LAREDO -- A federal judge told lawyers for runaway Democratic senators today that he believes their lawsuit seeking voting rights and free speech protections is all but totally frivolous, but he agreed to leave the final decision to a three-judge panel.
U.S. District Judge George P. Kazen said he believes Gov. Rick Perry and Lt. Gov. David Dewhurst's push for mid-decade congressional redistricting is wrong and a waste of taxpayer money. However, Kazen also criticized the Democratic senators for fleeing to Albuquerque, N.M., to break the Senate's quorum.
"We're almost like the Middle East. We've got these two camps over here, and it's total victory or total surrender," Kazen said.
Kazen refused to grant the Democrats' request for a restraining order to prevent the Senate sergeant-at-arms from arresting them in case there is another special session. Kazen also urged Perry not to call a session until the three-judge panel hears the Democrats' lawsuit in about two weeks.
"Let's chill out for awhile. Let's stop spending the taxpayers money for awhile," Kazen said.
The self-exiled Democrats had hoped to find a friendly judge by filing the lawsuit in Laredo. Kazen was appointed by former President Jimmy Carter. But the judge made it clear from the start of today's hearing that the only reason he was not throwing the case out was that federal case law requires voting rights questions to be answered by a three-judge panel unless the lawsuit is wholly frivolous or fictitious.
"The agreement we've made is your lawsuit is not wholly frivolous," Kazen told Renea Hicks, a lawyer representing the Democrats.
"That's cold comfort, but I accept it," Hicks replied.
Hicks asked Kazen for a restraining order against the Senate sergeant-at-arms to prevent the senators' arrests if they returned to Texas. Hicks said he had heard Perry and Dewhurst had planned to arrest the senators if they attended the federal court hearing.
Kazen indicated he did not see a problem with that as long as the arrest was legal. He said the three-judge panel might enter a narrow order that would allow the Democratic senators to attend a court hearing without fear of arrest.
Several of the senators had planned to attend the hearing but decided against it Tuesday night when rumors circulated that Republican senators had been told to return to Austin for a third special session. Also, it was rumored that the Senate sergeant-at-arms, Carlton Turner, was in Laredo and would arrest the Senators at the courthouse.
"I'm not stupid," Sen. Rodney Ellis of Houston said in Albuquerque. "I don't walk into an ambush."
"They'll stoop to any level," said Sen. Mario Gallegos of Houston. He added that he would not have gone willingly if the Republicans had tried to trap him in Texas.
"They're going to have to take me," he said.
David Beckwith, spokesman for Lt. Gov. David Dewhurst, said Dewhurst discussed the possibility of arresting the Democrats while they were in Laredo, but added that the discussions went no further.
Turner was not available because today is a state holiday observing the death of Lyndon Baines Johnson.
The Democrats' lawsuit focuses on a change of Senate procedure that makes it likely that a Republican congressional redistricting plan will pass. They claim that violates their protections under the Voting Rights Act.
But Kazen said the Voting Rights Act is meant to protect voters and should not apply to Senate procedures or the process of how a redistricting bill is passed.
"If a redistricting bill is passed, it will unquestionably be subject to the Voting Rights Act; it will unquestionably be subject to (U.S. Justice Department) preclearance; and it will unquestionably generate a lawsuit," Kazen said.
The lawsuit also said the threat of arrest violates the senators' free speech rights. Kazen said he did not believe anyone has been deprived of the right to speak.
Kazen questioned where it would end if he ruled the Democrats "defacto filibuster" was protected speech. He said the Constitution protects a college professor from being fired for his beliefs, "but do you go to the next step and say he can't show up for class all semester?"
The 11 Democratic senators took off for Albuquerque on July 28 as the first special session ended and they learned Perry planned to call a second session immediately. Dewhurst already had announced plans to change Senate procedures so the Democrats could not block congressional redistricting in the second session.
The change in procedure amounted to dropping what has become known as the "two-thirds rule." So long as the procedure was in place, the 11 Democrats could block redistricting without having to break the Senate's quorum.
Under standard Senate procedure, a supermajority of the Senate's 31 members must give permission for a bill to be debated. The vote is required to take legislation out of its regular order on the calendar.
But Dewhurst announced that congressional redistricting would be the only thing on the calendar so a simple majority could pass it. Eighteen of the Senate's 19 Republican senators have indicated they will vote for a congressional redistricting bill.
Dewhurst said the same change in procedure has been made 17 times in the past by other lieutenant governors, including several times in special sessions on redistricting.
But the Democrats argue that the "two-thirds rule" was used in 1971, the year Texas came under the federal Voting Rights Act protections for minorities. They also say that while the procedure has been dropped for legislative redistricting in the past, it has never been changed for congressional redistricting.
The U.S. Justice Department's Civil Rights Division on Tuesday told the state that the "two-thirds rule" is an internal Senate procedure and the agency would not consider the change in procedure as something that had to be reviewed under the Voting Rights Act.
The Democratic senators in their federal lawsuit had argued that by changing the voting procedure in the Senate, Dewhurst had effectively denied them of protections for minorities under the Voting Rights Act as well as the Fourteenth and Fifteenth Amendments to the U.S. Constitution.
In a request to amend their lawsuit, they also argued that attempts to arrest and penalize them for breaking the Senate quorum violated their constitutional free speech rights.
The state's brief to the court argued that the Senate procedure for a supermajority has not been used consistently over the years and is "purely a legislative calendar-management tool."
Attorney General Greg Abbott's lawyers said if the Voting Rights Act was applied to Senate procedure in this instance then it would require the lieutenant governor to "cede to federal authorities near-complete control over the daily internal workings of the Senate."
Hicks in his brief called the state's position "greatly exaggerated." He said the Voting Rights Act clearly could be applied to Senate rules.
"To use an extreme example, if the Texas Senate adopted a rule that said only Anglos in the Senate could vote on redistricting legislation, that too would not be within the scope of the (Voting Rights Act)" if the state was correct, Hicks wrote.
Chronicle reporters Armando Villafranca in Austin and Rachel Graves in Albuquerque contributed to this story.
But Judge Kazen didn't explain which part is not frivolous. He dissed both of their claims.
Well, it looks like the Rats have bought two more weeks of stalling before they're slapped down again.