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DALLAS � U.S. Supreme Court Justice Anthony Kennedy could be the man to watch when the high court considers Texas’ congressional redistricting case in 2006. On Dec. 12, the Supreme Court agreed to hear four consolidated cases brought by opponents of the congressional redistricting plan that Republicans pushed through the Texas Legislature in 2003, despite Democrats’ efforts to block a vote. Plaintiffs in the four cases appealed a three-judge federal panel’s June 9 decision that upheld the redistricting plan directly to the Supreme Court. Two adjunct law professors say Kennedy’s concurring opinion in a Pennsylvania redistricting case indicates he is open to taking a hard look at the partisan redistricting that plaintiffs in the consolidated Texas case allege occurred in this state. “I think this case comes down decidedly on Justice Kennedy,” says Gerald Birnberg, a South Texas College of Law adjunct professor who teaches a course on recent U.S. Supreme Court cases. Birnberg, a partner in Houston’s Williams, Birnberg & Anderson, is chairman of the Harris County Democratic Party. Although Kennedy concurred with the four-justice plurality in 2004′s Vieth v. Jubelierer that plaintiffs in the Pennsylvania redistricting case didn’t show that Republicans went too far in 2002 when they redrew the congressional districts to favor GOP candidates, he left the door open that the court could strike down partisan gerrymandering in the future. Steve Bickerstaff, an election law expert and adjunct professor at the University of Texas School of Law, says Kennedy did not join the Vieth plurality, which held that partisan gerrymandering claims are nonjusticiable, but wrote in his concurring opinion that he didn’t know what the standard should be for measuring such claims. “I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases,” Kennedy wrote in his concurring opinion. Sam Hirsch, one of the attorneys for the plaintiffs in Jackson, agrees that Kennedy could be an important factor in the Supreme Court’s decision. But Hirsch, a partner in Jenner & Block in Washington, D.C., says the change in the court’s makeup also could influence how it rules. Replacing the late William Rehnquist, John Roberts Jr. has joined the court as its chief justice. The court also could have a new associate justice, Third Circuit U.S. Court of Appeals Judge Samuel Alito Jr., before it hears arguments in the Texas redistricting case. If confirmed, Alito would replace Justice Sandra Day O’Connor on the court. O’Connor joined the plurality in the court’s decision in Vieth. While Kennedy has been a swing vote on the partisan gerrymandering issue, O’Connor has been a swing vote in cases involving race and redistricting, Hirsch says. It’s hard to tell which factors will have an impact on the court’s ultimate decision, Hirsch says. Texas Attorney General Greg Abbott, whose office represents the state in the appeal, says in a written statement that the Supreme Court’s decision to schedule arguments in the redistricting case is appropriate. “Because this is a direct appeal, the court’s jurisdiction is mandatory under federal law, and given the importance of the issues at stake, it is not surprising for the court to choose to allow oral argument before deciding the merits of the case,” Abbott says. “After hearing the case, we expect the court will agree with the unanimous judgment of the three-judge federal court that the Texas redistricting plan is wholly constitutional.” But Bickerstaff says the fact that the Supreme Court not only agreed to hear the Texas case, but also set an expedited schedule for it, signals that the justices are interested in the arguments. “They don’t do that very often,” Bickerstaff says. The Supreme Court listed the Texas redistricting cases for discussion on six conferences from Oct. 28 through Dec. 9. That is fairly unusual, says Aaron Streett, who was a law clerk for Rehnquist in the 2003-2004 term. “You normally wouldn’t see them take that long a time to determine to hear a case or not,” says Streett, now an associate with Baker Botts in Houston. Streett says the court had three options: summarily affirm the three-judge panel; reverse the panel; or order plenary consideration of the case. His guess, Streett says, is that one justice was writing an opinion to summarily affirm the panel but wound up not having a majority. Bickerstaff says the Texas case will be the first in which the Supreme Court will consider whether a state legislature can redraw congressional districts at mid-decade, when the state already has a constitutionally valid plan in place. The Legislature opted not to draw new lines in 2001, passing the job to a panel of three federal judges that then drew the congressional districts. Members of the panel were Fifth Circuit U.S. Court of Appeals Judge Patrick Higginbotham, U.S. District Judge John Ward of the Eastern District of Texas and the late U.S. District Judge John Hannah, also of the Eastern District. Then-House Majority Leader Tom DeLay, R-Sugar Land, led efforts to elect Republican candidates to the Texas House of Representatives in the 2002 election cycle. DeLay had to step down from his leadership position in September, after a Travis County grand jury