Will Justice Kennedy Rescue Texas Republican Redistricting?

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Once again, this time with control of the House perhaps at stake, it's the associate justice's world and we're just living in it

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On December 9, 2000, the United States Supreme Court issued an emergency stay blocking further vote recounting in Florida following the contested 2000 presidential election. The brief order presaged the Court's subsequent decision, three days later, ending the recount and giving the presidency to George W. Bush.

On December 9, 2011, 11 years to the day it determined the outcome of a race for the White House, the United States Supreme Court again interjected itself into national politics. This time, yesterday evening, the justices issued an emergency stay blocking orders from a special three-judge panel in Texas that had altered the state's Republican redistricting plan in favor of Democrats. The move by the High Court may presage a ruling early next year that will benefit the GOP at the expense of Democrats -- and perhaps influence the outcome of the race for control of the House of Representatives. 

With the Texas primaries scheduled for March, the Justices will churn out a quick decision following the argument. That's fast by judicial standards, but Friday's stay order, unexpectedly issued at 7 p.m., has thrown the roiling Texas election season into even more chaos. One election law expert even suggested the justices might issue another order, giving more interim guidance to election officials on the ground in the Lone Star State.

Texas Republicans say that their redistricting plan is entitled to great deference from the federal courts. Democrats say that the Voting Rights Act protects Hispanics in Texas from having their voting rights diluted by the new plan. Here's how Adam Liptak of The New York Times summed up what is at stake:

The court-drawn map could deliver as many as four additional Congressional seats to Democratic candidates and seems to increase the number of opportunities for Hispanic voters to elect candidates of their choice.

You can bet it wasn't the Court's progressives who pushed late Friday to block this plan from moving forward. In fact, if you listen closely, you can almost hear the pitch of Justice Antonin Scalia's voice as he declares that Texas' elected officials know better than federal judges how to redistrict their state. And you can already almost see the scowl on Justice Clarence Thomas' face when Texas Democrats stand up in court to argue that the Voting Rights Act requires the state to better account for its fast-growing Hispanic population.

You also can bet that both sides on January 9th will be directing their oral argument to Justice Anthony Kennedy, the swing vote who likely will determine the outcome of this case. Like his colleagues, Justice Kennedy is no stranger to Texas's eternal redistricting battles. For example, in League of Latin American Citizens v. Perry, decided in June 2006, he wrote the majority opinion in a case involving mid-decade redistricting. Citing a "troubling blend of politics and race," Justice Kennedy found that the state had violated the Voting Rights Act.

The ruling was a complicated one-- with many concurrences and dissents. And the Court did not give the plaintiffs in the case all the relief they had requested of Texas. But at its core Justice Kennedy found that Texas had in one instance redistricted itself to neutralize the growing political power of its Hispanic citizens. Of the district then at issue, he wrote:

In old District 23 the increase in Latino voter registration and overall population, the concomitant rise in Latino voting power in each successive election, the near victory of the Latino candidate of choice in 2002, and the resulting threat to the incumbent's continued election were the very reasons the State redrew the district lines. Since the redistricting prevented the immediate success of the emergent Latino majority in District 23, there was a denial of opportunity in the real sense of that term.

Here is another interesting passage from the 2006 ruling. In declaring that Texas had not done enough to ensure Hispanic citizens proportionate representation under the Voting Rights Act, Justice Kennedy wrote:

The State's contention that proportionality should be decided on a regional basis is rejected in favor of appellants' assertion that their claim requires a statewide analysis because they have alleged statewide vote dilution based on a statewide plan.

There are plenty of legal and factual ways in which lawyers will try to distinguish the current redistricting fight from the battle that generated the Supreme Court's League of Latin America Citizens ruling. But the battle lines in Washington are likely to remain the same. It takes five justices to do what the Court did Friday night.* We know who those four justices are. The only question is to what extent Justice Kennedy guides his four Republican-appointed colleagues. And that is how control of the House of Representatives may be determined in 2012.

(The original version of this post incorrectly noted that the votes of only four justices were needed for a stay. My apologies for the slip!) 
Image: Reuters
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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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