Texas Redistricting: Here Comes the Judge

by Ralph Brock, Attorney-at-Law

Courts get involved in Texas congressional redistricting in only two instances: when the legislature fails to redistrict and when it does.

In 2001 the legislature failed to redistrict for congressional elections after the 2000 census. Gov. Rick Perry decided not to call a special session because, he explained:

Although I expect Texans will be disappointed with the inability to accomplish this task, I believe Texans would be even more disappointed if we expend considerable sums of taxpayer money to call the legislature into a special session that has no promise of yielding a redistricting plan for Congress. I, therefore, have decided that it is not in the best interest of our State to call a special session at this time.

When the legislature fails to draw new congressional districts, courts -- state or federal -- will step in and do so. Federal courts will defer to state courts but only for a limited amount of time. That is what happened in 2001, when a three-judge federal court approved a new redistricting plan. The media seldom mentions this, but the 2001 map was rigged to give Republicans a substantial majority in the Texas delegation. However, in at least six districts that otherwise voted Republican, the pesky voters went ahead and elected conservative Democrats. Thus, in the 2002 election, the Texas delegation maintained a 17-15 Democratic majority.

Tom Delay Moves In

This was a significant affront to Tom Delay, the Sugar Land bug-stomper turned U.S. House Majority Leader and Speaker wannabe. So in 2003, after the regular session failed to pass a redistricting plan, Delay decided it was now necessary to expend considerable sums of taxpayer money to call the legislature into a special session -- Actually, Three Special Sessions.

This time, the Texas legislature didn't take any chances with giving voters competitive districts. Republicans themselves arrogantly admit that their new districts were drawn to guarantee a Republican majority.

Democrats Go to Court

Democrats took the case to federal court. A state trial court could have decided the questions that were presented, but before the case could go to the U.S. Supreme Court, it would have to go through two appellate courts in the state system. Even on an expedited schedule, this is time-consuming, and state courts usually are not as familiar with the federal constitutional questions that arise in this kind of case.

On the other hand, a special federal statute gives federal trial courts the authority to convene a three-judge court when an action is filed challenging the constitutionality of the apportionment of congressional districts. Such a court consists of two federal trial judges and one judge from the federal circuit court of appeals. An appeal from such a three-judge federal court is straight to the U.S. Supreme Court.

Democrats and others challenging the 2003 redistricting map opted for the three-judge federal court. They presented four issues:

1. Can Texas redistrict in mid-decade?
2. Does the plan unconstitutionally discriminate on the basis of race?
3. Is the plan an unconsitutional partisan gerrymandering?
4. Do various districts dilute the voting strength of minorities?

After piously questioning the wisdom of the blatant Republican gerrymandering, the two Republican judges on the panel, nevertheless, upheld it. The 2004 election will go forward under the Delay plan.

One Last Chance for Justice

An appeal is being taken to the Supreme Court, but the Court does not have to take the case. A similar Pennsylvania case involving partisan gerrymandering is already before the Court; nevertheless, the Court refused to stay the order in the Texas case pending appeal. A number of experts have said this is a signal that the Court is not going to reverse the three-judge court. It may be, but then, if the Court had stayed the order, it might have been construed as a signal about the Pennsylvania case, something the Court would not want to do.

The only thing certain at this point is that this is a case from the President's home state, and this is the Supreme Court that decided Bush v. Gore.