone would give a reporter who gives a damn about getting his facts straight some sort of clue that Barrientos v. Texas wasn't a "usual sort of 'appeal'" — but that apparently didn't faze Mr. Ratcliffe for a moment.

Indeed, ff you scan down through the fifteen pages of other orders also issued today, you'll soon come to a long list of hundreds of ordinary (non-Voting Rights Act) cases that the Supremes did "refuse to hear" — that is, cases in which the Justices exercised their discretion to refuse to review those cases on their merits.  All of those cases were effectively ended by the Supreme Court's denial of a petition to issue a "writ of certiorari" — that "writ" being the technical name of the type of Supreme Court order it issues when at least four Justices have agreed to hear what's commonly (if inaccurately) called an "appeal" from a lower court (usually one of the United States Courts of Appeals, a/k/a the "Circuit Courts" like the Fifth Circuit or the Ninth Circuit).  Any first-year law student learns that "cert. denied" simply means that the Court refused to consider the merits of the court below's decision.  A denial of certiorari therefore has utterly no precedential value; it doesn't mean the decision of the court below was right or wrong.  It's not only mistaken, but unethical for a lawyer to suggest otherwise.

Unlike all those other cases resolved today, Barrientos v. Texas wasn't a discretionary appeal made through an application for a writ of certiorari, but — as I've repeatedly blogged before (in the most detail, with links to the statutes, here and here) — an "appeal as of right" from a Voting Rights Act three-judge panel, a type of decision that Congress, by statute, requires the Supreme Court to fully review on its merits.  In other words, by statute, all nine Justices of the Supreme Court had to vote — not on the question of "Do we want to hear this?" but on the very different question of "Was the decision of the three-judge panel right or wrong on the merits?" 

There were no dissents — the Dems couldn't pick up even a single vote.  Instead, all nine Justices necessarily agreed not only that what the three-judge panel had written and ruled was proper and correct on the merits, but that there were no close questions at issue, and nothing to add to what the three-judge panel had already written.  And in fact, from now on, any lawyer who refers to that three-judge panel's decision will have to include in his citation a special notation — aff'd mem., 541 U.S. ___ (2004) — because the Supreme Court has effectively adopted the three-judge panel's opinion as its own.

In the simplest possible words: The Supreme Court didn't decide not to "hear" this case.  They had to consider it fully and on its merits.  When they did so, they unanimously decided that the three-judge panel's decision was correct.  That's what "summary disposition: affirmed" means in layman's terms.  The Court thought this was a no-brainer.  It's the Supreme Court equivalent of a prize fight — not one that's cancelled, but one that's a knockout in the first ten seconds of the first round.

Mr. Ratcliffe's misreporting of this basic, fundamental fact is all the more embarrassing when you look at other media reports.  The Dallas Morning News and Washington Post managed to avoid this confusion, as did the Associated Press report reprinted in the Austin American-Statesman and the Fort Worth Star-Telegram.

I don't know where this story will be in the print edition of the Chronicle tomorrow (and indeed, the Chron is notorious for monkeying with its online links without leaving clear tracks when it's done so) — but as I write this, it's on the Chron website as the first of "Today's Top Stories."  It's bad enough that this "news report" is obviously biased, but it's incalculably worse that it's just flat wrong on the core event it purports to have reported.

How very, very pathetic.

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Update (Tues Apr 20 @ 5pm):  No response from the Chron to my outraged email ... of course.  Also, the Daily Texan joins the Chron in misreporting yesterday's result:

The U.S. Supreme Court declined on Monday to hear an appeal by 11 Texas Democratic senators challenging redistricting legislation that passed during last fall's special session.
....
Bob Richter, spokesman for House Speaker Tom Craddick, R-Midland, said the court's decision, which has the power of a ruling, reaffirms the redistricting effort.

Yes, it had the "power of a ruling" because it was a ruling.  Duh.

Finally, my exchange of comments on Charles Kuffner's post about this decision is an excellent illustration of the Chron's habitual disrespect for the integrity of hyperlinks.  Kuff's post and comments reveal that the Chron originally had posted the AP wire story on yesterday's decision, then replaced the AP version with Ratcliffe's article at the very same URL.  Not only does this create confusion, but it proves that the Chron replaced a correct report about the decision with something contrary and incorrect.  More's the pity.

