Three-judge federal panel again tosses Dem complaints about 2003 Texas Redistricting

I. Introduction

When it comes to congressional redistricting law, as compared to someone like Rick Hasen — a law professor who studies and teaches the subject, and blogs about it as well — I am, admittedly, a dilettante. Put another way, neither side in the on-going legal struggles over Texas' congressional redistricting has been beating down my office door to hire me, and instead they've preferred, quite appropriately, to turn to genuine specialists in this arcane-but-important legal discipline.

But one of my goals as a lawyer-blogger has been to try to simplify — to translate, if you will — the legal concepts and events of that struggle into language that a diligent and well-educated nonlawyer can understand. I'm also a pundit, though, with a self-admitted political viewpoint; and I readily admit that my interpretation and commentary on those concepts and events reflects that viewpoint. In short, while I've been trying in my many, many posts on the 2003 Texas redistricting to give a layman-intelligible explanation of what's been going on in the court challenges to the 2003 Texas redistricting plan, I've also been arguing for the legal and practical fairness of that plan. I don't defend partisan gerrymandering as being a wonderful thing in the abstract; but given that it exists, I've been defending this particular exercise of it as being both fair and legal.

At the moment, I'm rubbing my eyes after reading 58 pages of very, very dense and very, very carefully crafted legal prose: yesterday's decision by the three-judge panel to whom the United States Supreme Court sent back the Texas redistricting case for reconsideration "in light of" the Supreme Court's 2004 decision in the Pennsylvania redistricting case, Vieth v. Jubilirer. It's tough sledding, folks — it presumes a whole lot of pre-existing knowledge on the part of its readers that, quite frankly, even most lawyers lack.

Now, I don't fault the judges for this, because a written opinion that was both comprehensive and user-friendly would have run into the thousands of pages, given the ground that this decision tries to cover. This is definitely MEGO-inducing ("mine eyes glazeth over") stuff. So it's also no surprise that the mainstream media — for example, the Associated Press, the Houston Chronicle, and the Dallas Morning News — don't tell their readers very much more that's obviously meaningful besides who won (the Republicans, again) and what both sides said about the result (Dems: "Just a way-station on the way back to the Supreme Court"; Republicans: "This ought to end it.") Prof. Hasen provides his initial short (but substantive) take — definitely better than the MSM's reporting — here, but it's still "inside baseball" that presumes a lot of pre-existing knowledge (and reasonably so, given his blog's intended audience of professionals).

So once again, while I invite you to read it for yourselves, I'll plunge into the dense prose to try to tell you what I believe has happened. And then I'll tell you what I think of it, and what I think is likely to happen next.

II. Who was on the three-judge panel, and what did it do?

Yesterday's decision was from the same three-judge panel that initially rejected the Dems' legal challenge to the 2003 Texas redistricting in a 127-page decision that I blogged about in January 2004: United States Circuit Judge Patrick E. Higginbotham  (appointed by Pres. Ford to the district court bench, elevated by Pres. Reagan to the Fifth Circuit), and United States District Judges Lee H. Rosenthal (appointed by Pres. G.H.W. Bush)\¹/ and T. John Ward (appointed by Pres. Clinton).\²/

Yesterday's result — Dems lose — was the same. But unlike the January 2004 result, yesterday's ruling was unanimous among all three judges on the panel. This time, however, the main opinion for the panel was specifically identified as being written by Judge Higginbotham. (I'd have guessed as much from its style; and I suspect that again it was largely his own initial drafting, rather than coming from his law clerks.) Judge Ward, who dissented in part from the January 2004 decision, this time concurred fully in the result, but again wrote a separate opinion expressing his own views.

III. What did the three-judge panel say?

Of the U.S. Supreme Court's decision in October 2004 to send this case back to the three-judge panel for further consideration, I wrote "it's a shallow, technical, procedural, and — in all probability — a purely temporary victory for the Dems that at best gives them one more bite at an apple they've already gone hungry on before." And as Prof. Hasen wrote then, and I agreed,

What is the lower court to do? The lower court [judges on the panel] already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with.

But no one can fault this panel for failing to give it the old college try. "The light offered by Vieth is dim," writes Judge Higginbotham dryly, and with considerable understatement he notes that "the search for a core holding is elusive." Politely but accurately, he adds: "This observation is not a criticism, but a recognition that Vieth reflects the long and twisting historical narrative of political gerrymanders in the United States."

Next in Judge Higginbotham's opinion follow accurate descriptions of the various opinions from the fractured Vieth Court, and of the factual history in Texas of Democratic gerrymandering and Republican counter-gerrymandering as the parties have switched majority status over the last four decades. The context of the latter, though, can give the panel no help resolving the conflict and confusion within the former. The panel rejects — rightly and persuasively, I think — all of the suggested interpretations of Vieth and attempts to harmonize its conflicting approaches that were offered by the Dems. The panel opinion also has an interesting discussion of whether gerrymandering does or doesn't cause noncompetitive districts, but I think that's mostly an academic digression that's not key to any result that the panel reached.

So what "further consideration ... in the light of Vieth" could the panel give to its own January 2004 ruling upholding the 2003 Texas redistricting? Well, since Vieth produced no "core holding," the panel here ultimately resorts to the roughest — but in my view, the only appropriate — use of that precedent. In a nutshell: Since the partisan skew resulting from the Pennsylvania gerrymander was worse than the partisan skew resulting from the Texas gerrymander, and since the Supreme Court left the Pennsylvania gerrymander in place anyway, yesterday's opinion says this panel won't overturn the Texas gerrymander for being "too partisan." Here's the panel's own explanation:

In short, under the plan passed by the Pennsylvania General Assembly and upheld by the [Supreme] Court in Vieth, the party that garnered, on average, less than half the vote in statewide races was able to capture nearly two-thirds of Pennsylvania's congressional seats. In contrast, the plan passed by the Texas legislature resulted in the election of twenty-one Republicans and eleven Democrats to the House of Representatives in 2004, when the Republican Party carried 58% of the vote in statewide races and the Democratic Party carried 41% of the vote.

