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Washington-The newly constituted Roberts Court soon will enter the increasingly dense “political thicket” of congressional redistricting and voting rights in a group of cases that potentially could shape democratic politics in the nation for years to come. The legal battle joined in the high court stems, not surprisingly, from Texas, where in 2003 one of the wildest and most intensely partisan redistricting battles in modern times unfolded as Republican state lawmakers, led by former U.S. House of Representatives Majority Leader Tom DeLay, enacted a mid-decade reapportionment plan to strengthen GOP control of the House. The justices have slotted two hours of argument time for March 1 for four challenges raising some of the thorniest issues in this area of the law. But the issue clearly driving this legal bus is what constitutional limits, if any, are there on partisan gerrymandering. The justices failed to resolve that very question just two years ago in a Pennsylvania case, and so their decision to hear the Texas challenges surprised and baffled many election law and court scholars. “I think it’s almost impossible for them not to take these cases,” said voting rights scholar Samuel Issacharoff of New York University School of Law. “They are the highest-visibility constitutional cases right now, other than the terrorism cases. This is a front burner constitutional question.” With the departure of Justice Sandra Day O’Connor, the decisive vote in many voting rights cases, and the arrival of a new chief justice and associate justice, all bets are off on what the court may do here. “I think the court is so deeply muddled on so many of these voting rights and law-democracy issues that it’s going to take more than a term to sort things out,” said voting rights scholar Grant M. Hayden of Hofstra University School of Law. “I don’t think [Chief Justice John] Roberts or [Justice Samuel] Alito bring anything to the table that’s going to clarify everything in a year,” Hayden said. “They’re close enough to O’Connor and [former Chief Justice William H.] Rehnquist that we’re not going to have 6-3 or larger majorities in what used to be the close cases. The 5-4 opinions, inevitably forged by compromise, end up with something less than clarity.” While agreeing with the “muddled” label for the court’s voting rights jurisprudence, Edward Blum, a visiting fellow at the conservative American Enterprise Institute, said: “I think Roberts and Alito will recognize the court is being drawn into more and more election-outcome battles and that this is an area they need to back away from, No. 1, and No. 2, they need to clarify and narrow the jurisprudence over the last 12 years. “With Roberts, we have less to go on, but my friends who worked with Roberts tell me he should be very solid in this area,” added Blum, who filed an amicus brief supporting the Texas plan. That characterization of Roberts and Alito is not reassuring to the numerous civic, political and civil rights groups who, in their amicus briefs, view the Texas redistricting plan as emblematic of the dramatic demise of competitive elections in this country, and the potential erosion of minority voting gains under the landmark Voting Rights Act of 1965. “This is really a case about partisan power,” said Issacharoff, who is supporting the Texas plan challengers and who noted that the court’s reapportionment decisions are essentially about checks on the political process, on incumbent power. “I think the question is whether they’re going to close the door on any further supervision. The risk in this case is that the court will become frustrated by its inability to get a handle on so-called proper allocation of election results and declare the whole area nonjusticiable.” And if Roberts and Alito lead the court in Blum’s suggested direction, the “Voting Rights Act and the minority fairness principles for which it stands, would largely become meaningless,” warned Norman J. Chachkin of the NAACP Legal Defense and Educational Fund Inc. in its amicus brief to the high court. A blockbuster? What makes the Texas challenges both fascinating and potentially blockbuster decisions is that they involve the intersection of three lines of Supreme Court precedent, and all three are unsettled and in need of clarification, said election law scholar Daniel Tokaji of Ohio State University Michael E. Moritz College of Law. The first line is the court’s partisan-gerrymandering jurisprudence, which Tokaji and others said could prove to be the most significant in the Texas challenges. That’s because, Tokaji said, “We see state legislators increasingly driven to protect incumbents and the technological means of doing this have become so sophisticated.” In Jackson v. Perry, No. 05-276, Paul Smith of Jenner & Block argues that the entire Texas redistricting plan is an unconstitutional partisan gerrymander. It is an illegitimate use of government power, he contends, when a state legislature redraws districts in the middle of a decade “for the sole purpose of maximizing partisan advantage” when it already has a lawful plan in place. The second involves Section 2 of the Voting Rights Act, which guarantees the members of a protected class an equal opportunity with other members of the electorate to elect representatives of their choice. In GI Forum of Texas