December 19, 2003
Did too! Did not!

The state began its case yesterday, which essentially consisted of a consultant and a few politicians contradicting the plaintiffs' testimony that there was a racil aspect to redistricting. Other than some comic relief from state Rep. Ron Wilson, there's not too much exciting to highlight. I'll get to that in a minute, since there's now been a ruling in one part of the case.

A federal court today 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."

The ruling came as testimony concluded in the lawsuit challenging the Legislature's plan to redraw district boundaries to take the congressional delegation majority away from Democrats and give it to Republicans.

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.

Final arguments in the case were put off until Tuesday.

To be honest, I hadn't even realized that this was a part of the legal action. Given that Texas' constitution is unlike Colorado's, I agree that if anyone should make a ruling on this, it's SCOTUS. I'm sure someone could make a pretty juicy original-intent argument here, but politics aside, if the Supremes decline to catch that hot potato, I can't say they'd be wrong.

Anyway. Coverage of the state's case so far is here, here, and here, in addition to the Chron story above. One item of interest from yesterday's testimony is the curious case of GOP consultant Bob Davis. Here's what he said, according to the Express News:

Bill (sic) Davis, a former Republican legislator and lobbyist who testified about map-drawing efforts, said he wasn't aware that the redrawn lines broke up significant minority voting blocs around the state.

Does anyone actually believe that? The map-drawing software involved is supposedly so sophisticated it can put neighboring houses in different districts based on voting patterns, and you're telling me that you're not aware of breaking up voting blocs? Blacks voted 90% Democrat in 2002, and Hispanics 65% by Governor Perry's estimate. This is public knowledge. How can you break up Democratic voting blocs and not be aware that you're breaking up minority voting blocs?

Before you answer that, consider this from the DMN:

"I would look at each district and say, 'How could I make this district more Republican?' " said state Rep. Phil King, R-Weatherford, House author of the remap bill. "Political considerations drove the day throughout the state."

On cross-examination by Democratic and minority lawyers, Mr. King and GOP map consultant Bob Davis testified that they considered ethnicity only to satisfy themselves that their plan didn't violate the federal Voting Rights Act.

So which is it? Did you only turn on your awareness when it came time to check for VRA violations?

And hitting the middle ground is the Statesman:

Bob Davis, a former state representative hired as a consultant to help the Senate draw new maps, told a panel of three federal judges that "when we were constructing the lines, we were looking at the political results," and not the racial characteristics of voters being moved from district to district.

In circuitous detail, Davis outlined the reasoning behind the new map, though he said he was unable to recall exactly how often and when racial data was considered.

I was aware sometimes, I wasn't aware at all, I can't remember when I was aware. We'll have to look at the transcript to see if it was Davis or the three reporters who were confused.

Despite my earlier concerns, we ought to have the court's ruling next week. From the Chron:

Final arguments in the case were put off until Tuesday.

Anticipating a possible rejection of all or part of the Texas congressional redistricting plan by the U.S. Department of Justice, the court set its final hearing for 9 a.m. Tuesday in Austin.

The three-judge panel is hearing legal challenges to the Republican plan from Democrats and minority groups that claim the map diminishes the voting rights of blacks and Hispanics.

By law, the court cannot issue a decision in the case until Justice Department officials clear the map of possible violations of minority rights under the federal Voting Rights Act. Justice has until Monday to rule.

Higginbotham told lawyers in the case that justice officials have assured him they will make the deadline, but he said they gave no further guidance.

Higginbotham said he and District Judges John Ward and Lee Rosenthal originally had decided to set a hearing for Tuesday in Dallas in case the Justice Department rejected the map in whole or objected to particular districts. But they changed the time and location to coincide with closing arguments.

Jose Garza, a lawyer for the League of United Latin American Citizens, said if the Justice Department objects to any portion of the map, he will ask the judges to throw out the new redistricting plan.

Garza said federal appeals courts have ruled that a redistricting plan cannot be fixed by the courts if the Justice Department rejects any portion of it for Voting Rights Act violations. He said in that case the congressional districts would revert to those that existed by the 2002 elections.

Texas Solicitor General Ted Cruz said he still believes the Justice Department will approve the map. He said the court was just cautiously setting up a hearing in case it is needed.

But if the map runs into Justice Department problems, Cruz said the state will ask the court to fix the plan to overcome objections in individual districts.

We'll see what happens.

Posted by Charles Kuffner on December 19, 2003 to Killer D's | TrackBack

Actually, the "twice in a decade" claim was made and rejected in the Barrientos case in September, with judges Higginbotham and Rosenthal also on that panel. That Hebert & Co. would remake the losing argument again before the same judges ought give one pause about their strategic judgment.

(As you've pointed out correctly elsewhere, Kuff, the Colorado case involved unique language in the Colorado state constitution that was not at issue in Texas.)

Posted by: Beldar on December 20, 2003 1:09 PM