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Supreme Court Gives States Redistricting Leeway


The Supreme Court has issued a major decision on legislative reapportionment. The decision is likely to have major consequences. Yesterday, the high court upheld most of the highly controversial mid-decade redistricting in Texas, that sets the stage for similar battles in other states.

NPR legal affairs correspondent Nina Totenberg reports.


Since 1910, when the size of the House of Representatives was set at 435 members, legislative line drawing has generally occurred once a decade; keyed to the constitutionally mandated once a decade census. Texas broke the mold after then-House majority leader Tom DeLay engineered, first, a GOP takeover of the state legislature, and then mid decade, used those new majorities to redraw the lines for the House of Representatives. The result was an additional six Republican House seats in the closely divided House.

The Democrats went to court claiming that a mid decade plan for purely partisan purposes is unconstitutional. Minority voters also challenged the plan under the Voting Rights Act. Yesterday, the Supreme Court issued a ruling so splintered that there were six separate opinions. The key vote, though, was cast by Justice Anthony Kennedy on the big question: mid decade redistricting, he sided with the Court's conservatives, though his rational was different from theirs.

He said that a mid decade redistricting is not constitutionally suspect, and that the Republican plan in Texas more accurately reflected the political makeup of the state, than did an earlier Democratic plan. The previous plan, he said, merely entrenched a partisan advantage engineered by the Democrats when they were in power.

Kennedy switched sides, though, on the Voting Rights question, casting his lot with the Court's liberals. Writing for the five, Kennedy said that the GOP redistricting plan had gone too far when it sought to prevent a GOP incumbent from being toppled, by moving 100,000 Latino voters out of that district, and sprinkling them across the rest of the state. That, he said, is illegal vote dilution and violates the Voting Rights Act.

As a result of this violation, Texas will now have to redraw its districts yet again. Political analyst Stuart Rothenberg.

Mr. STUART ROTHENBERG (Editor and Publisher, The Rothenberg Political Report): It looks like one district is going to be directly impacted. There will be small impacts on other districts, as the lines are changed.

TOTENBERG: And who will draw the new lines? While legislatures typically like to control the outcome, in this case, time is short, and any legislative change would have to undergo a 60-day Justice Department review under the Voting Rights Act.

Nina Perales of the Mexican-American Legal Defense Fund says that her group will likely ask the lower courts to redraw the lines.

Ms. NINA PERALES (Regional Counsel, Mexican-American Legal Defense Fund): Texas has been through this before. In 1996, the Texas Congressional Redistricting Plan was struck down, also in June, by the Supreme Court. So 10 years ago, we went through a similar process where lines were redrawn, and new candidates were selected in time for the November election.

TOTENBERG: In 1996, then-Governor George Bush declined to call the legislature back into session, and the courts drew the lines.

On the larger question, though, election experts say yesterday's Court decision is a green light to other states who want to redraw legislative lines more than once a decade. Here's Norman Ornstein of the American Enterprise Institute.

Dr. NORMAN J. ORNSTEIN (Resident Scholar, American Enterprise Institute): It is a slippery slope. Now, it's not as slippery a slope as many others, because there's still a price to be paid for trying to do this. You know, looks blatantly political and you can't always pull it off, unless you have very, very large margins. But Democrats now are going to say if they can do it, we can do it. And they've got a number of states where they have a potential advantage in doing so.

TOTENBERG: Attorney Gerry Hebert, who represented the Democrats in the Texas case, agrees.

Mr. GERALD HEBERT (Attorney, Democratic Counsel): The signal the Court sent today is let the redistricting festivals begin, because there is no way that the judiciary is going to step in and block partisan gerrymandering.

TOTENBERG: And if that happens, says Norman Ornstein, the affect on voters and the political process will be profound.

Dr. ORNSTEIN: If you don't know from election to election who your representative is, because your district may change, and may change two or three times, it makes for any sense of accountability in this process being, basically, devastated.

TOTENBERG: Nina Totenberg, NPR News, Washington.

STAMBERG: And you're listening to MORNING EDITION from NPR News. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.