RESULTS MATTER, NOT REASONING:

DRAWING THE LINE: Will Tom DeLay’s redistricting in Texas cost him his seat? (JEFFREY TOOBIN, 2006-03-06, The New Yorker)

In cases of extreme partisanship in gerrymandering, it is often difficult to identify the original sin. The current controversy in Texas dates to the period just after the 1990 census, when Democrats still controlled both houses of the Texas legislature. Even though Texas was by that time trending strongly Republican in statewide and Presidential races, the Democrats drew district lines that enabled their party to win twenty-one seats in the House in 1992, compared with just nine for the Republicans. By the time of the next census, in 2000, the Republicans were understandably eager to redress the balance. “Republicans had been on the receiving end of what was known as the shrewdest gerrymander of the nineteen-nineties,” John Cornyn, a former Texas attorney general who is now a U.S. senator, said. “There are those who thought that what happened next was payback.”

By 2000, Republicans controlled the governorship and the State Senate, but Democrats still had a majority in the Texas House. A deadlock between the two legislative bodies prevented Texas from adopting any redistricting plan, and the conflict ended up in federal court. The following year, a three-judge panel, ill-disposed to take sides in a political fight, ratified a modified version of the 1991 map, with two new seats awarded to high-growth districts. “The court essentially carried forward the 1991 Democratic gerrymander of Texas, which is increasingly problematic, given the over-all Republican tilt of the state,” Samuel Issacharoff, a professor at New York University School of Law, told me. “The status-quo ante looked like a distortion.”

In the 2002 elections, DeLay set out to give the Texas House a Republican majority and thus remove the last obstacle to full Republican control of the state. That year, he created two PACs, which raised and spent $3.4 million on twenty-two races for the Texas House. The law firm of Jack Abramoff, the lobbyist whom DeLay has described as one of his “closest and dearest friends,” contributed twenty-five thousand dollars to the cause. On October 4, 2002, the DeLay PAC known as Texans for a Republican Majority sent a hundred and ninety thousand dollars to seven candidates for the State House. The following month, all seven were elected, and Republicans became the majority party in the Texas House.

“After the 2000 census, we never had a chance to vote on a congressional redistricting plan, because the court did it,” Tom Craddick, a close ally of DeLay’s, who became Speaker of the Texas House after the 2002 election, told me. “When we took over, we decided that we ought to do congressional redistricting. If we hadn’t taken control, we wouldn’t have gone ahead with it. Tom pushed to do it.” It was true that a court, and not the legislature, had drawn the congressional maps after the 2000 census, but that had also occurred in several other states where the political branches couldn’t agree on a plan. DeLay’s and Craddick’s idea—to redistrict in the middle of a census cycle—had never been attempted in any state. As Cornyn put it, “Everybody who knows Tom knows that he’s a fighter and a competitor, and he saw an opportunity to help the Republicans stay in power in Washington.”

In the spring of 2003, Texas Republicans, who were now dominant in both the State House and Senate, proposed a new congressional map that promised to add between five and seven new Republicans to the Texas delegation. At the time, DeLay said that, with fifty-seven per cent of Texas voters backing Republicans for Congress, it was only fair that the G.O.P. control more than fifteen of the thirty-two seats in the U.S. House. If a mid-census redistricting was necessary to align the seats with the popular vote, the Republicans argued, so be it. [...]

Since the passage of the Voting Rights Act, in 1965, most legal fights about redistricting have concerned the rights of racial minorities. DeLay expected such a challenge to the 2003 Texas map, and he was ready with a preëmptive defense. “Minority rights have been protected,” he said at a press conference after the plan was ratified. He asserted that the number of Hispanic representatives could grow from six to eight, and the number of African-Americans from two to three. (These predictions were, for the most part, accurate.)

From the beginning, it was evident that the agenda of the Republican mapmakers in Texas was more political than racial. Shortly after the redistricting plan passed, Joby Fortson, an aide to Representative Joe Barton, a Texas Republican, sent a candid e-mail to a group of colleagues that makes this point more clearly than any public statement issued by the participants. The memo, which was disclosed in the course of subsequent litigation, offers a “quick rundown” on each of the seats in the delegation. Fortson begins his description of the district where Martin Frost, the senior Democrat in the state, would have to run with the words “Ha ha ha ha ha ha ha ha ha. . . . His district disappeared.” As for another Democratic incumbent, Nick Lampson, Fortson says, he and a G.O.P. incumbent “are drawn together in a Republican district.” (Lampson lost, too.) “This is the most aggressive map I have ever seen,” Fortson concludes. “This has a real national impact that should assure that Republicans keep the House no matter the national mood.” (Fortson, who now works for Apple Computer, declined to comment.)

On October 14, 2003, Texas Democrats challenged the new congressional districts under the Voting Rights Act, but three months later a three-judge panel ruled that the rejiggering of the lines had not diluted the voting power of African-Americans or Hispanics. Then, in a major surprise, the Supreme Court issued an opinion that may have changed the rules of the redistricting game for good. [...]

In 2004, Democrats in Pennsylvania presented the Supreme Court with a direct challenge to the practice of partisan gerrymandering. Following the 2000 census, Republicans controlled the governorship and both houses of the state legislature, so they essentially had a free hand in shaping congressional districts to their liking. The commonwealth has become more Democratic in recent years, but the G.O.P. gerrymander showed the power of creative line-drawing. In 2002, the first election to reflect district lines, Republicans won twelve of the nineteen congressional seats—even though a Democrat, Ed Rendell, was elected governor. So a group of Democratic voters filed a lawsuit, claiming that such pervasive distortions of the popular will amounted to a violation of the Constitution’s guarantee of equal protection of the laws.

The case, Vieth v. Jubelirer, reached the Supreme Court, which responded with one of its most significant, and most baffling, decisions in recent history. On April 28, 2004, the Court ruled five to four that the Pennsylvania plan could stand. But in more than a hundred pages of opinions, written by five Justices, there is neither a majority opinion for the Court nor an agreement on the larger issues in the case. As a lower-court judge in the Texas case later wrote of the ruling, “The light offered by Vieth is dim, and the search for a core holding is elusive.”

The lead opinion in the case, by Justice Antonin Scalia, at least has the advantage of clarity. Writing for himself, Chief Justice William H. Rehnquist, and Justices Sandra Day O’Connor and Clarence Thomas, Scalia acknowledged that the Pennsylvania plan came about because “prominent national figures in the Republican Party pressured the General Assembly to adopt a partisan redistricting plan as a punitive measure against Democrats for having enacted pro-Democrat redistricting plans elsewhere.” But Scalia said that partisan gerrymandering was not a subject that belonged in federal court; rather, he wrote, the Constitution entrusts the issue to the political branches of government and “involves no judicially enforceable rights.” In other words, the Scalia quartet advised the Pennsylvania Democrats to try harder to win elections instead of running to the courts with their complaints.

Four other Justices dissented, arguing that the Pennsylvania Democrats deserved their day in court. John Paul Stevens, David Souter, Ruth B. Ginsburg, and Stephen G. Breyer said, in effect, that partisan gerrymandering had got so out of hand that it was up to the courts to restore a measure of fairness. In Stevens’s view, the courts should weigh in because “when partisanship is the legislature’s sole motivation—when any pretense of neutrality is forsaken unabashedly and all traditional districting criteria are subverted for partisan advantage—the governing body cannot be said to have acted impartially.” And the problem, Souter wrote in his dissent, keeps getting worse: “The increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.”

One Justice, Anthony M. Kennedy, tried to split the difference. Kennedy joined the result of Scalia’s opinion but not his reasoning.