by William E. Forbath
The Austin American-Statesman, Saturday, July 19, 2003
Reprinted with the author's permission
AUSTIN, Texas - Texas Republicans are not having an easy time getting their redistricting done, and the road ahead may be rockier than they realize. The political obstacles have proved vast, but let's assume they overcome them. That leaves the legal roadblocks.
By now, you might think, the legal landscape should be familiar. The Voting Rights Act has been on the books since the 1960s, and even the more recent constitutional hurdles thrown up by the U.S. Supreme Court have become familiar. All these hurdles concern racial justice and minority representation. At least, that's been the case in the past, and everyone has assumed that it's the case with today's redistricting. But the Supreme Court has agreed to hear a case next fall that probably will result in new constitutional restrictions on redistricting. If it does, the Republicans' current efforts to avoid old legal pitfalls may land them in a new trap.
The old traps are tricky enough. On one hand, legislative mapmakers must not redistrict in a way that dilutes the electoral strength of the state's African American and Mexican American voters. On the other hand, mapmakers must not draw district boundaries in a way that appears to rely predominantly on the racial or ethnic make-up of the district they're creating.
Most of Texas' African American and Mexican American voters are Democrats. The Republicans' goal is getting more Republican districts by dividing, and thereby diminishing the strength of, Democratic voters. Targeting minority voters risks judicial condemnation. So, Republican mapmakers have set their sights on dividing up white Democrats; insofar as they have targeted minority voters, they have insisted, they are targeting them simply because they're Democrats. Unlike racial gerrymandering, the court has seemed to avoid trying to police the ubiquitous partisan gerrymander.
This may help explain why the Republican mapmakers have been so blunt about creating more safe Republican seats in Congress. They probably think that this kind of candor will keep them out of harm's way. But the court seems about to bait and switch.
Let's not forget Bush v. Gore. This court is unafraid of plunging into the political thicket and it has not been quite so comfortable with partisan gerrymandering as many politicians think. In 1986, the court handed down a decision announcing that partisan gerrymandering was no longer entirely safe from judicial review.
The time-honored practice has its constitutional limits, said the court. The reason no one has paid any attention to this announcement is that the court's definition of how much partisan gerrymandering is too much was so vague and so high that the lower federal courts have thrown out almost every challenge based on it. But many influential judges and commentators, including ones whom the Rehnquist court takes seriously, have urged the court to revisit that case, and to give real bite to its rule against "extreme partisan gerrymanders." Now, the court has agreed to consider doing just that. If it weren't serious, it would have denied the appeal, and affirmed the lower court.
Suppose the court does put some teeth into the rule, as it seems likely to do. What will the consequences be in Texas? It's possible the Republicans' map will emerge unscathed, on the ground that the overall diminution of Democratic strength is not "extreme" enough. But some features of the maps Republicans have been drawing should worry them. Having bluntly said that all they are doing is creating safe Republican seats may become evidence against them, especially where they have fashioned seats in a way that flouts what the court views as legitimate, "neutral" redistricting standards, such as geographic compactness, communities of interest and keeping rural voters together with other rural voters. The fact that their maps plainly flout this standard is one reason Bill Ratliff broke ranks with fellow Republicans.
There is another reason for Republicans to worry: They broke all precedents by refusing to wait the customary 10 years. Justice Sandra Day O'Connor, the court's critical swing vote, explained in the 1986 decision why she thought judicial restraint was wise. Partisan gerrymandering, she observed, was a "self-limiting" enterprise. If the dominant party goes too far in carving as many "safe" seats as it can, the passage of time will undo some of those seats as populations and party loyalties shift.
By rushing into a new round of redistricting, the Republicans have destroyed O'Connor's rationale for judicial restraint. Neither Texas Democrats nor the courts are likely to overlook this.
So, the legal landscape is likely to change, just as the legal challenges to a new map get under way. The Republicans risk alienating the public and losing some of their own best leaders, for naught.
There is a way out. Amid the bewildering and inconsistent array of judicial decisions about redistricting, a clear pattern has emerged. Maps drawn by entities who are not directly interested parties are almost always safe from judicial condemnation. Several states are experimenting with alternatives to legislature-run redistricting. Iowa runs its Congressional redistricting by independent commission. The results are good: more competitive elections and more contiguous districts that enable the voices of rural and urban voters to be heard. No commission-drawn redistricting map has been struck down in court.
The days of partisan redistricting are numbered. Republicans should come forward now with a proposal for a commission system for Texas's congressional elections. They should boast that they are saving the state and the citizenry from partisan redistricting and from the costs and uncertainties of litigation. They will regain public respect, and they will have a strong hand in crafting what comes next.
William E.Forbath holds the Lloyd M. Bentsen Endowed Chair in Law and also is a professor of history at UT. He teaches constitutional law and constitutional history, and he testified about Texas redistricting at a recent hearing.