Supreme Court I -- Texas redistricting: Too many opinions, too little consensus

By Nancy Jane Moore

The Roberts Supreme Court is starting to look a lot like the Rehnquist court: Even when the justices can more or less agree on an outcome, they are unable to agree on why. While this doesn't usually bother the actual parties in the case -- who either win or lose -- it plays havoc for those trying to determine exactly what the court meant.

In the Texas redistricting case, we have one key majority ruling: One of the districts in question violated the Voting Rights Act as to Hispanic voters. Five justices agree on that point: Kennedy, Stevens, Souter, Ginsburg and Breyer. This ruling will likely affect several districts, since redrawing it will necessarily affect the others near it.

And because Texas is now a "majority-minority" state -- that is, the population is less than 50 percent white and Anglo -- this ruling could have some persuasive authority down the line. Most of the growth in the minority population is Hispanic. It seems to me this ruling will make it harder to shift around Hispanic voters, even if Republicans maintain a grip on the legislature. We might see some changes in Texas in the near future.

The same five justices agreed that the court can hear an equal protection challenge to a political gerrymander -- that is, that it's a legitimate case based on violation of the constitutional right to equal protection under the law. But while seven justices agreed that the Texas Legislature's redistricting plan was valid -- despite being a blatantly political redrawing of a map drafted by a court after an earlier Legislature failed to redistrict -- they didn't agree on why.

Justice Stevens makes a compelling argument as to why the plan, which he calls "wholly unnecessary," is invalid, but alas, only Justice Breyer agrees with him. Stevens writes:

Upham [v. Seamon, a 1982 ruling in a similar case] does not stand for the proposition that, after a State embraces a valid, neutral court-drawn plan by asking this Court to affirm the opinion creating that plan, the State may then redistrict for the sole purpose of disadvantaging a minority political party.

This ruling gives us open season on redistricting. Any state legislature can redistrict any time it wants to, as I read it, and I have no doubt many will, especially if legislative control shifts from one party to another. It's even okay to redraw districts set by a federal court.

But more than that, this ruling gives us open season on litigation over redistricting. Given that the justicies agreed that redrawing a district between censuses was okay, and that a majority found one district violated the law, there's every incentive for the losing group in a redistricting battle to take it to court.

The trouble with decisions like this is that they don't solve anything but the case before the court. I foresee nasty fights in the legislatures and clogging of the courts with suits over redistricting. In her earlier post on this opinion, Diane Silver points to a Washington Post conversation with a law professor who disagrees with this position, but I think he's an optimist. The court left too much up in the air and people will take advantage of it.

Supreme Court cases are online these days. You can get a pdf file of this one here.