TX redistricting OK'd; appeal to be made to USSC

Colorado Supreme Court Throws Out Redistricting Plan
GOP-Led Legislature Redrew Congressional Map This Year The Associated Press

Monday, December 1, 2003; 9:55 AM

DENVER -- In a decision that could have national implications, the Colorado Supreme Court threw out the state's new congressional districts Monday because the GOP-led Legislature redrew the maps in violation of the constitution.

The General Assembly is required to redraw the maps only after each census and before the ensuing general election -- not at any other time, the court said in a closely watched decision. A similar court battle is being waged in Texas.

Under the ruling, Colorado's seven congressional districts revert to boundaries drawn up by a Denver judge last year after lawmakers failed to agree.

The issue before the court was whether the redistricting map pushed through the Legislature by Republicans this year was illegal. Colorado's constitution calls for redistricting only once a decade and Democrats contended the task was completed by the judge.

Republicans said the map drawn by the judge was temporary and the law requires redistricting work to be done by the Legislature.

Republicans now hold five of the state's seven congressional seats. Democrats hope to pick up two of those seats if they win the court fight.
State GOP Chairman Ted Halaby had said the case could end up in the U.S. Supreme Court if there are conflicting decisions in Colorado and Texas, which also has a pending court challenge.

"This is the whole ball of wax," said Tom Downey, an attorney for Colorado Democrats who challenged the Republican-drawn maps
http://www.washingtonpost.com/ac2/wp-dyn/A25091-2003Dec1.html

A three-judge federal panel rejected attempts to force House Majority Leader Tom DeLay and Rep. Joe Barton to testify in a lawsuit over Texas' new congressional districts.

The two Republicans had been issued subpoenas for deposition testimony, letters, e-mails and other materials in a lawsuit that seeks to block the new congressional maps.

The federal panel agreed with the lawmakers' attorney that only under exceptional circumstances, such as having unique information in a case, could they be subject to a subpoena.

Unless evidence is shown that DeLay and Barton might fall under that description, their testimony is not essential, the panel ruled. It did, however, leave open the possibility of reconsidering its decision during trial, which is set to begin on Dec. 11.

WALL STREET JOURNAL WEIGHS IN

"We're actually sympathetic to Colorado Democrats here, because the GOP tactics were all about incumbent protection."

Plaintiffs in the congressional redistricting trial say the map approved by the Legislature in October violates the federal Voting Rights Act. They argue that the plan was based on "partisan gerrymandering," designed to illegally exclude one party from the political process, and on racial gerrymandering.

Republicans dispute that, saying that the changes are needed now to reflect the increase in GOP voters in Texas and that the old lines were crafted by Democrats to ensure that their representatives avoided competitive challenges.

Besides the lawsuit, the new GOP map must clear a review by the U.S. Justice Department, a process now under way...

The redistricting case - actually a number of cases rolled into one - is being heard in Austin by U.S. District Judge T. John Ward, 5th Circuit Court of Appeals Judge Patrick Higginbotham of Dallas and U.S. District Judge Lee H. Rosenthal of Houston.

Ten groups are fighting the map, including Texas Democrats in Congress, minority organizations, individual voters, the city of Austin and Travis County. State Attorney General Greg Abbott - in his capacity of lawyer for the Legislature that passed the plan - has hired a private attorney to help defend the map. In all, 37 attorneys are listed on the case, and the three-judge panel has warned them all that the court will brook no repetitive evidence...

The first big issue to be heard Tuesday (December 9) will be a Democratic request to throw the case out without a full trial, based on the notion that redistricting between censuses more than once a decade is illegal. A similar theory recently scuttled a Colorado GOP remap, but that state has a law specifically mandating once-a-decade redistricting, while Texas does not.

If the map survives that challenge, the Democrats will argue that it violates the Voting Rights Act by racial gerrymandering - making excessive use of race as a criteria. That argument relies on the well-established notion that race cannot be used to either pack minorities into districts or to spread them out to dilute their influence.

Republicans argue that the overall strength of minorities would improve because of the creation of two new seats that a minority probably would win.

Democrats say minorities will lose out overall under the new plan because a large number of incumbent white Democrats supported by and sympathetic to minorities probably would lose to Republicans.

