Texas-size gerrymander case heads to high court

By Naftali Bendavid
Washington Bureau
Published February 27, 2006

WASHINGTON -- It was among the more audacious political moves in memory: The state of Texas, prodded by Rep. Tom DeLay, redrew its political map in 2003 to send more Republicans to Congress, the first such "mid-decade" redistricting in the modern era.

The maneuver could hardly have been more successful. Six more Republicans were elected in 2004, making the Democrats' attempt to retake the House of Representatives this year all the more difficult. But there were negative consequences, too: DeLay has been indicted, admonished by the House ethics committee, forced to step down as majority leader and confronted with the prospect of losing his seat--all because of actions related to the redistricting.

Now the Supreme Court is preparing to deliver the final word on Texas' action. In a special two-hour session Wednesday, the court will consider whether Texas impermissibly redistricted for solely partisan reasons and whether it illegally dismantled black and Latino districts. A ruling is expected later this year.

The fight is unfolding against the backdrop of dramatically fewer competitive House races across the country. And the events in Texas seem to reflect a political culture that is becoming more partisan and polarized.

"The wrinkle in this is that there had not been a mid-decade redistricting in at least 100 years," said former Rep. Martin Frost, one of the Texas Democrats who lost his seat. "The Republicans were stretching the envelope. They were trying to do this on the theory that they could get away with it, and we'll find out if they can get away with it."

After a federal court drew Texas' congressional map following the 2000 census, 17 Democrats and 15 Republicans were sent to the U.S. House, even though the state's voters were close to 60 percent Republican. That frustrated DeLay, who used a well-funded political operation to help Republicans take over the Legislature, which set about drawing a more GOP-friendly map.

The result was a political circus. Democratic lawmakers fled the state to prevent a quorum, as Gov. Rick Perry, a Republican, convened three special sessions to enact the plan. One Democrat finally relented, enabling the Legislature to push through the redistricting, and in 2004 Texas sent 21 Republicans and 11 Democrats to the U.S. House, a swing of six seats.

"This whole case from start to finish has about as many twists as the Harry Potter novels," said Tim Storey, a redistricting expert at the National Conference of State Legislatures. "It has wound through the courts. It has all these side stories to it. It's probably the most notorious or high-profile redistricting saga since Elbridge Gerry and the first gerrymander."

Democrats sued to get the map thrown out, saying it was improper to undertake a redistricting just to help one party.

In a 2004 case from Pennsylvania, the Supreme Court concluded it was impossible to determine when an ordinary post-census redistricting was "too" partisan. But in this case, Texas already had a court-drawn map, Democrats said, and redrew it solely to elect more Republicans.

"It's an outrage . . . in terms of an improper use of political power," said Matthew Angle, Frost's former chief of staff.

Texas officials responded that the court's map strongly favored Democrats and that their new map better reflects the will of the state's voters.

"The elected state Legislature in Texas acted to adopt a map that reflects the demonstrated preferences of Texas voters at the polls," said Texas Solicitor General R. Ted Cruz, who is to argue the case before the Supreme Court.

Minority activists also are seeking to block the new map. Some of them say Frost's old district, which was dismantled, was controlled by African-American voters, who made up 64 percent of Democratic primary voters. State officials say the district was anything but black-controlled, with African-Americans being just 21 percent of all voters in that district.

Hispanic activists, meanwhile, are angered by the fate of a district represented by Rep. Henry Bonilla, a Republican opposed by most Hispanics in his district. Bonilla was about to be defeated, the activists say, until the Legislature scooped about 100,000 Hispanic voters out of his district and replaced them with rural white voters.

"This is a straightforward case of vote dilution intended to thwart the political strength of minority voters as they were on the brink of electing their candidate of choice," said a brief filed by GI Forum of Texas, a Hispanic veterans' group.

Texas officials counter that because Bonilla was elected before and after the redistricting, it's hard to argue the district was altered in a significant way.

"He was winning comfortably in the old lines, and he's winning comfortably in the new lines," said Jeff Fisher, executive director of the Texas Republican Party.

Overall, the two sides present not just colliding legal arguments but entirely different pictures of recent history. Democrats describe a naked, illegal power grab by DeLay and the Republicans, and Republicans say Democrats for too long blocked Texans from getting true representation.

The episode has become part of the larger national debate over politics and corruption, in which DeLay is a central figure. After the Texas redistricting, the House ethics committee chastised DeLay for using the Federal Aviation Administration to track down the Democratic lawmakers when they fled. Then DeLay was indicted for alleged campaign finance violations related to his push to elect more Republicans to the Legislature, which set the stage for the redistricting.

A lower court has upheld the new Texas map. Should the Supreme Court agree, it would encourage other legislatures to redistrict whenever a party seizes the upper hand, said Paul Smith of the Chicago-based law firm Jenner & Block, who is arguing the case for the Democrats.

"If we are to lose this case, we will have a profoundly anti-democratic result," Smith said.

Few are willing to predict which way the court will go.

"It's a big wild card," said Storey, of the National Conference of State Legislatures. "The wise answer is that it will be some kind of a close decision that can break either way and will be pretty narrowly tailored to deal with the Texas episode. I think you flip a coin."