Update (Tues Apr 20 @ 11pm):   Prof. Hasen, whose post about yesterday's ruling I linked in a comment below, was kind enough, in response to an email from me, to link this post on his blog, and in his email reply to me to very impressively and definitively answered a question I'd posed to him regarding the precedential effect of summary affirmances.   Per Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173 (1979) (internal citations omitted):

[T]he precedential effect of a summary affirmance can extend no farther than "the precise issues presented and necessarily decided by those actions." A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.  Questions which "merely lurk in the record" are not resolved, and no resolution of them may be inferred.

This confirms that the summary affirmance yesterday in Barrientos isn't likely to affect Vieth or Jackson v. Perry.  But it's still considerably more powerful than a "cert. denied" in the unlikely event that a future court should ever be called upon to consider something like the suspension of the "blocker bill" procedure during legislative redistricting.

The fat lady clears her throat on Texas redistricting: Supremes refuse to block Texas map pending appeal

The US Supreme Court's first action in the appeal of the three-judge panel's decision approving the Texas Legislature's 2003 Congressional redistricting — a case known as Session v. Perry before the panel, and now pending before the Supreme Court under the name Jackson v. Perry — has been to deny an emergency request for a stay of the three-judge panel's order pending its appeal, according to an Associated Press report republished by the Dallas Morning-News, the Houston Chronicle, and of course the ever-vigilant Howard Bashman's How Appealing legal blog.  From the Chron:

The Supreme Court refused today to block a hard-fought Republican redistricting plan in Texas that could cost Democrats as many as six seats in Congress.

The justices will announce later this year whether they will consider an appeal from congressional Democrats and others who claim the map dilutes minority voting strength. In the meantime, they rejected an emergency appeal that sought to stop the state from using the new boundaries in this year's elections.

As is unfortunately typical, this AP report gives a misimpression when it suggests that the US Supreme Court has discretion to refuse to hear the appeal on its merits.  Cases like this one — in contrast to most cases, which the Court decides on their merits only if it first grants a discretionary "petition for writ of certiorari" — are "direct appeals," taken "as of right" without first going through the normal intermediate appellate route, the United States Courts of Appeals.\note1/

The Supreme Court already has pending under submission a similar challenge to partisan gerrymandering from Pennsylvania in Vieth v. Jubelirer, which was argued on December 10, 2003.  If they followed their normal practices, immediately after that oral argument, the Justices presumably took a preliminary "conference vote" on whether to affirm the lower court's decision in Vieth — thereby presumably leaving intact the very permissive standards regarding partisan gerrymandering as established in Justice White's 1986 plurality opinion in Davis v. Bandemer — or whether to write some new restriction against partisan gerrymandering into the law.  The senior Justice in the provisional majority has presumably assigned himself or one of the other Justices voting with him to write a proposed majority opinion reflecting their decision in their post-argument conference.  Unless something very dramatic happens to change the voting line-up from the conference — rarely, but occasionally, a very persuasive proposed dissenting opinion can end up causing Justices to change their provisional votes — Vieth has already been effectively decided.  But only the Justices will know the result until all the proposed majority, dissenting, and concurring opinions have been circulated, final votes have been cast, and the final decision announced.

The three-judge panel in the Texas case ruled — quite correctly, I believe — that the Texas Legislature successfully stayed within the bounds permitted under Bandemer when it redistricted in 2003.  I also believe that if the US Supreme Court intends to write dramatic new law in Vieth that overrules Bandemer and substantially restricts partisan gerrymandering in any important way, then the same Justices who cast preliminary votes to that effect after oral arguments in Vieth almost certainly would have voted to grant the Texas plaintiffs' motion for an emergency stay pending appeal.  If they know the law is about to change in a way that would make what the Texas Legislature did in 2003 illegal, then they almost certainly would have voted to ensure that the 2004 elections in Texas would take place either under whatever new law they intend to announce in Vieth, or else under the pre-existing 2001 map — rather than permitting the 2004 elections to proceed under the Legislature's 2003 map that was approved by the three-judge panel applying the Bandemer plurality standard.

