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Justices Order New Look At Tex. Redistricting Case

GOP-Crafted Plan Stays in Effect for This Election

By Charles Lane
Washington Post Staff Writer
Tuesday, October 19, 2004; Page A21

The Supreme Court kept alive a Democratic constitutional challenge to a Republican redistricting plan in Texas yesterday, ordering a three-judge district court to reexamine its January decision upholding the plan.

The court's action will not affect the 2004 elections in Texas. Voting for the state's 32 seats in the House of Representatives will go forward under the contested plan, which was approved in 2003.

Majority Leader Tom DeLay pushed a state plan to boost the GOP share of Texas's U.S. House delegation.

But the Supreme Court told the district court to take account of the justices' split decision in April in a similar case in Pennsylvania. In that case, Veith v. Jubelirer, the court upheld a pro-Republican plan but refused to rule out the possibility that extreme partisan gerrymandering could violate the Constitution.

This means that Texas's lines, which were redrawn with the aid of House Majority Leader Tom DeLay (R.-Tex.) to boost the GOP's share of a congressional delegation that is now evenly divided, could still be struck down and redrawn at some later date. Republican hopes for continued control of the House are aided by the new Texas lines.

Texas Republicans said the new districts, drafted by a Republican majority of the state legislature to replace those drawn up by a federal court in 2001, reflect the reality that the GOP is the majority party in the state.

But the GOP effort produced some of the most spectacular political fireworks in the state's recent history, with Democratic state legislators fleeing Texas en masse last year to deprive Republican leaders of a quorum to vote on the plan.

At one point, DeLay asked the Federal Aviation Administration to help find a plane that Republicans thought was carrying Democratic legislators -- a move that led the House ethics committee on Oct. 6 to admonish DeLay for taking "official action on the basis of the partisan affiliation . . . of the individuals involved."

Opponents of the plan have argued that it harms the interests of minorities, in violation of the Voting Rights Act; that the legislature improperly redrew the lines twice in one decade; and that the plan is so skewed in favor of Republican candidates as to violate the constitutional rights of Democrats.

The three-judge panel overruled these claims in January, and the Supreme Court refused to block the plan's implementation.

Because the justices yesterday ordered the district court to consider Veith, it appears that only the opponents' third claim -- unconstitutional partisan gerrymandering -- is still alive.

But exactly how Veith would change the result is unclear. In that case, which was argued and decided at a time when the court was fully aware of the Texas situation, four justices -- Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas -- ruled that redistricting is so entwined with partisan politics that no court could objectively decide how much political gerrymandering is too much.

Four other justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- would have struck down the Pennsylvania plan. They said that an objective constitutional standard could be developed to judge partisan gerrymandering.

Justice Anthony M. Kennedy straddled the issue, agreeing that no objective standard had been found that would invalidate the Pennsylvania plan but insisting a court might still find such a standard in a different case.

Thus, the main significance of yesterday's action may be that the court will not have to decide the issue in the heat of this year's political season -- and that the district court will know the results of the November voting in Texas by the time it rewrites its ruling.

"It's somewhat surprising, because Veith was a monumental non-decision, a case in which five justices said partisan gerrymandering cases can go forward, but also said there is no standard by which to judge them," said Richard Hasen, an election law specialist at Loyola Law School in Los Angeles. "It's a way of delaying things. Maybe it makes sense in an election year, and maybe it makes sense where Justice Kennedy doesn't know what he wants to do."

The Texas case is Henderson v. Perry, No. 03-9644.

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