- The Washington Times - Wednesday, June 28, 2006

In a 7-2 decision, the Supreme Court yesterday mainly upheld the 2003 Republican-controlled legislature’s redistricting of Texas’ congressional map, if not exactly with enthusiasm. The justices decided, for the most part, that what the Republicans did in Texas was not unconstitutional simply because it gave them a solid majority in the congressional delegation after the 2004 elections — an outcome which was more representative of Texas politics anyway. Gerrymandering is not pretty, but whereas Democrats sought to gain a shortsighted partisan victory, the court wisely chose to let the system be.

Yet there are plenty of caveats in the 120-page ruling to ensure that the issue is far from decided. Writing for the majority, Justice Anthony Kennedy said, “In sum, we disagree with appellants’ view that a legislature’s decision to override a valid, court-drawn plan mid-decade is sufficiently suspect to give shape to a reliable standard for identifying unconstitutional political gerrymanders.”

Note the caveat: Justice Kennedy remains open to a “reliable standard” by which to judge whether a gerrymandering case is unconstitutional. Although he doesn’t give any guidelines to what the standard is, his language is like an open invitation to lawyers to come up with one. Similarly, Chief Justice John Roberts and Justice Samuel Alito also appeared unwilling to reject the possibility of unconstitutional gerrymandering, finding only that a testable standard “has not been argued in these cases.”

In a split decision the Court stopped short of upholding the Republicans’ dismantling of the heavily Latino community in District 23. Again writing for the majority, Justice Kennedy said that Republican-created District 23 deprived Latino voters of an opportunity to elect candidates of their choice as he says is required in Section 2 of the Voting Rights Act, even though the Republicans tried to compensate by creating a new Latino-dominated district elsewhere. (It should be noted that the 23rd District is represented by Henry Bonilla, who is himself a Latino.)

The new district, he wrote, didn’t satisfy Section 2 because it grouped Latinos of “disparate needs and interests,”a conclusion based mostly on the fact that the Latinos in question were not of the same economic class. This, as New York University Law Professor Rick Pildes has noted, is “a major, major innovation” for the court, since it seems to take into account not only the ethnicity of a minority but also its socioeconomic status. Justice Roberts put it right when he wrote that “It is a sordid business, this divvying us up by race.”

The political fallout from yesterday’s decision will be relatively light. Instead of rewriting the entire congressional map of Texas, the legislature, it seems, will only have to redo District 23 and by extension the surrounding environs. If Democrats wish to return Texas to their control, they’ll have to do it the old-fashioned way — through elections.

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