Albuquerque as Auschwitz: "Leticia's Choice"

Friday, Michael King of the left-leaning Austin Chronicle quoted Texas Senate Democratic Caucus Chairwoman Leticia Van de Putte, D-San Antonio, from her self-imposed exile with the other Truant Texas Dems™ in scenic Albuquerque:

Van de Putte says the Republican senators insist on seeing this battle as simply a partisan issue between Democrats and Republicans, but in fact it's about voting rights and the people of Texas. "They say they want a 'fair' plan — but if it's such a fair plan, why do they have to change the rules to pass it? They say it's 'fair,' but at some point it's going to disenfranchise minorities — that's like asking me to choose which one of my children to give up."

Thus does Sen. Van de Putte cast herself in the role for which Meryl Streep won the 1982 Best Actress Academy Award in "Sophie's Choice," the screen adaptation of William Styron's 1979 National Book Award winning novel, in which the eponymous Sophie is forced by an SS stormtrooper on an Auschwitz rail siding to make a snap decision whether to send her young son or her young daughter to an immediate death in the gas chambers.

So what is Sen. Van de Putte describing as a "change [in] the rules"?  It's a decision announced by Texas Lt. Gov. David Dewhurst for the second special session of the 78th Legislature, one made in recognition of the fact that the 77th Legislature deadlocked on Congressional redistricting, as did the 78th Legislature in its regular session and first special session:  Lt. Gov. Dewhurst announced that he will enforce the Rules of the Texas Senate as they are actually written.  Sen. Van de Putte and the Truant Texas Dems™ are upset because Lt. Gov. Dewhurst is refusing to continue manipulating the written Senate rules in a way that would allow a minority of state senators to continue to deadlock the entire Senate. 

Senator Van de Putte's "Sophie's Choice" analogy rapidly breaks down, unless she considers a handful of white, male incumbent Democratic Congressmen like Charlie Stenholm to be her children.  That's because this isn't a fight about "minority voting rights" or "disenfranchisement" — it's a fight about whether those white, male incumbent Democratic Congressmen will continue to hold their seats solely as the result of a Democratic gerrymander from back in 1991.

I'll explain in detail about the "rules change" in this post, plus report on an interesting email exchange I've had with Joshua Micah Marshall of Talking Points Memo since my last post.

Changing the rules?

Here are the actual facts about the purported "change [in] the rules," as summarized in the motion to dismiss that Texas Attorney General Greg Abbott has filed in Gonzalo Barrientos et al. v. the State of Texas et al., No. L:03CV113 in the US District Court for the Southern District of Texas, Laredo Division — the lawsuit brought by Sen. Van de Putte and her colleagues.  (I'd upload and link the 100+ page .pdf file but it's 6MB, sorry; if you really want it you can get it from PACER):

Under ordinary Texas Senate rules, Senators consider bills on the Senate floor in the order that they emerge from committee.  See Tex. S. Rule 5.12.  That is the Senate's regular order of business.  To debate a bill "out of its regular calendar order," the rules require that two-thirds of the Senators present must agree to suspend Rule 5.12 in order to consider the bill.  See Tex. S. Rule 5.13.

So those are the actual written rules.  Neither Lt. Gov. Dewhurst nor any other Texas Republican in the current redistricting battle has changed, or is proposing to change, those rules.  Instead, here's what's at issue:

In the past, an inconsequential bill has often — though not always — been filed by a Senator early in the legislative session.  The Lieutenant Governor may then refer it to a committee, so that it can be voted out by that committee and placed atop the Senate's intent calendar, which determines its order of business on the floor.  ... [H]aving such a bill at the top of the intent calendar forces lawmakers either (1) to vote out or otherwise dispose of the purported "blocker bill" or (2) to obtain support from two-thirds of the Chamber to suspend the regular order of business and take up another bill first.

Aha.  So when the Lt. Governor decides to create a "blocker bill," it's really not a serious bill.  It's a deliberately created clump of legislative debris — at its most, not a rule itself but simply a tradition that legislators will agree to more or less pretend is a real bill, solely to manipulate the way the legislative calendar progresses under the real, formal, written rules of the Texas Senate.

This tradition has not always been followed in the Texas Senate and, in fact, there have been numerous occasions when various Lieutenant Governors have declined to use a "blocker bill" during a Called Session.  Notably, the use of a "blocker bill" is not grounded in, much less mandated by, any constitutional or statutory provisions or rules enacted by the Texas Senate, nor is it used by the Texas House.  It is purely a legislative calendar-management tool used through the discretion of the Lieutenant Governor, committee members, and other Senators ....

