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Will high court draw the lines?

Three years ago, Rep. Tom DeLay and his fellow Republicans in Texas used their political muscle to draw new congressional districts. By changing the political map, they ousted six Democrats and gave the GOP a bigger margin in the U.S. House of Representatives.

On Wednesday, the Supreme Court will hear arguments about the power play in four combined cases that could dramatically change the rules for political redistricting.

The court's decision, expected in the next few months, could give one party an important advantage in this year's election and have far-reaching implications on how legislative maps are drawn in the future.

"We are at a defining moment," said Nathaniel Persily, a law professor at the University of Pennsylvania who follows election law. "The court is going to decide when political parties go too far in rigging electoral districts for their own advantage."

In addition to the potentially broad implications, the case also has an unusual wrinkle.

Last year, DeLay went out of his way to sharply criticize Justice Anthony Kennedy for citing international law when writing an opinion in a case. Now, DeLay is a key player in the Texas dispute and one justice is likely to be the swing vote.

Anthony Kennedy.


Political parties have always used redistricting to boost their power. The process, known as gerrymandering, creates bizarre-shaped districts that ensure one party has an advantage in an election.

States usually draw new districts at the start of each decade after census numbers are released. In 2001, the Texas legislature tried to draw new maps, but Republicans and Democrats deadlocked. The dispute ended up in federal court.

The court drew a map that protected the incumbents - 17 Democrats and 13 Republicans - and gave two new seats to the GOP.

But Republicans wanted more. They said they were shortchanged by the plan because a majority of Texas voters chose Republicans in congressional races. In 2002, for example, Republican congressional candidates got 57 percent of the vote statewide, yet Democrats held more seats.

"The plan that existed before DeLay got his hands on the redistricting process was biased in favor of the Democrats," Persily said. "That was an injustice that he felt he had to remedy."

DeLay, then the majority leader in the U.S. House, directed Republican lawmakers in the Texas state capital to use their control of the legislature there to draw a new map and force it through. By strategically moving Republican and Democratic voters into different districts, the lawmakers altered the complexion of Democratic districts so Republicans would win.

As expected, the Democrats lost six seats in the 2004 election. The Republicans now hold 21 of the state's 32 districts.

Hiding in Oklahoma

Gerrymandering often leads to partisan fights, but law professors say the Republican tactics in Texas were unusually harsh.

At DeLay's urging, the GOP lawmakers redrew the maps in the middle of the decade, a time when parties usually declare a cease-fire in their gerrymandering wars. Democratic state legislators were so angry they fled the state and hid in Oklahoma to deny Republicans a quorum.

The Bush administration decided to support the DeLay redistricting plan even though career attorneys in the U.S. Justice Department thought it violated the Voting Rights Act.

The Texas cases before the Supreme Court revolve around a central question: How much hardball is too much?

Federal law does not prohibit gerrymandering, so the parties have used other voting laws to justify their plans or attack their opponents.

The Supreme Court has sidestepped questions about partisan gerrymandering. In a 2004 Pennsylvania case, the court split 4-1-4 about whether courts should get involved.

The "1" was Kennedy. The Reagan nominee said courts should not meddle in political redistricting but also said that some day there might be a case that is so egregious the courts should get involved.

As a result, Kennedy is seen as the swing vote in the Texas cases. Attorneys on both sides will be tailoring their comments to appeal to him.

The attorneys also will watch Chief Justice John Roberts and Justice Samuel Alito, who are new to the court since the Pennsylvania ruling. Like their predecessors William Rehnquist and Sandra Day O'Connor, they are expected to say that gerrymandering is a political matter and that courts should not get involved. But analysts say it's possible that Roberts could break with the conservatives and vote against the Texas Republicans.

"If the new justices vote the same way as their predecessors, it will all come down to Justice Kennedy. And that vote is anybody's guess," said Richard L. Hasen, a law professor at Loyola Law School.

In the four cases before the court, civil rights groups, local governments and Democratic elected officials have sued, saying the Texas plan violates the law because it relies on out-of-date census data and does not reflect the true number of minority voters. The challengers also contend the plan violates the Voting Rights Act because it dilutes the impact of black and Hispanic voters.

In a court filing, the attorneys challenging the GOP plan called it "one of the most notorious partisan power grabs in our history, designed to cement the narrow Republican majority in the U.S. House of Representatives."

But Texas Gov. Rick Perry and other Republicans respond that the plan is fair because it reflects how Texans vote. The state is Republican, they say, and the districts should be, too.

They say in a court filing that the map "is the natural result of four decades of Texas political history, during which the voting preferences of Texas voters have shifted decidedly."

Criticizing Kennedy

Many analysts expect a significant ruling because the court has shown a sense of urgency. After dodging the issue for years, the justices in December accepted the cases and put them on a fast track for a ruling.

If the court decides to strike down the DeLay plan, the ruling might only apply to Texas. But that could have national implications because the justices might force the state to use the old map for this year's congressional election, which could give the Democrats a good chance of winning back some of the six seats.

Law professors predict the court will strike down the Texas plan.

"I think there is some sense by the court that it's time to stop the madness," Persily said.

If the court issues a broad ruling, it could apply to other states such as Florida that have partisan gerrymandering. Democrats have a slight edge in voter registration in Florida, but Republicans control 18 of the 25 congressional seats.

The wild card in the case could be DeLay and his comment about Kennedy.

The redistricting plan has already led to some of DeLay's ethical problems. He is under indictment for conspiring to give illegal contributions to Texas campaigns. And he was admonished by the House ethics committee for using government resources to try to locate the Democrats who fled the state to avoid voting on the changed plan.

In an unrelated comment last year, DeLay blasted Kennedy for citing international law in a ruling on a death penalty case.

"We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous," DeLay said last April on Fox News Radio. DeLay also criticized Kennedy for doing legal research on the Internet rather than relying on the official docket, as justices usually do.

David Garrow, a legal historian who follows the court, said most justices ignore such criticism, but Kennedy has shown he is very sensitive. After a Washington Post editorial criticized him, he fired back at a meeting of the American Bar Association, saying the writers had not read his opinions.

"Kennedy has demonstrated, with cameras rolling at the ABA meeting, that he has thin skin," said Garrow, a professor at Cambridge University.

"I think it's very conceivable that (DeLay's) comments could be a factor in the case."

Times researcher Angie Drobnic Holan contributed to this report.


To pick up new seats in Congress, Republicans in Texas drew new districts in 2003. By redrawing the lines to make them more favorable to the GOP, they were able to defeat six Democratic House members and replace them with Republicans. Here's a look at how they changed the boundaries in the 24th District and defeated Democratic encumbant Martin Frost.