BeldarBlog

In 9/0 ruling, SCOTUS smacks down 3-judge federal court that redrew Texas' Congressional districts; stresses state government's superior role over federal courts in determining the interests of Texas citizens

I've just read today's unanimous, per curiam (unsigned) opinion by the United States Supreme Court in Perry v. Perez. The media reports I've read so far are, unsurprisingly, either clueless or filled with Democratic Party spin (but I repeat myself), and they're working hard to paint this as some kind of "split" or "mixed" result in which the SCOTUS produced something for both sides to like and both sides to hate.

That's wrong. This is an amazing decision that, fairly interpreted, was a brutal smack-down of a special three-judge federal district court. And the smack-down was delivered because that court had thoroughly ignored the wishes of the voters of Texas — as expressed by their duly elected representatives in the Texas House, the Texas Senate, and the Governor's Mansion — about how to redraw Texas' electoral maps to accommodate the 2010 Census results, in which four additional seats in Congress were apportioned to Texas.

This whole area of the law is highly technical, with a complicated and sometimes internally inconsistent set of judicial, legislative, and historic precedents involved. So even though this opinion is comparatively short and clearly written, it's rough sledding for most non-lawyers to follow, especially when one starts getting into the tall grass of mandatory direct SCOTUS jurisdiction, Section 5 preclearance requirements of the Voting Rights Act of 1965, and relative standards of proof in preliminary injunction hearings. But here's how the opinion tees up the stakes and the big-picture issues:

[H]ere the scale of Texas’ population growth appears to require sweeping changes to the State’s current districts. In areas where population shifts are so large that no semblance of the existing plan’s district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment....

(Even casual students of voting rights cases like me can appreciate the ironic understatement of that last sentence. Indeed, it's been so hard to find "neutral legal principles" that even the Supreme Court has frequently fragmented into multiple small voting blocs in these cases, quite commonly failing to produce any single written opinion that speaks for a majority of the Court. This is the kind of droll observation that John Roberts, as Chief Justice, can put in without it bugging any of the left-leaning Justices enough that they ask him to take it out, and one or two of them aren't completely humorless anyway.)

The Supreme Court continues:

... Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan — even one that was itself unenforceable — “to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”

So you don't throw out democracy and mount a judicial coup d'état just because some small part of a redistricting map is, or might be, problematic. Instead, to paraphrase today's opinion, what the Legislature passes and the Governor signs — what Texas' own duly elected government does for itself in the exercise of its solemn duties under both the state and federal constitutions — should, as much as possible, trump federal judges who think it's their job to just dive in and fix whatever they think they can improve upon.

After more analysis along these same lines, we get to the meat of the decision, which also conveys the smack-down (citations omitted, boldface, highlighting & first bracketed portion mine):

In this case, the District Court [that comprehensively redrew the Texas Legislature's map] stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.

Wait, wait ... You don't think that's a smack-down? You expected maybe something snarky, maybe something like Justice Beldar would have written?

Actually, the dry and unemotional language used here again makes me think that Chief Justice Roberts is the likely unacknowledged author. Regardless, here's my translation, in plain English and without the restraint with which judges talk about each others' screw-ups in print:

Whoa! Just WHOA now! Just who do you three judges on the special district court think you are? Who made you the boss of the Texas state government and Texas voters? You're not!

And you may think that you have some judicial Magic 8-Ball which tells you what's best for the citizens of Texas, but we have these Constitutions — one federal, one state — which actually limit your whole role in this fight to way, way, way less than you guys think you're supposed to be doing. So cut it out, right now!"

The rest of the opinion mostly comprises specific examples of things the three-judge special district court got absolutely wrong because they thought, at least in this particular case, that they were philosopher-princes who rule the cosmos instead of federal judges. (Umm, again, that's Justice Beldar's characterization, not from the per curiam opinion itself.)

So this case is already going back, in a big hurry ("judgment shall issue forthwith," sez the SCOTUS, so no motions for rehearing or such), to the special three-judge district court. Their job — now that their attitudes (and legal standards) have been appropriately readjusted — will be to take the map passed by the Legislature and signed into law by the Governor, and to then make the absolute minimum number of changes that are absolutely necessary to fix, temporarily (for 2012 only), only those specific things that the plaintiffs in the case actually demonstrate to be pretty darned likely to be found illegal or unconstitutional.

That's likely to end up looking an awful lot, then, like what the Legislature passed. And that means the Democrats have lost this round in Texas for all practical purposes.

But do you want to know what actually got my motor racing the most when I read through this per curiam opinion? It was this (bracketed portions mine):

This Court recently noted [in the Northwest Austin MUD No. 1 v. Holder case, a 2009 Roberts opinion,] the “serious constitutional questions” raised by [Voting Rights Act] §5’s intrusion on state sovereignty. Those concerns would only be exacerbated if §5 required a district court to wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.

Friends and neighbors, that's what my tenth grade English teacher at Lamesa High School, Mrs. Koger, trained me to recognize as "dramatic foreshadowing." And since I would very much like to see the SCOTUS agree that it's now time to quit presuming, as a matter of federal law, that today's Texans are racists just because 1965's Texans were racist, I'm very eager to see this play out.

The four liberal Justices likely read that same paragraph, though, and thought (to themselves; they wouldn't quibble about this with the Chief, or decline to concur over it): "Yeah, we'll just see about that when the time comes." But the Beldar SCOTUS Tea-Leaf-o-Matic™ says Chief Justice Roberts is signaling that he has the votes for what will be a monumental decision in American constitutional law and, indeed, American history.