The day before a federal trial, Democrats on Wednesday released memos they say show that U.S. House Majority Leader Tom DeLay drove the Legislature to adopt a Republican congressional redistricting plan without any interest in protecting minority voting rights.

"I'm embarrassed that the Legislature here in Texas would be so easily manipulated by somebody like Tom DeLay," said state Rep. Richard Raymond, D-Laredo.

But DeLay's political aide, Jim Ellis, said the documents only prove that he was the lobbyist for the Texas Republican congressional delegation and for DeLay's Americans for a Republican Majority Political Action Committee.

"My role down there was to lobby on behalf of the congressional delegation and through ARMPAC and try to be a conduit of information from the legislators back to the incumbents," Ellis said.

"I can write what I want to -- that this is what we hope will happen and what we want to achieve."

A federal court trial begins today to hear challenges from Democrats and minority groups opposing the congressional redistricting map adopted by the Legislature in October. DeLay, R-Sugar Land, brokered the final deal.

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But Democratic lawyer J. Gerald Hebert admitted there was no "smoking gun" to prove that contention in the memos Ellis gave lawyers last week when he was deposed for the trial.

"Sometimes you don't get the smoking gun. All you get is fingerprints, bullets and a dead body," Hebert said.

A proposed plan to put more Texas Republicans in Congress would be detrimental to the seniority of the state's congressional delegation, veteran Democratic incumbents testified in federal court Friday.

In the second day of testimony in a redistricting trial, Democratic Rep. Chet Edwards of Waco and Rep. Max Sandlin of Marshall each described to a three-judge panel the influence wielded by senior members of Congress from either party.

"Seniority is everything in the U.S. Congress," said Sandlin, chief deputy whip for the Democratic Caucus.

Edwards, a 13-year House veteran who is the ranking member of the Appropriations Military Construction subcommittee, described how seniority dictates power to pass legislation in Congress. He said as a senior member of Congress, he's been able to pour more federal dollars into better housing, health care and daycare on military installations in Texas.

Eliminating the seats of senior Democratic members from Texas and replacing them with rookie Republicans would strip the state delegation of much of its influence in determining policy that affects Texas, he said.

Edwards and Sandlin also described how communities of interest and coalitions to protect common interests in their districts would be destroyed under the proposed GOP redistricting map, passed by the Texas Legislature in October. Edwards said his region's council of government also would be divided.

Plaintiffs in the case argue that minority voting power is diluted in several districts and violates the federal Voting Rights Act, rendering the plan to put more Republicans in Congress illegal.

"Democrats aren't protected by the Constitution, neither are the Republicans. Minorities are," Sandlin said, in response to questioning.

Opponents also are claiming constitutional violations.

Edwards' largely rural district, which consists of McLennan, Bell, Coryell, Lampasas, Bosque, Hamilton, Mills, San Saba and Hamilton counties in Central Texas, would be split down the middle into two districts that stretch further south, one encompassing the more suburban Williamson County.

District 11, Edward's district, is currently 32.5 percent minority, but the minority population would be split up under the new map, destroying decades of coalitions between the races, Edwards argued.

"The rights of minorities should be the proper check and balance on tyranny of majority rule," he said.

A Rice University professor testified Monday that Republicans deserve a majority of Texas' congressional seats but said that GOP map-drawers made an unreasonable and illegal reach when they adopted a plan designed to win them seven new districts.

"This is a map that goes too far," political science professor John Alford told the three-judge panel presiding over the federal lawsuit brought by Democratic Party interests against the state of Texas after the Legislature redrew the state's 32 congressional boundaries this year.

Alford was among eight witnesses brought to the stand by the Democratic plaintiffs on the third day of a trial that is expected to last two weeks.

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Alford, who worked with Republican officials two years ago when the state first took up congressional redistricting to address demographic changes found in the 2000 Census, said the latest map contains several fatal flaws. Primarily, he said, it would undermine the voting rights of racial minorities because it shifts several African-American communities along the Rio Grande and in North Texas into districts dominated by Anglo Republicans or by other minority communities that have little in common with their needs.

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Alford, who has analyzed voting trends since 1992 that show Texas becoming increasingly dominated by Republican voters, said that the court-drawn map currently in use strikes a balance between minority voting rights and the continuing GOP tide. But Texas Republicans are far from satisfied with the existing map because several entrenched Democrats continue to win Republican-leaning districts, in part because credible GOP candidates are reluctant to take on incumbents.

