Dewhurst can change Senate's two-thirds rule, Justice Department says (re: Fugitive Texas 'Rats)

As the Legislature ended its second special session on congressional redistricting today, all the players in the partisan standoff geared up to take their battle to a Laredo courtroom on Wednesday.

But within hours of the session's end, the U.S. Department of Justice issued a ruling that raised new questions about whether the courts will have any authority to settle the dispute.

The ruling found that the Senate did not need pre-clearance from the Justice Department to get rid of an internal rule that requires two-thirds of senators to sign off on any legislation.

Lt. Gov. David Dewhurst had waived that rule to clear the way for a new congressional map that would likely give Republicans a majority in the state's 32-member congressional delegation. The map is supported by a majority of state senators, but not two-thirds.

Senate Democrats — who left the state to break the Senate's quorum and kill the map — sued in federal court, saying Dewhurst had violated the federal Voting Rights Act by changing the chamber's rules to draw a new map that will affect minority voters.

"Our analysis indicates that the practice in question is an internal legislative parliamentary rule or practice — not a change affecting voting — and therefore is not subject to the preclearance requirement," Joseph Rich, chief of the voting section in the Justice Department's civil rights division wrote to state officials.

Federal law requires changes to voting patterns or districts in southern states to be considered by the Justice Department before taking effect to ensure that minorities' voting rights are protected.

The ruling could affect a court hearing in Laredo on Wednesday, where a federal judge is expected to review the Democrats' lawsuit and the Republicans' motion to dismiss. The Democrats also have challenged Dewhurst's move on other legal grounds but much of their argument rested on the claim that waiving the two-thirds rule requires federal approval.

"The Justice Department clearly ruled that this was a legislative issue. It had nothing to do with voting rights," Gov. Rick Perry said, adding that he believes the Democrats' lawsuit is frivolous.

Sen. Royce West, D-Dallas, said he was not surprised because Republicans run the "Department of Injustice."

"I was hopeful they would set aside partisan politics and hear input from us before making a decision," he said.

West will be among four Democratic senators who will leave Albuquerque for the first time in a month to attend the hearing in Laredo.

Then they will rejoin their Democratic colleagues in Albuquerque to brief them. At that meeting, the group is expected to decide whether they can return to Austin.

The senators insisted they are not worried about being detained by state authorities or the governor quickly calling the Legislature back into session while the senators are in federal court.

"Surely, (Perry) wouldn't be that stupid," said Sen. Leticia Van de Putte, D-San Antonio. "That would exactly prove our point (which) is they will trap us, they will do anything whether it's unethical or immoral to try and please partisan Republicans."

In addition to waiting for Wednesday's hearing in Laredo, lawmakers are also bracing for a third special legislative session on redistricting and other issues that Perry has said need to be addressed.

"I will call the next session of the Legislature at the appropriate time," Perry said Tuesday, though he wouldn't say when that might be. "We're not going to let 11 senators dictate what issues we address or do not address in the state."

From the start, the 11 Democratic senators boycotted the session and that chamber never was able to conduct business. The House passed a number of bills, but none made it to Gov. Rick Perry's desk because the Senate could not consider them.

Before adjourning, Lt. Gov. David Dewhurst thanked senators who attended the session, saying their sacrifice was appreciated.

"Just like millions of other Americans you've been here to do your job," he said.

"It's an important step in clearing away the novel legal claims that the Democrats have advanced," said spokesman Dave Beckwith. "It's not a good harbinger for them."

I know you're angry, but this should make you laugh.
From the Gallery Watch in chronological order:

<*> 'Texas 11' say GOP not winner
By: J. Lyn Carl (Tuesday, Aug 26, 2003)

AUSTIN (8/26/03) - While the Republican leadership claimed victory Monday in a Travis County District Court ruling relating to the impasse over congressional redistricting, member of the "Texas 11" say not so fast. The 11 Texas senators absent from the Senate to prevent the body from having the quorum necessary to conduct business and thus hear a redistricting bill, point out that Judge Darlene Byrne dismissed the claims and appeals of the GOP leadership. "The facts are quite clear," said the Democrats in a written response to the ruling. "Judge Darlene Byrne dismissed the answer, counter claims, and writ of mandamus filed by the defendants." They point out that Lt. Gov. David Dewhurst was among the defendants. In a statement Monday, Dewhurst said the ruling showed the court decided it had no basis for intervention in a matter that should be decided by the legislative body. The Democrats point to the order itself, which clearly notes the defendants' answer, counterclaims for declaratory judgment and writ were dismissed for lack of jurisdiction and question how that could be a "win" for the Republicans. To read the judge's order, click on the link below.