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UPDATE (Fri Jan 20 @ 10:30pm): The PBS NewsHour actually does a pretty good job reporting this story, in large part because they interviewed and relied upon election law expert Rick Hasen. Prof. Hasen has been very gracious in some previous blog discussions with me about Texas redistricting. He's a reliable leftie, but he's wicked smart, and he tries to be (and mostly succeeds in being) intellectually honest (even when he's wrong). Prof. Hasen also picked up on the broader Voting Rights Act implications. The NewsHour headline (which Prof. Hasen links and republishes without demurrer on his own blog): "Supreme Court Ruling on Texas Electoral Maps 'Huge Setback' for Democrats." And yes, that's exactly right.

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UPDATE (Sat Jan 21 @ 3:10pm): The Wall Street Journal's editorial page also mostly gets this story right, including the implications for future litigation on the continuing constitutionality of Section 5, in "Holder's Texas Defeat: The Supremes deliver a unanimous drubbing on redistricting." (But you won't learn anything there I didn't already say here; and the Journal's admirably concise telling leaves out some details I tend to savor.)

A lot of the other commentary I'm reading about this decision completely misses the parts of the opinion in which the SCOTUS stressed that there can't be any map re-drawing without the required evidentiary showing of a legal violation to justify it. Even some conservative bloggers I've read seem to be assuming that the three-judge court can still produce, if it's so inclined, another map that suits the Democrats better than what the Legislature passed and the Governor signed.

That is emphatically wrong. For that to happen, at least two of the judges of the three-judge special court would have to publicly defy the SCOTUS. The last time something like that happened on a really important case was in 2000, when the Florida Supreme Court pointedly ignored the SCOTUS after the SCOTUS had already said, "Hey, you can't do that, so cut that out, and don't make us come down there and smack you!" The Florida court's institutional reputation has still not recovered, and the reputations of the individual judges who'd led the defiance simply vaporized because they were exposed as lawless partisan hacks. 

No, sir or ma'am, these three judges will indeed now understand that every single alteration they make from the Texas Legislature's map is going to be scrutinized under a SCOTUS microscope. Indeed, they've been given a list of specific (and otherwise likely) screw-ups that they have been publicly warned not to repeat. And the whole point of this unanimous, per curiam opinion was to send an unambiguous set of directives: There are no concurrences or dissents to muddy the water, and these three judges now know that what they did the first time couldn't find a single supporter on the SCOTUS. Repeat: these judges couldn't get so much as a kind word even from Justice Ginsburg, the long-time general counsel of the ACLU, on this one. That's such a harsh reality that it can't escape notice.

So these three judges would have to be utter fools to defy the Supreme Court. As I wrote in a comment below, there's no shame in being reversed, nor even in being reversed by a unanimous SCOTUS. There is, though, shame in being reversed twice in the same case on the same issues; and these three judges are going to take lots of care to see that doesn't happen.

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UPDATE (Sat Jan 21 @ ~5:00pm): This post is a fine example of why I complimented Prof. Rick Hasen for trying to maintain his intellectual honesty despite his partisanship. He admits to having "gotten a fair bit of pushback that the outcome after remand is far less certain" after his description of yesterday's decision as a "big win for Republicans." But he gives three reasons for why he "think[s] it is unlikely that whatever maps come out of the Texas court (and face a possible second emergency appeal to SCOTUS) are not likely to be nearly as good as the maps which came out now." (By "good," Prof. Hasen means, "pro-Democrat.")

His first and third points, I've already made here. He's correct that it's the Texas Legislature's maps, "(rather than starting from scratch maps) which will govern what the final maps look like." He's also correct that "The three-judge court is likely to be chastened by the unanimous Supreme Court decision."

His second point amplifies on something I've noted in a way that I think is also probably correct (emphasis mine):

In drawing those maps, the Supreme Court went out of its way not only to say that the three-judge court should not deviate from Texas’s plan any more than necessary to solve any constitutional/voting rights violation. The Court specifically pointed out that the court should not draw any minority coalition districts to achieve voting rights results. This makes it more likely that the majority-minority districts will have more minority voters in them and will not lead to the creation of extra Democratic seats.

I'm sure Prof. Hasen would protest and disagree, but I respectfully submit that that paragraph contains an inescapable but implicit acknowledgement that what this is all about is partisan politics, not remedying of racial discrimination. And its premise is that only Democrats can reflect the views of minority voters — an offensive and, indeed, a racist premise. (Again, he would protest and disagree.) But as always, the Dems want to win in federal court what they can't win at the electoral polls. They haven't won a state-wide race in Texas since 1994, and they've lost their majorities in both chambers of the Legislature, because Texas voters have rejected them — repeatedly, comprehensively, at every level and despite all their class- and race-warfare. The likely composition of the Texas Congressional delegation in January 2013 will now, correctly and fairly and legally, reflect that rejection.

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UPDATE (Sun Jan 22 @ ~5:40pm): I thank Prof. Hasen for this gracious cross-link to this post. (I'd sent him an email "ping" as a courtesy since I don't think his blog uses trackbacks and his comments are disabled.) In it, he writes (briefly, and not tendentiously but, I hope, with good humor):

For the record, I hardly think it racist to note that minorities, especially African Americans (but aside from Cuban-Americans in Florida) tend to vote for Democrats by very lopsided margins.