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"I'm a firm proponent of Republicans getting a majority of the seats in Texas. I want them to win a majority," Alford said. "There are plenty of districts that Republicans could win if they simply did it the old-fashioned way," he said, referring to the current map.

The Justice Department approved a GOP-backed congressional redistricting map for Texas today, leaving only the federal courts as the last barrier to holding elections next year under a plan pushed by Republicans.

Justice found that the plan complies with the federal Voting Rights Act, which was passed by Congress to guard against changes in state laws that might harm minority voting rights.

"The Department of Justice determined that the State of Texas provided sufficient proof that the proposed congressional districts do not deny or abridge the right to vote on account of race or color,'' according to a statement from Secretary of State Geoff Connor. "We will now wait to hear from the three-judge panel regarding the federal court case brought against the new map.''

Earlier today, a federal court threw out claims by Democrats that the U.S. Constitution barred the Texas Legislature from doing congressional redistricting in the 10 years between censuses.

"With regard to the plaintiffs' argument to mid-decade redistricting, the point is not well taken," 5th Circuit Court of Appeals Judge Patrick Higginbotham ruled from the bench for the three-judge court. "The Legislature is not prohibited from redistricting."

Gerry Hebert, a lawyer representing some of the Democratic incumbents, said the ruling was not unexpected. Hebert said the mid-decade redistricting argument was a small part of the case and ultimately will be decided by the U.S. Supreme Court.

Texas Attorney General Greg Abbott praised the ruling. He said it agrees with a legal opinion he issued in April that said the Legislature had the authority to redraw the district boundaries if it wanted to do so.

Closing arguments in the case are set for Tuesday in Austin.

A three-judge federal court today upheld a Republican congressional redistricting plan against claims that it harms minority voting rights, but the court sharply criticized the process of adopting the map as a threat to the system of fair elections.

"We decide only the legality of (the plan), not its wisdom," the court's opinion reads. "Whether the Texas Legislature has acted in the best interest of Texas is a judgment that belongs to the people who elected those officials whose act is challenged in this case."

Democrats criticized the decision and promised an immediate appeal to the U.S. Supreme Court. Five of the court's nine justices would have to agree to hear the appeal to halt the plan's use in the 2004 elections.

"By judicial fiat, a three-judge federal panel has effectively repealed the Voting Rights Act and turned back the clock on nearly 40 years of progress for minority voters," said U.S. Rep. Martin Frost, D-Dallas.

A panel of three federal judges ruled Tuesday that the new map of congressional districts in Texas violates neither the Constitution nor the Voting Rights Act. Just because the redistricting is legal, however, does not make it right.

Even the judges felt moved to note in their opinion that they did not endorse the merit of the new district lines. The panel called on Congress to outlaw redistricting except after the U.S. Census, taken every 10 years. Congress should act on that recommendation so that state legislators are not doomed to continual and paralyzing strife and voters are not shunted to new districts before every general election.

Earlier, the U.S. Justice Department approved Texas' new district lines, saying they did not violate the federal Voting Rights Act. Democrats allege that career lawyers at the Justice Department found the new lines did violate the act, but were overruled by President Bush's appointees. If true, and if the career lawyers' analysis is correct, then the appointees betrayed the law, the public trust and their own integrity.

The swelling of Republican ranks, though resented by Democrats, is not among the plan's sins. Not only did this year's bitter redistricting battle delay action on pressing matters such as school finance reform, but the new lines split many communities of minority voters to keep them from electing Democratic representatives.

Lawyers for the state argued that the systematic dilution of minority voting strength is not illegal if its aim is partisan advantage rather than racial discrimination. The federal judges agreed, but that cynical assertion resembles the idea that it is OK to trample on people for personal gain as long as you don't look down to see what's happening. It might be legal, but it is not just.

The League of United Latin American Citizens says it will appeal the judge's decision to the U.S. Supreme Court. If the high court takes the Republican view, the Voting Rights Act will lose much of its meaning as it bows to the supreme imperative of partisan politics. As in Texas, black and Hispanic voters across the country could be split among grotesquely shaped districts as long as it helps the Republican Party.