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Texas redistricting heads to high court

From Bill Mears
CNN

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WASHINGTON (CNN) -- A raw political dispute with the potential to affect this year's mid-term congressional elections goes before the Supreme Court Wednesday, and the views of the newest justices could prove crucial.

The high court will delve into the controversy over a Texas voter redistricting plan promoted by Republicans, including Rep. Tom DeLay. The measure led to the 2004 ouster of five Democratic incumbents in Congress and sparked a bitter partisan battle.

Underlying the appeals are claims the Texas congressional map unfairly reduced minority voting strength.

However, the justices are more likely to consider narrow legal arguments. For instance, whether courts can fashion a proper remedy when partisan gerrymandering, in which voting districts are drawn to favor a political party, is judged excessive. Or, whether states can remake their congressional map twice in the same decade when a valid plan exists.

In a rare afternoon session, four appeals will be consolidated into two hours of oral arguments, a signal of the urgency to resolve the dispute. The court has the power to declare the current Texas plan unconstitutional and throw it back either to lower state or federal courts -- or to the state legislature to fashion a new congressional map.

It is unclear whether a ruling from the court -- expected by late June -- would affect the November elections. Candidates for Texas congressional seats, including incumbents, have begun campaigning, and the primary is March 7, with a runoff date April 11. But the potential exists that by the time a ruling comes out, general election nominees might be running in districts that no longer exist.

Some political analysts say it is possible, though unlikely, this case alone could shift the balance of power in Congress to the Democrats. Other political factors, such as the economy and general dissatisfaction with the GOP leadership, could prove more decisive in determining the party in control.

Where court will lean is unclear

Such judicial intervention has had precedent. In 1996 the justices upheld a ruling that found three congressional Texas districts were improperly drawn, a decision that led to new boundaries and a November primary, followed by an election runoff a month later.

Also uncertain is where the justices may be leaning. The newest members -- Chief Justice John Roberts, who joined the bench in September, and Samuel Alito, who came aboard three weeks ago -- have not heard many such election disputes while serving as appellate court judges.

Their predecessors -- William Rehnquist, who died in September, and Sandra Day O'Connor, who retired last month -- voted in 2004 to block nearly all legal challenges on gerrymandering. Roberts and Alito might be expected to vote similarly, but that is by no means a guarantee.

Alito was criticized during his confirmation hearings for a 1985 memo written when he was a Justice Department lawyer in the Reagan administration. In it, he expressed opposition to the idea of courts ruling on "one man, one vote" issues.

Alito has said courts should exercise "judicial restraint" and stay out of political disputes over reapportionment.

Delay's GOP takeover of Texas

Following constitutional mandate, states are required to redraw their congressional districts every 10 years, in line with population changes. After the 2000 census, a state court redrew the Texas map with input from state lawmakers. But after DeLay helped Republicans gain control of the state legislature in 2002, he promoted a second redistricting proposal for congressional boundaries.

The Texas legislature adopted the plan in 2003 despite court challenges by Democrats and minority rights groups.

The newly drawn districts helped Republicans gain a majority of the state's 32 congressional seats. Before the 2004 elections, the then-minority GOP held 15 seats; it now has 21. Opponents challenging the redistricting plan allege it moved 8 million people into new districts and relied on inaccurate census data.

Republicans counter that the plan was a legitimate exercise in legislative authority and that the changes led to the 2004 election of Democrat Rep. Al Green, an African-American. Two black women -- Eddie Bernice Johnson and Sheila Jackson Lee -- were serving Texas in Congress at the time.

"The map was pre-cleared by the Justice Department, and a three-judge federal panel determined that it did not harm minority rights, and no appeals of the decision have been successful," said Kevin Madden, a congressional spokesman for DeLay.

Support from high places

The redistricting challenges also led to infighting at the U.S. Justice Department, which by law oversees voting changes in Texas because of its past history of minority voter discrimination. Career lawyers at the department concluded the plan would hurt minority voters, but political appointees overruled them, and the department ultimately approved the Texas effort. Attorney General Alberto Gonzales, a Texas native, has reiterated his support of department's decision.

Federal courts have also backed the plan on several occasions, saying it does not violate federal voting rights law.

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