- The Washington Times - Tuesday, February 28, 2006

Today, the Supreme Court is set to hear the Texas Democrats’ challenge to the redrawn congressional district map enacted by the Republican-controlled legislature in 2003. Democrats are steamed, because the new map obliterated their long-held majority after the 2004 election. It’s small wonder they would want to return to their former majority status, no matter how at odds that majority was with Texan voters.

The Texas congressional map was redrawn was in 1991 — by a Democratic-controlled legislature. (A 2002 court-mandated redistricting basically reaffirmed the 1991 map.) In 1994, Democratic candidates received just 43 percent of the vote, but won 63 percent of the congressional seats (a 19-11 majority). In 2002, when Republicans swept all statewide offices and garnered 56 percent of the congressional vote, Democrats maintained a 17-15 majority. In fact, no Texas Democrat has won a statewide office since 1994. A year later, Republicans took over the legislature and redrew the map.

No one questions what Republicans were trying to do. The new map led them to a 21-11 majority in 2004 election. But Republicans also received nearly 60 percent of the overall congressional vote. It’s fair to argue that this is a better reflection of the partisan breakdown of Texan voters, than the former Democratic power grab. Clearly, the Democrats want to return Texas to the imbalance of the 1990s.

Because the Democrats have challenged the 2003 map on numerous grounds, such as arguing certain redrawn districts violate the Voting Rights Act, there are several issues for the court to consider. The voting-rights complaint charges that Republicans split districts to intentionally dilute the strength of minority voting blocs. It’s a specious claim, since it assumes that a particular race will always vote for a particular party. It also ignores that the 2003 map added a minority-majority district. But the jurisprudence on this part of the Voting Rights Act is so muddled there is really no telling how the court might rule.

The larger question — whether redistricting for partisan advantage is constitutional — has no clear precedent. In a 2004 Pennsylvania redistricting case, the court split 4-4 on whether political gerrymandering claims could ever be justly decided, with the conservative bloc arguing that they could not. Justice Anthony Kennedy, whose swing vote dismissed the case, agreed that standards of unconstitutional gerrymandering could be devised in theory, just not in that case.

Democrats also argue that it is unconstitutional to redistrict more than once in a decade. But nothing in the Constitution prevents it. Moreover, the Texas electoral history mentioned above shows once-a-decade redistricting may create an undemocratic system.

There are many ways the Supreme Court could rule this one, some more satisfactory than others. The court could strike down one or two of the new districts on the grounds that they violate the Voting Rights Act, which would require the legislature to redraw them. They would then be reviewed by a three-judge panel. Or it could strike the map entirely. Such a precedent would allow any state’s minority party to contest its congressional district map and further involve the judiciary in legislative affairs.

Which is why the court would be wise to let the map stand. Far better to acknowledge that gerrymandering is a problem, but a problem for the states to solve.

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