A Texan's View on Texas Redistricting
A break from property rights issues today. Horace Cooper sent me his latest article, a thoughtful examination of the Texas redistricting case, and I thought I'd share it with all of you:
Sour grapes motivate redistricting lawsuit
By Horace Cooper
Mar 4, 2006
Among many important cases that the Supreme Court will be considering this spring is the Texas redistricting case, LULAC v. Perry. The litigants claim that the Texas redistricting plan of 2003 unfairly suppresses the political opposition and deprives millions of state residents of any effective franchise. But as we say in Texas, "This dog won’t hunt." In fact, a close examination of the facts reveals that this suit is most likely a case of partisan sour grapes.
The Supreme Court will be looking at three specific issues: the question of what standard should be used in judging whether partisan gerrymandering is excessive; whether it is lawful for a state to undertake more than one round of congressional redistricting in a single decade and finally whether the plan itself properly complies with the Voting Rights Act.
But what’s really at stake here is whether state legislatures should have the primary right to draw their own state redistricting plans or whether the plans should be decided by judges as a result of the legal machinations of partisans and special interests.
First a little bit of history. Since the late 1980s the state of Texas (like many of the states of the South) has experienced a significant tilt toward the GOP and each subsequent year Texas voters have moved more in the GOP’s direction. Starting at the top and slowly filtering down, Texas shifted from being a state that supported conservative Democrats to one which supports conservative Republicans. Much of this loss for Democrats in Texas can be laid at the hands of the leftward lurch of the national party in the 60’s and 70’s.
But whatever the cause the dramatic shift is real. Since 1972, Democrats have carried Texas in a presidential election once. And while at one time the party was competitive in gubernatorial races, Democrats have been able to win the governor’s race only once since 1986. Finally, by 1994 the meltdown was nearly obvious to everyone once no Democrat was able to get elected in Texas to any statewide office that year or any since.
Masking the hemorrhaging of the party’s appeal across the state, Democrats prized the sizeable number of Congressional seats they held. Even here the cracks were showing. The GOP received upwards of 55% of all Congressional votes cast throughout the 1990’s even though they held fewer than 40% of Congressional seats.
How was it possible that Democrats could hold a near supermajority of Congressional seats in the midst of a GOP upswing state-wide? One word: gerrymandering. The Almanac of American politics called the state’s map the “shrewdest gerrymander of the 1990s.”
Where were the voices criticizing this state of affairs? Ironically when it was the GOP which suffered there were no charges of disenfranchisement by electoral watchdogs. No one filed lawsuits arguing that the political opposition had been unfairly suppressed. The national media didn’t carry front page stories lamenting the unfair treatment of Republicans in Texas.
And this state of affairs would have continued for at least another decade if not for the seismic earthquakes that hit Austin when in 2000 and 2002 first the State Senate and then the State House shifted from Democrat to Republican control. Happening for the first time in 130 years, it eliminated any possible doubts about the GOP’s dominance in the state once and for all.
In 2001 the newly elected Republican state senate pushed for a balanced redistricting plan but because Democrats in the House were able to use a variety of obstructionist tactics to create a legislative deadlock that effort was stymied. This meant that a judicial panel would draft the state’s redistricting plan. And you guessed it, the panel kept the Democrats gerrymander largely in place.
But after 2002 when both Houses were under GOP control the state legislature decided that it would develop its own plan. And after a series of negotiations (during which Democrats in the state House and Senate fled the state in a desperate bid to prevent the state from acting) the Texas legislature finally passed a redistricting plan into law.
It is this map (passed by the bona fide state legislature) which is being challenged. This map increased the number of African-American majority districts and the number of majority Hispanic districts. It also shifted a majority of seats from Democrat to Republican control. And if the suit is successful the map and these seats will be eliminated.
So why the lawsuit? Because the plan no longer favors Democrats. Instead of giving Democrats nearly 2/3 of the seats while requiring them to obtain less than half the votes, the newly enacted plan districts is lot more equitable giving the GOP 60% of the seats matching more closely the 55% majority GOP preference by Texas voters.
And what about the claim that Texas is getting two bites at the redistricting apple? Not true. The U.S. Constitution explicitly vests this authority in the state legislature, not unelected judicial panels. The 5th Circuit Court of Appeals acknowledged that this was Texas’ first plan and that the plan in place was an interim plan created by the federal courts. And just because it wasn’t until 2003 that Texas finally adopted a plan, doesn’t mean the state should lose. After all, the U.S. Constitution places no restriction on the timing of redistricting.
The Justice Department formally cleared this plan as lawful under the Voting Rights Act. To bootstrap their case, the lawsuits supporters have attempted to twist the VRA in order to find a violation. Rather than protect minorities voting rights, they argue that the interests of political parties should be protected – even though doing so could come at the cost of losing minority seats. But the VRA has never been construed by Courts to protect political parties and it shouldn’t be.
When all is said and done the Supreme Court is likely to uphold Texas’ redistricting plan. To do otherwise would confound the purpose of the VRA and most importantly prevent Texas voters from having a congressional map that elects representatives more in sync with their own philosophy.
Horace Cooper is an Assistant Professor at George Mason University School of Law.
