Burnt Orange Report

They're probably going to rule for the State (and the GOP) unless the Supremes have concocted a test for measuring partisanship since they've decided the Vieth (Pennsylvania) case.

That said, if the smart people are split then it could get interesting.

I'll direct you to my previous comments regarding Veith and Larios:

http://www.burntorangereport.com/archives/cat_redistricting.html

Guys, the "one man, one vote" argument is vital for mid-decade redistricting. It's a brilliant piece of lawyering.

Here's why: The court ruled that mid-decade redistricting is fine. OK, but if the principle of one man, one vote holds true, then using out of date census data (in this case, three-year-old data necessarily disenfranchises the thousands of people who migrated into Texas after the 2000 census and before the 2003 re-redistricting.

Therefore, the Supreme Court needs to decide whether a political party can ignore one man, one vote.

If they updhold one man, one vote, then the legislature will either have to pay for a brand-new census and pass similar maps, or they'll have to revert to the post-census maps.

Again, the argument makes mid-district redistricting effectively illegal by accepting that mid-district redistricting is legal, as long as you do another census. Brilliant piece of lawyering.

Let me be Devil's Advocate. Taken to its extreme, "one man one vote" is violated before the (initial, legal) redistricting is ever performed because the census counts population as of a certain day. Population is in constant flux, so the data is obsolete by the time the Leg draws the lines.

The Courts have never said that redistricting has to be done every year to keep track with population trends - only at the end of the decade when it is feasible to count because there is a new census.

Of course, we are in unchartered territory of redrawing lines. The best argument is that at least in beginning of decade redistricting the lines THEN are at least known to be as close to "one man one vote" as possible. In mid-decade re-redistricting, you KNOW you are going to violate it.

I think the Court is VERY interested in this case and that is why they remanded it. They never gave the lower Court an analytical framework by which to judge excessive partisanship, but obvioulsy they had a concern because otherwise they would not have remanded the case. I think the subtle message to the lower court was to try to come up with a test and the Supremes will build from there. The lower court failed and never even tried to establish an analytical construct. Sadly, I think they punted and advocated their duty. Justice Higonbotham wrote that they "could not make angels out of men." Well, how would he know if he didn't even try?

WhoMe? wrote,

I think the subtle message to the lower court was to try to come up with a test and the Supremes will build from there. The lower court failed and never even tried to establish an analytical construct. Sadly, I think they punted and advocated their duty.

I presume you meant "abdicated." But in fact, between the panel opinion and Judge Ward's special concurrence, the three judges spent 58 pages of dense prose analyzing all of the standards suggested by the various opinions in Vieth and by the plaintiffs, and found none that were workable. They did try, as did the Supreme Court in Vieth on facts that were frankly much more compelling than those from Texas.

I strongly disagree that the Supreme Court's remand of the Texas case implies anything about the Court's "interest" or the likelihood that the Court is suddenly going to be able to come up with a new standard that can draw a five-vote majority. Appeals from civil rights cases like this one aren't discretionary, they're mandatory — the Supreme Court can't just deny certiorari, they have to rule on the merits (although they quite often issue summary affirmances without oral argument or written opinion). Particularly for cases that they can't dispose of through a simple "cert denied," they want to ensure that the three-judge lower court panel has had the chance to consider and apply to the specific facts of each case any intervening Supreme Court decisions, which was the express reason for this remand.

But if you want to make predictions, note too that this time (as opposed to January 2004), the three-judge panel was unanimous. Judge T. John Ward, who dissented previously, didn't this time. He did write a separate concurring opinion, but even he didn't vote to overturn the 2003 map on this go-around.

Nobody can ever be certain what the Supreme Court will do. But the chance of them overturning the 2003 map is awfully remote, even factoring in possible changes in the composition of the Supreme Court.