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Tuesday, January 06, 2004

Texas redistricting Plan 1374C is legal, sez court in Session v. Perry — map decisions made "in spite of, and not because of," their effects on minority voting

I've spent the last two and a half hours plowing through the 127-page opinion of the three-judge trial court panel in Session v. Perry, the consolidated challenges to the Texas Legislature's 2003 Congressional redistricting law as reflected in Plan 1374C. 

My preliminary conclusion is that the panel majority pretty much got things right.  And I feel a great deal of sympathy and empathy for all three judges on the panel and their law clerks:

  • As it's developed, voting rights law is a dog's-breakfast of subtleties and contradictions — a body of law that makes antitrust or securities laws seem straightforward and simple by contrast.  This court was not writing on a blank slate or anything remotely close to that.  Rather, Circuit Judge Higginbotham and District Judges Rosenthal and Ward had to try to harmonize and apply a tangle of precedents that sometimes seem to have almost nothing in common with one another except for their good intentions and their collective opacity.

  • Moreover, the facts these judges had to deal with are voluminous and fiendishly complicated — and the large number of parties, each with its own team of self-important lawyers providing its own slant on the law and the evidence, doubtless compounded rather than eased that problem.

  • Compound that with pressure — the certain knowledge that what you're writing has to be written and released quickly, and that there is a one hundred percent certainty that it will be scrutinized, picked apart, and distorted both in the popular press and in an appeal-as-of-right to the US Supreme Court — and the prospect of creating a jeweled Swiss-watch of an opinion, an elegant piece of writing that both whirs smoothly and sings, becomes very small indeed.

Nevertheless, from a stylistic standpoint, I am gravely disappointed at the panel's work product — as, I suspect, are the judges and law clerks themselves.  Both the majority and dissenting opinions badly needed a good editor to make what they were doing and saying clear, comprehensible, and (most importantly) digestible in smaller chunks. 

The unfortunate result is that the popular press and punditry — and hence the public at large, who certainly can't be expected to parse these 127 pages — are not given the tools necessary to reach an informed opinion about either the majority or the dissent's bottom-line results.  So those who thought redistricting was an abomination before this ruling will almost certainly continue to think that — and those who didn't, won't.

The Dallas Morning News has the best of the initial press reports, and the Houston Chronicle's report also attempts to give specifics, albeit in a more jumbled fashion.  The Austin American-Statesman, Fort Worth Star-Telegram, and San Antonio Express-Times have so far done little more than report the outcome.  Blogger Charles Kuffner, who's done the blogosphere's best job of consistently collecting timely links relating to the Texas redistricting struggle throughout, disappointedly notes the ruling and promises "plenty more" on it tomorrow.

The closest the majority opinion comes to a grand and overarching explanation is this:

We hold that Plaintiffs have failed to prove that the State statute prescribing the lines for the thirty-two congressional seats in Texas violates the United States Constitution or fails to comply with § 2 of the Voting Rights Act.  We also reject Plaintiffs' argument that the Texas Legislature lacked authority to draw new districts after a federal court drew them following the 2000 census.

Translation:  The State wins and the Plaintiffs lose on all the claims the Plaintiffs had asserted.  That much is abundantly clear.  But what's missing is an elegant, eloquent paragraph or two right up front that explains why.  Instead, we get this:

We decide only the legality of Plan 1374C, not its wisdom.  Whether the Texas Legislature has acted in the best interest of Texas is a judgment that belongs to the people who elected the officials whose act is challenged in this case.  Nor does the reality that this is a reprise of the act of the 1991 State Legislature weigh with the court's decision beyond its marker of the impact of the computer-drawn map.  The extraordinary change in the ability to slice thin the lines brings welcome assistance, but comes with a high cost of creating much greater potential for abuse.  Congress can assist by banning mid-decade redistricting, which it has the clear constitutional authority to do, as many states have done.  In Texas, the phenomenon is new but already old.  The larger lesson of 1991 and 2003 is that the only check upon these grasps of power lie [sic] with the voter.  But, perversely, these seizures entail political moves that too often dance close to avoiding the recall of the disagreeing voter.  We know it is rough and tumble politics, and we are ever mindful that the judiciary must call the fouls without participating in the game.  We must nonetheless express concern that in the age of technology this is a very different game.

