Burnt Orange Report

Briefs Filed In Redistricting Case

By Vince Leibowitz

In anticipation of March 1 oral arguments, various opponents of the Congressional Redistricting plan forced through the Texas Legislature by allies of indicted former U.S. House Majority Leader Tom DeLay (R-Sugar Land) have filed briefs with the U.S. Supreme Court.

The San Antonio Express News notes opponents of the remap claim in the briefs outdated Census data was used to establish political lines that diminish minority voting strength:

"They diluted the voice of Latinos by using this old data," Rolando Rios, a lawyer for the League of United Latin American Citizens, said Thursday.

The state of Texas has until Feb. 1 to respond to the briefs, which were filed Wednesday with the Supreme Court as part of an accelerated plan by justices to hear oral arguments in the case on March 1 - one week before party primaries are held.

The high court agreed on December 12 to hear arguments in the redistricting case, which is actually a conglomeration of four separate challenges to the 2003 remap.

The Cases

The cases are styled as follows:

League of United Latin American Citizens, et al., Appellants v. Rick Perry, Governor of Texas, et al; Travis County, Texas, et al., Appellants v. Rick Perry, Governor of Texas, et al.; GI Forum of Texas, et al., Appellants v. Rick Perry, Governor of Texas, et al.; and Eddie Jackson, et al., Appellants v. Rick Perry, Governor of Texas, et al.

Though the Express-News simplified the matter quite a bit, the questions presented by the various cases are as follows:

LULAC v. Perry, et al:

1. Whether the 2003 Texas Congressional Redistricting Plan (Plan 1374C), adopted and developed using outdated, inaccurate 2000 Census data and resulting in malapportioned districts, in violation of one person, one vote when measured against 2003 Census data, and when "the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage" and when such purpose is realized, is an unconstitutional political gerrymander.

2. Whether proof of racially polarized voting is overcome by evidence of partisan affiliation of minority voters in the analysis of the second prong of Gingles in a minority vote dilution claim.

Travis County, Texas, et al v. Perry, et al

Does the Texas legislature's 2003 replacement of a legally valid congressional districting plan with a statewide plan, enacted for "the singleminded purpose" of gaining partisan advantage, satisfy the stringent constitutional rule of equipopulous districts by relying on the 2000 decennial census and the fiction of inter-censal population accuracy?

GI Forum of Texas vs. Perry, et al.

1. Whether political partisanship is sufficient justification, under section 2 and the Constitution, for dismantling a Latino-majority congressional district in order to elect the Anglo-preferred candidate.

2. Whether section 2 permits a state to eliminate a majority-minority district located in one area of the state and create another majority-minority district in a different area of the state.

3. Whether the District Court erred by requiring section 2 demonstrative districts to be more compact and to offer greater electoral opportunity to minority voters than the corresponding districts in the challenged redistricting plan.

4. Whether the number of majority-minority districts that can be created in the state functions as the upper limit of permissible political opportunity when assessing proportionality under Johnson v. DeGrandy.

Eddie Jackson, et al vs. Rick Perry

1. Whether the Equal Protection Clause and the First Amendment prohibit States from redrawing lawful districting plans in the middle of the decade, for the sole purpose of maximizing partisan advantage.

2. Whether Section 2 of the Voting Rights Act permits a State to destroy a district effectively controlled by African- American voters, merely because it is impossible to draw a district in which African-Americans constitute an absolute mathematical majority of the population.

3. Whether, under Bush v. Vera, 517 U.S. 952 (1996), a bizarre-looking congressional district, which was intentionally drawn as a majority-Latino district by connecting two far-flung pockets of dense urban population with a 300-mile-long rural "land bridge," may escape invalidation as a racial gerrymander because drawing a compact
majority-Latino district would have required the mapmakers to compromise their political goal of maximizing Republican seats elsewhere in the State.

To date, a number of briefs have been filed in the cases. The appellants in Jackson, Travis Couty, GI Forum and LULAC filed briefs this week. The Texas State-Area Conference of the National Association for the Advancement of Colored People and Texas Democratic Party Chairman Charles Soechting filed briefs in support of the appellants this week as well, and Frenchie Henderson filed a brief supporting appellants Travis County shortly before Christmas. (There is also a Joint Appendix in two volumes.)

A number of groups have, to date, also filed Amicus Curiae briefs supporting the appellants, including the North Carolina State Conference of the National Association for the Advancement of Colored People; the Fort Worth-Tarrant County Branch NAACP; the NAACP Legal Defense and Educational Fund, Inc.; Samuel Issacharoff, Burt Neuborne, and Richard H. Pildes; the Reform Institute, Thomas Mann, and Norman Ornstein; the Brennan Center for Justice at NYU School of Law; the Center for American Progress; University Professors Concerned About Equal Representation For Equal Numbers of People; and Neil H. Cogan.

The League of Women Voters of the United States and League of Women Voters of Texas filed a brief in support of reversal.

Professors Gary King, Bernard Grofman, Andrew Gelman, and Jonathan N. Katz, filed briefs in support of neither party.

For links to all of the briefs, previous Supreme Court orders and more, go here, which is the website for Jenner & Block, which represents the Jackson appellants.

Background on Texas Redistricting

In 2003, the Texas Legislature, fresh into its first session under Republican control thanks to work and millions of dollars in electioneering of groups like the Texas Association of Business and Tom DeLay-aligned Texans for a Republican Majority, began to tackle redistricting during the legislature's regular session, resluting in a walk-out by Democrats in the House to block a quorum.

However, the Democratic House members's brief departure to Ardmore, Oklahoma wasn't enough: Texas Governor Rick Perry called three special sessions to tackle the issue, two of which failed in part because Democratic Senators denied a quorum by traveling to New Mexico for 45 days until Sen. John Whitmire (D-Houston) abandoned his fellow senators and returned to Austin.

In a third special session, a redistricting plan passed on an 18-12 vote in the Texas Senate. The plan was eventually signed into law by Texas Governor Rick Perry.

A flurry of lawsuits soon resulted, and a three-judge panel of the Fifth Circuit Court of Appeals twice upheld the Texas redistricting map as constitutional. On appeal to the U.S. Supreme Court, the court remanded the case back to the Fifth for reconsideration following Vieth v. Jubelirer, a Pennsylvania redistricting case.

Texas Republicans held 15 of 32 congressional seats before the 2004 elections. Redistricting helped the GOP capture 21 seats and expand their majority in the House of Representatives. The redistricting plan resulted in the defeat of Congressmen Nick Lampson, Max Sandlin, Charles Stenholm and ended up having longtime Blue Dog Democrat Ralph Hall switch parties, and caused Cong. Chris Bell (now a candidate for governor) to be defeated in a primary election.

Vince Leibowitz is a regular contributor to Burnt Orange Report and the Political State Report.