DeLay has 'every confidence' that remap will survive challenge

The Dallas Morning News ^ | October 15 2002 | TODD J. GILLMAN and ROBERT T. GARRETT

[Dog Gone]

U.S. House Majority Leader Tom DeLay, in his first public comments since Gov. Rick Perry signed a new congressional map into law, on Wednesday defended redistricting and his role shaping it.

"The plan has been written with extensive consultation with lawyers and experts, and we have every confidence that the Voting Rights Act has been adhered to strictly. The attorney general of Texas tells us that the state Legislature did an excellent job in putting together a plan that will pre-clear the Department of Justice" and survive in court, Mr. DeLay said.

"Minority rights have been protected. The opportunities for minorities to win districts abound in the plan," Mr. DeLay said, asserting that the number of Hispanics in the Texas delegation could go from six to eight and the number of African-Americans from two to three.

Democrats dispute that, calling it deeply misleading. Two Hispanic civil-rights organizations also took aim at the map Wednesday, filing a lawsuit in federal court in Victoria to overturn it.

The Mexican American Legal Defense and Educational Fund, in a suit on behalf of the American G.I. Forum of Texas, said the remap effort unfairly diminishes Hispanic voting strength. It said the new configuration should have carved out a winnable congressional district for Hispanics in Dallas, plus one more in South Texas.

"Latinos now are more numerous than blacks or whites in Dallas," said Nina Perales, regional counsel for MALDEF and the lead lawyer for the G.I. Forum, a group of Mexican-American veterans. "We are the plurality population, but we don't have a congressional district."

Both Ms. Perales and senior Democrats in the state's congressional delegation said Republicans who drew the new map improperly shifted minority voters who now control the district represented by Rep. Martin Frost, D-Arlington, into neighboring districts where they will have little impact on the outcome.

In addition, the Democrats and MALDEF cited another flaw in the Republican-backed redistricting plan – counting as a Hispanic seat the one held by Rep. Henry Bonilla, R-San Antonio, whose new district would be controlled by whites.

"It was an incumbency concern because Henry Bonilla is increasingly fragile in a district that's increasingly Latino," Ms. Perales said.

She broke ranks with Democrats, however, in applauding the new map's reduction of Hispanic population in the South Texas districts of Reps. Ruben Hinojosa, D-Mercedes; Solomon Ortiz, D-Corpus Christi, and Ciro Rodriguez, D-San Antonio.

Last week, Mr. Frost said having fewer Hispanics in the three districts put them "at risk" of being lost to a nonminority candidate.

But Ms. Perales said "those districts are packed right now, the way the Democrats like them. We'd like to unpack them so we can have a seventh, effective Latino district in South Texas. That was our position in 2001, and that's still our position."

Angela Hale, a spokeswoman for state Attorney General Greg Abbott, said his office "will defend the state's redistricting plan in this or any other lawsuit. We anticipate the [U.S.] Department of Justice and the courts will uphold the plan."

Mr. DeLay spent most of last week in Austin breaking the deadlock between state House and Senate GOP negotiators.

"The plan is a fair and open plan that presents all kind of opportunity for the people of Texas," he said. "I was very happy to play a small part in that, representing the House Republicans and trying to facilitate as much as I could the outcome of that bill.

"I felt like I could play a role as mediator in a very difficult situation between the House and the Senate," he said. "So I fulfilled my role as a citizen of Texas, as a member of Congress from Texas, and as a member of the leadership of the Republican conference."

Redistricting, he indicated, also came up briefly at a White House meeting Tuesday between President Bush, his top political adviser, Karl Rove, and GOP congressional leaders. "They just congratulated Texas," Mr. DeLay said.

[Torie]

I am shocked, shocked I tell you, that Delay would tell the press that the Texas plan will withstand the legal gaunlet. I put the odds at no better than 50% that it will, and odds even that are only because the 5th circuit is rather conservative, and SCOTUS will not take the case, because it will rule on the Pennsylvania case, and that ruling will either bounce the highly partisan Texas plan (just like the Pennsylvania lines were highly partisan), or it will not. What SCOTUS will do regarding partisan gerrymanders is really up in the air. What is justice Kennedy thinking these days about how pursuing individual liberty in all its spatial dimensions means in this context? Nobody ever knows that Sandra Day is thinking, at such times as she does think. Time will tell.

[Torie]

I should say that nobody knows what Sandra is thinking, but suggesting that nobody knows that she is thinking is not entirely off the mark come to think of it.

[Dog Gone]

Every Democrat with a dog in the fight is saying that this map will fail. Unless you've been shocked by their remarks, too, then you should relax and watch the developments over the next few months without getting excited over cheerleading remarks from either party.

The Pennsylvania case does determine the outcome of the Texas redistricting in the courts, and the only other suspense is whether the Supreme Court will hasten its decision in that case to accomodate the Texas situation.