Copyright © 2006 Townhall.com
Find this story at: http://www.townhall.com/opinion/columns/HoraceCooper/2006/03/04/188502.html
posted by Andrew Langer at 3:22 PM
2 Comments:
Also from a Texan:
Bickerstaff: Texas' redistricting set a dangerous precedent
Steve Bickerstaff, UNIVERSITY OF TEXAS SCHOOL OF LAW
Wednesday, March 01, 2006
The U.S. Supreme Court will hear arguments today in a case that has enormous implications for representative government in the United States.
The case involves a challenge to the constitutionality of the 2003 Texas congressional redistricting plan. Most Americans will recall this redistricting as the one that was masterminded by then-House Majority Leader Tom DeLay. It attracted world attention over five months after most of the state's Democratic lawmakers fled the state (first to Oklahoma and later to New Mexico) in an attempt to block passage of the aggressively partisan plan. The Democratic tactic failed. Congressman DeLay and the Republicans won.
The partisan effects of the redistricting plan were significant for Texas and the nation. As a result of this redistricting, Texas Republicans in 2004 won six congressional seats previously held by Democrats — resulting in a net increase of 12 more Republicans than Democrats from Texas when the U.S. House convened in 2005. These newly elected Republicans have consistently voted a straight party line in Congress and have provided crucial votes for the narrow passage or defeat of controversial matters in Congress in 2005-2006.
The 2003 redistricting in Texas was a tragedy. Not because the Democrats lost or because the Republicans won, but because critical public needs (such as a failed public school finance system) were essentially ignored for five months while lawmakers and elected state officials played high-profile partisan war games. The Texas redistricting was the most egregious example yet of lawmakers' effort to choose their voters, rather than allowing the voters to choose their lawmakers.
The final redistricting plan driven by DeLay and the Republican national leadership specifically targeted all 10 of the white Democratic congressmen from Texas. The final plan separated these incumbent Democrats (representing 127 years of congressional seniority) from the voters who had elected them in prior elections and left the Democrats in new, overwhelmingly GOP districts. Seven of these white Democratic incumbents either retired or went down to defeat in 2004. Two of the three who survived did so only by running and winning in nearby minority districts.
Redistricting is always a divisive issue, and it's frequently driven by partisan and selfish concerns. The Texas case is unique, however, because no public interests or need existed for redrawing the state's congressional districts. The plan passed by the Texas Legislature in 2003 was drawn to replace an existing valid plan solely because one political party was dissatisfied with the election results under the existing plan. Virtually every newspaper in Texas, including the American-Statesman, editorialized against the redistricting as adverse to the interests of the state's voters and a waste of time, effort and money (the state spent about $8 million through three special sessions). Local elected officials from both political parties, citizen organizations and voters testified overwhelmingly at legislative hearings against any redistricting.
But no amount of public opposition could overcome the focus of state and national political leaders on gaining or losing partisan dominance.
The Texas redistricting provides a disturbing precedent. It means that any state legislature or local government (such as a county, city or school district) is free to engage in partisan or special interest redistricting whenever a majority of the legislature or local governing board is dissatisfied with results under its existing election districts. In defending the state's plan, Texas Attorney General Greg Abbott has correctly acknowledged that, if upheld, the state's legal position means that a state legislative body can voluntarily redraw state legislative districts at the end of a decade (e.g. 2009) using population data from the prior federal decennial census.
With this precedent, a temporary political majority in a highly charged partisan atmosphere can ignore the population shifts of a decade and redraw state legislative districts immediately before critical elections at the end of a decade (e.g. 2010) using 10-year-old, inaccurate population data. By doing so, the temporary majority can preserve or enhance its political advantage in these critical elections and unfairly control the redrawing of state and congressional districts after the new census. This outcome threatens representative government in this country.
It is difficult to imagine a more divisive, wasteful and corrupting phenomenon than "rolling redistricting" — in which partisan battles dominate the public interest and congressional, state legislative and local government election districts are voluntarily redrawn during a decade using old, inaccurate population data. Such a result is anathema to the constitutional principle of one person, one vote. The Supreme Court should overturn the Texas precedent.
Bickerstaff is an adjunct professor at the University of Texas School of Law and author of "Lines in the Sand," a book soon to be published by the University of Texas Press about the 2003 Texas redistricting.
March 07, 2006 9:36 AM
"The Texas case is unique, however, because no public interests or need existed for redrawing the state's congressional districts."
Yes, because each and every time Democrats have redrawn district lines, they have done so out of a public need or interest.
The public need at issue was more accurate representation of the population of a geographic community - as demonstrated by the electoral trends in Texas for many years prior.
Though he denies it, Professor Bickerstaff's argument is essentially that the redistricting was unfair to Democrats, therefore it should be overturned. But, in addition to not making a legal argument, he ignores the plain fact that redisctricting _is_ partisan, and it _is_ driven by the party in power.
Thus we have, as Professor Cooper quoted and the Almanac of American Politics originally called it, Texas Democrats' 1990's efforts "the shrewdest gerrymander" of that era.
Thanks for the contrasting opinion, Kess.
March 07, 2006 10:28 AM
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