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High court wades into Texas political shootout

Justices seem reluctant to dismiss disputed redistricting plan

From Bill Mears
CNN

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WASHINGTON (CNN) -- The Supreme Court on Tuesday appeared reluctant to throw out the Texas congressional map that resulted in a Republican majority in the state's congressional delegation.

But concerns were expressed by the justices over several districts that Democrats say disenfranchised Hispanic voters.

The justices spent a rare two-hour afternoon session trying to sort out the controversy over the Texas voter redistricting plan promoted by Republicans, including former majority leader Rep. Tom DeLay. The measure led to the 2004 ouster of five Democratic incumbents from Congress, and sparked a bitter partisan battle.

"The Republicans said, 'We think we can get a better deal,' " said Justice David Souter, asking whether that was a legitimate exercise of political power. (Watch the court step into a Texas feud -- 2:08)

Fair to minorities?

Underlying the appeals are claims the Texas congressional map unfairly reduced minority voting strength. However, the justices focused many of their questions more narrowly: whether courts can fashion a proper remedy when partisan gerrymandering is judged excessive; and whether states can remake their congressional map when a valid plan exists based on that decade's census numbers.

The court has the power to declare all or parts of the 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.

In oral arguments, attorney Paul Smith -- representing Democrats and a broad coalition including minority voting groups -- said 8 million Texas voters were moved to new districts under the GOP-approved map.

It was "lacking any legitimate public purpose," he said. "The only reason it was considered, let alone passed, was to help one political party gain seats in Congress at the expense of another party."

Justice Antonin Scalia quickly responded, "That's a surprise," bringing huge laughter in the courtroom. "Legislatures redraw the maps all the time for political reasons."

Focus on Kennedy

Many eyes were focused on Justice Anthony Kennedy, who could be a swing vote in the case. He agreed with a 5-4 majority that restricted challenges to Pennsylvania's Republican-drawn congressional map.

But Kennedy at the time offered opponents of political gerrymandering some hope of making their case, separately noting he might reconsider his views if he could find "some limited and precise rationale ... to correct an established violation of the Constitution."

Republicans fear Kennedy may see something of that nature in the Texas dispute.

But Kennedy appeared to lean in Texas' favor. He said that in some cases it is important for legislatures to redo congressional maps more than once a decade, calling it a "very important deterrent" to districts that do not reflect accurate voter representation.

"It is very dangerous to take away that corrective mechanism," he said.

But he later expressed concern over Democratic allegations that the Republicans created one elongated district with a bare majority of Hispanic voters to boost the chances GOP candidates could win there. Kennedy said if that was true, "It seems to me to be an affront, an insult."

The district runs from Austin to the Texas border, and Justice Steven Breyer likened it to a "long walking stick."

Texas Solicitor General Ted Cruz rejected that suggestion and said the 2003 map was an effort to correct the fact that although the majority of Texas voters were Republicans, Democrats had a two-seat majority in the state's congressional delegation.

DeLay backed plan

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 after three contentious special sessions called by Republican Gov. Rick Perry. Angry Democratic legislators left the state twice en masse, denying the GOP a quorum to proceed. DeLay ultimately helped negotiate a redistricting plan that won approval but was quickly challenged in court by Democrats and several minority rights groups. The cases have been consolidated into the one heard Wednesday.

The newly drawn districts helped Republicans gain a majority of the state's 32 congressional seats. Before the 2004 elections, the 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 note that the changes led to the 2004 election of a Democrat African-American, Rep. Gene Green, who joined African-Americans Eddie Bernice Johnson and Sheila Jackson Lee in the Texas congressional delegation.

Several Democratic congressional and state lawmakers were in attendance Wednesday, including Green and Lee.

The nine-member court has recognized the need to solve the issue quickly, and has put the case on an expedited schedule. 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 of 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.

Balance of power at stake?

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 that regard.

There is precedent for such judicial intervention. The Supreme Court in 1996 upheld a ruling that found three congressional Texas districts were improperly drawn, leading to new boundaries and a November primary, followed by an election runoff a month later.

DeLay, who is seeking re-election in a Houston-area district, stepped down as House majority leader in October after his indictment on money laundering charges, which he has denied.

The Texas cases could have enormous short- and long-term implications. Georgia and Colorado also have adopted a second round of congressional redistricting. The high court also has heard two campaign finance cases this term.

The Texas cases are League of United Latin v. Perry (05-0204); Travis County v. Perry (04-0254); Jackson, Eddie v. Perry (05-0276); and GI Forum of Texas v. Perry (05-0439). A ruling is expected by late June.

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