June 28, 2006

SAYS WHO?:

Court Nixes Part of Texas Political Map (GINA HOLLAND, June 28, 2006, The Associated Press)

The Supreme Court on Wednesday upheld most of the Texas congressional map engineered by former House Majority Leader Tom DeLay but threw out part, saying some of the new boundaries failed to protect minority voting rights. [...]

Justice Anthony M. Kennedy, writing for the majority, said Hispanics do not have a chance to elect a candidate of their choosing under the plan. [...]

On a different issue, the court ruled that state legislators may draw new maps as often as they like _ not just once a decade as Texas Democrats claimed. That means Democratic and Republican state lawmakers can push through new maps anytime there is a power shift at a state capital.

The Constitution says states must adjust their congressional district lines every 10 years to account for population shifts. In Texas the boundaries were redrawn twice after the 2000 census, first by a court, then by state lawmakers in a second round promoted by DeLay after Republicans took control.

That was acceptable, justices said.


Texas ought to just ignore the Court which has no legitimate role in districting.

Posted by Orrin Judd at June 28, 2006 10:37 AM
Comments

Key graf:

At issue was the shifting of 100,000 Hispanics out of a district represented by a Republican incumbent and into a new, oddly shaped district. Foes of the plan had argued that that was an unconstitutional racial gerrymander under the Voting Rights Act, which protects minority voting rights

The Republican-controlled Congress could make this a non-issue by refusing to renew the Voting Rights Act.

Posted by: kevin whited at June 28, 2006 12:03 PM

Why don't the courts have a role? The 15th Amendment is pretty clear:

Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--

Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.

Congress exercised its power under the 15th Amendment and the Courts are enforcing the law. Why shouldn't they act?

Posted by: David Cohen at June 28, 2006 12:16 PM

This was the part that was a thing of evil. Or Beauty: From the NYT:

"On a different issue, the court ruled that state legislators may draw new maps as often as they like -- not just once a decade as Texas Democrats claimed. That means Democratic and Republican state lawmakers can push through new maps anytime there is a power shift at a state capital."

This just made races for State Legislature seats infinently more interesting.

Posted by: Brad S at June 28, 2006 12:32 PM

There's not even a suggestion in the cases that people are being prevented from voting.

Posted by: oj at June 28, 2006 12:34 PM

In support of OJ, this is the money quote

Justice Anthony M. Kennedy, writing for the majority, said Hispanics do not have a chance to elect a candidate of their choosing under the plan
This only makes sense if you view "Hispanics" as a mass mind, the pieces of which have been split across districts. It makes no sense if you mean individual voting Hispanics, who have just as much chance as any voter.

Posted by: Annoying Old Guy at June 28, 2006 1:00 PM

If legislators can choose their voters instead of the other way around, it isn't a Republic.

Gerrymandering is one of the nails in the coffin of Western Civ, as it insulates the system from change.

I hear Iowa has the best system of mapping, though I don't know every detail

Here in IL, I have absolutely no representation whatsoever, all based up on Gerrymandering. I shouldn't be forced to move to TX, either.

Posted by: Bruno at June 28, 2006 1:19 PM

That's true, but irrelevent.

I'm ambivalent about the merits of the decision throwing out the 23rd. The legislature wasn't trying to screw Latinos, it was trying to save Bonilla; this was pure incumbent protection, which is not prohibited. To what extent can you carry out your incumbent protection by seeking out Latinos and lumping them into one oddly-shaped district? That's the question presented by the Voting Rights Act, and it is squarely presented. The courts have to answer that question, or hold the act to be unconstitutional. As the act is clearly constitutional under the 15th Amendment, the court has no choice but to resolve the case.

Your problem here is with Congress, not the courts.

Posted by: David Cohen at June 28, 2006 1:24 PM

My 1:24 comment is addressed to OJ.

Posted by: David Cohen at June 28, 2006 1:25 PM

Bruno: Gerrymandering is just hardball politics. There's nothing unconstitutional about it. It is simply not a federal question.

Posted by: David Cohen at June 28, 2006 1:27 PM

Actually, Bruno, it creates a situation that is the exact reverse of what the Founders wanted. Originally, the Senate was to be the non-public sensitive body of Congress. Gerrymandering of the breathtaking extent that is now possible creates a House that is "non-public sensitive" while the 17th Amendment creates a public-sensitive Senate.

Again, taking this ruling to its logical conclusion will generate a situation of State Leges being continually up for grabs. Which, no matter how you slice it, is a great situation for the voting public.

