High Court Upholds Texas Redistricting Map
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JIM LEHRER: The Supreme Court decision on Texas redistricting. NewsHour regular Marcia Coyle of the National Law Journal is here to explain it all.
MARCIA COYLE, National Law Journal: Thanks, Jim.
JIM LEHRER: First of all, the history of the case and how it got to the Supreme Court.
MARCIA COYLE: OK. Following the 2000 census, a politically-divided Texas legislature was unable to agree on a redistricting plan, a plan for drawing lines for congressional districts. A court imposed a plan.
About the same time, then-U.S. House Majority Leader Tom DeLay was working on an effort to gain Republican control of the Texas legislature. He succeeded. And in 2002, the legislature started an unusual mid-decade redistricting effort. This was so controversial and so…
JIM LEHRER: The idea being that, if they redrew the lines, they would improve the number of Republican members of the House that could be elected? OK.
MARCIA COYLE: Right. That was the goal. And they also felt this reflected what was happening in Texas. Texas voters were increasingly voting Republican.
But the redrawing was so controversial that Texas Democrats in the legislature fled the state twice in order to deprive them of a quorum on a vote. Eventually, they did vote.
JIM LEHRER: I remember the story. It was quite a story at the time.
MARCIA COYLE: In fact, DeLay had…
JIM LEHRER: They went to Oklahoma, and all of this sort of stuff, right?
MARCIA COYLE: And DeLay actually asked the Federal Aviation Administration to help bring them back. But they did return. They enacted the plan, and it went into effect, was very effective. Republicans did pick up seats.
JIM LEHRER: Six seats altogether.
MARCIA COYLE: Six seats, right. But at the same time, it was challenged in court by African-American, Latino-American and Democratic voters, as well as some civil rights groups. They lost in the lower court, appealed to the Supreme Court, and that was the case the court took today.
JIM LEHRER: And there were two major parts to the challenge and to the decision today. The first had to do with this process that you just outlined, whether or not it was constitutional, because it was done mid-census, right?
MARCIA COYLE: Right.
JIM LEHRER: And the court ruled on that today?
MARCIA COYLE: Yes. Justice Kennedy carried the heavy burden of writing here. There were six separate opinions with many subparts, but he tried in the courtroom to boil it down for the people who were listening and said the first issue for the court was whether this was an unconstitutional, partisan gerrymandering, meaning, was it so infected by politics that it violated the Equal Protection and First Amendment rights of voters, because it was done mid-decade, and also because its sole motivation was partisan gain?
He said, first of all, there’s nothing in the Constitution that prohibits mid-decade redistricting.
JIM LEHRER: That’s just a custom, right? That’s just the way it’s been developed, but there is no law that says that or in the Constitution?
MARCIA COYLE: Absolutely, absolutely. It’s rarely been done, but it was apparently done very early…
JIM LEHRER: So they approved it? So he said that’s fine?
MARCIA COYLE: Yes. He also said that it appeared there was evidence that there were other motivations here. Some local interests were accommodated, as well as some Democratic concerns.
Latino district votes differently
JIM LEHRER: Were there any strong dissent? What was the vote on this part?
MARCIA COYLE: On this part, it was 5-4, but it was for varying reasons. What was so interesting about this issue is the court has been divided on whether the Supreme Court and federal courts can really determine when politics is too much in an inherently political process.
JIM LEHRER: Because it's all politics?
MARCIA COYLE: It is all politics.
JIM LEHRER: It's good politics, bad politics?
MARCIA COYLE: That's right. The court -- there are five members of the court who still believe that courts can look at partisan gerrymanders to determine if they're unconstitutional, but the court still, as of today, can't agree on a test or a standard for determining when too much politics are involved.
JIM LEHRER: But, in this case, they said there wasn't enough?
MARCIA COYLE: That's correct.
JIM LEHRER: At least the five.
Now, the second big issue had to do with one of the districts. While they approved it all, there was one district, District 23, Congressional District 23 in Texas, they said that stepped over the line because of the Latino situation. Explain their reasoning there.
MARCIA COYLE: This district was predominantly Latino-American. Justice Kennedy described it as an emergent Latino-American voting population that was on the brink of electing candidates of their choice and was carved up precisely because it was ready to do that and the candidate of their choice would have been Democratic.
The Republicans in the legislature moved 100,000 Latino-American voters out of that district. They knew that what they were doing probably violated the Voting Rights Act, and they thought they could cure that by creating a new district, District 25, which was an oddly-shaped district, long and narrow, from the Mexican border to Austin and 300 miles beyond.
Justice Kennedy said the Latino-American voters in that new district were in other words that new district were concentrated in the extreme north and in the extreme south, separated by 300 miles, and had different socioeconomic interests and needs. That, he said, violated the Voting Rights Act, as well as the original District 23.
JIM LEHRER: So the decision is they have to go back and rewrite that district, right?
