The court agreed to hear appeals brought by four groups of plaintiffs representing Democratic, Hispanic and black voters as well as the city of Austin and its surrounding county. The justices will hear the cases on an expedited basis on March 1, in time to issue a decision by the end of the current term in late June, but not in time to avoid the prospect of turmoil in Texas politics should any aspect of the 2003 plan be overturned. The state's Congressional primaries are March 7.
Not since Bush v. Gore, the decision that resolved the 2000 presidential election, has the Supreme Court ventured so deeply into a legal dispute at the core of partisan politics.
In the 2004 Congressional election, with the new plan in place, the Texas delegation went from an even division of 16 Republicans and 16 Democrats to 21 Republicans and 11 Democrats. The plan was engineered by Representative Tom DeLay, the Texas Republican and former House majority leader.
"Tom DeLay and his corrupt cronies were willing to sacrifice the voting rights of millions of Texans to carry out a corrupt, partisan, mid-decade redistricting scheme," said Charles Soechting, chairman of the Texas Democratic Party in a statement expressing his hope that the court would overturn the plan.
The House Democratic leader, Nancy Pelosi of California, echoed the sentiment, saying she saw the court's action as "a hopeful sign" that it will "restore the Voting Rights Act to its historic role in furthering justice for all Americans."
Gov. Rick Perry, a Republican, said "the Texas remap is constitutional" and expressed his confidence "that the Supreme Court will find that every Texas voter has a voice at the ballot box."
The question of whether the Texas redistricting violated either the Voting Rights Act or the Constitution has ramifications well beyond the boundaries of that state. The mid-decade redistricting was so successful for the Texas Republicans that if it is upheld, it could well become the norm any time a single party gains control of a state legislature and wants to entrench its power in the state's Congressional delegation.
A special three-judge Federal District Court in Austin upheld the Texas redistricting in a decision issued in June of this year.
The four separate appeals present a variety of questions for the Supreme Court, and it is not clear how broadly the justices might rule. One of the cases, for example, concerns the dismantling of a single majority-Hispanic district in South Texas, undertaken to shore up the re-election chances of a Republican incumbent, Henry Bonilla, who was losing favor with Hispanic voters in his district.
In an appeal called GI Forum of Texas v. Perry, No. 05-439, the Mexican American Legal Defense and Educational Fund is challenging that action as a dilution of the Hispanic vote in violation of the Voting Rights Act. While Mr. Bonilla's 23rd District became more Anglo and Republican, the Legislature created a new 25th District, with a majority of Hispanic voters, that stretches from the Mexican border up to Austin along a 300-mile-long land bridge, only 10 miles wide in some places, that connects two Hispanic population centers. It is being challenged in an appeal entitled Jackson v. Perry, No. 05-276, as a violation of the Supreme Court's recent precedents that limited legislative discretion to draw wildly non-compact districts in order to guarantee minority representation.
The Jackson v. Perry appeal also includes a broad challenge to the entire redistricting plan as an unconstitutional partisan gerrymander, arguing that in a state with a lawful plan in place, as it was in Texas, the legislature may not redraw districts in the middle of a decade "for the sole purpose of maximizing partisan advantage."
Another of the cases, Travis County v. Perry, No. 05-254, raises a separate broad challenge to the overall plan. This appeal argues that if the Legislature chose to redistrict the state in the middle of the decade, it could not use the population figures from the 2000 census, on which the existing plan was based, without violating the constitutional requirement of one person, one vote.
Between 2000 and 2003, when the new plan was put in place, the state's population grew by 1.3 million people, a 6 percent increase, with the greatest increase among the Hispanic population. If the Supreme Court accepts this argument, any mid-decade redistricting would have to be based on current population figures.
It is the role of partisanship in redistricting that presents the greatest challenge for the court and the most far-reaching potential impact of its eventual ruling.
In a case from Pennsylvania in 2004, the court was unable to agree on the standard for evaluating a partisan gerrymander, or even on whether such a case was one that federal courts should decide. Four justices, Antonin Scalia, Sandra Day O'Connor, Clarence Thomas and William H. Rehnquist, then the chief justice, said in an opinion by Justice Scalia that claims of political gerrymandering were not the business of the federal courts because the Constitution provides no "judicially enforceable limit on the political considerations that the states and Congress may take into account when districting."
Another four justices, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, would have permitted the Pennsylvania Democrats' lawsuit to proceed under several alternative theories.
The outcome of that case, Vieth v. Jubelirer, was determined by the equivocal opinion of Justice Anthony M. Kennedy, who voted with the Scalia group to reject the Pennsylvania Democrats' case but said that he "would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution."
So the most obvious question now is whether any of the Texas plaintiffs have articulated a sufficiently precise and manageable standard to attract Justice Kennedy. The plaintiffs in the Jackson v. Perry appeal describe what happened in Texas in 2003 in just such terms. A redistricting plan should be found unconstitutional, they say, "when it is enacted solely to skew future election results in favor of one political party and against another, at a time when a perfectly lawful map is already in place and there is no other legitimate justification for changing the district lines."
As the court prepares to hear the appeals, another question is whether its changed membership will make any difference. Clearly, Chief Justice John G. Roberts Jr. has it within his power to shift the balance on the court on the basic question of whether even to consider a partisan gerrymander claim. So would a successor to Justice O'Connor, who may be seated by the time the case is argued.
The fact that the Texas case is pending is likely to increase the already substantial interest in the views of Judge Samuel A. Alito Jr., the nominee to succeed Justice O'Connor, on election law in general and the court's one person, one vote precedents in particular. In a 1985 application for a promotion in the Reagan administration, which came to light last month, Judge Alito described himself as a critic of the reapportionment precedents established by the Supreme Court under Chief Justice Earl Warren.
The court's handling of the Texas appeals was unusual, suggestive of a lively debate within the justices' closed-door conference. The court's Web site, which tracks the procedural course of every case, indicates that the justices took up the Texas cases on six separate occasions before issuing the order on Monday that set four of them for argument. Three other appeals, which duplicate questions posed by the four, remain pending.
The Texas attorney general's office waived its right to respond to each of the appeals. It is highly unusual for the court to act in a case without first hearing from the other side, but no order to respond was ever issued.
Greg Abbott, the Texas attorney general, a Republican, said on Monday that the court's decision to hear the cases was "entirely appropriate" and "not surprising."
Earlier this month, the Justice Department acknowledged the accuracy of a report in The Washington Post that in 2003, top political officials had overruled a determination by career lawyers in the department's voting rights section that the Texas plan did not meet the requirements of the Voting Rights Act and should not be allowed to take effect.