RAY SUAREZ: Every 10 years, soon after the national census, states are required to redraw congressional districts to account for shifts in population. When Texas set out to redistrict after the 2000 census, Republican and Democratic legislators clashed over how to draw the new map.
A federal court stepped in and drew a map that resulted in a 17-15 split in the Texas delegation in the U.S. House of Representatives and a two-seat advantage for the Democrats, even as Texas became a more Republican state. The state GOP protested, arguing the new map didn't reflect Texas, with two Republican U.S. senators, a Republican governor, and an overwhelming vote for George Bush in 2000.
Rep. Tom Craddick was speaker of the Texas House.
STATE REP. TOM CRADDICK, R-TEXAS: Yet 58 percent of all the people that voted statewide voted for a Republican, Republicans to control the Texas House, the Texas Senate, and all statewide Texas offices' holders. And there's 17 Democrats and 15 Republicans in Congress, and we really don't feel that the people are represented fairly across the state.
RAY SUAREZ: Enter Congressman Tom DeLay, then the House majority whip. He cranked up his fundraising machine to help Texas Republicans win control of the statehouse in 2002 for the first time in more than a century. DeLay then drew a new map heavily favoring Republicans and gave it to the new majority in the legislature to approve. Governor Rick Perry called a special legislative session to get it done.
TEXAS GOV. RICK PERRY (R): I'm happy to announce that members of the Texas Senate, the Texas House, have reached an agreement on a congressional redistricting bill that achieves our principal goal of giving voters districts that are fair and representative, and that reflects the philosophy and voting patterns of Texans.
RAY SUAREZ: Determined to keep the legislature from voting on the new plan, 50 Texas House Democrats fled to neighboring Oklahoma, while 13 from the Senate took off to New Mexico.
However, in 2003, the Republicans prevailed; they approved the plan in time for the 2004 elections, which resulted in a five-seat Republican pickup for Texas in the U.S. House of Representatives.
Veteran Democrats, such as Charlie Stenholm and Martin Frost were bounced out, but Democrats and minority groups in Texas charged the new districts purposely diluted the strengths of minority voting blocs. They also charged states can't be allowed to redistrict for a second time mid-decade.
Jim Dunnam was the leader of the Texas House Democratic Caucus.
STATE REP. JIM DUNNAM, D-TEXAS: It's never been done. I mean, it's an unprecedented action to take up redistricting when you weren't under a court order to do so and when it wasn't immediately following a census. We don't do it every time there's a change in power. Think of the instability in our country if every time, every two years, we redistrict Congress just because we could.
RAY SUAREZ: In October of 2004, a federal court in Austin upheld the Republicans' redrawn map to the delight of Tom DeLay.
REP. TOM DELAY, R-TEXAS, FORMER HOUSE MAJORITY LEADER: I think the courts are realizing that the Constitution requires that the state legislature draw these lines. And hopefully they will once and for all decide to stay out of this business of redistricting, as they should, and allow the state legislatures to do their job.
RAY SUAREZ: Since then, however, Tom DeLay has been indicted on charges he illegally involved himself in the Texas Republicans' 2002 campaign to take over the state legislature, and the Supreme Court agreed to hear the Democrats' appeal of the lower court ruling which upheld the Republican map. That was the case the justices heard today.
RAY SUAREZ: The arguments today in the Texas redistricting case lasted two hours, twice as much time than normally allowed by the justices. And in the courtroom was Marcia Coyle, Washington bureau chief and Supreme Court correspondent for the "National Law Journal." And she joins us now.
Now, there were multiple petitioners, Marcia, and they all were in one day's hearing.
MARCIA COYLE, WASHINGTON BUREAU CHIEF, NATIONAL LAW JOURNAL: That's right.
RAY SUAREZ: Was there one case made on behalf of them all, or we they all separate arguments?
MARCIA COYLE: They weren't all separate arguments. The court actually agreed to hear four separate cases, but it did take those four and consolidated them for the two-hour oral argument. But the parties had to decide, you know, who was going to present which arguments. Every case was not going to get its own airing.
What we had here were a number of different challengers to the Texas plan. They were Latino voters, African-American voters, Democratic legislators. They had lost in the lower courts, and it was their appeal that the court heard today.
