The Supreme Court leaves gerrymanders to the politicians.
Thursday, June 29, 2006 12:01 a.m. EDT
It hasn't been the best of times for Tom DeLay, who resigned from Congress this year under ethical and political pressure. But the former House Majority Leader must take some consolation from yesterday's Supreme Court decision that largely validated the 2003 Texas redistricting he helped engineer and that so infuriated Democrats that they made him a special political target.
At the heart of Lulac v. Perry is the question of whether courts or politicians should have final say in shaping Congressional districts. A collection of liberal interest groups objected to the partisan 2003 GOP gerrymander partly on grounds that the Texas state legislature, which got a Republican majority in 2002, overturned in "mid-decade" a redistricting plan devised by a federal court following the 2000 census. They also claimed the districts created by the 2003 gerrymander was unfair to minority citizens, and thereby violated the Voting Rights Act.
The Supremes reached their verdict by a half-dozen routes, but their judgment on practical matters is reasonably clear. The Court's four conservatives rejected the notion that mid-decade redistricting is unconstitutional. Justice Anthony Kennedy concurred, but he allowed that one Texas district, belonging to Republican Henry Bonilla, would have to be redrawn to satisfy concerns that it was unfair to Hispanic voters. Seeing as Mr. Bonilla is himself Hispanic, albeit of the Republican kind, the only unfairness we can detect here is to Democrats.
Alas, the Constitutional questions weren't so clearly settled. Justices Antonin Scalia and Clarence Thomas argued with good cause that no Court is ever going to devise a reliable standard by which to judge whether gerrymanders are unconstitutional. Court newcomers John Roberts and Samuel Alito mostly agreed, noting that the "appellants provide no reliable standard for identifying unconstitutional political gerrymanders." But they took no view on whether a proper standard could be devised.
As for Justice Kennedy, he argued that the 2003 gerrymander "took away the Latinos' opportunity" to vote for a Hispanic candidate other than Mr. Bonilla. "This bears the mark of intentional discrimination that could give rise to an equal protection violation." How the swinging Justice achieves such political clairvoyance is anyone's guess; as Chief Justice Roberts tartly observed, "the end result [of the 2003 gerrymander] is that while Latinos make up 58% of the citizen voting age population in the area" of Southwest Texas, "they control 85% (six out of seven) of the districts under that State's plan." And black representation in Texas's Congressional delegation has actually risen since 2003. That's "intentional discrimination"?
In partisan terms, all of this is a short-term victory for Republicans, who will probably keep the six House seats the gerrymander allowed them to gain in 2004. But the larger victory here is for federalism and the elected branches, which will retain their authority to draw district lines. And with this green light from the High Court, rest assured that both Democrats and Republicans will exploit the power to gerrymander in mid-decade in the future.
As for those of us who want fewer partisan gerrymanders, and thus more competitive elections, the battle now moves to the states themselves. Letting a nonpartisan commission draw the lines has worked well in Iowa, and reformers ought to throw their energy into that idea, rather than to the windmill-tilt of trying to purge money from politics.
opinionjournal.com |