To which I'd respond, not quite as concisely:

Of course it's not racist to merely note it, especially as history. But it's a racist judgment (i.e., an act; I'm not indicting people but rather conduct and decisions) to assume or presume that so it must always remain. And partisan race-based politics is an illegitimate basis to strip state legislatures (and, ultimately, their constituents) of their constitutional rights and obligations to redistrict. In Chief Justice Roberts' inarguable formulation: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

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UPDATE (Sun Jan 22 @ 8:10pm): Concision is definitely something I lack, but I haven't vented about this for a few years. So, expressed slightly differently:

1. Democrats believe as a matter of political faith that, by definition, their party includes no racists and can commit no racist acts; rather, Democrats are merely people who insist that government, and especially the federal courts, trample democracy to reorder society (including Texas' Congressional districts) in order to dictate winners and losers on the basis of skin color. Nuance: I learnt it from that "Animal Farm" book ("four legs good!").

2. (a) Partisan gerrymandering is one of democracy's most unappealing, raw aspects. Democracy itself is a terrible system of government with many historically demonstrable failings, redeemed only by the fact that it's nevertheless the least worst form of government ever yet invented and implemented.

(b) The Democrats are complaining bitterly that in the Texas redistricting, Republicans discriminated against Democrats and in favor of Republicans. Well, duh. That's not disputed; that is the essence of gerrymandering, which is about sorting voters into districts based on how those voters are likely to vote. Every alternative to gerrymandering comes at a cost to small-d democracy; I haven't yet seen one which was worth that, and I don't believe any such alternative exists. The Founders' decision to put the responsibility for redistricting at the most organic, grass-roots level of government, the state legislatures, was indeed a choice of the least-worst alternative.

(c) However, proof that Republicans simply discriminated against Democrats also wins them no relief in federal court. So Democrats have to engage in this fiction that by discriminating against Democrats, the Republican majorities in both chambers of the Texas Legislature and the Texas Governor were all actually discriminating against racial minorities.

(d) That's counter-factual; the Democrats claimed that in 2003-2004 too, and were ultimately laughed out of court because all they had to support those claims was wild speculation and innuendo.

(e) In fact, neither Republicans nor Democrats have any need to discriminate anymore on the basis of so crude and statistically inaccurate metric as race. They can draw more useful, better-gerrymandered maps using other, much more precise data on who's likely to vote Democratic and who's likely to vote GOP.

(f) Nevertheless, absent actual evidence of discrimination on the basis of race (which doesn't exist, because that's not what's been happening), the Democrats' proof of an alleged voting rights violation depends entirely on their ability to win a purely legal argument (unmoored from evidence) that conflates "Democrat" with "racial minority." Without that presumption and assumption, their legal position falls to pieces, and is exposed as an accusation that Republicans are (gasp!) political.

There was nothing "culpable" about the 2003 Texas redistricting

I'm angered to read the following passage in a very silly and badly informed article called The End of Gerrymandering, and in particular, I'm dismayed to read it in the Weekly Standard:

But Republicans have not been without culpability, especially in recent years. The mainstream media has naturally sought to highlight this, especially the "DeLay Plan" to gerrymander Texas to the GOP's advantage mid-decade without even waiting for a new census. This occurred in 2003, when the Texas legislature, newly controlled in both houses by Republicans, redrew lines established by a court in 2001 after legislative deadlock. The gerrymander, which created several more GOP-leaning seats in the Texas delegation, ultimately was upheld by the U.S. Supreme Court. Incoming Obama chief of staff Rahm Emanuel, then chairman of the Democratic Congressional Campaign Committee, opined: "Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen. That's the gift that the Supreme Court and Tom DeLay have given us."

I have several questions for the authors, Christian Whiton and Larry Greenfield: Why do they think it was appropriate for the citizens of our nation's second most populous state — a state that has trended Republican since the early 1990s, and been solidly Republican for more than a decade — to continue to live with a pro-Democratic gerrymander from the 1990s that no longer remotely reflected Texas' majority-Republican status? Why should we have to continue to submit to a Congressional district map that was specifically designed to give, and in fact gave, Democrats a majority of Texas' seats in Congress when not a single Democrat could win election to a statewide post?  Why should we pretend that a three-judge federal court — one whose judges candidly and expressly recognized their own lack of political legitimacy, since it was comprised of unelected judges holding life tenure from the single branch of the state or federal government least responsive to small-d democracy — was entitled to have its decision (which made the least possible changes necessary to the 1990s pro-Democratic map to accommodate Texas' new seats due to the 2000 Census) written into stone?

Why, in short, are Christian Whiton and Larry Greenfield swallowing hook, line, and sinker the most incredibly misleading anti-democratic clap-trap of the disingenuous Hard Left (viz: Rahm Emanuel!), describing as "culpable" a readjustment of Texas' districts to closely reflect modern-day Texans' own voting patterns?

What Rahm Emanuel meant was that Tom DeLay and the Supreme Court had given lying Democrats like him a fact-pattern that they could continue to twist, in order to mislead people into thinking that a legitimate democratic process reflecting the wishes of a majority of Texas voters, as expressed through their elected state legislators and governor, was instead a racist and improper one.

I expect better of the Weekly Standard's editors than to print this kind of drivel. The byline tells us that "Christian Whiton is a State Department political appointee. Larry Greenfield serves on the Resolutions Committee of the California Republican Party. The views expressed are their own." But that frankly doesn't excuse the fact that this piece goes out of its way to insult the citizens of Texas and their duly elected state leaders.

Far outside the Beltway, here in Texas, we don't see a problem with our own elected officials — rather than even very good federal judges — drawing our Congressional district map. Culpable? No, that's democracy. That's why America has a Census every ten years, and that's why redistricting is supposed to be done by the combined action of state legislatures and state governors thereafter. Indeed, the voters of Texas reacted to the Dems' 2001 stonewalling in the state legislature by electing more Republicans, who as a result were able to break the Dems' attempts to stonewall and boycott in 2003. There's nothing wicked about voters punishing a party which was badly abusing even its minority status; rather, it's a text-book example of the success of representative democracy.