Posted by: Brad S at June 28, 2006 1:29 PM

Although I suppose that congress could outlaw gerrymandering using its authority under the 15th Amendment.

Posted by: David Cohen at June 28, 2006 1:31 PM

Bonilla's district was changed to blunt a threat in the 2004 election from former Texas Sec. of State Henry Cuellar, who them ran for the District 28 seat and defeated the more liberal Ciro Rodriguez in the primary that year, and then again this past March in a rematch, despite the fervent support of liberal Democrats, who think Cuellar is a DINO (and who was named Secretaty of State by the current Gov., Rick Perry).

So returning District 23 to its former boundaries -- more Laredo, less northwest San Antonio -- will benefit the Democrats only if their candidate, Rick Bolanos, is moderate enough to attract the same voters who almost put Cuellar past Bonilla in 2002 (Bolanos happens to be in town today along with several other state Democratic candidates for a 2 p.m. reception, so it will be interesting to see how he responds to all this).

Posted by: John at June 28, 2006 2:01 PM

Bard: What the Founders wanted is, in this case, a little problematic. They were dealing with a homogeneous white Christian nation in which the franchise was restricted to male property holders. Gerrymandering really wasn't a concern, other than their wish to avoid England's rotten boroughs.

However, the Framers of the Civil War Amendments, which remade the federal government, were perfectly aware of gerrymandering (the term dates from 1812) and did nothing about it. In fact, the shape and politics of new states admitted to the Union were gerrymandered in the run-up to the Civil War, and those can't be redone every 10 years.

Posted by: David Cohen at June 28, 2006 2:12 PM

David:

No, it isn't presented. Texas can do what it wants as long as it conforms to the Constitution, as you acknowledge it has.

Posted by: oj at June 28, 2006 3:02 PM

David,

Don't you think that some of the Founders, such as Madison or JQ Adams, may have at least had a sense of what was coming when the exploits of Elbridge Gerry were revealed?

Posted by: Brad S at June 28, 2006 3:09 PM

The US Senate is a gerrymander--they were pro-gerrymander.

Posted by: oj at June 28, 2006 3:14 PM

If the Congress says that this remedy is necessary to enforce the 15th Amendment, pursuant to the express power given to it, who are the courts to disagree?

The Senate, for the Founders, is the exact opposite of a gerrymander. They simply adopted preexisting political units. Later on, Congress started playing with states for political effect.

Brad: Good question. I don't know if any of the Founders ever said anything about gerrymandering.

Posted by: David Cohen at June 28, 2006 6:42 PM

Why need the states agree?

Posted by: oj at June 28, 2006 7:48 PM

In fact, the shape and politics of new states admitted to the Union were gerrymandered in the run-up to the Civil War, and those can't be redone every 10 years.

Not true. Those boundaries were adjusted a number of times during the war and afterwards. The size of the State of Nevada almost doubled in size mostly at the expense of Utah (something to do with Mormons) with several additions over the years. There were also a number of cases of potential states rejecting their proposed boundaries, the most notable being Iowa which did it twice before settling on the current lump. (Then there was the original Territory of Colorado, which was approved by a plebescite in 1859 but got lost in the run-up to the war.)

Posted by: Raoul Ortega at June 28, 2006 8:06 PM

Raoul:

You prove the case.

Posted by: oj at June 28, 2006 8:22 PM

Why need the states agree?

Too opaque for me. If the question is "why do the states have to listen to the Supreme Court," the answer is "The Supremcy Clause."

Raoul: Yeah, I don't see how that makes what I said untrue.

Posted by: David Cohen at June 28, 2006 8:31 PM

The Supremacy clause merely makes the Constitution supreme, not the Court's reading of it. Districting isn't judiciable under the Constitution.

Posted by: oj at June 28, 2006 8:37 PM

"Districting isn't judiciable" doesn't mean anything.

The Constitution says that the right to vote can't be abridged based on race. The Constitution says that Congress has the power to enforce that clause with appropriate legislation. Congress passes the Voting Rights Act using that power. Citizens bring suit claiming that the Voting Rights Act has been violated. The courts are obligated to decide that suit. The Supremacy Clause makes clear that federal law is binding on the states.

If you don't like the Voting Rights Act, or think that it is outside the power delegated to Congress in the 15th Amendment, then your problem is with Congress.

This is different from the awful one-man-one-vote, judge-made equal protection doctrine, but the states still have no choice but to go along.

Posted by: David Cohen at June 28, 2006 8:51 PM

There is no problem--Congress seated the delegation. [Obviously Congress would be a better judge than the Court.]

There's no reason they should redistrict just because the Court now says they should.

