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Justices Uphold Most of Texas Redistricting Map
In January 2004, a panel of three federal judges rejected a Democratic challenge to the new map. The Democrats had argued that Texas could not "redistrict in mid-decade" after boundaries had already been drawn, that the GOP plan unconstitutionally discriminated on the basis of race, that it was an unconstitutional partisan gerrymander and that it violated the Voting Rights Act. They charged that the new districts broke up minority communities and merged them into largely conservative, white districts.
Going into the November 2004 elections, the Texas congressional delegation was split 16-16 between Republicans and Democrats, one of the Democrats having switched parties earlier in the year.
As a result of the new boundaries, Republicans picked up five House seats in Texas, emerging with 21-11 majority.
Among the big losers was veteran Democratic congressman Martin Frost, whose district was eliminated. Frost and other Texas Democrats claimed that the redistricting disenfranchised as many as 3.6 million black and Hispanic voters in the state.
In his opinion, Kennedy rejected the challenges to the redistricting plan as a whole, saying there were indications that partisan motives were not the entire reason for it.
The Texas legislature "does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew," Kennedy wrote.
"The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature's decision to replace mid-decade a court-ordered plan with one of its own," he said. "And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders."
The ruling took issue, however, with the legislature's decision to redraw congressional District 23 to protect the Republican incumbent, Rep. Henry Bonilla, who was losing support from the jurisdiction's growing Latino electorate.
"Faced with this loss of voter support, the legislature acted to protect Bonilla's incumbency by changing the lines -- and hence the population mix -- of the district," shifting nearly 100,000 Latino voters into a neighboring district and replacing them with voters from "a largely Anglo, Republican area in central Texas," Kennedy wrote.
"The changes to District 23 undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive," the opinion said. "In essence the State took away the Latinos' opportunity because Latinos were about to exercise it."
Kennedy added, "The Court has noted that incumbency protection can be a legitimate factor in districting . . . but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents." The ruling said this apparent "intentional discrimination" cannot be allowed. But it did not make clear how or by whom it should be corrected before this November's elections.
The consolidated cases appeared to produce a split among the court's conservatives on the issue of federal courts' jurisdiction to review gerrymandering. Justices Scalia and Thomas viewed such cases as "non-justiciable," meaning they should be left to legislatures and kept out of federal courts. But the Supreme Court's two newest members -- Roberts and Alito, both appointed by President Bush -- declined to go that far, although they did not completely close the door on such a finding.