(The rest of the Whiton and Greenfield piece expounds the great virtues of the new system just passed into law for California that is supposed to make redistricting "nonpartisan." That's about as clever, and is about as likely to be effective, as passing a constitutional amendment requiring state legislators or state governors to be "wise." Redistricting is inherently a political exercise. Moreover, Supreme Court precedent and civil rights legislation, most prominently the Voting Rights Act of 1965, make it impossible for states to redistrict in a random, apolitical fashion anyway: Even if they try to avoid partisan issues, the law's assumptions (among them the repugnant proposition that only Democrats can represent blacks and hispanics) and repercussions will require them to consider the political effects of their actions. I have no confidence that the new California plan will work; indeed, California seems to me and many of my fellow Texans to be most useful as the political laboratory for testing out the most conspicuous failures that the other 49 states can then observe and avoid.  (See point #5 here.) But I wish them luck in what I nevertheless believe to be an impossible and unrealistic task, and I would thank those like Whiton and Greenfield who believe otherwise to withhold their insults to the State of Texas at least until the day — indeed the decade, or two — in which the new California plan has proven itself to be an even arguably viable alternative.)

I blush ...

... at the last sentence of this post. Thank you, Mr. Ponnuru.

But it is true that I'm available, even to Dick Morris, at a much lower hourly rate than Dick Morris.

Three-judge federal panel again tosses Dem complaints about 2003 Texas Redistricting

I. Introduction

When it comes to congressional redistricting law, as compared to someone like Rick Hasen — a law professor who studies and teaches the subject, and blogs about it as well — I am, admittedly, a dilettante. Put another way, neither side in the on-going legal struggles over Texas' congressional redistricting has been beating down my office door to hire me, and instead they've preferred, quite appropriately, to turn to genuine specialists in this arcane-but-important legal discipline.

But one of my goals as a lawyer-blogger has been to try to simplify — to translate, if you will — the legal concepts and events of that struggle into language that a diligent and well-educated nonlawyer can understand. I'm also a pundit, though, with a self-admitted political viewpoint; and I readily admit that my interpretation and commentary on those concepts and events reflects that viewpoint. In short, while I've been trying in my many, many posts on the 2003 Texas redistricting to give a layman-intelligible explanation of what's been going on in the court challenges to the 2003 Texas redistricting plan, I've also been arguing for the legal and practical fairness of that plan. I don't defend partisan gerrymandering as being a wonderful thing in the abstract; but given that it exists, I've been defending this particular exercise of it as being both fair and legal.

At the moment, I'm rubbing my eyes after reading 58 pages of very, very dense and very, very carefully crafted legal prose: yesterday's decision by the three-judge panel to whom the United States Supreme Court sent back the Texas redistricting case for reconsideration "in light of" the Supreme Court's 2004 decision in the Pennsylvania redistricting case, Vieth v. Jubilirer. It's tough sledding, folks — it presumes a whole lot of pre-existing knowledge on the part of its readers that, quite frankly, even most lawyers lack.

Now, I don't fault the judges for this, because a written opinion that was both comprehensive and user-friendly would have run into the thousands of pages, given the ground that this decision tries to cover. This is definitely MEGO-inducing ("mine eyes glazeth over") stuff. So it's also no surprise that the mainstream media — for example, the Associated Press, the Houston Chronicle, and the Dallas Morning News — don't tell their readers very much more that's obviously meaningful besides who won (the Republicans, again) and what both sides said about the result (Dems: "Just a way-station on the way back to the Supreme Court"; Republicans: "This ought to end it.") Prof. Hasen provides his initial short (but substantive) take — definitely better than the MSM's reporting — here, but it's still "inside baseball" that presumes a lot of pre-existing knowledge (and reasonably so, given his blog's intended audience of professionals).

So once again, while I invite you to read it for yourselves, I'll plunge into the dense prose to try to tell you what I believe has happened. And then I'll tell you what I think of it, and what I think is likely to happen next.

II. Who was on the three-judge panel, and what did it do?

Yesterday's decision was from the same three-judge panel that initially rejected the Dems' legal challenge to the 2003 Texas redistricting in a 127-page decision that I blogged about in January 2004: United States Circuit Judge Patrick E. Higginbotham  (appointed by Pres. Ford to the district court bench, elevated by Pres. Reagan to the Fifth Circuit), and United States District Judges Lee H. Rosenthal (appointed by Pres. G.H.W. Bush)\¹/ and T. John Ward (appointed by Pres. Clinton).\²/

Yesterday's result — Dems lose — was the same. But unlike the January 2004 result, yesterday's ruling was unanimous among all three judges on the panel. This time, however, the main opinion for the panel was specifically identified as being written by Judge Higginbotham. (I'd have guessed as much from its style; and I suspect that again it was largely his own initial drafting, rather than coming from his law clerks.) Judge Ward, who dissented in part from the January 2004 decision, this time concurred fully in the result, but again wrote a separate opinion expressing his own views.

III. What did the three-judge panel say?

Of the U.S. Supreme Court's decision in October 2004 to send this case back to the three-judge panel for further consideration, I wrote "it's a shallow, technical, procedural, and — in all probability — a purely temporary victory for the Dems that at best gives them one more bite at an apple they've already gone hungry on before." And as Prof. Hasen wrote then, and I agreed,

What is the lower court to do? The lower court [judges on the panel] already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with.