No one was denied the right to vote. In fact, it's not even alleged.

Posted by: oj at June 28, 2006 8:55 PM

No one petitioned Congress not to seat the Texas delegation because it wasn't actually elected and eligible to serve, so Congress didn't decide anything. Instead, Congress wrote a statute giving voters a right of action to challenge redistricting if it is racially discriminatory. It is Congress judgement, pursuant to the express grant of authority in the 15th Amendment, that enforcing the right to vote requires the ability to so challenge redistricting. The court can't possible ignore that statute -- unless it holds it unconstitutional. There's no basis for holding it unconstitutional and, generally speaking, us conservatives are against the court striking down acts duly passed by the legislature.

Posted by: David Cohen at June 28, 2006 10:52 PM

No, conservatives are against yielding to the Court on questions of constitutionality. Judicial review is a newfangled innovation and illegitimate.

The Texas delegation is serving now having been duly seated by a House that found no problems with its election. The challenge is anti-constitutional and the Court should be ignored.

Posted by: oj at June 28, 2006 11:29 PM

No, conservatives are against yielding to the Court on questions of constitutionality. What questions of constitutionality? The court didn't hold that the district was unconstitutional, it held that it violated section 2 of the Voting Rights Act. What you seem to want is for the Court to ignore the statute and the express will of Congress.

Judicial review is a newfangled innovation and illegitimate. Judicial review, which dates from Marbury in 1803, is about as old as anything in our system can be. It is three years older than the filibuster, which you claimed conservatives should want to preserve as an honored tradition. In any event, whether or not it's illegitimate, it has nothing to do with this case.

The Texas delegation is serving now having been duly seated by a House that found no problems with its election. No one has suggested that they weren't duly elected. The plaintiffs have a cause of action granted to them by congress to seek a specific equitable remedy, the redistricting of the state.

The challenge is anti-constitutional and the Court should be ignored. You want the court to ignore the statute. In other words, you think the statute is unconstitutional (though it clearly is not under the 15th Amendment) and want the court to rule it unconstitutional. You want judicial review.

Posted by: David Cohen at June 29, 2006 12:27 AM

As you point out, the Voting Rights act theoretically enforces a Constitutional provision.

1803 is yesterday to a conservative.

Congress approved the district when it seated the rep.

No, I don't care what the Court does--it has no standing to say or do anything. Texas can draw its own districts.

Posted by: oj at June 29, 2006 8:41 AM

The court has the power Congress gives it, so long as Congress is acting pursuant to a constitutional grant of power. Here, Congress has determined that enforcement of our 15th Amendment rights requires that the states not design congressional districts in order to minimize minority power. That's not specious and might even be right. As federal law is supreme, the states and the courts can't second-guess Congress. Even if Congress is wrong, being wrong is not unconstitutional. Now, do you want the courts or the states to substitute their judgment for Congress' judgment in direct contradiction of the constitution?

I readily admit that 1803 is yesterday to conservatives. That's why protecting the filibuster -- three years younger -- is not at all a conservative end.

Posted by: David Cohen at June 29, 2006 12:40 PM

The States needn't accede to a Congressional law that is anti-constitutional. The Amendment doesn't require racial gerrymandering that suits the Court.

Posted by: oj at June 29, 2006 1:02 PM

The states have to accede to the federal government's understanding of federal law. That's what the Supremacy Clause says, that's why it's called the "Supreme" court, and we settled this even before the Civil War in the Nullification Crisis.

Once again, the court wasn't deciding a constitutional question, it was deciding a statutory question. If you don't like the statute, take it up with Congress.

Posted by: David Cohen at June 29, 2006 1:39 PM

I agree with Congress--they seated the delegation. There's therefore no basis for a challenge.

Posted by: oj at June 29, 2006 2:11 PM

So you want the court to ignore acts of congress when when they conflict with the constitution. That's judicial review.

It's also wrong here because the 15th Amendment, which amended the constitution, says that congress shall have the power to enforce voting rights. Whether congress seated the delegation is irrelevent, unless congress chooses to make it relevent. The court can't decide that congress granted this cause of action but didn't really mean it.

Posted by: David Cohen at June 29, 2006 4:19 PM

No. I don't think it's possible for Congress to pass and the president to sign an act that the Court can overturn on Constitutional grounds. Two of the three have spoken. Who cares what the third branch says.

Posted by: oj at June 29, 2006 5:27 PM

And when all three branches agree on what federal law is, who cares what the states think.

Posted by: David Cohen at June 29, 2006 5:48 PM

Quite.

Posted by: oj at June 29, 2006 6:04 PM
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