The Texas redistricting plan was challenged in court, but was upheld by a 3-judge panel in 2004. However, the DOJ refused to allow the analyst's work to be entered into evidence in that case, leaving the impression that the analysis had been in favor of the redistricting plan.
The panel stressed that it was deciding "only the legality" of the redistricting plan, "not its wisdom."
Because the federal panel did not have access to the Section 5 staff memo, they may have given extra weight to the factor that the DOJ preclearence had supposedly been without controversy when deciding on that "legality."
The U.S. Supreme Court has now agreed to hear arguments in this case.
As noted in a Washington Post story ("Supreme Court to Review Texas Redistricting"):
The Supreme Court today agreed to consider arguments by Democrats and minorities against a controversial Republican redistricting plan, spearheaded by Rep. Tom DeLay, that redrew congressional boundaries in Texas and helped the GOP gain House seats in last year's elections.
The high court consolidated four separate appeals in the matter, noted "probable jurisdiction" and allotted two hours for oral arguments in the case. The arguments are likely to be heard in April, and a decision could be rendered by the end of June
In a Reuters' story on the same subject ( "High court to decide Texas redistricting plan" ):
Democrats twice stymied efforts to adopt the plan in the Texas Legislature by leaving the state and denying the majority Republicans a quorum but it was finally passed in a third special session.
In the 2004 elections, the Texas redistricting plan helped Republicans add to their slim majority in the House. If upheld by the Supreme Court, the plan is expected to make it harder for Democrats to win control of the House in the November, 2006, elections.
Those challenging the redistricting plan argued it amounted to an unconstitutional partisan gerrymander by manipulating voting districts to give one party an unfair advantage and that it diluted the voting strength of minorities.
The Reuters story also notes:
After the 2000 census, the Texas Legislature failed to act on redistricting and a court-drawn plan was adopted. After months of turmoil, the Republican plan pushed by DeLay finally was adopted.
House Democratic Leader Nancy Pelosi of California said the Supreme Court's action to take up DeLay's redistricting scheme "is a hopeful sign that the voting rights of millions of minorities will be restored."
Earlier this month, Attorney General Alberto Gonzales defended the decision by political appointees in the Justice Department to approve the redistricting plan. Career employees objected to the plan and said it would harm minority voters.
Gonzales told reporters the decision by the political appointees had been upheld by the three-judge panel. The Supreme Court will decide whether the panel was correct in its ruling
This is the second time the U.S.S.C. has reviewed this case. In October of 2004 the Court sent the case back to the three-judge panel for further review.
Just what does it mean that the federal Supreme Court is going to reexamine this case? My own thinking is that two instances (Georgia and Texas) of previously-undisclosed memos from the DOJ Section 5 staff have been found be recommending courses of action that the DOJ has ignored, without presenting any justification, may be troubling to the Court. In one of those instances (Georgia's new voter-id requirements), the law in question has been struck down by the U.S. Supreme Court.
The revelation of the Texas Section 5 memo may be prompting the court to look at this.
Also, Attorney General Gonzales has now stated that these memos and analysis may not be the basis that DOJ is using for these decisions. The Court may direct that such a course is reasonable, and that DOJ need not make its internal deliberations public, or the Court may decide that such analysis must be made available to the public for review either when, or before, the DOJ preclearence/objection actions are taken.
At stake, potentially, is also that Section 5 of the Voting Rights Act may be declared null.
April should prove interesting. Bring the popcorn.