But no one can fault this panel for failing to give it the old college try. "The light offered by Vieth is dim," writes Judge Higginbotham dryly, and with considerable understatement he notes that "the search for a core holding is elusive." Politely but accurately, he adds: "This observation is not a criticism, but a recognition that Vieth reflects the long and twisting historical narrative of political gerrymanders in the United States."

Next in Judge Higginbotham's opinion follow accurate descriptions of the various opinions from the fractured Vieth Court, and of the factual history in Texas of Democratic gerrymandering and Republican counter-gerrymandering as the parties have switched majority status over the last four decades. The context of the latter, though, can give the panel no help resolving the conflict and confusion within the former. The panel rejects — rightly and persuasively, I think — all of the suggested interpretations of Vieth and attempts to harmonize its conflicting approaches that were offered by the Dems. The panel opinion also has an interesting discussion of whether gerrymandering does or doesn't cause noncompetitive districts, but I think that's mostly an academic digression that's not key to any result that the panel reached.

So what "further consideration ... in the light of Vieth" could the panel give to its own January 2004 ruling upholding the 2003 Texas redistricting? Well, since Vieth produced no "core holding," the panel here ultimately resorts to the roughest — but in my view, the only appropriate — use of that precedent. In a nutshell: Since the partisan skew resulting from the Pennsylvania gerrymander was worse than the partisan skew resulting from the Texas gerrymander, and since the Supreme Court left the Pennsylvania gerrymander in place anyway, yesterday's opinion says this panel won't overturn the Texas gerrymander for being "too partisan." Here's the panel's own explanation:

In short, under the plan passed by the Pennsylvania General Assembly and upheld by the [Supreme] Court in Vieth, the party that garnered, on average, less than half the vote in statewide races was able to capture nearly two-thirds of Pennsylvania's congressional seats. In contrast, the plan passed by the Texas legislature resulted in the election of twenty-one Republicans and eleven Democrats to the House of Representatives in 2004, when the Republican Party carried 58% of the vote in statewide races and the Democratic Party carried 41% of the vote.

... [I]f the effects of the Pennsylvania plan did not provide a basis to find excessive partisanship in redistricting, it is hard to see how the effects of the Texas plan make it constitutionally offensive.

That's the nub of this 58-page decision, friends and neighbors.

The Dems, anticipating the likely result of this brutally simple comparison, had labored mightily to persuade the panel that the result of Vieth ought not dictate the results reached by this panel. But they utterly failed to persuade the panel to reconsider the original rejection of the Dems' "twice in one decade" argument from the Dems' first challenge to the 2003 Texas redistricting, which the Dems launched before the third legislative special session in 2003 had succeeded in passing a plan. This is no surprise: the Dems had no precedent for that argument then, and had none now either.

But the Dems, supported by an amicus group of "University Professors"\³/ had made another ingenious and ultimately disingenuous attempt to distinguish the Texas situation from Pennsylvania's. The "one person, one vote" ("OPOV" for short) line of Supreme Court cases, they argued, effectively prohibited the Texas Legislature from doing their mid-decade redistricting based on three-year-old results from the 2000 Census. The Dems knew, of course, that — as Judge Higginbotham's opinion also recognized — it would be impossible for Texas to duplicate the national Census mid-decade and solely within Texas, so the effect of this proposition would be to indirectly prohibit all mid-decade redistricting. But the Supreme Court has approved many redistrictings that were based on more than two-year-old Census data — specifically including redistrictings done by state legislatures wishing to replace (as here) an earlier-in-that-decade court-crafted map. And in fact, even if redistricting is done in an -01 year, the data from the previous year's Census will already be substantially inaccurate. Therefore, in the panel opinion for yesterday's majority, Judges Higginbotham and Rosenthal refuse to allow the perfect [i.e., mathematical precision based on absolutely current census data] to become the enemy (actually, the assassin) of the good [i.e., our system's deliberate historic choice to prefer that redistricting be done by (democratic) state legislatures rather than (un-democratic) three-judge federal court panels].\⁴/

Judge Ward's special concurrence buys into this pitch, but basically says that only the Supreme Court has the power to turn it into binding law. As such, I'm quite certain that it will be the cornerstone of the Dems' inevitable appeal back to the Supreme Court — which leads to my next topic.

IV. What will happen next?

The one thing that is absolutely certain is that the Dems will make good on their announced and inevitable intentions to appeal yesterday's ruling back to the Supreme Court. For obscure reasons unique to voting rights cases that I've explained before, the Supreme Court cannot just refuse to rule on the merits of that appeal by issuing one of its typical "cert denied" orders. But while it must (in theory) address the merits of yesterday's ruling, the Supreme Court need not grant oral argument or write a full-blown opinion (or more likely in any of these cases, set of opinions). And I predict that the Supreme Court will, in due course and in no particular hurry, summarily affirm yesterday's ruling without either entertaining oral argument or explaining their decision.

It's theoretically possible, of course, that the arguments of the amicus University Professors (as embraced by the Dems) will persuade the Supreme Court to hold oral arguments and to make new precedent. It's possible that by some sort of miracle, a coalition of at least five Justices (perhaps including one or more new Justices by then) will coalesce out of the chaos that ruled in Vieth. Impassioned briefs will indeed be written and filed (and impressive legal fees will indeed be charged and paid for them). But as Judge Higginbotham's opinion notes, the University Professors' argument "as presented comes unadorned with supporting case citations." This is a polite way of saying: "Cute, guys, but you're just makin' this stuff up as you go, and you can't point to any other court that's already done what you're asking us to do now." That doesn't bode very well for the Dems' chances in their next trip back to the Supreme Court.

