The three-judge panel heard arguments from both sides yesterday in the Democrats' federal lawsuit which alleges that scrapping the traditional two-thirds rule in the redistricting battle harms minority representation.
Judges Patrick Higginbotham of Dallas, Lee Rosenthal of Houston and George Kazen of Laredo, through their questioning, expressed skepticism about the Democrats' case.
The Democrats' lawyers argued that changing the legislative rule so only 16 senators, instead of 21, could consider a redistricting bill could hurt minority voters.
Kazen suggested that it might be easier to gauge the effect on minority voters once a map is approved: "It's the bill itself that affects voters, not how it comes out of the process."
Lawyer Paul Smith, who represents the Democrats, said the Justice Department routinely reviews any changes in electoral practices. The state noted that justice officials, in a letter last month, said they didn't have to review Dewhurst's plans to drop the two-thirds rule. Smith dismissed the letter as a break from departmental policy and subject to the judges' review.
After almost two hours of arguments, Solicitor General Ted Cruz, representing the state, said he thought the case was close to being resolved.
"We believe this should be decided on the Senate floor, not in the federal courts," he said. "I think we're a step closer today."
Austin lawyer Renea Hicks, a member of the legal team representing the Democrats, acknowledged that the judges directed most of their questions to the Democrats.
"I'm deeply disturbed that they're skeptical because I think it's a dead-on case," Hicks said. "Maybe it's just 'hope springs eternal,' but I'm so convinced that we are right that I can't imagine when they reflect on it they won't see it our way."
One issue that was raised in the hearing was the fines and sanctions levied by the GOP against the boycotting Democrats. The Star Telegram has the most complete coverage of that:
The Democrats were encouraged when U.S. District Judge George Kazen, a Laredo Democrat, said he is troubled by the Republicans' decision to ban the senators if they didn't pay the fines. Such a situation, he said, "would be an abomination" and "a severe crisis."
"They say, 'You [the Democrats] are disbarred from the Legislature until you pay a lot of money' and it's ad-hoc voted without a quorum. … Nobody could review that?" Kazen said.
Ted Cruz, solicitor general for the state, answered that the fines were part of the senators' constitutional right to compel their colleagues to return to the floor and make a quorum.
But they won't be banned from the floor during the next special session, Dave Beckwith, a spokesman for Dewhurst, said Thursday.
They will still be penalized with the sanctions, which include loss of parking spots and mailing privileges, unless action is taken to set aside the fines or the senators pay up, he said.
Kazen, who will rule separately on the legality of the fines, said that if senators reward [Sen. John] Whitmire for his voluntary return by forgiving his fines, "that would certainly be an equal-protection issue."
The third judge, U.S. District Judge Lee Rosenthal of Houston, nodded in agreement, but made no comments about her opinion on the matter.
Whether this is an indication of how the Senate will treat its returning members or not I couldn't say, but Rep. Garnet Coleman, one of the leaders of the House Democrats' walkout during the regular session, is alleging that Speaker Tom Craddick is out to get him by trying to have him removed from the National Conference of State Legislatures' executive committee.
Coleman said Craddick took the action because the Houston lawmaker opposes Republican congressional redistricting plans that Craddick supports.
He made his allegation in letters to Craddick and Utah Speaker Martin Stephens, who is president of the conference's executive committee.
Coleman said he had learned that Craddick recently told the group's executive director, Bill Pound, that there "could be financial consequences" for the conference if Coleman is not removed from the executive committee.
"I am extremely disappointed but not surprised that you would attempt to insert partisanship into the operations of a national organization that was founded on the spirit of bipartisanship," Coleman wrote to Craddick.
Gene Rose, public information officer for the conference, said Pound confirmed that Craddick had asked him about removing Coleman from the executive committee. But he said the issue of dues or services was not raised in the conversation.
"The indication I got was it was because Rep. Coleman is a Democrat and a majority of the Legislature is Republican now," Rose said. "They (Craddick) felt someone from the majority party should be on the executive committee."
Rose said Coleman was elected to his final one-year term on the executive committee in July and would leave the committee in July 2004. Rose said each committee member can serve a maximum of three consecutive one-year terms.
Finally, the Houston Press weighs in on Sen. Whitmire. One item of interest:
The legislator says he spent much of the weekend chatting with community leaders and neighbors, and "realized that the district is generally opposed to redistricting but generally believed we ought to be fighting it on the senate floor."