Their challenges, their attacks on the Texas plan, were both broad, as in saying this plan violates the Constitution because it was drafted solely for partisan purposes, and they also were specific, pointing to specific districts that they allege diluted the voting strength of Latino and African-American voters in violation of the Voting Rights Act.
RAY SUAREZ: How did justices respond to those various arguments that you just enumerated?
MARCIA COYLE: Well, first, let me just say that this case comes to a very divided Supreme Court on the issue of whether the court should even be hearing challenges to redistricting plans as being partisan gerrymandered plans.
Just two years ago, the court had a claim of a partisan gerrymandering plan out of Pennsylvania, and the court split 4-1-4, four justices saying: We should stay out of this. This is nonjusticiable, as they say. It really involves the political process. Let the political process take cares of it.
Four justices saying: Well, sometimes politics may go too far, and we should take a look at some of these districts. And then the swing vote, Justice Kennedy, siding with those who said we're not going to get into it, but he said there may be occasions, if we come up with a test where politics has gone too far.
First up before the court today was Paul Smith, who made the broad attack that partisanship alone can never be a legitimate reason for redrawing district lines. Here, he said, one party drew the lines to secure more seats at the expense of another party. To which Justice Scalia said: Boy, what a surprise. Why can't a legislature decide that a map no longer accurately reflects the political power at the time and redraw it?
And he said that you have to have more than a political interest; you have to have other public interests in order to redraw maps. After a census, we tolerate partisanship in redrawing maps because there are other important public interests at stake.
So the justices seemed a little leery of this argument. Some of them were concerned that, if you didn't give legislatures flexibility to correct maps when population had changed, that this also presented a very difficult problem.
Mr. Smith had argued that mid-decade redistricting for partisan purposes only also created constitutional problems. And Justice Kennedy said: Well, if you take away this flexibility from them, you may be removing an important incentive for them to draw fair districts, because you no longer have the hammer that there can be a mid-decade correction.
And Mr. Smith countered: Well, then you may also be -- if you allow mid-decade redistricting for partisan purposes, you may be allowing abuse of another kind, because legislators could sit on their hands when they have a constitutional obligation after a census to redraw a map and wait for a more appropriate time to do that.
RAY SUAREZ: The state of Texas was the respondent in all of these cases.
MARCIA COYLE: Yes.
RAY SUAREZ: What did it have to say on its own behalf?
MARCIA COYLE: The state of Texas was represented by its solicitor general, Ted Cruz. And he said, basically, this isn't a partisan gerrymandering map, that this map is fair in all respects and it was found to be fair by the lower court.
He said, if there are problems with mid-decade redistricting, really Congress has the supervisory power here, and it can act to correct any abuses. Courts should stay out of it. He said there were many reasons for why this map was drawn the way it was, not just political considerations.
RAY SUAREZ: Another big case argued today, Marcia, an argument you attended, had to do with the subsidies that states often give to private corporations to give them incentives to move into the state, to bring jobs, to build a factory there. What was the argument about, whether that was legal?
MARCIA COYLE: Whether it's constitutional, whether it discriminates against Ohio businesses that don't expand within the state of Ohio. Most states have been using these tax incentives to attract business into their states or to encourage expansion within their states. It's really about jobs, the bottom line here.
In Ohio, the way the investment tax credit situation was set up, a number of residents of Ohio and some residents outside of Ohio challenged the tax, saying it discriminated against Ohio businesses that chose not to expand their businesses within Ohio but to go out state, because it just favored the expansion within Ohio. And a federal appellate court said that that was discrimination under interstate commerce and struck down the investment tax credit.
There's a big elephant in this case, and that whether the taxpayers who have challenged the case have what we call standing to sue. Were they actually injured by what happened with the investment tax credit here? And the court spent a lot of time on that issue; it didn't seem particularly sympathetic to the taxpayer's arguments that the tax credit itself was discriminatory.
RAY SUAREZ: So a lot of the argument, you're saying, wasn't on the merits of whether states can give those incentives, but whether or not the people, in fact, had the right to sue?
MARCIA COYLE: Right, exactly. The court could decide they didn't have the right to sue, and the case could be dismissed or it could be sent back to the lower court. So this one seemed a little easier to call because of the standing problem. The voting Texas case is not that easy to call; the court seemed not clear at all as to what it was going to do.
RAY SUAREZ: Marcia Coyle, thanks for joining us.
MARCIA COYLE: You're welcome.