My Reapportionment from Your Gerrymander?

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 Rehnquist has been replaced by Roberts; O’Connor by Alito.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.