Henderson v. Perry

• Decision Date: 09 June 2005
• Docket Number: No. Civ.A. 2:03-CV-354.,Civ.A. 2:03-CV-354.
• Citation: 399 F.Supp.2d 756
• Parties: Frenchie HENDERSON, et al. v. Rick PERRY, et al.
• Court: U.S. District Court — Eastern District of Texas

399 F.Supp.2d 756

Frenchie HENDERSON, et al. v. Rick PERRY, et al.

No. Civ.A. 2:03-CV-354.

United States District Court, E.D. Texas, Marshall Division.

June 9, 2005.

Richard Scott Gladden, Law Office of Richard Gladden, Denton, TX, Zeb Davidson Zbranek, Zbranek Firm PC, Liberty, TX, Otis W. Carroll, Jr., Ireland Carroll & Kelley, PC, Tyler, TX, G. Michael Fjetland International Legal Group, Sugar Land, TX, for Frenchie Henderson, et al.

William Andrew Taylor, Andy Taylor & Associates, Houston, TX, Cassandra B. Robertson, David C. Mattax, Don R. Willett, R. Ted Cruz, Attorney General's Office, Robert M. Long, Houdyshell & Long, LLP, Austin, TX, for Rick Perry, et al.

Before HIGGINBOTHAM, Circuit Judge, and WARD and ROSENTHAL, District Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge.

We are asked to examine again, in light of the Supreme Court's decision in Vieth v. Jubelirer,¹ the claims that the redistricting plan for the election of the thirty-two members of Congress from Texas, adopted by the Texas legislature in 2003, is unconstitutionally tainted by excessive partisan purpose. Ultimately, we will adhere to our earlier judgment that there is no basis for us to declare the plan invalid.

We conclude that claims of excessive partisanship before us suffer from a lack of any measure of substantive fairness. The claims accept that some partisan motivation is inevitably present in the political enterprise of redistricting, but urge that at some point it can become unconstitutional, presumably a denial of equal protection. No party before us states with clarity the precise constitutional deficit. Although the lead plaintiffs invoke the structure of equal protection analysis, they identify no suspect criterion or impinged fundamental interest in insisting that if the state acts with the "sole" purpose of partisan advantage in drawing legislative districts, regardless of its effects, the state must offer a "compelling explanation" for its effort. The conduct that plaintiffs condemn is offered only in unstructured form; their condemnation of practices such as targeting incumbent members and ignoring "communities of interest" and other "traditional" principles of redistricting comes untethered to constitutional texts.

The most frequently invoked image of the evil resulting from excessive partisanship in drawing congressional districts is the non-competitive district, a product of a member choosing his constituents. We are asked to recognize this as anti-democratic and implored to find a means to curb it. The vision of the House of Representatives controlled by members who do not face serious opposition to reelection is urged as a stain upon its historical image as an institution embracing the teaching of Cincinnatus. The argument ignores a historical fact; the Texas delegation has enjoyed non-competitive districts for at least the past four and one-half decades, long before there were two political parties with any strength in the state. The emergence of Texas as a two-party state has not altered this reality, although it has given rise to forces that have caused the Texas delegation now to approximate the relative statewide voting strength of the two parties. As we will explain, there is little to suggest that taking up the tools plaintiffs offer in attacking the 2003 Texas plan will in fact remedy this awkward reality.

After addressing the claims of excessive partisanship, we will turn to a narrower and seemingly more plausible contention that does not attempt to measure how much partisanship in redistricting is constitutionally excessive, but instead uses the requirement of one-person, one-vote as a tool to limit how often redistricting can occur. This contention aims only at "voluntary" mid-decade redistricting that occurs when a legislature replaces a valid existing plan put into place after the last census; it does not attempt to set a standard for direct judicial supervision over partisan influence in redistricting, but instead proposes a rule that is intended to prevent the specific type of redistricting that occurred in Texas in 2003. The argument is that a legislature seeking to displace a valid extant plan may not rely on decennial census figures to meet the stringent demands of one-person, one-vote, but must instead prove that its proposed plan distributes population in an equipopulous manner by use of actual current figures. While its relative simplicity is seductive and avoids the need to measure how much partisanship is constitutionally excessive, we are not persuaded that it is appropriate for this court to endorse this application of the one-person, one-vote requirement as a means to the end of limiting political influences on redistricting.

