The Supreme Court is set to hear arguments today on the Tom DeLay-orchestrated Texas redistricting plan that gave Republicans a majority of congressional seats in that state for the first time in decades. Democrats and their liberal allies are, predictably, crying foul because the new plan effectively ensured Republican control of the House for the forseeable future.

My position on redistricting in general is that I would prefer a bipartisan panel draw all districts with the direction that they put a priority on making districts resemble a basic geometric shape -- inkblots would not be allowed.

However, since I have not yet been elected king, we've got to deal with the world as it is. Though the Republican gerrymander of Texas is distasteful to democracy, it's not nearly as distasteful as the Democrat gerrymander that preceded it.

The American Enterprise Institute's John Lott has an excellent piece in today's Wall Street Journal [subscription required] that makes the case that the GOP gerrymander is not so odious that the Court should overturn it.

In Vieth v. Jubelirer (2004), the Supreme Court appeared to say that state legislatures can be too partisan in redistricting, though not in the case before them, involving Pennsylvania. The court was not able to agree on how to even determine when improper gerrymandering occurs.

The current case (League of United Latin American Citizens v. Perry) isn't going to make this problem any easier: Invalidating the Texas redistricting as too partisan would cause a flood of other legal challenges. In 2004, the first and only election that was held after the new boundaries went into effect, Democrats received 40% of the major party vote but only 34% of the seats. However, this gap is actually small -- not only when compared to the numbers in Texas at least since 1980, but also when compared to other states. Even Pennsylvania's constitutionally acceptable gap was almost twice as large.

And what about before the redistricting?

During the two decades when Democrats completely ran redistricting -- from 1981 through the 2000 -- they averaged about 12 percentage points more seats than their portion of the popular congressional vote in Texas. Even when the courts redrew the district lines in 2002, the gap was eight percentage points. Who can argue with a straight face that the 2004 results represent excessive Republican gerrymandering when the Democrats now only received six percentage points fewer seats than their vote share?

In 1994 Democrats lost congressional seats nationwide during the Republican takeover of Congress and their vote share in Texas tumbled to just 43%, but they still managed to hold on to 63% of the Texas congressional delegation.

Democrats had nearly two-thirds of the state's congressional seats yet received only 43 percent of the vote?! In 2002, a year in which Republicans held every statewide office and just two years after the state went overwhelmingly for George W. Bush, the previous Democrat gerrymander ensured that they still held a 17-15 edge in the Congressional delegation -- despite the fact that 56 percent of voters voted for a Republican for the House.

If those on the left have a case against the GOP gerrymander, it isn't much if Wednesday's New York Times editorial is any indication.

The Supreme Court has acknowledged that partisan gerrymandering can violate the Constitution, but it has had trouble setting out a workable standard. In a Pennsylvania case two years ago, Justice Anthony Kennedy cast the deciding vote to dismiss a gerrymandering claim, but he suggested that courts could intervene in such cases "if some limited and precise rationale" could be found for doing so. In the Texas case, Democrats put forward such a standard: that "the Constitution prohibits legislators from redrawing election districts in the middle of a decade solely to achieve partisan advantage."

The Texas plan should be struck down on that ground, and because it violates the principle of one person one vote. More than a million people were added to the Texas population between the census and the 2003 redistricting. These new arrivals were not distributed equally, and it is likely that they were disproportionately Hispanic. The state used outdated 2000 population data to draw the 2003 lines, producing districts that failed to give all of the state's voters equal representation in Congress.

Take a second to digest that "argument." Because Texas' population grew between the time of the census and the time of the redistricting, that "violates the principle of one person one vote." If that's the way that standard works then if the redistricting takes more than a nanosecond to do, that principle if violated because the state's population is so fluid. Actually, if you take the Times argument to its logical conclusion, updated census data should be used and new districts should be drawn every election cycle because otherwise the districts will fail to "give all the state's voters equal representation in Congress," and therefore be illegal. If that's the best argument that the plan's foes can offer, than this isn't a tough call at all.
You never know how Justice Anthony Kennedy -- the swing vote in the last redistricting case -- is going to vote on an issue, but if he stays consistent (and that's a big if) and if Justices John Roberts and Samuel Alito vote as Republicans expect them to vote (another, slightly smaller if) then this redistricting should stand.

(You can find some other informative articles on this issue here.)