So what's the Auschwitz-like horror that the Republicans are committing, the one that's forcing "Leticia's Choice"?  It's the purely discretionary decision by Lt. Gov. Dewhurst to not initiate the "traditional" process of circumventing the rules as they're written.

My god!  That certainly makes me smell the plumes of human ash and greasy smoke wafting from the chimneys!  Can't you smell it too?  Man, that's gonna leave a stain — and they just finished refurbishing the Capitol Dome!

As I've pointed out repeatedly in my other recent blog posts (chronologically from oldest to most recent, here, here, and here), this is not a fight about minority voting rights.  That — like the assertion that the Republicans have "changed the rules" — is simply a bald-faced lie.

Josh likes judges making districts, but Beldar doesn't

After I posted my "Fisking" of a comparatively clear-eyed and truthful article by Talking Points Memo blogger Joshua Micah Marshall in Forward, I emailed Dr. Marshall* with a link to my post (since his website doesn't allow comments or trackbacks).  And I'm impressed and gratified that he's taken time to engage in some email dialog with me on this topic. 

In stark — but honorable — contrast to the hysterical rhetoric coming out of MoveOn.org and the mouths of Sen. Van de Putte and her fellow Truant Texas Dems™, Dr. Marshall continues to acknowledge that partisan gerrymandering is normal in politics. 

Instead, expanding on an assertion in his article, Dr. Marshall's main point in his emails to me was that state legislatures "often" stalemate on redistricting plans; when they do, courts must act, and it's "established practice" for them to do so; and that only once since the late 19th century (he mentions Washington State in 1953) has a state legislature undertaken to achieve a second redistricting in one decade, even when the first redistricting was done by a federal court rather than the legislature. 

Dr. Marshall was away from his office when he emailed and thus was unable to conveniently direct me to supporting sources for these factual assertions, but I'll take them on faith for purposes of argument, and quote instead my emailed response to this argument:

The difference between us on this is that you view the making of Congressional district maps by a panel of unelected federal judges — representatives of the least representative branch of either the state or federal governments — as normal, natural, healthy, expected, acceptable, and something entitled to reverence and deference until at least after the next Census.  I view it as something broken, diseased, anti-democratic, dysfunctional, something that is at best an emergency "work-around" when the normal constitutional process fails, and something to be superseded by constitutional democratic processes as quickly as possible when there has been a breakdown.

You view the 2002 election — in which a majority of Texans gave all the levers of democratic governance to the Republican Party for the first time since Reconstruction — as irrelevant to the issue of redistricting because of your respect for and deference to the 2001 Balderas decision, a deference based solely on "tradition" and nowhere commanded by any constitutional provision.  I view the 2002 election as the voters attempting to correct the stalemate from the 77th Legislature in 2001 — particularly when they rejected the strongest Democratic candidate on the ticket for the lieutenant-governorship.  The voters recognized that the George W. Bush-Bob Bullock partnership days were gone, and that divided government wasn't producing compromise but stalemate, so they tried to fix it.  How can you say with a straight face that their votes shouldn't matter at all for purposes of redistricting now, [and] that [instead] they're STUCK with a federal court district map that's essentially a 1991 pro-Democrat gerrymander based on 1990 Census data, until 2011?

I very much doubt whether in other contexts you're a fan of government-by-gridlock.  But your viewpoint here positively encourages legislators from the minority party to abdicate their constitutional duties.  In both politics and law, there is a tradition of principled dissent — of taking unpleasant medicine of the present while expressing one's opposition eloquently in hopes of effecting changes in the future.  Those who would stand on the floor of the Texas Senate and say, "This is a bad plan; this is overreaching in redistricting; the voters of Texas should punish the Republicans at the next election for this" have my respect.  Those who flee to destroy a quorum, to shut down the system, to pull the plug on the oven that bakes American apple pie, I don't respect at all.

I do wish that the Truant Texas Dems™ and MoveOn.org had Dr. Marshall's integrity.  Let them stand up and tell the voters, "We're making a stand for Texans' right to vote in Congressional districts drawn up by federal judges instead of by the Texas Legislature!"  Let's see how that theme actually plays in November 2004, or in the court of public opinion between now and then.

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*I apologize for failing to note from his résumé that Josh Marshall holds a PhD in American History, and for my consequent failure to accord him the correct honorific.  I've also posted a correction on my earlier post to note that two of the Balderas panel judges were appointed by President Clinton; only one was appointed by a Republican President.