I

The history of this case and of the efforts of the Texas legislature to draw lines for its thirty-two congressional districts is set out in our previous opinion, and we will not repeat it here.² While the appeal from our judgment upholding the plan adopted by the Texas legislature was pending before it, the Supreme Court decided Vieth v. Jubelirer. In Vieth, the Court affirmed the decision of a three-judge court rejecting claims by three registered Democrats who vote in Pennsylvania that a redistricting plan for congressional districts adopted by the Pennsylvania legislature should be set aside because it constituted an impermissible political gerrymander, in violation of Article I and the Equal Protection clause of the Fourteenth Amendment. Their complaint, in addition to other claims, alleged that the districts were "meandering and irregular" and "ignored all traditional redistricting criteria . . . solely for the sake of partisan advantage."³ The three-judge court granted defendants' Rule 12 motion to dismiss for failure to state a claim, and the Supreme Court affirmed.

Shortly thereafter, in Cox v. Larios,⁴ the Court summarily affirmed the judgment of a three-judge court that had rejected a redistricting plan of the Georgia legislature as failing to conform to the principle of one-person, one-vote. The district court held that because the legislature sought to give advantage to certain regions of the state and to certain incumbents in an effort to help Democrats and hurt Republicans, Georgia was not entitled to the 10% deviation toleration normally permitted when a state is drawing lines for its legislature.⁵

Then, after the summer recess, the Court remanded the present case "for further consideration in light of Vieth,"⁶ making no reference to its decision in Larios. Responsive to the remand order, we received briefs and heard oral argument from all parties and amici.

Although in our prior opinion we turned back many attacks upon the legislative plan for electing members of the Texas congressional delegation, we read the remand order to be a directive to reexamine only our rejection of the claim that the Texas plan is an illegal political gerrymander. This mandate does not include consideration of other attacks, with the possible exception of the claim that the Texas plan failed to abide the command of one-person, one-vote. Variations of this one-person one-vote claim have been in the case from its inception, but came to the fore only in the arguments following the remand to this court. The Court made no mention of one-person, one-vote in its remand order, nor was it at issue in Vieth. However, this issue was present in the Court's examination of Georgia's plan in Larios in a way arguably related to the present case. Any examination of compliance with one-person, one-vote thus faces the threshold hurdle of whether the claim is within the mandate of the remand. We will treat this question in due course.

II

The light offered by Vieth is dim, and the search for a core holding is elusive. This observation is not a criticism, but a recognition that Vieth reflects the long and twisting historical narrative of political gerrymanders in the United States.

The most recent chapter in this history of partisan influence upon the drawing of legislative districts involves the federal judiciary's effort to play the role it claimed for itself in Davis v. Bandemer.⁷ Judicial reluctance to surrender this role is understandable. The move to the one-person, one-vote principle in Reynolds v. Sims⁸ both answered some of the critics of Baker v. Carr⁹ and fulfilled the predictions of others who warned against entering the political thicket.¹⁰ While hardly analogous to the quest for standards for reining in partisan gerrymanders, the relatively quick two-year process culminating in Reynolds encourages those reluctant to concede the futility of finding an effective standard for Bandemer. And as we will suggest, we have yet to calculate the full costs of achieving the clear and easily administered standard of Reynolds.

In addition, there is hesitation to concede that any solutions must come from legislatures and other political players whose critics say lack the ability to restrain themselves. This fear is fueled by the advent of computer-driven redistricting, which has taken this hoary practice to a new level.¹¹ There is wariness of lines that fall precisely where the drafts-men intend—an absence of randomness or sufficient extraneous forces that the draftsmen must accept. At bottom it is a concern that the power to draw lines is inadequately checked, an implicit accusation that the political process is inadequate to the task. There is also the reality that many members of the House of Representatives enjoy a more secure tenure than members of the Senate for the simple reason that Senators run statewide, while their colleagues in the House may run in districts crafted to their advantage.¹² Answers to such questions do not come easily.

The Founders were no strangers to the self-interest afflicting legislators charged with drawing the lines for their own seats. Nor were they blind to the need to locate the power to curb potential abuses. With Article I,...