Panel reluctant to intervene in remap battle
Judges hear Democrats' suit alleging violation of Voting Rights Act
08:22 PM CDT on Thursday, September 11, 2003
LAREDO – A panel of federal judges offered Democratic senators little hope Thursday they will order a halt to the redistricting train set to roll next week.
The three judges questioned the need for them to wade into the Texas fight, as requested in the Democrats' lawsuit alleging that the GOP redistricting effort violates the federal Voting Rights Act.
"What concerns me is the freezing of a dynamic legislative process," said 5th Circuit Judge Patrick Higginbotham of Dallas. "The Legislature is a complicated, interactive force ... with chairmanships, blocker bills, killing each others' bills, getting in fights."
The 10 senators ended their six-week boycott and returned Wednesday from Albuquerque after Sen. John Whitmire, D-Houston, broke ranks. Republican Gov. Rick Perry has called a special session to begin Monday to draw new political boundaries for the state's 32 congressional districts.
The lawsuit, brought under a law designed to prevent dilution of minority voting power, asked the judges to order the Senate to require a two-thirds majority for passing a redistricting bill.
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Texas Solicitor General Ted Cruz, lawyer for the Republican leadership, countered that the so-called two-thirds rule is not a rule, just a tradition that can be scrapped. And, he said, abolishing the rule does not affect voter rights in a way that requires federal pre-approval under the voting law.
He pointed out that the Justice Department has ruled that the matter is not subject to their pre-review. The Democrats said the ruling was wrong and should be disregarded by the court.
Judicial panels often conceal their leanings behind intense devil's advocacy, alternately probing at the weaknesses on both sides of a case. The judges may have tipped their hands Friday by varying from that pattern: They posed tough and challenging questions of the Democrats' lead lawyer, Washington, D.C.-based redistricting specialist Paul Smith.
But, when Mr. Cruz made his presentation, the questions sought to clarify, even to affirm, his positions. Repeatedly, the judges expressed concern about interfering with state lawmakers.
"To do that, you've got to step off into a place that's very hazardous, and I don't know how you get back," Judge Higginbotham.
The Democrats' lawsuit also asked the judges to block $57,000 in sanctions levied against the absent senators by their colleagues who remained in Austin.
U.S. District Judge George Kazen, an appointee of Democratic President Jimmy Carter, said he questioned the legality of the sanctions, but he noted it was primarily a matter for state courts, which have not ruled on the issue.
He and one other judge expressed hope that the Senate would get rid of the sanctions by Monday, thus avoiding the "abomination" of a legal wrangle over the constitutionality of such penalties.
'They must tread lightly'
After the two-hour hearing, the 10 holdout Democratic senators did their best to keep a game face, focusing on the judges' opposition to fines, but acknowledging the panel's reluctance to get involved.
"They must tread lightly into this particular arena," said Sen. Royce West, D-Dallas. "But I clearly believe that the Voting Rights Act applies to this particular case, when you apply the two-thirds rule to disenfranchise rural Texans as well as minority voters."
The Democrats probably will appeal any adverse ruling, said Mr. West and Sen. Rodney Ellis, D-Houston.
Judge Higginbotham promised a speedy decision – as early as Friday – raising GOP hopes for a concise, easily-drafted "no" ruling, rather than the more complex order sought by the Democrats.
Earlier, some Democrats had expressed hope that Judge Higginbotham, an appointee of GOP President Ronald Reagan who helped craft the current congressional map two years ago, would look dimly upon Republicans trying to rewrite the plan.
But the only reference to the judge's role was when Mr. Smith, the Democrats' lawyer, jokingly offered, "It's such a good map, your honor." Judge Higginbotham laughed and muttered, "I don't think anybody liked that map."
The other judge on the panel was U.S. District Judge Lee Rosenthal of Houston, appointed by the first President George Bush.
At the hearing's end, Judge Higginbotham noted the anniversary of the Sept. 11 attacks, saying the court proceedings represented a counterpoint, an example of the rule of law and "the very best of our system at work."
"There are differences," he said, "but they are being heard out."
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