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Are the courts too partisan?

Two party activists discuss the role of the courts in the process of redrawing voting district boundaries.

Wayne Arden


Twelve consecutive years of Republican appointees to the federal judiciary have had a profound impact on the present round of redistricting. Nearly every decision to date involving Democratic vs. Republican controversies has reflected the partisan affiliation of the judges.

Democrats control both houses of the legislature in 29 states, and Republicans only six. The GOP, unable to gain control of legislative chambers and recognizing the partisan advantages of having the federal judiciary exercise jurisdiction over redistricting, engaged in a national strategy to have te judiciary assume control over the line-drawing.

This strategy is evident from statements and actions of Republican officials throughout the country. In Alabama, Governor Guy Hunt, a Republican, reneged on his promise to call the Legislature into special session last fall to adopt a congressional redistricting plan. Hunt publicly stated that Republicans would be in a stronger position if a court, rather than the Legislature, drew the congressional plan.

In states where Democrats control both chambers but have a GOP governor, Republican legislators and governors have refused to negotiate in good faith to develop redistricting plans. In addition, the GOP has filed pre-emptive lawsuits in 13 states alleging legislative impasse and requesting the court to retain jurisdiction. It is evident that the GOP is seeking from the courts what it cannot obtain through the political process--a GOP redistricting plan.

From a Republican perspective this strategy has been effective. Legal precedent and the facts have frequently been secondary to partisan interests. The most blatant examples have occurred in Illinois, Texas, Alabama and Minnesota.

In Illinois, a three-judge federal court, all Reagan appointees, adopted a congressional map proposed by the Republican plaintiffs. In selecting the GOP proposal, the court relied solely upon the fact that the Republican plan had an overall population difference of one person and the Democratic alternative had a difference of 17 people and that the majority Hispanic district proposed in the Republican plan had a Hispanic population of 65.02 percent whereas the Democratic alternative had a Hispanic population of only 65 percent. No court has ever selected one plan over another on as limited a distinction as expressed in this, the Hastert vs. Illinois Board of Elections decision. As many as five Democratic congressional seats will probably be lost as a result.

The most egregious example of partisanship on the part of the federal judiciary occurred in Texas. Before the Texas redistricting process began, the state Republican Party filed suit. A court composed of three Republican-appointed judges refused to dismiss the case and retained jurisdiction. On Dec. 24, 1991, the court, without any determination that the Legislature would be unable to adopt constitutional plans in time for the 1992 elections, drew its own plan for the Senate and House. The court plans are highly favorable to Republicans and may give them control of the Texas Senate for the first time since Reconstruction.

Following the court's decision, Governor Ann Richards called the Legislature into special session to adopt redistricting plans to replace the court-drawn plans. The Senate adopted a plan that had previously been cleared by the Department of Justice but rejected by the Texas Supreme Court on procedural grounds. The federal court refused to substitute the legislatively enacted Senate map, which had been signed by the governor and approved by a state court. Despite the plan's support from all branches of the Texas government and all major civil rights organizations and its prior approval from the Department of Justice, a majority of the federal court concluded that the plan did not satisfy the Voting Rights Act.

There have also been allegations that District Judge James Nowlin's staff was in regular contact with a Republican member of the Texas House when the court was drafting its legislative maps. The Fifth Circuit Court of Appeals has recently reprimanded Judge Nowlin for his actions.

Similar judicial intrusions took place in Alabama. After Governor Hunt refused to call a special session on congressional redistricting, the chairman of the Mobile County Republican Party filed suit. The three Republican judges selected to preside refused either to defer to the Legislature or to order it into special session. In fact, the court refused even to allow the Legislature to intervene as a party to the litigation. It came as no surprise when the court proposed a congressional map remarkably similar to the Republican proposal.

In Minnesota, the battle between a Democratic-leaning state court and a three-judge federal court is heading to the U.S. Supreme Court. The state court adopted the legislative redistricting plan passed by the Legislature, with some minor modifications. The federal court then adopted a competing legislative plan that was more favorable to Republicans. Supreme Court Justice Harry Blackmun stayed the federal court's plan, allowing the state court map to be used for the 1992 elections.

To be fair, several federal court decisions have been favorable to Democrats. However, with one exception, they have come from courts where a majority of the judges are Democratic appointees.

Since the overwhelming majority of federal judges have been appointed by Republican presidents, it is no surprise that a majority of 1992 decisions have been favorable to Republicans. What is surprising is the extent to which the federal judiciary has gone to benefit the partisan interests of Republicans.