© Copyright GalleryWatch.com, Inc. (1999-2003). NO CLAIM TO ORIGINAL U.S. OR STATE GOVERNMENT WORKS

<*> No pre-clearance necessary for two-thirds rule
By: J. Lyn Carl (Tuesday, Aug 26, 2003)

AUSTIN (8/26/03) - The 'Texas 11' were dealt another blow today as the Second Called Session of the 78th Legislature ended, this time by the U.S. Department of Justice(DOJ). Attorneys for the state had previously asked the DOJ if pre-clearance was required under the Voting Rights Act for the elimination of the two-thirds rule in the Texas Senate. In a letter today, the DOJ said the rule is not subject to pre-clearance.
In a letter to Assistant Secretary of State Geoff Connor, DOJ representative Joseph Rich said the two-thirds rule is "an internal legislative parliamentary rule or practice - not a change affecting voting" and therefore is not subject to pre-clearance. Rich, who serves as chief of the Voting Section of the DOJ, said if a congressional redistricting plan is passed by the Texas Legislature, signed into law and submitted to the attorney general for review, the attorney general will "review the entire proposed plan and the process by which it has been adopted to ensure that the submitted changes have neither a discriminatory purpose nor a discriminatory effect."

The two-thirds rule is one of the reasons the 11 Senate Democrats fled Texas for New Mexico. Having a "blocker bill" at the top of the Senate's regular order of business is a long-standing Senate tradition that ensures that one side of the debate does not steamroll the other. It encourages debate and compromise. Lt. Gov. David Dewhurst, citing previous lieutenant governors who have done the same, said he would remove the blocker bill from the just-completed special session on congressional redistricting, thus eliminating the two-thirds rule. That rule stipulates that two-thirds of the members must approve before legislation comes to the Senate floor. Thus the 30-day exodus by the 'Texas 11' that prevented any Senate business from being conducted during the Second Called Session.

Now that the second called session has ended, Gov. Rick Perry has practically promised a third called session, and more if necessary, to address redistricting. The assumption is that if he does, Dewhurst will again remove the blocker bill tradition and the two-thirds rule.

The issue is expected to surface again Wednesday, when a federal court judge in Laredo plans hearings on all motions in a suit filed in his court by the 'Texas 11' against the state's Republican leadership. The absent Democrats, who have yet to decide if they will return to Texas now that the second called session has ended, claim that removal of the two-thirds rule is "illegal and discriminatory" and prevents the Democratic senators from "protecting the rights and political participation" of the millions of Texas voters they say the GOP leadership is seeking to disenfranchise. When the pre-clearance issue was sent to the DOJ by the Secretary of State, Senate Democratic Caucus chair Sen. Leticia Van de Putte said removal of the two-thirds rules "discriminates against voters protected under the Voting Rights Act." That was what led the 'Texas 11' to file suit in federal court, she said. To read the DOJ letter to the Assistant Secretary of State, click on the link below.

<*> Democrats contemplate next move
By: J. Lyn Carl (Tuesday, Aug 26, 2003)

AUSTIN (8/26/03) - As the Second Called Session of the 78th Legislature came to an unceremonious end Tuesday morning, 11 Democratic Texas senators who have called New Mexico home for the past 30 days are left contemplating their next move. The 'Texas 11," as they dubbed themselves, jetted from Austin to Albuquerque on July 28, shortly before the second special session was called. They fled so the Senate would not have a quorum and thus could not take up the highly partisan and bitter battle over congressional redistricting. Two special sessions down, and who knows how many more to go. Gov. Rick Perry has indicated he will continue to call session after session until the issue is addressed.
"We will do redistricting," he said recently.

Now the 'Texas 11' face the decision of whether to stay in New Mexico or to return to their native Texas. With the special session ended, they did what they set out to do. They stayed away longer than most thought they would. They are pleased with what they've accomplished but are uncertain about their future. With the session ended, so ended the "call on the Senate" that allowed the Senate sergeant-at-arms or his officers to locate and return the missing senators to the Senate.

They escaped the long arm of the Senate "law" while in New Mexico, because of lack of jurisdiction out of state. New Mexico proved their safe haven.

As the session ends and the possibility of yet another looms, the 'Texas 11' are reflecting on the last 30 days. "Thirty days ago, we left the Capitol to protect and defend the very basis of our democratic system - the right of voters to participate meaningfully in elections," said Sen. Leticia Van de Putte, chair of the Senate Democratic Caucus who orchestrated the flight of the Democrats. "We had no choice but to break quorum, as the rights of minority and rural voters had to be protected. We had no choice, as we had to defend the rights of rural voters, whose own senators were unable or unwilling to protect them. We had no choice, because there's nothing fair or legal about changing the rules in the middle of the game to ensure our loss."

The Democrats insist that the current districts, drawn by a three-member Republican-dominated panel of federal judges, is both fair and legal and thus there is no reason to redraw districts. They also note that because the Legislature did not draw districts and left the responsibility to that panel of judges, the maps in place now should be left alone. They claim that the maps touted during the First Called Session of the Texas Legislature would deny representation to the more than 1.4 million minority voters in the state, would destroy rural representation in Congress and essentially recall the vote of thousands of Texans who crossed party lines to elect Democrats in Republican strongholds simply because they liked their current Congressional representative.