[Torie]

Heck, I am one of the most relaxed posters on FR, fair and balanced as always, with terminal dispassionate sang froid! Surely you know that. :)

[deport]

Will the Victoria suit be combined with the Tyler suits?

[AntiGuv]

An amicus regarding the Texas redistricting had been filed back in August as part of the Vieth v Jubelirer proceedings, and so the Supreme Court ruling will almost certainly encompass the TX circumstances to whatever extent applicable. Otherwise, I give this map no greater than a 20% chance of withstanding judicial review for several different reasons: retrogression, racial gerrymander (packing & cracking), possibly intercensal reapportionment, and possibly partisan (viewpoint-based?) discrimination.

I should note, however, that I've only had the opportunity for a cursory analysis of these enacted maps. Someone very dear to me was diagnosed with a terminal illness early last week and given less than 3 weeks to live. Most of my time has been & will be consumed by that during this brief interim. In any event, the basic point should be that any court even remotely inclined to find in favor of the Democrats should have no problem whatever overturning these maps on multiple bases; I've seen maps overturned for 'far less' so to speak.

PS. If the maps stand, I think the 2004 TX delegation will include 23 Republicans rather than the widely cited 22. I suspect Ralph Hall will not stand for reelection and will have a tough time regardless. I have to look at that district more closely before I draw more than a tentative conclusion. Has anyone considered the Hall district who expects otherwise?

[onyx]

What do ya-all think?

[goldstategop]

The courts have never ruled incumbent protection or partisan gerrymandering unconstitutional. If the SCOTUS, does, that will be a watershed in American history.

[AntiGuv]

In 1986, the Supreme Court in Davis v Bandemer ruled that the partisan gerrymander is unconstitutional when" the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively." The guidance of that decision has proved so vague, however, that no claim of partisan discrimination has ever come close to succeeding. The Supreme Court's decision to hear the Vieth v Jubelirer challenge to Pennsylvania's 2000 cycle redistricting indicates strongly that the Supreme Court intends to establish more effective guidance.

The Supreme Court has ruled separately that viewpoint-based discrimination is a 1st Amendment violation, but has never extended that to political redistricting. Since the a number of the amici in Vieth raise that issue, the potential exists for the Supreme Court to rule on that basis instead of or along with the majoritarian principle which is the crux of the appellant's argument. That email from Rep. Barton's aide (along with a number of additional circumstances) makes this process especially susceptible to any ruling on that basis (or on the basis of subjugating traditional reapportionment principles).

Justice Kennedy is very much a wild card insofar as the eventual Vieth v Jubelirer decision, having never established any precedent on which to speculate his position on the matter. However, the following excerpt which is part of Kennedy's concurrence in U.S. Term Limits v Thornton provides insight for conjecture:

Nothing in the Constitution or The Federalist Papers, however, supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives.

That entire concurrence is indeed one of the more revealing opinions Kennedy has ever issued, and is worth reading not only as regards the forthcoming Vieth ruling but also due to its intriguing legal construction of its own accord. In any event, Kennedy's remarks from that opinion are cited in the Vieth v Jubelirer briefs as well. Finally, Sandra Day O'Connor is just as unpredictable, but for altogether different reasons (she's just inherently unstable in her legal reasoning..)

[AntiGuv]

BTW, I am hardly disputing that any Supreme Court ruling which establish meaningful guidance for the review of partisan gerrymanders would prove a watershed in American history. Indeed, I think the long-term ramifications would render such a decision one of the most important ever issued by any Supreme Court. For all practical intents and purposes, Davis v Bandemer might as well not even exist considering its ineffective construction (that's why most Court observers - including myself - were quite taken aback by the Court's accepting Vieth v Jubelirer).

[MeekOneGOP]

What do ya-all think?

I think the 'RATS are toast ! But I always think that ! lol !

There are so many variables, apparently, it's hard to tell. But I think we've got a new map, with the only question being is whether it gets used first in 2004 or 2006 ...

[See the orange text below. I wonder if the Revrund is really gonna bring in the rent-a-mob crowd ??]

10-09-2003
Democrats in Congress unhappy with Redistricting
(Goodbye, Martin Frost)

10-14-2003
Governor signs redistricting bill -
'RATS expected to take dispute over minority issues to court

The Rev. Jesse Jackson called the redistricting an affront to the Voting Rights Act of 1965.

"We must be prepared to go back to mass demonstration to diminish the effects of this," he said.

10-12-2003
Texas Redistricting - Senate [PASSES!] new redistricting !!!

10-10-2003
GOP's legislative map up for vote

10-09-2003
Texas Redistricting map now online
(link is in thread)

FR Search: Keyword "Redistricting"

[onyx]

Thanks Meek. I intend to read the links you provided, first thing upon waking later this morning. Tonight I've been a naughty night owl. :-)

[MeekOneGOP]

hehe ! Okay. G'night ...

