Most observers came away from the argument yesterday in the Texas redistricting cases with the same impression: that the Justices might be unwilling to support a constitutional prohibition on mid-decade redistricting, but that five of them might provide some relief, in some districts, under the Voting Rights Act.  This last assessment, like any other based on the inscrutable flow of the Justice’s questions, may have—to borrow from Orwell—the solidity of pure wind.  But it was a reasonable judgment, just as it is also reasonable to anticipate that this judgment may prove wrong.

      In sorting out the Court’s difficulties with the Texas case, it may be helpful to identify one feature common to both that case and the one heard the day before: the challenge to Vermont’s spending and contribution limits.  Both present questions about the constitutional standing of electoral competitiveness; both demonstrate that the Court is not ready to assign competitiveness, as a constitutional value, much weight.  In the Vermont spending cases, the State argued that campaign finance controls would advance the competitiveness of elections allegedly rigged to the advantage of incumbents.  The Texas case, of course, approached the question from the different angle of the threat posed to electoral competitiveness by redistricting.

      In the Vermont case, the Justices did not show much interest in the State’s proclaimed need for campaign finance controls to advance competition.  In part, the Justices suspected the purity of the cause, since the Vermont statute enacted to advance competitiveness could be seen to be itself anti-competitive.  One of the examples irksome to some Justices was the effect of the limits, applied to an entire cycle, on a candidate emerging "broke" from a primary and having to face a well-funded incumbent flush with funds and other advantages.  Whether for this reason or others, the Court did not seem moved by the "competitiveness" arguments raised by the State in defense of its limits.

      In Texas, the centers of attention are the political parties and their traditional, bare-knuckled brawl for the upper hand.  The Court did not seem inclined to sympathize with Democrats, believing that they gladly engaged in conduct comparable to that now alleged against Republicans:  if not precisely the same conduct, at least similar efforts to achieve the same result of an unnatural "anti-majoritarian" advantage in the allocation of seats.  The Republicans argued to an apparently sympathetic Court that they were entitled to "compensatory" gerrymandering to counter the effects of previous distortions in the opposition party’s favor.  In that sense, some Justices may believe, there is competition:  each party competes, over time, for the majority enabling it to redraw the lines to its advantage.  Parties go through good periods and bad periods, and neither has much ground to complain.  Texas Solicitor General Cruz took up that point:  the Republicans had spent some years in the Texas political wilderness, he argued, and they eventually emerged, just as the Democrats might expect to do, even if not overnight.

      Advocates of mandated competitiveness will object that the Court is slighting the interests appropriately placed ahead of all others:  the voters.  A problem, of course, is that voters are largely bystanders in the arguments about diminished competition.  They show up in campaign finance cases, but their role there is to confirm their impression that politics is corrupted by money provided by special interests.  Gerrymandered, anti-competitive districts group voters—not all, but many—with others who share their politics, leaving them, district by district, with little felt cause for complaint.  Competition, for many voters, is an abstraction:  not many add to grievances about gas prices and heath care and education, the additional lament:  "And my district is not competitive."  And maybe they would be unwilling to pay the price of competitiveness, to have their district fall into the hands of representatives they don’t care for, elected after campaigns conducted in ways—e.g. the supposedly repellent negative ads and heavy spending—that they profess to disdain or find tedious.

     Specialists concerned with competition, in the academy and the media, have yet to find a way to engage the Court’s sympathies or even serious attention.  The Court is partially limited in its response by the doctrinal equipment it customarily uses to analyze election cases.  There are times, such as in the Term Limits case, when the majority is unwilling to acknowledge directly that the state action before the Court is motivated by a wish to refresh competition.  US Term Limits v. Thornton, 514 U.S. 779, 837 (l995) (Term limits defended as a means of providing "for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents."). 

      In the Texas case, the Court was urged to worry more about the constitutional significance of eroded competition in House races, and it was offered new ways to think about the question.  See Brief of Samuel Issacharoff, Burt Neuborne, and Richard Pildes as Amici Curiae in Support of Appellants.  On the evidence of this week’s arguments, there was little reason to believe that the Court is prepared to take up the challenge.

Bob Bauer