MARCIA COYLE: Yes.
JIM LEHRER: Now, when they do that, of course, could there be a domino effect? If you change this line to this district, so this thing is far from over, right?
MARCIA COYLE: I think so, Jim. It takes a lot of careful juggling to draw these lines.
JIM LEHRER: Does the legislature have to do that now or some court do that?
MARCIA COYLE: No, it's probably going to be the state legislature. This case will go back to the court that it came from, and then I believe the court will direct the legislature to redraw the line.
Court discusses military tribunals
JIM LEHRER: One quick issue before we go on. Tomorrow is the last day of this particular session of the Supreme Court, right, the last decision day?
MARCIA COYLE: Yes.
JIM LEHRER: What's the big one that we're waiting for?
MARCIA COYLE: The biggest case of the term, the Hamden challenge to the president's authority to set up military tribunals, to try enemy combatants detained in Guantanamo Bay. It's a huge case involving the power of the president, the power of Congress, and also the power of the Supreme Court to hear these kinds of challenges.
JIM LEHRER: Just out of curiosity, because you've been covering the court for a while, does the court always keep its big cases to the last day or is this just the way it just happened this time?
MARCIA COYLE: Well, it seems to me that, in the years I've been covering the court now -- I won't say how many -- that there is a certain sense of drama among the justices, because it does seem as though the biggest cases come on the final day.
But I think it's also a function of them being the most difficult cases. And in the Hamden case, it was argued in March, so it came towards the end of the term anyway.
JIM LEHRER: OK. Well, we'll talk about it tomorrow night, assuming that it comes down. But for now, it's Texas redistricting. Thank you very much, Marcia.
MARCIA COYLE: You're welcome, Jim.
JIM LEHRER: And now to Gwen Ifill for some reaction to that.
Incumbents favored by court
GWEN IFILL: For that, we turn to Spencer Overton, a voting rights expert at George Washington University Law School. He is author of the book "Stealing Democracy: The New Politics of Voter Suppression."
And Roger Clegg, president and general counsel of the Center for Equal Opportunity. He served as a deputy attorney general in the Reagan and the Bush administrations.
Welcome to you, both, gentlemen.
Roger Clegg, we just heard Marcia explain the court basically said that mid-decade redistricting is acceptable. You filed an amicus brief in favor of that position. Are you satisfied with what the court decided today?
ROGER CLEGG, The Center for Equal Opportunity: I am satisfied, basically, basically because what the Supreme Court said was that most of what the Texas legislature did was OK. And I think that's right.
I don't think that there's anything wrong with redistricting during the middle of the decade. I don't think that there was any racial problem or ethnic problem with what the Texas legislature did, either, so I disagree with that part of the court's decision. But basically, since what the court did was say that the Texas legislature was on solid legal ground, I agree with the court's decision.
GWEN IFILL: How about that, Professor Overton?
SPENCER OVERTON, George Washington University Law School: Well, I disagree, Gwen. The court's decision puts a stamp on approval of politicians manipulating election laws in order to maintain control and expand their power.
We talk a good game here in this country about exporting democracy to other countries, but, in fact, the people are often not in control. Certainly, they weren't in Texas. As we saw in Texas, the voters don't choose politicians; the politicians choose voters through partisan gerrymandering.
GWEN IFILL: Let me step in and ask you about that. Is it unusual to expect that politics should be controlled by politicians?
SPENCER OVERTON: Well, I think it is unusual. If you look in most other democracies around the world, we see that independent commissions actually redraw the districts when they're single-member districts so, yes, certainly in Iraq, there is an independent commission that administers elections in our newly-formed Iraq, so, yes, it is unusual.
ROGER CLEGG: But, you know, I wouldn't have a problem if the voters decided that they wanted districts to be redrawn by independent commissions, but that's not really the issue in this case. The issue in this case is whether courts should step in and try to take the partisanship out of politics. And I don't think there's any way you can take the partisanship out of politics.
SPENCER OVERTON: And just in response to that, I think that the courts shouldn't turn a blind eye, in the one person, one vote cases for example. The court got in, and certain people said, "Well, this is just politics. The court shouldn't get involved," but the court stopped political manipulation in the one person, one vote cases. And as a result, right now, we have that constitutional principle, so today the court missed an opportunity.
GWEN IFILL: The court also said today, as seemed to be one of the impacts -- let me start again. The court as an impact of this decision today seemed to be basically giving more power to incumbents. If you're already there and you can redraw the lines to protect your party or your seat, it seems that it would be hard to unseat you. Is that part of what happened?
ROGER CLEGG: Well, I think that's part of what happened. But you have to remember that I think a fair description of what was going on in Texas was that the Texas Republicans were undoing a much worse racial or political gerrymander that had been done in the 1990s by the Democrats to put the district lines more back into sync with what the voters in Texas wanted.
