December 02, 2003
DeLay/Barton subpoena quashed

The three-judge federal court has rejected a subpoena brought by the Democrats to compel US Reps. Tom DeLay and Joe Barton to testify about their role in redistricting. For now, at least.

The court held that federal case law requires "a showing of exception circumstances" before discovery can be taken from high government officials in lawsuits where they are not a direct party.

The Democrats wanted to question DeLay, R-Sugar Land, and U.S. Rep. Joe Barton, R-Ennis, because they may provide insight in the Legislature's "intent" in redrawing congressional district boundaries, the court said.

"At this early stage, before the plaintiffs and intervenors have presented evidence as to whether the redistricting plan has an unconstitutional or statutorily prohibited effect, this court cannot conclude that such testimony or documents are `essential to the case.' "

But the court left open the possibility that the Democrats can question DeLay if they present such evidence once the trial begins.

The way it was explained to me was this: if you're suing Ford, you don't get to subpoena their CEO until you've gone through the lower-level folks and shown that the big guy has something unique to say. The Democrats can therefore take another shot at DeLay if their questioning of others shows that his testimony is needed. Who knows, maybe it won't be, however much fun it would have been to hear it.

Meanwhile, Democrats celebrated the Colorado Supreme Court decision, while Republicans vowed to appeal. That case is unlikely to have much bearing on the Texas lawsuit.

There are similarities between the Colorado and Texas redistricting battles.

A federal court in 2001 drew Texas' districts after a politically divided Legislature failed to act. Republicans gained control of the Legislature in last year's elections and redrew the congressional boundaries in a fight that lasted through three special sessions.

The Republican plan likely would erase the Democrats 17-15 majority in the congressional delegation and replace it with a 22-10 Republican majority.

But the Texas case is different because the state Constitution does not contain specific limitations on redistricting.

Angela Hale, spokeswoman for Texas Attorney General Greg Abbott, said the Colorado case will have no impact on the federal lawsuit over Texas redistricting.

"The Texas Constitution is quite different from the Colorado Constitution, and the Texas Constitution has no provision prohibiting mid-decade congressional redistricting," Hale said.

She said the Colorado case "is simply not relevant to the current federal litigation over the Texas Legislature's authority under the U.S. and Texas Constitutions."

J. Gerald Hebert, one of the lawyers for the Texas Democrats, said the Colorado case is not directly linked to the Texas case. But he said it enhances Democratic arguments that congressional redistricting should only legally occur once a decade.

The Texas Constitution, written in 1876, originally contained a provision limiting legislative redistricting to once a decade but made no mention of congressional redistricting. The provision was removed in 1948.

An outside observer summed it up as follows:

Steve Bickerstaff, a 30-year veteran of redistricting lawsuits who teaches election law at the University of Texas, said the Colorado court's decision has no outright bearing on the Texas case. But he said, "I am certain that the Colorado decision will be brought to the attention of the three-judge panel in Texas."

For sure. That case, and the Pennsylvania case, will be coming up soon, so stay tuned.

UPDATE: The Yellow Dog Blog has a couple of editorials that cheer the Colorado decision.

Posted by Charles Kuffner on December 02, 2003 to Killer D's | TrackBack

Four Colorado reps are appealing the redistricting decision. One of the four is a Democrat.

Posted by: Scott Lucas on December 4, 2003 1:46 PM