... [I]f the effects of the Pennsylvania plan did not provide a basis to find excessive partisanship in redistricting, it is hard to see how the effects of the Texas plan make it constitutionally offensive.

That's the nub of this 58-page decision, friends and neighbors.

The Dems, anticipating the likely result of this brutally simple comparison, had labored mightily to persuade the panel that the result of Vieth ought not dictate the results reached by this panel. But they utterly failed to persuade the panel to reconsider the original rejection of the Dems' "twice in one decade" argument from the Dems' first challenge to the 2003 Texas redistricting, which the Dems launched before the third legislative special session in 2003 had succeeded in passing a plan. This is no surprise: the Dems had no precedent for that argument then, and had none now either.

But the Dems, supported by an amicus group of "University Professors"\³/ had made another ingenious and ultimately disingenuous attempt to distinguish the Texas situation from Pennsylvania's. The "one person, one vote" ("OPOV" for short) line of Supreme Court cases, they argued, effectively prohibited the Texas Legislature from doing their mid-decade redistricting based on three-year-old results from the 2000 Census. The Dems knew, of course, that — as Judge Higginbotham's opinion also recognized — it would be impossible for Texas to duplicate the national Census mid-decade and solely within Texas, so the effect of this proposition would be to indirectly prohibit all mid-decade redistricting. But the Supreme Court has approved many redistrictings that were based on more than two-year-old Census data — specifically including redistrictings done by state legislatures wishing to replace (as here) an earlier-in-that-decade court-crafted map. And in fact, even if redistricting is done in an -01 year, the data from the previous year's Census will already be substantially inaccurate. Therefore, in the panel opinion for yesterday's majority, Judges Higginbotham and Rosenthal refuse to allow the perfect [i.e., mathematical precision based on absolutely current census data] to become the enemy (actually, the assassin) of the good [i.e., our system's deliberate historic choice to prefer that redistricting be done by (democratic) state legislatures rather than (un-democratic) three-judge federal court panels].\⁴/

Judge Ward's special concurrence buys into this pitch, but basically says that only the Supreme Court has the power to turn it into binding law. As such, I'm quite certain that it will be the cornerstone of the Dems' inevitable appeal back to the Supreme Court — which leads to my next topic.

IV. What will happen next?

The one thing that is absolutely certain is that the Dems will make good on their announced and inevitable intentions to appeal yesterday's ruling back to the Supreme Court. For obscure reasons unique to voting rights cases that I've explained before, the Supreme Court cannot just refuse to rule on the merits of that appeal by issuing one of its typical "cert denied" orders. But while it must (in theory) address the merits of yesterday's ruling, the Supreme Court need not grant oral argument or write a full-blown opinion (or more likely in any of these cases, set of opinions). And I predict that the Supreme Court will, in due course and in no particular hurry, summarily affirm yesterday's ruling without either entertaining oral argument or explaining their decision.

It's theoretically possible, of course, that the arguments of the amicus University Professors (as embraced by the Dems) will persuade the Supreme Court to hold oral arguments and to make new precedent. It's possible that by some sort of miracle, a coalition of at least five Justices (perhaps including one or more new Justices by then) will coalesce out of the chaos that ruled in Vieth. Impassioned briefs will indeed be written and filed (and impressive legal fees will indeed be charged and paid for them). But as Judge Higginbotham's opinion notes, the University Professors' argument "as presented comes unadorned with supporting case citations." This is a polite way of saying: "Cute, guys, but you're just makin' this stuff up as you go, and you can't point to any other court that's already done what you're asking us to do now." That doesn't bode very well for the Dems' chances in their next trip back to the Supreme Court.

Realistically — and on this, I think even the Dems' lawyers would agree, if you could ever get them to be privately candid on this subject — the Dems' chances have gone from "long-shot" to "moon-shot" status. The fat lady sang a long time ago in this opera, and all that's left are some assorted violas and bassoons still squawking because they won't/can't/don't want to admit that the conductor has already left the podium. The 2003 Texas redistricting map will almost certainly remain in place for the rest of this decade.

Gerrymandering causes perennial (or at least decennial) bloodbaths not just in Texas but elsewhere, so the Supreme Court will have many future occasions to reconsider Vieth and to provide something more coherent than its "dim light." But Beldar sez: Don't hold your breath for the next five years (unless you're working and getting paid by the hour to do so).

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\¹/Disclosure: As I've noted before, I practiced law with Lee Rosenthal for several years at Baker Botts in the 1980s; I like and admire her greatly; and I still consider her a friend (although we've had no social contact for many years, and I only rarely appear before her professionally these days).

\²/As I've also written before, I think it is facile, misleading, inaccurate, and insulting to suggest that the results of these cases correspond directly to whether the panels are composed of appointees of Republican or Democratic presidents. But those appointments are objective bits of information, and some folks insist on making arguments from them (nevertheless often misstating those objective facts in the process).

\³/The question "What left-wing domination in academe?" is even funnier, of course, than "What liberal bias in the mainstream media?"

\⁴/I recognize that in writing a sentence like this one, I'm utterly failing — alas and alack, mea culpa maxima! — in my goal of translating the panel's dense legal prose into clear lay language. At least my version is boiled down to one obscure paragraph, though, instead of filling multiple pages.