[Dog Gone]

Will the Victoria suit be combined with the Tyler suits?

Well, it won't be included with the Balderas motion, since that is front of the three-judge panel that drew the map in 2001. If that panel refuses jurisdiction, it certainly makes sense to combine all the suits into a single action at the District Court level.

Which court that would be is unclear, although the Tyler court did receive the suits before the Victoria court did.

I still think there's a chance that the three-judge panel in Laredo could end up with the case, but it's less likely as time passes. If the Republicans had quickly filed a motion before that court seeking a declaratory judgment that the map does not violate the VRA, the odds would have been higher.

My guess is that a District Court will hear the challenges first.

[Dog Gone]

You are far more pessimistic about the map's chances of withstanding judicial scrutiny than I am. It's my opinion that it's legal under current interpretations.

The wild card is Jubelirer, though, and the Supreme Court is going to clarify the rules and possibly set new ones.

Unfortunately, Jubelirer is not a favorable fact situation, and it's easy to have the suspicion that the Supreme Court took the case to overturn the ruling that the Pennsylvania map is legal. That would certainly increase the chances that the Texas map will have to be redrawn.

[Torie]

That email from Rep. Barton's aide (along with a number of additional circumstances)

Would you elaborate on the Burton aide email and the special cirumstances when you have time? Sorry to hear about the illness of your friend. Take care.

[AntiGuv]

The Barton aide memo is featured in full here at the DNC website.

The email presents an overview of all the new districts (with some trivial inaccuracies) of which the most relevant comments are those involving districts 24 and 26. As described at Political State Report, "the email is notable for the blunt way in which it addresses the way in which minorities were shunted from district to district, squeezing them out of districts to favor republicans where the vote was close, or else putting them into overwhelmingly republican districts where their voting power would be diluted."

This email alongside additional circumstances - Rep. DeLay's involvement, statements by GOP legislators regarding their overtly partisan intent, the subordination of 'traditional' districting principles (most notably communities of interest and protecting incumbent seniority) - leave no doubt as to motivations underlying the process. As one might imagine, this is a fairly key aspect toward establishing the factual circumstances upon which any challenges might be decided (it also closely parallels the 2002 Pennsylvania process, BTW).

As alluded, the Supreme Court has ruled previously (most prominently in a ruling involving employment discrimination against Republicans in West Virginia) that political viewpoint-based discrimination is prohibited by the First Amendment. As mentioned, the Supreme Court has never extended this doctrine to the redistricting process, and it's by no means assured that it will ever do so. My point in citing the memo and alluding to these other factors is simply that in the event that the Vieth v Jubelirer ruling is based in any part on that basis, the Texas mapping process is particularly susceptible.

More likely in my opinion, the maps will be struck down for a combination of racial gerrymander and minority retrogression. The map is vulnerable to such a reversal in several respects which are most easily reviewed in the brief filed challenging the maps. There is also the Article I issue of re-redistricting as well as the partisan gerrymander challenge pursuant Davis v Bandemer also covered in this challenge that may potentially lead to an overturning of these maps. The one element where this map does not appear vulnerable is the majoritarian principle which provides the crux of the Vieth challenge.

My basic point is that any court inclined to favor the Democrats will have no problem identifying sufficient grounds to strike down this process.

[Dog Gone]

I don't disagree with your analysis, but would like to stress that the challenges will be primarily in courts not predisposed to adopt the Democrat view of the world.

This map diminishes the number of congressmen that the Democrats will elect. That's indisputable, but not surprising. What's also indisputable is that the map, as a whole, creates more minority opportunity districts, and that more minorities will represent Texas (and be Democrats, too) under this new map than under the old one which Democrats created.

Minorities do not get a bad deal under this map, unless you adopt the Democrats' apparent argument that all minorities have the constitutional right to be represented only by Democrats.

[AntiGuv]

Minorities do not get a bad deal under this map, unless you adopt the Democrats' apparent argument that all minorities have the constitutional right to be represented only by Democrats.

I don't personally believe that minorities get the shaft under this map; I'm just assessing how I think this challenge may fit into the jurisprudence both in Texas (Bush v Vera) as well as nationwide. In my personal view, the redistricting process should be blind to both race and party - basically determined by either nonpartisan commissions or bipartisan committees. That's not currently the case, however, and I don't know whether this Tyler court which issued the 2002 maps (where the challenge has been filed) is actually favorable to Democrats per se or just abided by the 'least-change' principle in issuing those maps. The general impression conveyed in media reports is that the court itself favors the Dem arguments, and if that's the case I simply think that there's more than enough room for interpretation to overturn the maps.

If it were up to me, I would reject the Voting Rights Act argument (in fact, I would strike down substantial parts of the Voting Rights Act itself as unconstitutional).