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It is widely agreed that Republican Rep. Tom DeLay plays politics the way Ty Cobb ran the base paths — spikes up. How lawful that style is depends on who is answering the question. The Supreme Court may soon be weighing in on DeLay’s conduct if it agrees to hear arguments on his orchestrated reshaping of federal representation for his home state of Texas. The Supreme Court will consider Travis County, Texas, et al. v. Rick Perry, Governor of Texas, et al., along with several other related Texas redistricting cases, during its private conference on Friday. They are among dozens of cases the Court will review at the conference to determine if they should be added to the Court’s docket for argument. In October 2004 the Supreme Court remanded the Texas redistricting case back to a three-judge federal panel, which then rejected, for a second time, legal challenges to the new Texas congressional map, passed in 2003 and followed in the 2004 election. The appellants, which include elected officials and special interest groups, are asking the Court to throw out the new map in favor of one drawn shortly after the 2000 census. They also want the Court to explicitly define what constitutes partisan gerrymandering — an act the Court last year deemed unconstitutional. If the Court agrees to hear the case, opening arguments could begin next spring. In 2002, Republicans, who already had control of the governor’s office and the state Senate, gained the majority in the Texas House. At that point, DeLay — using his prominence as House majority leader — started pushing a redistricting plan that would ensure Republicans could hold onto and gain federal congressional districts. Seven plaintiffs sued to stop the plan, claiming the redistricting effort was illegal; that the data used from the 2000 census was out of date; that minority districts were overpopulated, violating the principle of one person, one vote; and that the new districts impeded Democrats’ ability to mount a reasonable challenge. After their case was thrown out by the District Court, they appealed to the 5th U.S. Circuit Court of Appeals. The appellants include Texas Reps. Sheila Jackson Lee and Eddie Bernice Johnson, the Texas Democratic Party and the League of United Latin American Citizens. “We need the Court to step in and say how often this can be done,” says Dallas lawyer Rolando Rios, who represents LULAC. “Are we going to allow redistricting every year? There has to be a standard.” Supporters of the redistricting claim that after decades of Democrat-controlled gerrymandering, Republicans simply evened the score. In June a three-judge panel unanimously rejected the appellants’ claims, ruling the partisan gerrymandering did not rise to a level it could deem unconstitutional. Judge John Ward, in a separate, concurring opinion, expressed concern that the map possibly violated the 14th Amendment’s equal protection clause, but that there is currently no constitutional test for excessive partisanship. In making his point, Ward cited Vieth v. Jubelirer, a Pennsylvania gerrymandering case the Supreme Court decided in 2004. The 5-4 decision said that partisan gerrymandering should be illegal, but the Court did not define what constitutes legal redistricting. The appeals panel split on whether a state can redraw district boundaries when a plan already exists. Loyola Law School professor Rick Hasen, an election law expert, says the Court’s failure to agree on a judicial test for gerrymandering and the question of redistricting mid-decade may be reason enough for the Court to hear the Texas case. The swing vote on the Pennsylvania case was Justice Anthony Kennedy, who agreed gerrymandering violates the Constitution but was not prepared to author a test. “Kennedy said he wanted to keep the issue open for another day,” says Hasen. But he also warns that the Court’s liberal camp may be wary of using the Texas case to write a test to distinguish redistricting from gerrymandering. “In terms of the unfair partisan gerrymandering, the facts are not as extreme as they were in Pennsylvania.” OTHER CASES UP FOR REVIEWFernandez-Vargas v. Gonzales, No. 04-1376. Status of aliens who re-entered the United States illegally before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act in 1997. � Perez v. Texas Department of Criminal Justice, No. 04-1543. Plaintiff employee’s burden of proof in disparate impact cases under Title VII of the Civil Rights Act. � Beard v. Banks, No. 04-1739. Whether state restrictions on prisoners’ access to certain newspapers and magazines violate the First Amendment. � Bustillo v. Johnson, No. 05-51. Whether state courts can ignore violations of the Vienna Convention on Consular Relations because of procedural bar. � Vermont v. Green Mountain Railroad Corp., No. 05-89. Federal pre-emption of state regulation of railroad construction. � Celebrity Cruises v. Doe, No. 05-121. Whether, under federal maritime law, a cruise line is strictly liable for crew member sexual assaults on passengers during a cruise. � eBay Inc. v. MercExchange, No. 05-130. In patent cases, whether a district court must, absent exceptional circumstances, issue a permanent injunction after a finding of infringement. � Wisconsin v. Moeck, No. 05-182. Whether the double jeopardy clause prohibits the retrial of a defendant whose prior trial ended in a mistrial that was declared, over his objection, in response to an improper opening statement by defense counsel. � Nokia Inc. v. Naquin, No. 05-198. Whether the 1934 Communications Act pre-empts state law claims about the safety of cellular telephones. � Marsh & McLennan Cos. v. Palmer & Cay Inc., No. 05-274. Whether constitutional principles of federalism and state sovereignty preclude a court from declaring that an otherwise valid contract cannot be enforced in any state because of one state’s public policy against enforcing such contracts. � Microsoft Corp. v. Eolas Technologies Inc., No. 05-288. Whether a software code on a golden master disk made in the United States and exported abroad is a “component of a patented invention” for which an exporter may be held liable as a patent infringer. � Federal Trade Commission v. Schering-Plough Corp., No. 05-273. Whether an agreement between a pharmaceutical patent holder and a would-be generic competitor to hold off the challenger’s entry into market amounts to unreasonable restraint of trade. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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