GWEN IFILL: Well, that's a chicken or egg question for you, too, Professor.
SPENCER OVERTON: I would agree with Roger that, you know, it was wrong in the 1990s when Democrats did it, and it's wrong now when Republicans do it now. Really, the voters lose here. Politicians win out, as you mentioned. Incumbents really do have a lot more power.
How can voters hold politicians accountable if politicians are simply splitting up particular communities and eliminating competition by redrawing districts?
GWEN IFILL: But the courts repeatedly -- at first in the case in Pennsylvania, now again today, have said they don't seem to have a problem with that. Do you see ever relief coming from the high court on this matter?
SPENCER OVERTON: Well, actually, five of the justices say that, you know, lawsuits can be brought in these matters. So the court's not out of if completely. But I would say that the courts should have been stronger.
This was a great opportunity. Partisanship was very evident, and this was an opportunity for the court to make a statement.
GWEN IFILL: Roger Clegg, is it possible to expect now that political parties in states across the nation will look at this decision and say, "Why, look at that. That district has changed by 10 people. Let's redraw the lines again," every year, every other year, now that they have told that it doesn't have to happen only every 10 years?
ROGER CLEGG: Well, there was no law that was in place that said that it couldn't done every year, but, as Jim said in the introduction, that was just the tradition. I don't expect that tradition to change. It's messy, and time-consuming, and expensive, and difficult to redistrict every year.
If that does start to happen, I don't think that it makes sense, though, for the courts to step in and try to be a political referee on what are basically political questions. I think that what has to happen is for the voters to step in.
GWEN IFILL: If there is a domino effect, is it the court's role to step in?
SPENCER OVERTON: I think certainly. And I think we are going to see some political payback, possibly, from Democrats in states like New Jersey, or Illinois, or New Mexico, where Democrats control all three legislative or all three branches of government here.
Also, when a new party takes over in the legislature, maybe the first thing they do is to redraw the districts. Or maybe your poll numbers are down just before an election. Hey, why not redraw the lines in order to ensure you maintain power?
So there really -- there's a slippery slope here, and the court's decision opens the floodgates.
ROGER CLEGG: I have to say, though, that the slippery slope runs both ways. If courts start getting into the business of saying that, "We're going to monitor what the politicians do and step in whenever it gets too political," that's not a principle that can be limited to the elective process.
Why not step in if the executive branch's appointments are too political, or if other actions or activities or laws are being passed are too political? I just think that it's an area that the courts cannot get into.
Racially polarized voting is alive
GWEN IFILL: Spencer Overton, let me ask you about the other part of the case today, in which the court -- we already heard Roger Clegg said he disagreed with it, which the court said, yes, these districts were drawn to disadvantage Latino voters. And there's one district in Texas, these two congressmen, both of them Latinos, one a Democrat and one a Republican, Republican one. What did you think of that part of the decision?
SPENCER OVERTON: And note that one of those Latinos received only 8 percent of the Latino vote, and that's why the 100,000 Latino voters were moved out of his district into another district.
I think that that was a good decision. The court realized that racially-polarized voting is alive and well, unfortunately, in Texas, and it works to the detriment of minority voters. And it was important that the court step in and say, "Hey, we're not going to go for this."
The reason the district was drawn was to prevent this emerging Latino population from challenging and unseating the Republican incumbents.
GWEN IFILL: What is the difference the court draws between racial gerrymandering and political gerrymandering?
ROGER CLEGG: Well, this is the problem. I don't think that what was going on in Texas was about race. It was about politics. And unfortunately...
GWEN IFILL: Even in this one district?
ROGER CLEGG: Yes. I think this was the one part of the court's decision that was wrong, because I don't think that the Texas story was about race. I think it was about politics.
Unfortunately, Gwen, the Voting Rights Act has really been turned on its head by the court's decisions and also by Congress itself in some of the amendments that it's passed to it.
It's no longer a statute about stopping racial discrimination. In fact, it's a statute that requires racial gerrymandering, and racial discrimination, and segregation by race of districts. And I think that this is a big problem, not only in the courts, but it's also a problem that Congress is going to have to wrestle with, as the Voting Rights Act comes up for reauthorization.
GWEN IFILL: So you're saying that the court -- and I want you to respond to this -- the court is enforcing a dead law?
SPENCER OVERTON: A quick note here: Race and politics are intertwined. When white Democrats after the Civil War excluded black Republicans, they did it not just because they were black, but also because they were Republicans and they voted for Republicans. So they are intertwined.
And I think that there's another point here, as well. It's important to protect minority voters. I'm glad the court stepped up to the plate and did that today. But it's also important to protect the rights of all voters across Texas and, unfortunately, the court didn't do that.
GWEN IFILL: And we will leave the argument there for tonight, Spencer Overton and Roger Clegg. Thank you both very much.
SPENCER OVERTON: Thank you.
ROGER CLEGG: Thank you.