Posted on 08/28/2003 6:39:00 AM PDT by Theodore R.
Kazen opts for judicial panel to decide lawsuit
BY TRICIA CORTEZ Times staff writer
Chief U.S. District Judge George P. Kazen, said Wednesday he did not agree with the 11 Democratic state senators' decision to oppose Republican redistricting by "not showing up for work."
At the same time, however, Kazen said, "Let's chill out for a while and stop, stop spending taxpayers money and get this ruled on ... (Civility) has been the sad victim in all of this."
He likened the bitter Republican-Democrat standoff to "the Middle East" with both camps looking for "total victory or total surrender."
He closed the first federal hearing by petitioning the 5th U.S. Circuit Court of Appeals to convene a three-judge panel to review the merits of the lawsuit filed by 11 Democratic state senators against Gov. Rick Perry and Lt. Gov. David Dewhurst.
Speaking on behalf of Perry and Dewhurst, R. Ted Cruz, solicitor general with the Texas Attorney General's office, agreed with Kazen's decision and said both sides want an expeditious outcome.
The three-judge panel could be formed by the end of the week with its first hearing taking place in Laredo within two weeks. Kazen is expected to sit on the panel.
During the hearing, Kazen told Renea Hicks, an attorney for the Texas 11, that he initially had "serious doubts" that the U.S. Voting Rights Act had been violated.
He concluded, however, by saying that the written briefs submitted by the Texas 11 attorneys were "articulate and strong" and "have merit."
Democrats allege the state's Republican leadership violated the Voting Rights Act, the Civil Rights Act and certain provisions of the U.S. Constitution by suspending the Texas Senate's "two-third rule" during the Legislature's unprecedented mid-decade redistricting effort.
They argue Perry and Dewhurst should have sought pre-clearance from the U.S. Department of Justice beforehand since the two-thirds rule would protect minority voters in Texas and their elected officials during the redistricting process. Nine of the Texas 11 are minorities and 10 represent minority dominant districts.
Kazen and Hicks soon entered into a back-and-forth exchange on this point.
"I would say it's bad policy and an expensive proposition (to do redistricting at this time), but to think that the mere thought of passing a (redistricting) bill is a Voting Rights Act violation?" Kazen began.
He said the Voting Rights Act is normally invoked for election-related issues, such as precinct lines, polling places, polling times and so on.
He stressed that the Voting Rights Act would certainly come into play after a redistricting bill is passed.
Furthermore, Texas would need to obtain pre-clearance approval from the U.S. Department of Justice and lawsuits from various parties would also enter the fray.
"If a map is passed that is pernicious, there's a remedy," Kazen said. "What directly impacts voters is the plan, not the process."
Hicks disagreed.
"Your honor, the Voting Rights Act begins with the process, not after the fact," Hicks said.
"The only express purpose of suspending the two-thirds rule" by the state's Republican leadership is to pass a redistricting map, Hicks added.
Later, Kazen said he would read and possibly rule on the temporary restraining order filed that morning by Hicks and the rest of the Democrats legal team.
The TRO would allow the 11 Democratic state senators to return from Albuquerque, N.M. without any fear of being arrested and taken to the Capitol if the governor suddenly calls a third special session.
Hicks then requested that Gov. Perry submit a 72-hour written notice before calling a special session.
"I'm all for that ... to bring some sense of normalcy, but I can't compel the governor to do that," Kazen said, before asking the state's legal team if they could.
"I am not authorized to do that," Texas Solicitor General Cruz replied.
Cruz added "the law is very clear" - the Senate sergeant-at-arms has the power to arrest absent legislators.
Texas Senate rules stipulate the sergeant-at-arms can order their arrest, but the Texas Constitution is less specific and says the Legislature can compel them to return to work.
Kazen argued "the whole milieu" of the Republican-Democrat redistricting stand-off is nothing more than a "core political fight" that has been colored by the issue of minority rights.
"Speaking partly as a private citizen, in legislative bodies, you win some, you lose some. The majority always wins, which is why it's important for people to go to the polls and vote," Kazen said.
He then informed Hicks he would hold off on accepting the Texas 11's amended complaint, which charges Perry and Dewhurst with violating their First Amendment rights by imposing daily sanctions and fines during their self-imposed exile in Albuquerque.
"Whether that's a First Amendment right to do that (cross state lines and not attend the special session) just seems to me a little strange," Kazen said. "We fine jurors and attorneys who do not show up to court."
Hicks replied, "Senators are accountable to the voters. This is different from the situations your honor has outlined."
Kazen interjected, "It's a terrible idea in my opinion, but is there anything that prohibits it?"
Hicks stated the Republican leadership has made it clear that unless the senators pay the fines and sanctions, they will not be able to vote on a redistricting bill that will impact the voting rights of millions of Texas.
"That seems like quintessential state law - how to sanction a state legislator," Kazen replied.
(Staff writer Tricia Cortez can be reached at 728-2568 or tricia@lmtonline.com.)
08/28/03
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