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March 1, 2006

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Kirston Fortune, Assistant Dean for Communications, 512-471-7330.

Commentary: Texas' redistricting set a dangerous precedent

By Steve Bickerstaff
The Austin American-Statesman, March 1, 2006

Opinion: The Supreme Court should toss out redistricting plan

By Steve Bickerstaff
Dallas Morning News, March 1, 2006

Editor's Note: This op-ed was published in both The Austin American-Statesman and The Dallas Morning News on March 1, 2006.

Photo of Adjunct Prof. Steve Bickerstaff
Adjunct Professor Steve Bickerstaff

The U.S. Supreme Court will hear arguments today in a case that has enormous implications for representative government in the United States.

The case involves a challenge to the constitutionality of the 2003 Texas congressional redistricting plan. Most Americans will recall this redistricting as the one that was masterminded by then-House Majority Leader Tom DeLay. It attracted world attention over five months after most of the state's Democratic lawmakers fled the state (first to Oklahoma and later to New Mexico) in an attempt to block passage of the aggressively partisan plan. The Democratic tactic failed. Congressman DeLay and the Republicans won.

The partisan effects of the redistricting plan were significant for Texas and the nation. As a result of this redistricting, Texas Republicans in 2004 won six congressional seats previously held by Democrats — resulting in a net increase of 12 more Republicans than Democrats from Texas when the U.S. House convened in 2005. These newly elected Republicans have consistently voted a straight party line in Congress and have provided crucial votes for the narrow passage or defeat of controversial matters in Congress in 2005-2006.

The 2003 redistricting in Texas was a tragedy. Not because the Democrats lost or because the Republicans won, but because critical public needs (such as a failed public school finance system) were essentially ignored for five months while lawmakers and elected state officials played high-profile partisan war games. The Texas redistricting was the most egregious example yet of lawmakers' effort to choose their voters, rather than allowing the voters to choose their lawmakers.

The final redistricting plan driven by DeLay and the Republican national leadership specifically targeted all 10 of the white Democratic congressmen from Texas. The final plan separated these incumbent Democrats (representing 127 years of congressional seniority) from the voters who had elected them in prior elections and left the Democrats in new, overwhelmingly GOP districts. Seven of these white Democratic incumbents either retired or went down to defeat in 2004. Two of the three who survived did so only by running and winning in nearby minority districts.

Redistricting is always a divisive issue, and it's frequently driven by partisan and selfish concerns. The Texas case is unique, however, because no public interests or need existed for redrawing the state's congressional districts. The plan passed by the Texas Legislature in 2003 was drawn to replace an existing valid plan solely because one political party was dissatisfied with the election results under the existing plan. Virtually every newspaper in Texas, including the American-Statesman, editorialized against the redistricting as adverse to the interests of the state's voters and a waste of time, effort and money (the state spent about $8 million through three special sessions). Local elected officials from both political parties, citizen organizations and voters testified overwhelmingly at legislative hearings against any redistricting.

But no amount of public opposition could overcome the focus of state and national political leaders on gaining or losing partisan dominance.

The Texas redistricting provides a disturbing precedent. It means that any state legislature or local government (such as a county, city or school district) is free to engage in partisan or special interest redistricting whenever a majority of the legislature or local governing board is dissatisfied with results under its existing election districts. In defending the state's plan, Texas Attorney General Greg Abbott has correctly acknowledged that, if upheld, the state's legal position means that a state legislative body can voluntarily redraw state legislative districts at the end of a decade (e.g. 2009) using population data from the prior federal decennial census.

With this precedent, a temporary political majority in a highly charged partisan atmosphere can ignore the population shifts of a decade and redraw state legislative districts immediately before critical elections at the end of a decade (e.g. 2010) using 10-year-old, inaccurate population data. By doing so, the temporary majority can preserve or enhance its political advantage in these critical elections and unfairly control the redrawing of state and congressional districts after the new census. This outcome threatens representative government in this country.

It is difficult to imagine a more divisive, wasteful and corrupting phenomenon than "rolling redistricting" — in which partisan battles dominate the public interest and congressional, state legislative and local government election districts are voluntarily redrawn during a decade using old, inaccurate population data. Such a result is anathema to the constitutional principle of one person, one vote. The Supreme Court should overturn the Texas precedent.

Bickerstaff is an adjunct professor at the University of Texas School of Law and author of "Lines in the Sand," a book soon to be published by the University of Texas Press about the 2003 Texas redistricting.

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