While we are concentrating on the GOP nomination battle and all that entails and the drama towards the big prize in 2012, the Supreme Court has taken on a trio of cases that are highly politically charged that may have more far-reaching effects than who wins in 2012. In the first match up, Justice Scalia has accepted and placed on the docket a case involving redistricting in Texas as a result of the 2010 census. As most are aware, Texas gains four seats in the House (and 4 electoral votes). Scalia handles urgent appeals from the 5th Circuit.
To bring one up to date, after the 2010 census, Texas was assigned four additional House seats. Redistricting efforts were approved by the Republican-controlled State legislature affecting the state district boundaries and those of the Federal Congressional districts. Almost immediately, they were challenged in Federal court by Hispanic interest groups and Democratic operatives. They argued that the new districts were drawn to minimize the influence of the growing Hispanic population in Texas.
That may very well be the case, but what is of paramount greater interest here is that the District Court in San Antonio basically threw out the maps drawn up by and approved by the Texas state legislature and drew their own map. Under Section 5 of the Voting Rights Act of 1965, states with an obligation (Texas is one of them) have to submit any election changes to the Justice Department or District Court in DC for approval. Texas opted to go the judicial route and asked for a summary ruling which was denied with the understanding the issue would go to a hearing in DC. Unfortunately, the DC court said that if it failed to approve the legislature-passed plan, then it would be up to the San Antonio court to do that. Instead, that court drew up new maps in the interim pending approval from Washington. Texas objects to these maps as an intrusion on state sovereignty and Scalia essentially, by taking the case, ordered a stay in implementation of the maps pending a Supreme Court hearing on the issue.
The problem is that Texas holds their primary on March 6 and there are currently no established Congressional districts until the court rules. Argument is set for January 9, 2012. In a very real way, the expediency of the situation is akin to BUSH v. GORE from 2000. Unfortunately, these challenges before the Supreme Court are rare since reapportionment occurs once every ten years. Texas is relying upon a 1982 per curiam (unsigned) decision which basically asserted that a Federal District Court had overstepped its authority in drawing legislative boundaries. However, in that same decision (ironically, out of Texas), the District Court was under an order from another court and the Justice Department who determined that two of Texas’ then-existing proposed districts were problematic under the Voters Rights Act. They were later adjusted to the satisfaction of all. In that case, all but two districts were fine. Also, in that case, there was a court finding of “discriminatory effect.” In the current case, there is no finding of “discriminatory effect” since the Federal court in DC has not even held a hearing yet AND the entire map was redrawn by the court in San Antonio- not just two districts.
Even more importantly, Texas has upped the ante now in their filings with the Supreme Court by calling into question the validity of Section 5 of the Voters Rights Act of 1965. Specifically, they argue that it is a gross infringement on such a fundamental state function and state sovereignty as to how they conduct elections. Whether the Supreme Court even reaches that issue remains to be seen.
The practical effect of the San Antonio court’s maps is that they essentially create three Hispanic-majority districts. By creating these districts, it necessarily caused surrounding districts to be adjusted and then the entire map. Presumably, this would mean that the Hispanic districts would vote Democratic. In fact, under the state-drawn maps, Republicans would gain three seats in Congress according to most experts. Under the court maps, Republicans would gain only one seat.
Without a doubt, political gerrymandering seems to be a blood sport every ten years at the state level. For example, the Democratic legislature in Illinois redrew boundaries making it very difficult for Republican apirants and incumbents alike. In fact, any GOP gains in Illinois in 2010 should be wiped out in 2012. Likewise, the Republican-controlled legislature in Pennsylvania released a map that will (1) shore up GOP districts and (2) make it easier to take on two incumbent Democrats. Yet, no Federal court is redrawing maps in Illinois or Pennsylvania that may have taken into account race and ethnicity.
Most importantly, from the Texas standpoint, is whether their legislatively-drawn districts were done with a racial or ethnic animus. Previous Court decisions have either failed to reach these issues (and focused on the mechanics) or upheld intrusions on state sovereignty when there was a finding of racial or ethnic animus. Put another way, although the Court may generally disapprove of judicial activism, they are more loathe of overturning precedent despite the purported merits of the arguments from Texas.
In the final analysis, this is a case of judicial activism gone wild. For the District Court in San Antonio to totally discard a legislative map drawn up and approved by its legislature and replace it with their own is beyond the bounds of reasonableness. From a strategic standpoint- and hopefully Texas will not stress this point- an all out attack, despite the merits, on Section 5 is a non-starter and hopefully will not frame the debate on January 9th. Most likely, the liberal wing of the Court will attempt to entrap Texas into that argument. But, this is a case of judicial activism and over-reach. They are totally nullifying the work of elected officials absent any finding of racial animus on the part of Texas and are working on a set of hypothetical assumptions. The fact Scalia referred the matter to the entire Court only underscores its importance. One can expect a two-part decision- one with broader consensus on the practical implications and one closer in the vote on the broader issues. Still, I expect a 5-4 decision assailing the District Court in San Antonio for jumping the gun absent a finding or decision from the DC Court (or Justice Department) and attacking judicial activism in this area. Section 5 will be upheld in principle- just not in this particular case. And a compromise map will result where both parties can expect to gain two seats in the House. Of course, most of this would be moot if the GOP would recruit, cultivate and support qualified and competent Hispanic candidates. That would be the largest stake in the heart of Section 5.