v. Perry, No. 05-439, the Mexican American Legal Defense and Educational Fund challenges the dismantling of a single majority-Hispanic district in south Texas, which was done to enhance the re-election chances of GOP incumbent Henry Bonilla. The fund claims that the action violated Section 2 because it diluted the Hispanic vote. The legislature did create a new majority-Hispanic district, but it stretches from the Mexican border up to Austin, along a 300-mile-long land bridge, only 10 miles wide in some places, to connect two Hispanic population centers. Jenner’s Smith calls this “absurdly noncompact district” an unconstitutional racial gerrymander, which brings into play the third line of precedents, the so-called Shaw v. Reno line, which imposes limits on lawmakers’ ability to use race as a factor in drawing districts. “In the racial-gerrymandering context, it’s clear race can’t be the predominant factor in drawing district lines, but the Supreme Court has said it’s OK for the legislature to consider race if politics, rather than race itself, is the predominant factor,” explained Tokaji. “That’s what the lower court said Texas did. But what exactly that means is really hard to decipher.” The Texas cases also include a challenge to the Texas plan based solely on the use of 2000 census data for a mid-decade reapportionment. Travis County v. Perry, No. 05-254. The claim here is that using stale data violates the constitutional principle of one person, one vote. O’Connor has been the key vote in many of the vote-dilution and racial-gerrymandering cases. Roberts, said Richard Hasen of Loyola Law School, Los Angeles, was “the point person” in the Reagan Justice Department, opposing the enactment of Section 2. “He’s likely to read it in a way that makes it least intrusive on state and local governments,” said Hasen. O’Connor wrote “extraordinarily fact-oriented” decisions in this area, noted Lucas Powe of the University of Texas School of Law, which often did not help clarify the law. Alito, Powe predicted, probably would clarify, “but not in a way that I would approve. Based more on his rulings as a circuit judge, he seems as deferential to institutions as anyone I’ve seen, and would probably give more leeway to state lawmakers than O’Connor.” As serious as the vote dilution and racial gerrymander claims are, most election law scholars believe that the partisan gerrymander issue will be the key issue in the Texas package. They are less certain that it will be resolved. Two years ago, in Vieth v. Jubelirer, 541 U.S. 267, the court split 4-1-4 in a partisan-gerrymandering case. Four justices, including Rehnquist and O’Connor, took the position that these claims are nonjusticiable. Another four justices said that too much partisanship in redistricting violates the equal protection clause, but they could not agree on a test for determining how much is too much. Justice Anthony Kennedy was the “1″ and the deciding vote in the split. He agreed these claims should be justiciable, but saw none of the suggested tests as judicially manageable. “We just have an untenable, unstable situation now where nobody knows what the standard is,” said Hasen. “If everybody’s vote stays the same, and Roberts and Alito vote as their predecessors did, then Justice Kennedy continues to hold the balance of power. If Alito or Roberts agrees with the dissenters, then Kennedy’s vote is no longer determinative. “Alito seems to take the view that jurisdictions should have more discretion in how they redistrict, which makes me think he would be unlikely to side with the dissenters on partisan gerrymandering,” Hasen added. “We don’t know anything about Chief Justice Roberts on this question.” But New York University’s Issacharoff said that his sense of Roberts, based on his confirmation hearings, is that the new chief believes that the court has an institutional oversight role. “He’s not going to abandon that role,” he predicted. “I believe, without knowing how he will come out on the question, that he will find the underlying issues in the Texas cases deeply troubling.” Alito’s hearings were not so revealing, added Issacharoff. “I thought he deflected concerns by focusing on the one person, one vote principle, without addressing the broader question of whether courts have some responsibility for maintaining the openness and integrity of the political process. That remains to be seen.” A judicially manageable standard for measuring excessive partisan gerrymandering is “just impossible for me to visualize,” said Blum of the American Enterprise Institute. “Once the court starts, they’ll never stop,” he said. “Every redistricting scheme in the country, from school boards to city councils to state legislative districts and then congressional districts-each one in which there is a partisan contest will become a potential Supreme Court case. That’s why I think the court needs to stay away from this.” But if the court upholds what Texas did, Ohio State’s Tokaji said, “We’re likely to see an avalanche of mid-decade redistricting because it’s hard to imagine there would be any meaningful limits on a legislature’s ability to redraw the lines even multiple times in a decade for no other reason than to enhance the power of the party in control. We’re sliding down that slippery slope at breakneck speed.”

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