Posted on 08/29/2003 6:02:37 AM PDT by Libloather
Judges dampen Democrats' legal hopes
Panel of 3 will hear voting rights lawsuit
By R.G. RATCLIFFE
Aug. 29, 2003, 12:53AM
AUSTIN -- Democrats' hopes of winning court relief in their congressional redistricting battle dimmed further Thursday after a judicial panel of two Republicans and a Democrat was named to hear their voting rights lawsuit.
U.S. 5th Circuit Court of Appeals Chief Judge Carolyn Dineen King named fellow appellate Judge Patrick Higginbotham and U.S. District Judges George P. Kazen and Lee Rosenthal to the panel to hear the Democrats' case.
Kazen, during a hearing Wednesday in Laredo, made clear to Democratic lawyers that he was inclined to dismiss their lawsuit but believed that voting rights case law required that such an action could only be taken by a three-judge panel.
The case arose after 11 Democratic state senators fled to Albuquerque, N.M., on July 28, the eve of a second special session on congressional redistricting. They boycotted the entire 30-day session, depriving the Senate of a quorum so it could not vote on redistricting. The session ended Tuesday.
The senators left Texas after Lt. Gov. David Dewhurst decided to change a key Senate procedure for the special session.
The procedure had allowed minority legislators to block passage of a Republican redistricting plan in the first special session.
In their lawsuit, the Democratic senators argue that the change of procedure is a violation of the federal Voting Rights Act because it could dilute the influence of minority voters.
Kazen told Democratic lawyers that he believes the Voting Rights Act would apply to any plan passed by the Legislature but not to the process of passing the plan.
In the new panel, Kazen is the only judge who was an appointee of a Democrat, President Carter. Higginbotham was named by President Ford and Rosenthal by former President Bush.
Higginbotham was on the panel that drew the current congressional districts in 2001 after the Legislature failed to act. The other two judges on that panel were appointees of President Clinton.
Sen. Mario Gallegos, D-Houston, one of the boycotting senators, said he remains hopeful that the three-judge panel will recognize that the senators have a valid voting rights argument.
Gallegos said he had little hope that the Democrats would prevail earlier this month when Dewhurst asked the Texas Supreme Court to order the Democrats to return to work. But the state's high court rejected Dewhurst's request.
So Gallegos said he is not disheartened that Kazen has not warmly embraced the Democrats' lawsuit or that the other two judges are Republicans.
"I heard Kazen's arguments, and it doesn't look good, but neither did our chances in the Texas Supreme Court," Gallegos said.
Renea Hicks, a lawyer for the 11 Democrats, on Thursday asked Kazen for a temporary restraining order to prevent the state from arresting the senators if they return to Texas. Hicks also asked that Kazen order Gov. Rick Perry to give the runaway senators 72 hours' notice before convening another special session.
"The Legislature is not in session now, and it makes perfect sense to allow our senators to return home to their families and their jobs pending the outcome of a hearing before the three-judge panel," Hicks said.
Kazen turned down a similar request from Hicks on Wednesday but indicated he might agree to an order that would allow the senators to attend the court's hearing without fear of arrest.
After the senators bolted for New Mexico, the remaining senators put a call on the Senate and ordered the arrest of the missing senators so a quorum could be obtained. Most of the remaining senators are Republican.
Technically, that arrest order expired when the second special session ended Tuesday.
But the Democrats fear that Perry and Dewhurst will trap them in Texas if they return home. The Democrats believe Perry may quickly call a third special session and Dewhurst would get a new arrest order from Republican senators.
Most of the boycotting senators left Albuquerque on Thursday for the Labor Day weekend, though none planned to come to Texas, said Sen. Leticia Van de Putte of San Antonio, chair of the Senate Democratic Caucus and one of just a handful of senators still in Albuquerque.
U.S. House Majority Leader Tom DeLay, R-Sugar Land, and other Republicans began pushing for congressional redistricting during the regular legislative session earlier this year.
Democratic state representatives thwarted that effort by fleeing the Capitol, most for Ardmore, Okla., and staying away long enough to block consideration of a redistricting bill.
Redistricting died in the first special session because the Senate procedure was in place requiring that two-thirds of the senators agree to debate. All the Senate's Democrats and one Republican said they would block debate.
The Democratic boycott killed redistricting in the second special session.
The state's delegation to the U.S. House comprises 17 Democrats and 15 Republicans, which Republicans argue does not fairly represent the state's recent GOP voting trends.
Armando Villafranca contributed to this report from Albuquerque.
Captured RATS being forced to do their job? Nah, leave 'em in New Mexico for the winter...
Even though he's a Republican, this makes the case a little more interesting.
Dewhurst said that he would change the procedural rule for considering a bill for the second session, but the rules were already set for session one. So the Dems skipped town before the second was even begun. The quorum rule, though, is not at the discretion of the Lt Gov.
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