indicted him and two associates � Jim Ellis, DeLay’s chief fundraiser in Washington, D.C., and John Colyandro, the former executive director of Texans for a Republican Majority Political Action Committee � in connection with their efforts to support GOP candidates for the House. The three men face charges related to money laundering. After the Republicans won a majority in the state House in 2002, the Legislature redrew the lines in 2003. State lawmakers’ battle over the redrawing of the congressional districts lasted through the regular legislative session and three special sessions in 2003. House Democrats fled to Oklahoma during the regular session in 2003 to block consideration of the Republican-sponsored redistricting plan. Democrats in the Senate fled to New Mexico to stop a vote on the plan during two special sessions, but the Legislature finally approved H.B. 3 to create new lines in October 2003. With the new district boundaries in place in 2004, Republicans won 21 of the 32 seats Texas has in the U.S. House of Representatives. Prior to the 2004 elections, Democrats held a 17-15 majority in the state’s congressional delegation. “The effort to deliver a new congressional map was founded in the belief that a history of gerrymandering efforts by Democrats in Texas had resulted in an unfair representation of Texas voters,” says Kevin Madden, spokesman for DeLay. Opponents of the Legislature’s redistricting effort challenged the plan in suits filed in the U.S. District Court for the Eastern District of Texas. A panel, made up of Higginbotham, Ward and U.S. District Judge Lee Rosenthal of the Southern District, affirmed the Legislature’s plan in 2003. The opponents appealed to the Supreme Court, which remanded the case to the federal panel in 2004 for a review of the partisan gerrymandering issue under the high court’s April 2004 decision in Vieth. Considering the Texas case on remand, the federal panel ruled 2-1 in June that it lacked an objective standard for measuring the partisan gerrymandering that the plaintiffs had alleged. “We conclude that claims of excessive partisanship before us suffer from a lack of any measure of substantial fairness,” Higginbotham wrote in the panel’s majority opinion. Rosenthal joined Higginbotham in the decision. Ward wrote in a concurring opinion that he would adopt a population data standard as a means of halting mid-decade redistricting, but that the issue was outside the Supreme Court’s order to reconsider the case. Paul Smith, another attorney representing the Jackson plaintiffs and a partner in Jenner & Block in Washington, D.C., says the argument will be made to the Supreme Court that redrawing the congressional districts because one political party has won a majority in the Legislature is not a legitimate action. Austin solo Renea Hicks, attorney for the Travis County plaintiffs, says the consolidated cases raise issues about whether Texas’ redistricting plan complies with the one-person, one-vote requirement and violates the federal Voting Rights Act. Nina Perales, southwest regional counsel for the Mexican American Legal Defense and Education Fund, which represents the G.I. Forum, says racial discrimination is a key issue in her client’s case. Perales says the G.I. Forum argues that the Legislature should have created seven, instead of six, Hispanic majority districts in South Texas. Another argument, Perales says, is that the Legislature’s reconfiguration of District 23, which is represented by Rep. Henry Bonilla, R-San Antonio, also discriminated against Latino voters. She says the percentage of Hispanic voters in District 23 dropped from 53 percent to 44 percent after the Legislature split predominantly Hispanic Webb County between two districts. San Antonio solo Jose Garza, who represents LULAC, says his clients also argue that the plan discriminated racially when it eliminated seven minority influence districts and reconfigured Bonilla’s District 23 and District 24, which Democrat Martin Frost of Dallas had represented. The reconfiguration of District 24 lessened the impact black voters in the Dallas area have on elections, Garza says. Birnberg says there is “fascinating interplay” between the Supreme Court’s decision to hear the Texas redistricting case and a recently disclosed 2003 memo in which U.S. Department of Justice attorneys and analysts said that the plan approved by the Legislature diluted black and Hispanic votes in two congressional districts � including Frost’s former district in the Dallas area. He says the memo supports the arguments regarding racial discrimination. Although overruled by DOJ officials, the attorneys and analysts concluded in the memo that the plan resulted in the net reduction of one “safe” Hispanic seat and one “safe” black seat offset by a net increase of one “coalitional” Hispanic seat. According to the memo, “This result quite plainly indicates a reduction in minority voting strength.” Abbott said at a Dec. 12 news conference that the memo isn’t likely to sway the Supreme Court in the Texas redistricting case. “There is zero significance to the memo that was leaked to the media,” Abbott said. Mary Alice Robbins is a reporter with a Recorder affiliate based in Dallas, Texas.

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