By contrast, if a majority of the Justices have already made the preliminary decision after oral argument in Vieth either to leave Justice White's plurality opinion in Bandemer substantially in place, or to replace it with an even less restrictive standard — for instance, a ruling that such issues are "nonjusticiable political questions," as Chief Justice Rehnquist and Justice O'Connor urged in their dissent in Bandemer — then those same Justices would have voted against staying the result of the three-judge panel's decision in Texas.  They would vote against staying the panel's ruling from Texas because they have already concluded that ruling will almost certainly ultimately be affirmed under the result they've already reached in their still-secret conference vote in Vieth.

Thus, my bottom-line reading of the tea leaves: Today's ruling makes it very unlikely that the Supreme Court is going to reverse the rulings that permitted partisan gerrymandering in either the Pennsylvania or Texas cases.

Another AP story that appears on the CBS News website includes this quote:

Gerry Hebert, who represents Texas congressional Democrats, said Friday: "I still remain confident that justice will prevail. It just didn't today."

Lawyer Hebert, who's been over-the-top in his public pronouncements since he first showed up in this fight, is going to have to have the fat lady actually sit on him before he gets the point, I think.  Earth to Gerry:  Justice just did prevail.

Likewise, the Austin American-Statesman has a quote with this bit of wishful thinking:

But Nina Perales, a lawyer for Hispanic civil rights groups challenging the map, said the court's decision not to grant a stay does not indicate how it might rule when full-blown appeals reach it.

"A stay is an extraordinary remedy, and not getting a stay doesn't really give you much of a clue on how the Supreme Court feels about your case," Perales said.

Normally I'd agree with Ms. Perales.  But the fact that Vieth was just argued last December 10th makes this far from the ordinary situation, and the stakes involved — a likely net swing of several Congressional seats — make it impossible that today's ruling was a casual or routine one by the Court.

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\note1/I've explained this in more detail here. If you take a look at the docket sheet in Vieth, for instance, you'll see an entry dated June 27, 2003, which says "PROBABLE JURISDICTION NOTED." That's the Court confirming for the record that yes, this is a case they have to take as a direct appeal as-of-right. In ordinary cases in which the Supreme Court has discretionary authority whether to consider a case on its merits or not, that line would either say that the petitioner's petition for a writ of certiorari was "granted" or "denied" (as with the January 12, 2004, entry from a random case shown here, for example).

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Update (Fri Jan 16 @ 8:30pm):  The Supreme Court's website has been updated to include this order (.pdf file, 2d page), which reads in full:  "The application for a stay or injunction pending appeal presented to Justice Scalia and by him referred to the Court is denied."  Justice Scalia presumably could have acted alone in deciding this emergency motion in his capacity as Circuit Justice for cases arising out of the Fifth Circuit (which includes Texas).  That he instead referred it to the entire Court is no surprise, however, given the nature of the case and its stakes.  That the entire Supreme Court considered and voted on the stay motion is yet another fact that bodes ill for the Dems.

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Update (Sat. Jan. 17 @ wee-small-hours):  The Brennan Center has most of the briefing filed in the Supreme Court with regard to the stay application here in .pdf form (hat-tip to Rick Hasen's Election Law blog).

The El Paso Times quotes Texas state senator Eliot Shapleigh (D-El Paso):

"I fear for the Voting Rights Act in the future," Shapleigh said.

But Democrats now have few options, he said.

"Ours is a nation of laws. The Supreme Court has ruled. It's time to move on," Shapleigh said. "The lines drawn by the Legislature will be the lines for congressional races."

I found no surprises in other media reports from the San Antonio Express-News, Washington Post, and New York Times; and the Austin American-Statesman and Fort Worth Star-Telegram pretty much just regurgitate the AP story.  In particular, I haven't seen any major-media reports that recognize the possible significance yesterday's ruling in the Texas case may have for the Pennsylvania case as well.

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Update (Sat. Jan 17 @ 5pm):  UCLA Law School Professor Stephen Bainbridge was kind enough to link this post with some encouraging words that will prompt me to toast him with the next good glass of wine I drink.

Prof. Rick Hasen has also been kind enough to link this post and give his take on my tea-leaf reading.  He think I am probably overstating the significance of the Court's ruling yesterday:

There could be factual issues that distinguish Vieth from the Texas case, meaning that the Justices could decide the Texas redistricting is permissible even under a new standard that might be crafted. Or, more likely, the Justices may not be willing to inject more uncertainty into the Texas redistricting process this year, leaving room to make changes for the 2006 elections if necessary.