Realistically — and on this, I think even the Dems' lawyers would agree, if you could ever get them to be privately candid on this subject — the Dems' chances have gone from "long-shot" to "moon-shot" status. The fat lady sang a long time ago in this opera, and all that's left are some assorted violas and bassoons still squawking because they won't/can't/don't want to admit that the conductor has already left the podium. The 2003 Texas redistricting map will almost certainly remain in place for the rest of this decade.

Gerrymandering causes perennial (or at least decennial) bloodbaths not just in Texas but elsewhere, so the Supreme Court will have many future occasions to reconsider Vieth and to provide something more coherent than its "dim light." But Beldar sez: Don't hold your breath for the next five years (unless you're working and getting paid by the hour to do so).

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\¹/Disclosure: As I've noted before, I practiced law with Lee Rosenthal for several years at Baker Botts in the 1980s; I like and admire her greatly; and I still consider her a friend (although we've had no social contact for many years, and I only rarely appear before her professionally these days).

\²/As I've also written before, I think it is facile, misleading, inaccurate, and insulting to suggest that the results of these cases correspond directly to whether the panels are composed of appointees of Republican or Democratic presidents. But those appointments are objective bits of information, and some folks insist on making arguments from them (nevertheless often misstating those objective facts in the process).

\³/The question "What left-wing domination in academe?" is even funnier, of course, than "What liberal bias in the mainstream media?"

\⁴/I recognize that in writing a sentence like this one, I'm utterly failing — alas and alack, mea culpa maxima! — in my goal of translating the panel's dense legal prose into clear lay language. At least my version is boiled down to one obscure paragraph, though, instead of filling multiple pages.

In a victory for (small-d) democracy, Texas voters "re-enfranchised" in Congressional elections

Tonight the tenacious and pernicious effects of a pro-Democratic gerrymander dating back to 1991 were finally erased.  Due to the successful redistricting completed by the Texas Legislature in 2003 — the first and only redistricting completed by that body, in the due performance of its assigned duties under the state and federal constitutions, to account for the results of the 2000 Census (and Republicans have pledged that there will not be another until after the 2010 Census) — Texas' congressional representation in the next Congress will now reflect the Republicans' strong majority-party status in this state.  Republicans will hold 21 of 32 Congressional seats, or 66 percent of the total.  Dubya pulled just over 61 percent state-wide, suggesting that the pro-Republican tilt to the 2003 map is pretty mild and reasonably accurately reflects Texas' overall Republican-Democratic voter proportions.

My title for this post is tongue-in-cheek.  Those who've read my many, many past posts on the Texas redistricting will know that I've consistently objected to Democratic claims that redistricting — even highly partisan gerrymandering — "disenfranchises" voters.  Disenfranchisement means depriving someone of his right to vote.  Redistricting/gerrymandering doesn't do that; under both the old map and the new map, essentially every eligible voter in Texas who wanted to do so, was indeed able to cast his or her vote and have it counted.  One has a sacred right to vote, but one doesn't have a sacred right to have his or her preferred candidate win.

What the 2003 redistricting accomplished — within the limits imposed by the Voting Rights Act, which essentially transformed minority-race Democratic incumbents into untouchable sacred cows whose districts must remain gerrymandered to ensure their perpetual re-election — was to unpack Republicans (who'd previously had their votes purposefully diluted by the pro-Dem gerrymander in 1991) into a larger number of districts. 

The sacrificial lambs of the 2003 Texas redistricting and the 2004 Congressional election thus became incumbent white male Democrats who — stripped of their own gerrymandered advantages — turned out not to be so well beloved by their new mix of constituents as they'd claimed they would be.  Charlie Stenholm, Max Sandlin, Nick Lampson, and (most sweetly, because he was the architect of the earlier pro-Dem gerrymander) Martin Frost took dirt naps.  Another white male Dem incumbent, Chet Edwards, is leading as I write this, and if he indeed wins that will show that the redrawn districts were not entirely uncompetitive.  White male Dem incumbent Lloyd Doggett won, as expected — but only after moving to run in a new district that was created with the expectation that it would be Democratic-leaning and that the Dems would pick a hispanic candidate.  (El Patron Doggett used all of his many advantages of incumbency, fund-raising, and name recognition to squash his Democratic primary opponent, former judge Leticia Hinojosa; I'm still waiting for the Dems to scream "racism" and "sexism," but there's been a strange silence.)

I've consistently maintained that the Dems' resistance to redistricting was profoundly anti-(small-d)-democratic.  Yes, gerrymandering is brutal; yes, we should consider some sort of redistricting reform (although I've yet to see a plan that I could endorse unreservedly).  But tonight's Texas Congressional election results can be traced directly back not to the decisions of Texas voters who in 2002 put both chambers of the Legislature and the Lieutenant Governorship and Governorship into the hands of the Republicans.  Tom DeLay merely guided his statehouse colleagues in using the voting majorities that Texas voters had placed into Republican hands. 

As I wrote on October 18th, I believe that the nominally still-pending legal challenge to the 2003 map will be summarily rejected again by the three-judge panel that approved that map in January, and that the panel's decision will then be summarily affirmed, probably without oral argument or written opinion, by the Supreme Court.  Edwards' win effectively drives a final coffin nail into the argument that the Dems have no chance of prevailing in any of the non-minority-incumbent redrawn districts.

I'm well pleased.  It was a good night for small-d democracy in Texas.

(Footnote for out-of-state readers who remember Ra^thergate:  David Van Os, one-time lawyer for CBS News source Bill Burkett, was soundly trounced (60/40) in his race for a Texas Supreme Court seat by superbly qualified incumbent Scott Brister.)

