My Reapportionment from Your Gerrymander?

Wednesday, March 01, 2006
Today the U.S. Supreme Court heard argument on the Texas redistricting case, League of United Latin American Citizens v. Texas, or LULAC v. Texas.

You’ve heard about this – it’s what made partisan Democrat Austin DA Ronnie Earle, as an act of revenge, indict former House Majority Leader Tom Delay.

And remember how some Democrat members of the Texas Legislature actually left the State of Texas and went to Oklahoma so there wasn’t a quorum to vote on the redistricting?

Let me present a little history in this case.

In 1991, the Texas Legislature (then controlled by the Democrats) conducted a redistricting following the 1990 census. Their plan resulted in a 21-9 Democrat advantage in U.S. House seats in the 1992 election, even though Texas voters were almost evenly split between Republicans and Democrats. This 1991 redistricting has been described as the most partisan redistricting plan ever, anywhere in the U.S. See page 12 of the Texas District Court panel’s opinion in the Texas case for some history.

With the next census in 2000, the Texas Legislature was unable to agree on a redistricting plan, so the U.S. District Court conducted its own redistricting in 2001, following as much as possible the lines of the extremely partisan 1991 Democrat plan.

In 2003, the Texas Legislature finally was able to decide on redistricting and conducted a reapportionment plan that approximately reflected the current 60% to 40% Republican to Democrat voter edge in Texas.

So what’s the beef? The Texas Legislature in 2003 corrected the extremely partisan Democrat gerrymander conducted in 1991.

Now let’s look at the law.

In 2004 the U.S. Supreme Court in Vieth v. Jubelirer considered a redistricting in Pennsylvania. There was no majority opinion in that case.

Four justices, Rehnquist, Scalia, Thomas and O’Connor, argued that redistrictings in general are nonjusticiable, that is, these cases are not able to be decided by the court.

Four justices, Stevens, Ginsburg, Souter and Breyer, disagreed arguing the court should intervene, but for different reasons.

Justice Kennedy was the swing vote. He opined that, although he did not agree with the justices on nonjusticiability as a general principle in redistricting cases, in this case he could see no reason for the court to intervene.

Now fast-forward to this Texas case in 2006. Rehnquist has been replaced by Roberts; O’Connor by Alito. Does this change the balance? I think not.

It appears to me that Kennedy is still the swing vote.

My guess? Kennedy will opine in a similar fashion to what he wrote in 2004. If I’m correct, the Texas redistricting will be upheld. But only time will tell.


Knucklehead said...

In 1991, the Texas Legislature (then controlled by the Democrats) conducted a redistricting following the 2000 census.

Those rat's jumped the gun on that one, didn't they ;) Just funnin, Brylun.

Rick Ballard said...


You better be. I'm tickled to death by these pieces. My ignorance of who thinks what about what issue concerning the justices is as profound as the Marianna's Trench. Vnjagvet has tried to educate me a bit but Brylun is making more progress (no offense Vnjagvet).

One minor note - I think I know what "justiceable" means but I'm willing to concede that what I think I know is in all probabilty, wrong (based upon Vnjagvets previous gentle corrections).

A primer post on that term would be greatly appreciated from anyone on Flare's legal staff.

Heh - can any of you guys fix a ticket? 'Cause I got caught in a speed trap up in WA and they want a fortune for a very minor (in my view) infraction. Which reminds me - if anyone is exiting I-5 at Tacoma onto 101 North - the size of the road doesn't change but the speed limit sure does.

brylun said...

Knucklehead, Thanks - I fixed the error. See any more I can correct?

brylun said...

Rick, On the definition of nonjusticiable, I've added a link to a law professor's outline to explain it. Basically, the court can't decide because it can't find any standards to decide with, or because its a political question to be resolved by the electoral process.

As for traffic tickets, Sorry but I'm not admitted to practice in the State of Washington.

Knucklehead said...


Your darned tootin' I better be funnin' given the lame error I made earlier. It just jumped out at me though and I couldn't help laughing.

"Justiceable" is lawyer talk for "No justice, no peace" or somethin'.

Re: the ticket. You're gonna pay a fortune no matter what. If you live in a state where getting a speeding ticket means that everyone and their brother gets to stick his hand in your pocket for three years (in my state anything above a very low points threshold means you pay an insurance surcharge for three years plus a license renewal surcharge so a $100 ticket can wind up costing $1200 or so over three years), then consider the time honored American practice of "plea bargaining".

You hire a lawyer for some fee, the lawyer puts together a two or three page discovery demand which he sends off to whatever poor sap handles traffic violations in whatever jurisdiction you were wantonly flouting the law.

He also demands a delay, and a delay, and as many delays as he feels necessary to try and jumble up the court date enough that neither the poor sap or the police officer who wrote you up is sure they'll be anywhere near the court on that date.

The poor sap takes one look at the quite legal demand for discovery and realizes he ain't about to spend 3 or 4 or more hours of his precious time tracking down all that crap for a petty speeding violation and is pulling his hair out to try and keep his witnesses scheduled.

So when you arrive for your court date the poor sap offers, through your lawyer of course, to reduce the thing to a no points violation (they have some catchall "failure to obey lawful traffic sign" kinda thing there somewhere, trust me).

