By enacting a new congressional redistricting plan this month that replaced a court-ordered plan used in the 2002 elections, the Republican-controlled Texas Legislature did more than demonstrate a willingness to play political hardball against its Democratic opponents. It waded into uncharted legal and constitutional territory, raising a question to which there is no clear answer.
The Texas Republicans redistricted their state even more aggressively than Colorado Republicans did earlier in the year.
According to experts in the field, there is no precedent in modern U.S. politics for what the Texas and Colorado Republicans did: voluntarily redraw congressional district lines a year after lawmakers were elected from districts that had already been redrawn once in this decade.
In both cases, divided state legislatures could not agree on redistricting plans in 2001, after the 2000 Census. Courts stepped in to draw new district lines, the normal procedure in such circumstances. But in 2002, Republicans gained complete control of the legislative process in both states. This year, the GOP has moved aggressively to exploit that advantage, hoping to solidify the party's control of the U.S. House of Representatives through the end of this decade.
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The key constitutional issue raised by the cases is whether a state legislature is free to redraw congressional boundaries a second time in a decade after an election has been held using district lines that were legally implemented, either by the legislature or by a court.
"There are no court cases" dealing with that issue, said Tim Storey, the redistricting specialist with the National Conference of State Legislatures. "It's essentially a new question."
There is nothing new about using the redistricting process to hammer political opponents. It has often been an exercise in raw political power by both parties. Some 19th-century instances make today's Texas Republicans look restrained by comparison.
According to a paper by Erik Engstrom, an assistant professor of political science at the University of North Carolina at Chapel Hill, in 1878 House Speaker Samuel Randall (D-Pa.) was so concerned about his party's shaky hold on the House that he implored Ohio Democratic leaders to redraw their state's congressional districts to make it easier to elect Democrats. The Ohio Democrats responded by redistricting seven times between 1878 and 1892, Engstrom reported.
But during much of the 20th century, states often did not redraw congressional boundaries even once a decade. The only times they were compelled to redistrict was when, as a result of the decennial census, they gained or lost seats in the House. Washington state did this in the 1950s, creating an "at large" House seat in 1951 and converting it into a traditional district covering only part of the state in 1957.
The states' casual approach to redistricting ended in 1962 with Baker v. Carr, the landmark Supreme Court decision that laid the foundation for the "one person, one vote" doctrine. From then on, states were to redraw House districts to keep their populations about equal after each once-a-decade census. There have been numerous instances of multiple redistrictings during the same decade, but always under pressure or order from a court to comply with constitutional mandates or laws such as the Voting Rights Act of 1965. Except in those cases, states have regularly redrawn congressional districts only once a decade.
Storey said about a dozen states have constitutional provisions prohibiting multiple redistricting in the same decade, but Texas is not one of them. Nor do the U.S. Constitution or federal court precedents prohibit the practice.
"There is nothing that says you can't do this as often as you want," said Michael McDonald, a political scientist at George Mason University.
But Texas Democrats say the practice is unconstitutional and contrary to the Founding Fathers' intentions. In a lawsuit filed in U.S. District Court in Tyler, Tex., they note that the Constitution requires that House seats be reapportioned among the states after each 10-year Census. An "implicit assumption" of that reapportionment mandate, the Democrats argue, is that the redrawing of district lines within states will take place on the same schedule.
They say that changing district lines after an election has been held "cuts the links" between voters and their representative by shifting voters into new territory represented by someone else.
"All we're saying is that implicit in decennial reapportionment is decennial redistricting," said Sam Hirsch, a lawyer for the Texas Democrats. "American constitutional law is full of implicit assumptions. The idea that reapportionment and redistricting are tied together is a small inferential leap. The reason is that reshuffling districts every two years undermines democratic accountability. People should be able to vote for representatives who served them well and against those who have not served them well."
Texas Republicans have not yet replied to the lawsuit, but in an April opinion Attorney General Greg Abbott (R) laid out their likely arguments. He said that when a panel of federal judges imposed the redistricting plan used for the 2002 elections, it did not foreclose the possibility of the legislature enacting its own plan for the rest of the decade.
"No language in the [federal court] plan mandates application of the plan through 2010, and no court order properly could bar a legislature from performing the legislative task of redrawing lines and enacting a constitutionally acceptable plan for future elections," Abbott wrote. "Absent restraints imposed by state law, a state may redraw its congressional districts more often than every 10 years."
Grofman, a widely recognized redistricting expert, said there is no question that the Texas Legislature could have enacted its own redistricting plan in place of the court plan before the 2002 elections. But, he added, "Is it legally relevant that the [court] plan has taken effect for a year and therefore is it going to prohibit the state from further action? The case law just isn't clear."
Whatever the answers, Thomas E. Mann, a senior scholar at the Brookings Institution, said that the Texas and Colorado experiments in multiple redistricting could have profound political consequences.
"If this is sustained, what we will have is a form of arms race where there is no restraint on keeping the game going on throughout a decade," Mann said. "You ask, who wins in this process? This is a process designed not for citizens or voters but for politicians. It will lead politicians to say there are no limits. I think it threatens the legitimacy of democracy."