SCOTUS decision today on Texas redistricting case is no big deal

In a two-sentence order released today, the United States Supreme Court vacated the January 6, 2004, decision of the special three-judge Voting Rights Act panel from last January, pending before it under the name Jackson v. Perry, that had rejected challenges to the Texas Legislature's 2003 congressional redistricting.  The Supreme Court returned the Perry case to that same special three-judge panel "for further consideration in light of Vieth v. Jubelirer," the Supreme Court's own April 2004 decision in a redistricting case from Pennsylvania.

In an earlier ruling on January 16, 2004, the Supreme Court had refused to block the use of the 2003 map for the 2004 congressional elections, so today's decision cannot directly affect the upcoming election.

So what's this mean?  The Associated Press story on today's ruling, as republished in the online version of the Houston Chronicle (beware, the Chron has a nasty tendancy to edit, replace, or simply make content disappear at the same URL), spins this as if it were a big win for the Dems:

The Supreme Court handed Democrats a victory today, ordering a lower court to reconsider a Texas redistricting plan that could give Republicans six more seats and a firmer hold on their majority in the House.

I suppose from the standpoint of the Democratic plaintiffs, today's ruling is slightly better than a poke in the eye with a sharp stick.  But it's a shallow, technical, procedural, and — in all probability — a purely temporary victory for the Dems that at best gives them one more bite at an apple they've already gone hungry on before.

As I've written many times before (for example, here, here, and here), appeals from rulings of special three-judge Voting Rights Act panels are unusual creatures.  By statute, they skip the normal first level of appellate review in the United States Courts of Appeals, and shoot up directly to the Supreme Court.  Even more oddly, unlike most of the cases that come before the Supreme Court for consideration on a so-called "application for a writ of certiorari," the Supreme Court has no discretion to refuse to hear Voting Rights Act appeals.  That doesn't mean that the Supreme Court always holds oral argument and issues a full written opinion on those appeals — and in fact, usually it doesn't.  But its ultimate rulings on appeals in Voting Rights Act cases are "on the merits," rather than nonprecedential refusals to review the case (which is the correct characterization of the Supreme Court's denial of certiorari in the normal, non-Voting Rights Act cases).

Today's ruling, though, was not the Supreme Court's ultimate decision on the merits of the Texas case, but merely an intermediate and procedural one.  What's more, it was an entirely predictable one that, in and of itself, contains no signals as to what the Supreme Court might ultimately, someday, do with the case.

Instead, the Supreme Court's decision today is an absolutely routine recognition that when the three-judge panel made its decision in the Perry case on January 6, 2004, it did so without the benefit of the Supreme Court's later written opinion from the Pennsylvania case, Vieth.  It is absolutely commonplace — and an efficient use of the Supreme Court's limited time and resources — for it to refuse to make a ruling on the merits when the lower court's decision was written without benefit of an intervening Supreme Court decision.

Unfortunately for the Dems, there's absolutely nothing in the Supreme Court's multiple and fractured opinions from Vieth — none of which commanded a five-Justice majority of the Supreme Court — which makes it at all likely that the Perry three-judge panel will come to any different result than it did last January.  It's unlikely that the three-judge panel will hear more evidence; rather, it will probably simply revise its lengthy opinion to make appropriate references to the various plurality and dissenting opinions from Vieth and then, again, refuse to declare the Texas map illegal. 

At that point, the Dem plaintiffs can be expected to again appeal back to the Supreme Court — and again, that will be an "appeal as of right" that the Supreme Court will, by statute, have to consider on its merits.  But in all probability, unless there's an intervening change in the composition of the Supreme Court or a major change of heart by one of its members who voted in Vieth, the Supreme Court will simply affirm the three-judge panel's decision with a one-sentence order — most likely without hearing oral arguments and most likely without a full written opinion.  Having failed in Vieth to clarify or improve on the dog's breakfast of prior Supreme Court precedents on the permissible extent of partisan gerrymandering, there's absolutely no reason to think that the Supreme Court will try again, a mere year later, unless there's a new face on the Court.  Election law specialist Rick Hasen, whom I regard very highly, is quoted in the AP report with this statement:

"I see this as the Supreme Court punting right before the national election," said Richard Hasen, an election law expert at Loyola Law School. "It buys the Supreme Court another term before it has to rethink the issue. Maybe by then we'll have a new justice or two."

Professor Hasen's more extended analysis is on his blog (hat-tip How Appealing, which also has more links to other press accounts):

What is the lower court to do? The lower court Justices [sic — Prof. Hasen clearly means the judges of the three-judge panel] already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with.

It's possible, I suppose, that the three-judge panel will sit on the remanded case for several months, pushing the next appeal back to the Supreme Court into the October 2005 term — by which time it's also conceivable that one of the present Justices might have retired and that a hypothetical President Kerry might have named and gotten confirmed a successor that would be more sympathetic to the Dems' views, or that (as Prof. Hasen speculates) Justice Kennedy might have changed his mind since Vieth.  But I frankly doubt that scenario, even if Kerry wins the presidential election.  I expect that the three-judge panel will ask for briefing in short order, and then issue its revised decision before the end of 2004 — in which case it will likely be calendared and decided on its merits in the Supreme Court before the end of the current term, by the same Justices who are now sitting.

Predictably — and reprehensibly — the AP report continues to misrepresent the basic facts of the Texas redistricting case:

States must redraw boundaries every 10 years to reflect population shifts found during the census. Five appeals over the Texas boundary-drawing pose an interesting question: Can political leaders of a Legislature force district drawing more frequently than once a decade, to make more seats winnable for members of their party?

