October 27, 2004

October 27, 2004 | Commentary on Legal Issues

Some Wishful Thinking on Texas Redistricting

Texas politicians and pundits are all atwitter these days. The U.S. Supreme Court has vacated the Texas redistricting case and sent it back to a lower court for reconsideration.

Those who think that the original redistricting decision by the three-judge lower court was wrong - and that the Texas redistricting plan was an illegal political gerrymander - are joyful, hoping for victory in the second round. Editorialists who didn't like the first result are urging the three-judge court that will rehear the case to change its mind. And all these pundits see some significance in the Supreme Court's action. They believe the decision to remand the case indicates that the high court has some doubt about the Texas Legislature's redistricting plan and that the three-judge panel or, eventually, the Supreme Court, just might review the Texas redistricting plan and declare it unconstitutional.

These visions are, however, little more than "such things as dreams are made of." Both procedurally and on the merits, the belief that the Supreme Court's action predicts the eventual rejection of the Texas plan is highly speculative and unlikely.

Let's take the procedural issue first. Yes, the Supreme Court vacated the Texas redistricting case and sent it back it to the three-judge panel. It did so to allow the panel to consider, in the first instance, the applicability to Texas of the Supreme Court's decision last year in a case called "Vieth v. Jubelirer" - a case about a challenge to the alleged political gerrymandering of Pennsylvania's Congressional districts. Democratic optimists see this action as a sign from the high court that Vieth requires the lower court to change its mind.

That's simply wrong. The Supreme Court follows this procedure - of granting review, vacating a case and remanding it for reconsideration in light of an analogous decision that has come down since the lower court first decided the case - all the time, and it means absolutely nothing about the merits of the case. It used this procedure just two weeks before the Texas order in six other cases.

In fact, this procedure is so common that it even has an abbreviation: "GVR," meaning grant, vacate and remand. The GVR is used whenever, as the court itself has said, there is an "indication" that the intervening case "is sufficiently analogous" to one coming up from the lower court to require reexamination. It says nothing about the merits.

Or, as noted Supreme Court commentators have put it: "It seems fairly clear that . . . the lower court is being told simply to reconsider the entire case in light of the intervening precedent - which may or may not compel a different result."

Statistics bear this out. One study of 90 cases in which GVR orders were entered found that the lower court reinstated its original decision two-thirds of the time, and that the Supreme Court almost never reversed the lower court's decision to adhere to its original views - a pretty good success rate for the prior victor. So the significance of the GVR order in the Texas case is absolutely nothing at all, much as those who did not like the original Texas ruling would wish it otherwise.

But beyond the procedural wishful thinking lies an even greater problem. As a matter of substantive law, the Vieth case is unlikely to require rejection of the Texas redistricting plan. Remember, in the 30 years before Vieth, no court had ever struck down a congressional redistricting plan on the grounds that such a plan was purely political gerrymandering.

In the Vieth case, four justices went further and said that political gerrymandering cases - which, after all, is what the Democrats say the Texas case is - could never be reviewed and overturned by a court. A fifth Justice, Anthony Kennedy, said that "never" was too strong but that, in effect, "hardly ever" was the right answer - and not until the court system developed some objective standard of review to say which types of political gerrymander were "bad" and which were "OK."

This is hardly a resounding signal that the Texas redistricting plan is invalid. If anything, Vieth is likely to make it harder to prove political gerrymandering cases, rather than easier, because even Justice Kennedy thought that the old standard (the one used by the Texas three-judge panel to uphold the redistricting plan) was too indefinite and indeterminate.

If Vieth is applied fairly and honestly, using an even more demanding standard before invalidation, the near certain result is for the lower court to reaffirm its original decision. The challengers to the Pennsylvania redistricting plan, after all, lost their case.

Only a "cockeyed optimist" would see that loss as a portent of victory in Texas.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

First appeared in Austin American-Statesman