Judge declines to rule on Democrats' redistricting lawsuit

LAREDO, Texas - A federal judge in Laredo on Wednesday declined to rule on the Democratic lawsuit claiming Republicans violated the Voting Rights Act and Democrats' constitutional rights with their redistricting efforts, saying the matter would best be decided by a three-judge federal panel.

U.S. District Judge George Kazen said he doesn't think the Voting Rights Act applies in the case, but the issues raised by the 11 senators have enough merit to refer the case to the larger group of judges.

The quorum-busting senators -- who left the state for Albuquerque, N.M., a month ago to block a vote on a GOP-backed remapping of congressional districts -- had wanted to be present when a judge considered their lawsuit.

Had the case been clearly without merit, Kazen said, he would have felt comfortable making the ruling by himself. He said he would write a letter to the chief judge of the 5th U.S. Circuit Court of Appeals in New Orleans to ask that two other judges be appointed.

Kazen told Max Renea Hicks, attorney for the Democrats, that he would not grant a temporary restraining order that would permit the Democrats to return to Texas. But the judge liked Hicks' counter proposal that the Democrats be given 72 hours notice before Republican Gov. Rick Perry calls for a third special session on redistricting.

"Let's all chill out for a while and stop, stop spending taxpayers money for a while and get this ruled on," Kazen said.

R. Ted Cruz, the state's solicitor general, said that he didn't have the power to agree to a 72-hour advance notice but that he would take the idea to Perry and Republican Lt. Gov. David Dewhurst.

Several of the Democrats had planned to travel from Albuquerque to the courtroom but changed their minds about midnight because they feared arrest in Texas, said Harold Cook, a consultant for the Democrats. Senate rules allow for the arrest of members who intentionally thwart a quorum.

Sen. Eliot Shapleigh, D-Laredo, said sources in Austin told the Democrats that the Senate sergeant-at-arms was in position in Laredo to arrest them and because they had heard that several senators had been called back to the Capitol after the Legislature adjourned Tuesday to convene another session.

"There was very clearly a plan to arrest us in Laredo. Now whether that's done by saying senators, come over here, we've got to go to Austin or get in the back of that car, whatever the mechanism was, there was a plan to get us detained," Shapleigh said.

Republicans were considering arresting the Democrats but the Senate sergeant-at-arms was never in Laredo, said Dave Beckwith, a spokesman for Republican Lt. Gov. David Dewhurst.

Cook said members of the Texas 11 regretted not being able to attend their own hearing. But Democrats had cautioned all along that they wouldn't make the trip if they got indications that a special session might be called.

"We're not going to put the senators at risk," Sen. Leticia Van de Putte of San Antonio said from a hotel room where senators were gathered Tuesday night.

In a news conference Tuesday, Perry didn't discount Democrats' concerns about being arrested in Texas.

"I guess that is a legitimate concern, I suppose. If they don't want to be here working then I don't think the lieutenant governor has any other options."

Earlier in the day, Van de Putte had shrugged off questions about whether Perry would try to trap the Democrats.

"Surely, he wouldn't be that stupid," Van de Putte said. "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."

Five senators -- Shapleigh, Zaffirini, John Whitmire of Houston, Royce West of Dallas and Juan Hinojosa of McAllen -- had planned on attending the hearing. Van de Putte of San Antonio and Rodney Ellis of Houston were considering it.

Republicans, who control the Texas House and Senate, have been trying to redraw the state's political lines to increase the number of Republicans in Congress. Democrats and one Republican thwarted the plan in the first special session, but tried to push it through in the second session by dropping a rule that requires two-thirds of senators to agree to consider a bill.

With no blocking power, Democrats fled the state to avoid a vote and later sued, claiming Republicans violated their rights by dropping the rule. The 11 Democratic senators, all but two of whom are black or Hispanic, said the two-thirds rule is vital in ensuring racial, ethnic or political minorities bargaining power in a chamber where they're out numbered.

Democrats hoped the judge would order a three-judge panel to consider claims in the lawsuit, while Republicans hoped the judge would grant their motion to dismiss the case. There will likely be appeals regardless of the decision.

The second special session on redistricting ended Tuesday, but Democrats remain holed up at a New Mexico hotel because of the threat of another special session.

Here's the Austin American Statesman view point.

((Note that this article actually says in paragraph 7 that the Judge sympathized on the political points, but thought about "tossing" the legal points, then punted by calling for help.))

http://www.statesman.com/legislature/content/coxnet/texas/legislature/0803/0828redistrict_update.html
Federal judge turns to higher court on redistricting
Democrats may make their case on redistricting before an appeals court panel

By Gary Susswein and Laylan Copelin

AMERICAN-STATESMAN STAFF

Wednesday, August 27, 2003

LAREDO — A federal judge said today that he doesn't buy the argument that the state's Republican leaders have violated the Voting Rights Act in their efforts to draw a new map for congressional districts.

But U.S. District Judge George P. Kazen said he's not prepared to throw out the lawsuit filed by 11 Senate Democrats who boycotted the recently ended special session to prevent a new congressional map from being passed.

Saying that the case isn't so absurd, Kazen said he will ask the 5th Circuit U.S. Court of Appeals to convene a three-judge panel to listen to the arguments.

Democrats have said that by dumping a Senate rule on how proposals are debated, Republicans were reducing representation for minority residents in their districts. Kazen said he had been leaning toward tossing out the case, but decided to ask another panel of judges to consider it.

"By far, the most prudential thing to do here would be to ask for the convening of a three-judge court," he said.

Kazen also said he would ask that panel to review Democrats' request for a temporary restraining order to prevent Senate officials from having them arrested and returned to the Senate if they return to the state.

Kazen was skeptical about the Democrats' legal argument, but he repeatedly said he sympathized with their political argument. He said it's bad public policy to redraw congressional boundaries this year, and he said it's not a priority for the state of Texas.

Kazen also called on both sides to bring a new level of civility to the case and compared the standoff to the conflict in the Middle East.

"We've got these two camps over there, and it's either total victory or total surrender," he said.

The level of unease was evident by a last-minute decision against having five of the boycotting Democrats attend the court hearing.

Democrats early Wednesday said they were given credible information that Republicans had arranged a plan that would have resulted in the arrest of at least one of the Democrats in Laredo. During the just-ended session, the Senate was one member short of the attendance needed to conduct business.

Democrats would not reveal the information, but said they were advised not to return to Texas by a Republican colleague.

"We spent a month of our lives on this," Sen. Gonzalo Barrientos, D-Austin, said. "We're not about to make a silly mistake."

A spokesman for Gov. Rick Perry, however, said there was no plot against the Democrats.

"It appears the senators in New Mexico have been watching too many pay-per-view movies in their hotel rooms," said Gene Acuña. "That is such a laughable scenario, it's not worthy of response."

After the hearing, the Democrats' lawyer, Max Renea Hick, blamed Perry and Lt. Gov. David Dewhurst for the lack of civility.

State Solicitor Ted Cruz said he was pleased with the judge's decision.

Kazen said he believes the three-judge panel can convene by the middle of September.

Perry is expected to call another special session on congressional redistricting, although when he will do that isn't clear. The Democrats remain in New Mexico and were scheduled to decide whether to return to Texas later today.

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