DeLay's poison fruit

Texas Republicans did at least three things wrong when they redrew the state's congressional districts, producing a shift of five seats to Republicans in the 2004 election.

They took up the issue, and drew the map, entirely for partisan advantage, a violation of federal law. They did their dirty work in the middle of the decade to supersede a court-approved map, which is virtually unprecedented. And the 2002 state legislative elections that created the GOP majority in Austin that approved the new map were polluted by illegal corporate contributions, according to local prosecutors. Former House majority leader Tom DeLay is under indictment for money laundering in that case.

So it was a positive sign yesterday that the Supreme Court agreed to consider challenges to the Texas congressional districts.

The court, understandably, often ducks issues that can be seen as largely in the political realm. The Supreme Court justices are on record as opposing partisan redistricting, but several have said it might be impossible to prove partisan intent. Yet in this case the partisanship was so dominant that the legislators forgot about the Federal Voting Rights Act, which prohibits the dilution of minority voting power. Republicans argued that the map was approved by a lower federal court. But they didn't reveal that this opinion came after US Justice Department higher-ups testified in favor of the plan, despite a unanimous recommendation from staffers that it violated the Voting Rights Act.

In addition to the merits, the case raises a troubling question of timeliness, and what the remedy should be if the Supreme Court rejects the Texas map. In the law, there is a principle known as ''the fruit of the poisonous tree," articulated in a 1963 case. It holds that the taint of an illegal action carries over to the results of that action. So if a suspect is coerced illegally into telling where he buried the bank loot, the loot can't be used as evidence in court. One person who believes the doctrine should apply to the Texas case is Trevor Potter, a former member of the Federal Election Commission -- a Republican appointed by George H. W. Bush -- and now general counsel to the Reform Institute in Washington. Potter takes the sensible view that, if the map is illegal, the election should be voided and another held once a proper map is in place.

But there are practical difficulties. Oral arguments in the case will likely not be heard until next April, a month after the 2006 Texas primaries. And there is no way to nullify the votes in Congress of the present members.

Still, one can hope that the court -- the same court that wrong-headedly stopped the recount in Florida in 2000 -- takes this opportunity to show that it will protect the legitimacy of the nation's fundamental democratic institutions.