Huh?  The first two sentences are fine, and indeed appropriate.  Starting with the next sentence, however, this just gets weirder and weirder.  With all due respect, "the impact of the computer-drawn map" is not a real issue here, folks, any more than the impact of the word-processing software that allows judges and their clerks to create and edit these 100+ page opinions.  The "phenomenon" is "new but already old"?  What kind of Carlos Casteneda mumbo-jumbo is that?  And what exactly are the "political moves" that "too often dance close to avoiding the recall of the disagreeing voter"?  I'm sorry, this stuff is just bizarre nonsense that doesn't belong anywhere in a judicial opinion, and especially not in on page two in a highlighted position.

If you want to find the nub of the majority's rationale, you have to dig deeper, down to page 24:

There is little question but that the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage....  With Republicans in control of the State Legislature [after the 2002 election], they set out to increase their representation in the congressional delegation to 22.  As we will explain, all that happened thereafter flowed from this objective, with the give-and-take inherent in the legislative process along the way.  The result disadvantaged Democrats.  And a high percentage of Blacks and Latinos are Democrats.

(Emphasis added by Beldar.)  There ya go.  Those are the key facts found by the court based on the evidence presented at the trial, and from those facts flows the conclusion that the Plaintiffs should lose.  As to the significance of this finding and the result, the best "big picture" explanation is on page 28:

While keenly aware of the long history of discrimination against Latinos and Blacks in Texas, and recognizing that their long struggle for economic and personal freedom is not over, we are compelled to find that this plan was a political product from start to finish.  The myriad decisions made during its creation were made in spite of, and not because of, its effects upon Blacks and Latinos.  To find otherwise would frustrate the fundamentals of Washington v. Davis and inject the federal courts into a political game for which they are ill-suited, and indeed in which they are charged not to participate under the most basic principles of federalism and separation of power.  Concluding that the [racial] purpose requirement of the Equal Protection Clause was met on these facts would pass redistricting from the state legislatures and redistricting boards to the federal courts....

(Emphasis added by Beldar.)  That is the high-point of clarity and elegance in the majority opinion.  Would that it had been on page one or two.

District Judge T. John Ward dissented in part.  It's important that dissenting opinions, to be effective, be short and punchy and crystal-clear.  His, unfortunately, isn't.  He apparently agrees with the majority that the Plaintiffs' Equal Protection Clause claims weren't proved, and that legislative redistricting in 2003 (notwithstanding the 2001 judicial redistricting) was okay.  He agrees that no Voting Rights Act violation was shown as to Districts 18 and 30; also concurs in the majority's judgment rejecting claims surrounding Districts 1, 2, 4, 9, 10, 11, 17 & 24; but dissents insofar as Judges Higginbotham and Rosenthal rejected the Plaintiffs' claims regarding District 23 on grounds that the new map impermissibly "traded off" the rights of minority voters in former District 23 for those of minority voters in new District 25.  I'm unpersuaded, but I will also confess that by the time I got to the twenty-seven pages Judge Ward tacked onto the end of the majority opinion, I was running out of intellectual gas to process any more. 


Update (Weds. Jan. 7th wee small hours):   I just re-read the newer version of the Houston Chronicle's article and I'm fairly miffed at reporter R.G. Ratcliff for (again) letting his liberal biases show through.  The subheadline reads, "Legislative process draws justices' rebuke," and his first sentence reads, "A federal court Tuesday upheld a Republican congressional redistricting plan against claims that it harms minority voting rights, but it sharply criticized the process of adopting the map as a threat to the system of fair elections."  Leave aside that there are no "justices" anywhere in sight — the panel comprised two US District Judges and one US Circuit Judge, each of whom would promptly correct you if you referred to him or her as "Justice."  What's important is his gross error in describing anything in the opinion as a "rebuke" to the legislative process or a "threat to the system of fair elections."  That's just wishful thinking and a complete fabrication. Even in the weirdest part of the opinion (which I quoted above), none of the judges say there is a "threat to the system of fair elections."  To the contrary, both the majority and dissenting opinions say that if Texas voters don't like the Legislature's efforts at redistricting, they can fix the problem at the polls by electing different state legislators.

The fact that the opinion is long or confusing doesn't justify just making stuff up that you wish it said!

Update (Weds. Jan 7th 11:35am):   Due to popular demand I've enabled comments for this thread.  And Kuff, as promised, has lots of good quotes and links with press reactions to yesterday's decision and the political aftermath regarding who's now going to run against whom and where.

Posted by Beldar at 08:47 PM in Politics (2006 & earlier), Texas Redistricting | Permalink


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