Messin' with Texas: Tom DeLay's redistricting affair comes to the Supreme Court.

THE saga of the 2003 Texas redistricting--which reached its nadir when 51 state Democrats fled to a Holiday Inn in Oklahoma to prevent the quorum necessary for a vote on the plan--neared its final chapter this month at the U.S. Supreme Court, where the justices heard aggrieved Democrats make the case that the new map is unconstitutional. The justices will not render judgment on the case until early summer, but there are several indications that they will decide--correctly--that the redistricting should stand.

A coalition of Democrats argued that the mid-decade redistricting was unconstitutional because Republicans undertook it for purely political reasons. In 2000, the U.S. Census gave Texas two additional seats in the House of Representatives. Because the Texas legislature was divided--Republicans held the senate, Democrats the house--the parties couldn't work together to draw a new map, so the responsibility fell to a three-judge federal district court to adopt one of several proposals from a redistricting board. Although Republicans dominated the board, the result did little to change the Democratic gerrymandering of years past. As a result, Democrats retained a 17-15 majority of the Texas congressional delegation after the 2002 elections, despite winning only 44 percent of the state's congressional votes.

Meanwhile, Tom DeLay--then majority whip in the U.S. House--had helped elect a Republican majority to the Texas house for the first time since Reconstruction, giving the GOP control of both houses of the legislature as well as the governor's office. DeLay wasted no time urging the legislature to draw a new map, telling the Associated Press after one meeting with Texas Republicans, "We are ... calling on the legislature to do their job, to ask them to assume their responsibilities that the Constitution gives them and draw the line to properly reflect what Texas is all about."

The new Texas house speaker, Tom Craddick, set about passing the DeLay-backed proposal to add five safe GOP districts to the Texas delegation, and eventually succeeded. After the 2004 elections, the composition of the Texas congressional delegation had changed dramatically: Republicans outnumbered Democrats 21-11, building the total GOP House majority to 30.

Democrats have argued that this redistricting plan is unconstitutional because it was undertaken in the middle of the decade solely for partisan advantage--and that if the plan were allowed to stand, majorities in state legislatures would pass redistricting plans whenever they wanted in order to entrench incumbents or gain seats. But Texas Republicans have put forward two compelling counterarguments. First, they argued that the Texas redistricting was not "purely partisan": It served two other purposes. Following the principle that "a majority should elect a majority," the 2003 plan rectified the old map's undeniably antimajoritarian entrenchments; and it properly transferred the redistricting prerogative from the court to the state legislature. Second, they argued that the Constitution provides a check for the sort of partisan misbehavior envisioned by the Democrats: It gives state legislatures the power to draw congressional districts, but it also gives the U.S. Congress the power to override that authority if things get out of hand. "The Framers chose political checks for the problem of partisan gerrymandering," Texas solicitor general R. Ted Cruz told the Court.

During oral arguments, Justice Anthony Kennedy made no secret of the fact that he did not think the Texas plan met the definition of a purely partisan redistricting. He appeared to accept the argument that the redistricting had been undertaken to counter past Democratic gerrymandering, and said, "It seems to me very dangerous for this Court to take away that control mechanism." Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter also sounded skeptical during oral arguments. (Souter quipped: "It is impossible, and let's even assume it's undesirable, to take partisanship out of the political process.")

While a majority of justices expressed doubts about the challenge to the map as a whole, some--Kennedy in particular--seemed more receptive to arguments that two specific districts on the map were legally problematic. The

Democrats argued that the legislature had concentrated Latinos in Congressional District 25, as part of an unconstitutional racial gerrymander; and a Hispanic advocacy group argued that the legislature had unfairly removed some of the Latinos from Congressional District 23--thereby diluting the Latino vote, in violation of the Voting Rights Act.

If that sounds contradictory, it's because the plaintiffs don't all want the same result from this case. Latinos want to keep their new majority in District 25, and they also want the Court to order Texas to add back about 100,000 Hispanics who were redrawn out of District 23. Nina Perales, an attorney for G.I. Forum (a Latino veterans group), argued that this violated the Voting Rights Act by reducing Latinos in District 23 to a "razor-thin" majority of 51 percent--not enough, in other words, to vote seven-term Republican congressman Henry Bonilla (a Hispanic) out of office.

The Democrats, however, just want their old gerrymandered map back. Lloyd Doggett, the Anglo Democrat who currently represents District 25, ran virtually unopposed in almost every reelection campaign before redistricting. But in 2004, he faced a bruising challenge in the Democratic primary from former district judge Leticia Hinojosa. He won 64 percent of the vote, but the fight was brutal--and Democrats want to avoid a recurrence.

The State of Texas argued that the state legislature has the constitutional authority to redraw congressional districts, and that the legislature drew District 23 according to political, not racial, considerations; specifically, the lines were drawn so that Bonilla would have an easier time getting reelected. The Democratic voters who were targeted just happened to be Hispanic.

The state legislature offset the changes that took Latino voters out of District 23 by creating a new Hispanic-majority district in District 25, which--as noted above--upset the Democrats for reasons unrelated to their ostentatious defense of minority rights. This change took race into account only because the Voting Rights Act prohibits "retrogression" in the number of minority-majority districts--not because the legislators were intent on diluting the minority vote in the state.

The Voting Rights Act clearly puts legislators in a tough spot when they are trying to draw new congressional districts: They must not draw district lines according to race, except when they must. Justice Antonin Scalia told Perales as much after she said that upholding the Texas redistricting plan would give states "free rein to use race to manipulate outcomes." "Of course you want to use race to manipulate outcomes," Scalia replied. "Just sometimes." Justice Kennedy, however, appeared to disagree with Scalia on whether these new districts were permissible. If legislators had designed District 23 to give merely the appearance of a majority, he said, that would seem "like an affront and an insult."

If a majority of the Court orders the State of Texas to redraw Districts 23 and 25, it would set an unfortunate precedent--but it would not dramatically alter the composition of the Texas congressional delegation. If, however, the Court finds the entire 2003 Texas redistricting unconstitutional, the results would be dramatic, and cataclysmic for Republicans. But there's no need to panic: The mountain of contradictions on which the plan's opponents have built their case leaves one with the impression that the justices will affirm the lower court's decision--allowing Texas Republicans to go on electing representatives who represent them.

Mr. Spruiell writes the media blog for National Review Online.