By Jonathan E. Kaplan - 03/02/06 12:00 AM EST
Supreme Court justices yesterday aggressively questioned Texas Democrats who have challenged the controversial redistricting plan that aided House Republicans in increasing their majority in 2004 in a case that could affect who controls Congress come November.
Democrats countered that that the redistricting initiative was unconstitutional because it was designed only to elect more Republicans.
‘’The only reason it was considered, let alone passed, was to help one political party get more seats than another,’’ argued the plaintiffs’ attorney, Paul Smith of Jenner & Block.
Overall, the justices appeared to press the plaintiffs harder than they did the defendants; they allowed Ted Cruz, the Texas solicitor general, to present his argument with fewer interruptions.
Texas congressmen, officials in Texas state government, Republican National Committee Chairman Ken Mehlman and former Sen. Bob Kerrey (D-Neb.) witnessed the unusual two-hour session.
The ruling is expected in May or June. If the court upholds the map, state legislators and their allies in Congress could design new boundaries every time power shifts from one party to the other.
The court must decide whether the Texas state Legislature’s plan was enacted solely to help Republicans gain more seats in Congress or it was a legitimate attempt to reconfigure congressional districts based on statewide voting patterns.
A federal court redrew the lines of Texas’s congressional districts in 2003 because the Texas Legislature failed to come up with a plan after the 2000 census.
If the court upholds the GOP-drawn map, Republicans will go into the election in good stead to maintain their current hold on 21 of Texas’s 32 congressional districts. But should the court invalidate the 2004 boundaries and order the lower court to reinstitute the 2002 map, Democrats could recapture some of the seats they lost in 2004. In 2002, Democrats held 17 of the 32 seats.
Moreover, the Texas primaries are on March 7 and a ruling against the current map could force Texans to vote again.
Minutes after Smith started his presentation, the justices began peppering him with questions.
“Legislators redraw maps all the time for political reasons,” Justice Antonin Scalia said, adding later that it is “ridiculous” to assume politics would not be a factor.
While Scalia appeared to be the least convinced of the plaintiffs’ arguments, Chief Justice John Roberts questioned both sides with equal zeal.
The justices’ questions were rooted in hypothetical examples, and they repeatedly demanded that the lawyers on both sides answer the questions asked, not the ones they wanted to answer.
Justice Stephen Breyer, appointed by President Clinton, told Smith that “Democrats gerrymandered much worse” and asked, “If Republicans gerrymandered to create a [more accurate] balance, what precisely is your response?”
Justice David Souter said, “Let’s assume that Republicans said they can and did recognize limits, and let’s assume good-faith efforts. Under those circumstances, would [a middecade gerrymandering] be equally illegitimate?”
Evidently displeased with Smith’s initial response, Souter said, “How about you answer the question I posed to you. I’m making it easy for you.”
Justice Anthony Kennedy may be the swing vote in whether the current Texas map will stand; he played a similar role in a Pennsylvania redistricting case in 2004.
In that case, Kennedy joined then-Chief Justice William Rehnquist, Scalia, Justice Clarence Thomas and retired Justice Sandra Day O’Connor in letting Pennsylvania’s map stand. But Kennedy sided with the four only because he disagreed with the remedy offered by the four dissenting justices.
The lawyers and justices dedicated half the time to analyzing whether the Texas redistricting plan was motivated only by partisan politics. They spent the rest of the time arguing over whether the south Texas district of Rep. Henry Bonilla (R-Texas), revamped in 2004 to give him more GOP voters, violated the one-man, one-vote principle.
Justice John Paul Stevens, appearing sympathetic to the plaintiffs, asked Cruz if Bonilla’s new district was “defined by anything other than political judgment?”
Cruz said a “whole host of motivations,” such as local political considerations, led to the creation of his new district, which included fewer Hispanics and more Republicans.
The redistricting plan, engineered by former House Majority Leader Tom DeLay (R-Texas), played a role in DeLay’s fall from leadership. In 2002, after DeLay was elected majority leader, he led an aggressive fundraising effort to help Republicans capture the Texas House of Representatives to redraw the congressional boundaries.
The Texas Legislature eventually passed the plan, and in 2004 Republicans gained five seats in Texas — five Democratic, white-male lawmakers lost their bids for reelection. Only Rep. Chet Edwards (D) won, and Republicans are targeting his seat again this year.
Ronnie Earle, the district attorney in Travis County, Texas, indicted DeLay last fall on campaign-finance charges stemming from his fundraising efforts. Under House GOP conference rules, DeLay was forced in January to step aside.
While DeLay is no longer majority leader and faces a tough reelection contest, his map could prove to be the decisive factor in whether the Democrats are able to win back the House in November.
But if the Supreme Court agrees with Texas Democrats, the ruling would be seen as another of a series of setbacks for DeLay.