Of course none of this is likely to work if you got zapped in a small jurisdiction where they plan well and keep all their ducks lined up nice and neat but most municipalities don't have the resources to do that.

The way I figger it, if murderers and thieves can plea bargain then so can infrequently lead-footed, but otherwise law-abiding, citizens. But it'll cost ya unless you have a lawyer buddy who'll do it for free.

brylin said...


Some states have a one-time-only program where you can take a course and thereby have a speeding charge dismissed (with no effect on your insurance).

It's always a good idea to ask to speak with the prosecutor and see what kind of deals you are eligible for.

It is always better to appear with an attorney, but the cost is something to consider.

Rick Ballard said...

Fellas, thanks, but the ticket was a tease. First one in seven years, the caught me clean (in a speed trap, though), I paid, and I will definitely take the remedial course if the fuzzy-wuzzys catch me again in WA - if I'm living there.

It's just road tax (for a Californian) and my insurance is somewhat independent of tickets (although your point is excellent, Knuck).

Btw - I've had three speeding tickets in the past thirty years - all in good ol' WA. As a Californian I consider their road tax collection efforts to be somewhat fascistic in nature. When I live there and come accross a state trooper, I will explain to the little weasly tax collector my reasoning - in full and at length.

flenser said...

Are you moving out of CA, Rick? I gather there is a steady exodus of people to other states, in search of lower taxes.

Rick Ballard said...

Yep - taxes aren't the issue though. Who pays taxes?

I'm a "desert" Californian and my life heat has been exceeded. Additionally, my wife has some resiratory kealth issues that a marine clime may help. Plus, salmon, steelhead and halibut fishing aren't locally available.

I've noticed that I don't melt in the rain, so - WA here I come.

PS WA does not have an income tax at this point but their sales and property taxes make up for it. If you let them.

Knucklehead said...


You are forgetting that bad things come in threes. In 30+ years of driving I have, IIRC, four speeding tickets. One was karmic justice and punishment. I had picked up the in-laws at the airport and was cruising on homeward at traffic speed in heavy but flowing traffic. F-I-L looked at the speed limit sign, looked at my speedometer, and asked, "Won't they stop you for speeding?" "Nah," said I, "They don't bother you if you're just keeping up with the flow of the traffic". No sooner had the words cleared my lips than the lights were flashing behind me. I was mightily peeved that time.

The other three came in a clump over the course of a year. All minor nonsense like doing 35 in the 25 zone of an industrial park that was completely abandoned on a Sunday morning. All were dumb on my part, none were jeopardizing the health and welfare of the innocents. I paid through the ears for those three tickets in surcharges.

In all her years of driving my wife has had two. They came within a couple months of each other and were both minor. Fortunately she was chatting with the next door neighbor, wife of an attorney, about the second one and the woman said something like, "Whattaya, nuts?!? Never just pay the ticket and take the points. Tickets are cheap, points are expensive!" She then had her husband handle the thing in the manner I described early basically pro-bono. Cost me some cubanos next time I passed through Copenhagen airport ;)

We later had him run the same schtick for my Darling Daughter - the oldest. That turned into a fun day for Dear Old. Just for the heck of it I decided to tag along for her court date. I have this little idea that everyone should occasionally spend an hour or two sitting in a court room watching the world go by. It is intensely enlightening.

So I seized the opportunity to see how this thing would play out. The dredges of humanity pass through municipal courtrooms. I sat there and watched the most remarkable variety of petty thieves and druggies and people on having their court appearand on CCTV 'cause they were already in jail and, well, like I said, enlightening.

All this mess was typically handled by the judge and attorneys with remarkable alacrity. Badda-bing, badda-boom, done, next. One of the CCTV cases was this woman who was in jail for two years for forging checks and stealing credit cards and she was up on another several counts of the same thing. She winds up with a 30-day extension of her sentence and $15 per charge in fine - no kidding. This woman had wreaked havoc with Other People's Credit and Bank Accounts and she's outta there for an additional 30 days and under $100.

Then comes My Little Darlin's turn and Daddy's Great Fun. The judge looked over the "plea bargain" deal, let her know he was accepting it, and then launched into his little, "But I don't like it!" schtick. He read her the riot act and I haven't seen anyone stood up that straight and puckered since I left the service. Gaveled her a $200 fine with the threat of tossing her in a Turkish prison if she ever darkened his doorway again. I laughed for days over that one. And the fun of watching her face as she wrote a check for $200 out of her hard-earned money was almost equal. She didn't stay Suitably Chastised for long but she was at that moment in time. Life's little pleasures.

Skookumchuk said...


'Cause I got caught in a speed trap up in WA and they want a fortune for a very minor (in my view) infraction.

As a young lad, right after I moved to Washington, I took my visiting parents out for a spin. Out near the town of Darrington, on the slopes of the Cascades, the speed limit sign was completely hidden by a tree. A very nicely landscaped roadway, with that singular exception. Ninety four bucks. And that was back in 1980 or so. I shudder to think what it is now.

vnjagvet said...

I just want to add my compliments to brylun. I agree with his analysis, which is clear and to the point.

Glad to have another lawyer aboard. Especially one with brylun's ability.