That is not to say that the Court is in fact likely to give more teeth to partisan gerrymandering in Vieth. Reports from oral argument suggested the Court is likely to either solidify the toothless Bandemer standard or to hold partisan gerrymandering claims nonjusticiable altogether. Indeed, in reviewing the content of the 2004 election law supplement, I was reminded that the two Justices who wanted a hearing in a similar Michigan case — O'Lear v. Miller — were Justices Breyer and Stevens. It appears from the Vieth oral argument that they were the ones pushing for a stronger partisan gerrymandering standard. Probably they attracted two more votes to revisit the issue, but do not have the votes to overturn Bandemer.

In a comment to this post, GregV also follows up on a dialog he and I had been engaged in before yesterday's ruling on a comment to a post over on Charles Kuffner's excellent Off the Kuff blog.  (Yesterday was also the filing deadline, and Kuff also has a good update on who's filed where under the new map in light of yesterday's Supreme Court ruling.)  GregV's questions have certainly pushed me to look harder at the tea leaves; whether I'm actually seeing anything there or just imagining, I leave to you, gentle readers. 

But let's get our fingers busy counting votes:

For Scenario #1, you can postulate Stevens, Breyer, and Ginsburg as your core voters pushing for more federal court power to rein in hyperpartisan gerrymandering — God knows under what kind of standard, but something with more teeth than Bandemere.  It would stun me for Rehnquist, Scalia, or Thomas to buy into that.  Although O'Connor is frankly more likely to have changed her mind since 1986 than Rehnquist (both dissented in Bandemere, arguing that partisan gerrymandering is a nonjusticiable political question outside the ken of federal courts), remember that she's the only Justice who's ever been a state legislator (majority leader in the Arizona state senate); this ought to be something she hangs tough on, if there's anything she sees as a matter of absolute principle.  I certainly could imagine both Souter and Kennedy agreeing to sign on to something tougher than Bandemer in theory.  But if both of them had so voted at the conference after Vieth was argued, why wouldn't they have joined Stevens, Breyer, and Ginsburg to grant the emergency stay motion from Texas?

I tend to discount Scenario #2, simply "majoritizing" Bandemer, or a Scenario #4, as Prof. Hasen proposes, in which the Court remains split with no majority on anything.  Why would the Court bother to grant oral argument in Vieth if that's all they intended to do?  Unless someone leading the charge for one view or the other already believed they had the crucial fifth vote, why not just leave Bandemere in place?  They could have just summarily affirmed in Vieth and saved themselves the trouble (and in the case of Scenario #4, the embarrassment)!   

As for Prof. Hasen's suggestion that there are distinctions between Vieth and the Texas case which might explain why the Court would refuse to interfere in the Texas case while still possibly going beyond Bandemer's toothless restrictions in Vieth, I've now skimmed most of the briefing from both.  Prof. Hasen's a specialist in this field, and has probably read the briefing more thoroughly than I have.  But it seems to me that if anything, the Texas plaintiffs — deliberately and knowledgeably, because there are common counsel for the plaintiffs in the two cases (Paul M. Smith et al. of Jenner & Block) — tried to raise additional grounds in the Texas case, chiefly the "twice-in-a-decade" argument (which the three-judge panel, in my judgment, spent the first quarter of its opinion unanimously nailing to the wall and dissecting until it was dead, dead, dead!).   If a majority of the Court already intends to write new law in Vieth saying that really, really intense political gerrymandering is to be limited somehow, I frankly don't see how they could ignore the Texas case:  if you are going to demonize political gerrymandering, then Tom DeLay just had a star turn as your Darth Vader figure in the Lone Star State, and the panel opinion in Perry completely hinges on the court's fact-finding that partisan goals to create a durable, reliably Republican majority were the sole and overriding basis for the just-passed district map.

For Scenario #3:   If one assumes that O'Connor and Rehnquist haven't changed their minds since 1986, and that they've persuaded, say, Scalia and Thomas to their views on nonjusticiability — not a stretch to imagine at all — then they'd only need one more vote to get to five.  I figure there's no way that Stevens, Breyer, or Ginsburg could be persuaded of nonjusticiability — they've rarely met a claim they didn't like, nor hardly ever agreed to limit the powers of the federal courts vis-á-vis the states.  Nevertheless, If O'Connor and Rehnquist picked up either Souter or (more likely) Kennedy, that could be their fifth vote. 