Michael A. Hess


It is being suggested that the partisan affiliation of the presidents who appointed federal judges hearing redistricting cases has a direct influence on the perceived political outcomes of those cases. Some political scientists have also said that statistical analysis demonstrates a correlation between judicial backgrounds and redistricting outcomes. News reports have also been peppered with comments of Democrats complaining of a Republican strategy to "force" redistricting into federal courts at the expense of state courts.

Most of the stories suggesting judicial favoritism to one party or another are anecdotal. Whatever the data ultimately show, the assumption that any correlation exists has not proven politically reliable in the current redistricting cycle, and it would be a tactical mistake for Republicans or anyone else to make such assumptions the basis of a redistricting policy.

Concern over judicial temperament certainly has played a role in the inevitable forum-shopping that has preceded redistricting litigation in many states. It is no secret that Democrats control not only the redistricting processes in more states that Republicans, but also the state judicial appointment process. In addition, many states elect judges, an inherently political process where judges can, at least subconsciously, become beholden to the majority political party. The party that controls the legislature also controls state court budgets. The minority party, with no seat at the state legislative or judicial table, obviously will seek the most neutral forum available in order to obtain a fair map. (The federal forum has the added benefit of direct appeal to the U.S. Supreme Court, without the need for expensive and time-consuming intermediate appeals.)

Although the vast majority of redistricting cases in this cycle have ended up in federal district courts, I see no evidence that, overall, either political party has either suffered or benefited from political bias on the part of federal judges. For much of the past decade, Republicans have protested that if redistricting is done on a level playing field, Republicans stand to gain. Some Democratic experts have even suggested that the use of neutral criteria in the redistricting process actually favors Republicans. In any event, Republican political and legal strategy has been based, in part, on the application of objective criteria to the redistricting process. Putting the process before a federal judicial panel is one manifestation of that strategy.

But Republicans have not always fared well at the hands of federal judges. Recently, for example, a federal panel in South Carolina implemented a legislative plan that disappointed the Republicans who had initiated the litigation. Nor can the political alignment of judges always translate to predictable judicial action. In Minnesota, for example, a Republican appointee strongly dissented from the imposition of a court-drawn plan that delighted Minnesota Republicans. Furthermore, a Republican-appointed majority on the U.S. Supreme Court stayed the district court's action, to the dismay of Republicans.

In Texas, a panel of Republican-appointed judges let a Democratic congressional gerrymander stand, while offering Republicans some relief on the legislative plans. In Arkansas, a Republican appointee categorically rejected the state GOP's Voting Rights Act arguments in support of its congressional plan.

For each example of the unpredictability of judges I might cite, my Democratic counterparts will probably point to examples of "obvious" partisan bias. One action frequently mentioned is that of the Republican appointees dominating the federal panel that imposed a Republican-supported congressional plan in Illinois. A close look at that court's opinion, however, demonstrates that the court chose the plan that most closely satisfied the objective criteria of the Voting Rights Act and the constitutional imperative of population equality. It just happened that the Republican plan better satisfied--albeit not by much--the court's criteria

Democratic analysts might also point to the example of the California Supreme Court with its significant Republican majority, which adopted congressional and legislative plans. Though Democrats may complain about them, the plans originated with the court's bipartisan special masters who applied neutral criteria. Furthermore, any plan that came close to undoing the historic gerrymander of the 1980s in California would inevitably benefit Republicans. The bias argument is further undercut by the fact that California Democrats were unable to convince a Democrat-heavy federal district court to undo the handiwork of the state Supreme Court.

For redistricting junkies (you know who you are), the decade of the 1990s will yield its own rich folklore of stories about heavy-handed judges with a partisan bias, and nothing I might say will assuage the bitterness felt by those who feel victim to such jurists. For the most part, however, I believe the judiciary has acted responsibly when asked to handle one of the hottest of hot potatoes.

It remains to be seen, of course, how the Supreme Court will resolve the numerous cases that will come its way this redistricting cycle. Preliminary rulings in cases from Minnesota and Ohio suggest, at least, that the Supreme Court will be sensitive to charges of overreaching by federal courts. It would be foolhardy, however, for anyone to attempt to predict just how the Court, as now constituted, will handle such politically sensitive questions as partisan gerrymandering, the Voting Rights Act and one person, one vote.

Wayne Arden is counsel to the Democratic State Legislative Leaders Association.

Michael A. Hess is deputy chief counsel to the Republican National Committee.
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Title Annotation:party activists' debate on the courts' role in the redistricting process
Author:Arden, Wayne
Publication:State Legislatures
Date:Jul 1, 1992
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