When the Democrats refused to return to Texas and the Senate, their fellow GOP colleagues imposed sanctions - first monetary fines of up to $5,000 per day for each day they were absent; then denial of senatorial privileges including postal service, printing, cell phone usage, parking, etc., until those fines are paid. Today, Van de Putte called those sanctions "a poll tax that puts a $627,000 price tag on our responsibility to represent Texans." She pointed out that the two special sessions already have cost Texans $3.4 million, and added that court costs to defend the redistricting proposals could cost another $5 million. She called the $8.4 million expense "state taxes, down the drain, wasted on the 'contagious flu' of redistricting." The San Antonio Democrat said that same $8.4 million could replace more than 100,000 outdated textbooks for the state's public school students or restore a state stipend to 16,800 public school teachers to help pay for their health insurance.

Fellow Democrat Sen. Eliot Shapleigh of El Paso called the recently-completed special session "pointless and absurd" but said the Democrats were effective in denying U.S. Congressman Tom DeLay, Gov. Perry, House Speaker Tom Craddick and Lt. Gov. David Dewhurst a redistricting session. "They said we would not leave, but we did," said Shapleigh. "They said we would not stay, but we did. They should not doubt our resolve yet again. If they do, they will be wrong again."

Shapleigh urged Dewhurst and his GOP colleagues in the Senate to "choose principle over political party" so both sides can once again work together in the collegial atmosphere that once was the Senate.

He had a much sterner message for the governor. "We demand that you, for once, be the governor for all Texans, not just merely Republican Texans living in Washington, D.C. We demand that you show some backbone, stand up to your masters in D.C., and as we have done, say 'no' to redistricting."

Dewhurst had a pointed message today for the 11 senators in New Mexico. "We're tired of sitting here and waiting," said the lieutenant governor. "It is in our 11 colleagues' best interest to come back."

The battle over redistricting has been plagued by lawsuits and countersuits. The Texas Supreme Court refused to grant a petition by the GOP leadership for a writ to force the missing Democrats back to Texas. A Travis County District Court judge Monday ruled her court had no basis for intervention in this legislative standoff. Today, the U.S. Department of Justice said no pre-clearance is necessary for removal of the traditional blocker bill and two-thirds rule in the Senate. Tomorrow, a federal district judge will hear motions in the 'Texas 11's' suit filed in Laredo.

Because the session had ended the absent Democrats are not subject to arrest by Senate officers, several have indicated they will travel to Laredo for the hearing on the motions in their suit. The 'Texas 11' have not made that decision yet. But one key factor in their decision likely will be the outcome of tomorrow's hearing in Laredo.

Dewhurst apparently doesn't think they should get their hopes up too high. "The law is not with them," he said.

Tuesday, Aug 26, 2003

<*> Democrats respond to DOJ ruling
By: J. Lyn Carl (Tuesday, Aug 26, 2003)

AUSTIN (8/26/03) - "Disappointed, but not surprised" said Sen. Royce West (D-Dallas) of a U.S. Department of Justice (DOJ) ruling today related to redistricting in Texas. The state's leadership had state attorneys ask the DOJ if pre-clearance was required under the Voting Rights Act to eliminate the two-thirds rule in the Texas Senate to take up congressional redistricting.

In a letter today, the DOJ said the rule is not subject to pre-clearance. DOJ officials said the two-thirds rule is "an internal legislative parliamentary rule or practice - not a change affecting voting" and therefore is not subject to pre-clearance. West, a Dallas attorney in addition to his role as state senator, said he and his fellow Democratic colleagues are "offended that the DOJ acted without even meeting with the minority Texas senators who had asked for the opportunity to discuss the impact of the rule on their minority constituents."

Some of the 'Texas 11,' the absent 11 Democratic senators, had indicated last week that they would travel to Washington, D.C., this week to meet with DOJ officials to discuss the rule change. Those plans were scrubbed after today. West blamed U.S. Attorney General John Ashcroft and his staff for turning the DOJ into the 'Department of Injustice,' where "the political staff dictates outcomes and the civil rights of Americans take a backseat to Republican politics."

With the DOJ ruling, the 'Texas 11' now face another court showdown - this one in federal district court in Laredo on Wednesday. The judge in that court will hear motions in the Senate Democrats' lawsuit tomorrow. Despite the ruling today, the Democrats' lawyer Gerald Hebert said the matter "is still undetermined." "We can still argue our case before the court in Laredo tomorrow," he said.

Hebert decried the "unusual expedited handling" of the issue by the DOJ. West alleged that the DOJ had prejudged the issue days before it was even submitted in writing on Aug. 15. He said the state's attorneys then "secretly" submitted their pre-clearance request "at the same time the Texas attorney general was arguing before a federal court that pre-clearance was not required." "We always assumed justice would have to be found in the courts, not a department inappropriately named 'Justice,'" said West.

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