So yes, based on yesterday's ruling in the Texas case, I'm tending toward predicting a 5/4 or 6/3 decision in Vieth overruling Justice White's plurality from Bandemer and holding that claims of pure hyperpartisan gerrymandering are nonjusticiable political questions — as opposed to claims based on race, which still are going to be red meat for the Voting Rights Act of 1965.  Simultaneously with their announcement of their decision in Vieth, the Texas case (Perry) will be summarily affirmed.

So there.  I'm all the way out on the limb!

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.

----------------------

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.

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.

Tom DeLay as Brer Rabbit: "Don' make me talk 'bout dat redistrictin', judge!"

Charles Kuffner urges that the lawyers representing various plaintiffs in the Texas redistricting litigation be allowed to take depositions of US Congressmen Tom DeLay and Joe Barton.  The Congressmen are seeking to have their deposition subpoenas quashed, according to the Houston Chronicle.

The familiar standard for deciding whether to sustain or quash this sort of subpoena, as for most civil discovery, is whether it is reasonably calculated to lead to the discovery of admissible evidence.  Generally the proponent of the subpoena has to make some sort of more-than-speculative offering as to how he thinks that's likely to happen. 

If we accept, even reluctantly, the premise that the act of legislative sausage-making must be put under the microscope to satisfy the ever-hungry maw of the Voting Rights Act of 1965, then it seems to me that plaintiffs under that act, in general, ought to be given considerable lattitude in trying to make their case.  Showing that the recent Texas redistricting was motivated by racism is going to be difficult at best — and I believe it will prove to be impossible, since redistricting was motivated by hyperpartisan politics, not racism, and accomplished not even using by race as a proxy for voting probabilities, but by looking at voting patterns directly.  But if it can be done, it would almost certainly have to be done circumstantially.

However, in a legal, causal sense, these particular witnesses are once removed from the action.  Observers of politics can rightly note that both Republican and Democratic members of Congress have long influenced state legislatures and legislators on a variety of subjects (think highway construction for one).  But even if you could get Rep. DeLay to say under oath and on the record something that tended to prove circumstantially that he was motivated by racism in pressing for Texas redistricting — and face it, what is far more likely is an argumentative series of "have you stopped beating your wife" questions that probably will conflate correlation with causation — then you'd have to make the further connection to show how that racism was shared by state legislators who voted for redistricting.  You'd have a pretty good chance of showing from those witnesses (the Texas legislators) that they were motivated at least in part by fear of reprisals from Rep. DeLay, whose effectiveness as a party whip and leader is, like all such politicans, due to his long memory and ability to carry and act on grudges.  But showing, even circumstantially, that their votes in the Texas Legislature were motivated by Rep. DeLay's racism?  Well, good luck.

This strikes me as on the very outer fringes of what's "reasonably calculated" to lead to the discovery of admissible evidence, but like all such decisions, it'll be left to the "sound discretion of the trial court" — in this case a three-judge panel of federal judges who all read the papers, who may have been born at night but not last night, and who have not recently fallen off pumpkin trucks on the way into town.  My hunch is they won't find Rep. DeLay's or Rep. Barton's likely testimony terribly surprising or terribly probative.  But they might well agree to "hear" it — that is, to allow the depositions to be taken and written excerpts included as part of the record.  In fact, were I a judge on that panel, I'd probably allow the depositions, with pretty strict time limitations and severe up-front warnings about argumentative questions. 

And were I a lawyer defending the redistricting plan in these lawsuits, I'd treat this as an opportunity, not a liability.  The Republicans have generally been consistent in explaining the reason for redistricting — deliberately creating a map that's likely to produce a Texas Congressional delegation likely to support our favorite-son President instead of one likely to oppose him.  DeLay and Barton surely can provide that testimony.  To quote their intended beneficiary, "Bring 'em on!"  Or to quote the old (and probably now politically incorrect) story, "Don' throw me in dat briar patch, Brer Fox! Anythin' but dat!"