This is nonsense.  There has only been one successful congressional redistricting done by the Texas Legislature since the 2000 Census, and that's the redistricting map passed in 2003.  The Dems, and their either ignorant or complicit spinners in the mainstream media, continue to shout the "multiple redistrictings in one decade" meme because it's a great way to villify Tom DeLay and all Texas Republicans — but it's completely bogus.

Bottom line:  Anyone who tries to tell you that today's Supreme Court ruling is surprising and important good news for the Dems doesn't know what they're talking about.  Personally, I'd give far better odds on the Red Sox winning this year's World Series.

Update (Mon Oct 18 @ 3:00pm):  Writing on NRO's The Corner, Jonathan H. Adler's take is very similar to mine (although much pithier).  His bottom line is "much ado about nothing."

A small nit:  Today's order doesn't actually direct "reconsideration," which might imply a need to make changes, but "further consideration."  I'm not sure whether SCOTUS always says "further consideration," but I seem to have a vague recollection that they do, in fact, sometimes say "reconsideration."

Update (Mon Oct 18 @ 3:45pm):  The relentless, counterfactual spin continues, as per the latest AP story, which recites that "Democrats hailed the ruling, calling it proof that the map is unfair to Texas voters":

Texas Democratic Party Chairman Charles Soechting said the ruling should be at the forefront of voters' minds as they cast their ballots in the coming days.

"When the most radical Supreme Court in the nation's history rules that Tom DeLay and his co-conspirator Craddick went too far in their corrupt and ultra-partisan overreach, it is truly breathtaking," Soechting said. "DeLay and Craddick have created the most divided and partisan state government in history. It is time to restore integrity and balance in Austin."

Shame on you, Mr. Soechting!  You're a lawyer, and from what I've heard of you, a good one.  You know what today's ruling means, and what it doesn't mean, and you know today's ruling bears zero resemblance to your characterization of it.  Call Republicans names; characterize the politics of the Supreme Court as you like.  But don't flat-out lie to the public about whether today's ruling was on the merits or not!

Update (Wed Oct 20 @ 11:20pm): The Sox' odds of winning the World Series are getting lots better.  Unfortunately for the Dem plaintiffs in Perry, though, I think the team of nine on the Supreme Court are somewhat more predictable than any team of nine on a baseball diamond.

US Supreme Court votes 9/0 to AFFIRM first Texas redistricting case, but the Houston Chronicle claims the Court "refused to hear" it

In the space of a two-sentence lede in a story tonight headlined "U.S. Supreme Court hands defeat to Texas Democrats," the Houston Chronicle's R.G. Ratcliffe managed both to demonstrate his liberal bias and to completely misreport what the Court did today about Texas redistricting:

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership ran over them in a push to pass congressional redistricting last year.

The high court refused to hear a three-judge panel decision against Senate Democrats last year when they unsuccessfully sued to halt a redistricting debate.

"Ran over them"?  And some people seriously ask, What liberal media bias?

If this were an op-ed, or even something labeled "news analysis," then that sort of value judgment might be acceptable.  An equally slanted version of this sentence from the opposite (that is, conservative) perspective might read: 

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership finally rescued the principle of majority-vote representative democracy from legislative anarchy in their efforts to meet the Texas Legislature's constitutional duty to pass a congressional redistricting plan last year.

I think that's actually closer to the truth.  But how about something that's factual without implying any value judgments or grinding any political axes, like this:

The U.S. Supreme Court ruled today that Texas Senate Democrats did not have their rights violated when the Republican leadership overcame the Dems' lengthy procedural efforts to block a simple majority-rule vote in the Republican leadership's push to pass congressional redistricting last year.

Having demonstrated his obvious political bias in his choice of loaded language for his first sentence, however, Mr. Ratcliffe proceeded to completely misreport what the Supreme Court actually did! 

Any first-year law student who's studied basic citation form or gotten a passing grade in his federal procedure class — and certainly any of the fine lawyers who are available, even eager, to help explain things to the Chronicle staff — would take one look at what the Court actually wrote today and immediately recognize that this language is emphatically not a "refus[al] to hear a three-judge panel decision against Senate Democrats last year":

Appeal — Summary Disposition

03-756   BARRIENTOS, GONZALO, ET AL. V. TEXAS, ET AL.
The judgment is affirmed.

This item was at the very top of today's list of decisions — all by its lonesome under a bold-face heading.  You'd think that alone would give a reporter who gives a damn about getting his facts straight some sort of clue that Barrientos v. Texas wasn't a "usual sort of 'appeal'" — but that apparently didn't faze Mr. Ratcliffe for a moment.

Indeed, ff you scan down through the fifteen pages of other orders also issued today, you'll soon come to a long list of hundreds of ordinary (non-Voting Rights Act) cases that the Supremes did "refuse to hear" — that is, cases in which the Justices exercised their discretion to refuse to review those cases on their merits.  All of those cases were effectively ended by the Supreme Court's denial of a petition to issue a "writ of certiorari" — that "writ" being the technical name of the type of Supreme Court order it issues when at least four Justices have agreed to hear what's commonly (if inaccurately) called an "appeal" from a lower court (usually one of the United States Courts of Appeals, a/k/a the "Circuit Courts" like the Fifth Circuit or the Ninth Circuit).  Any first-year law student learns that "cert. denied" simply means that the Court refused to consider the merits of the court below's decision.  A denial of certiorari therefore has utterly no precedential value; it doesn't mean the decision of the court below was right or wrong.  It's not only mistaken, but unethical for a lawyer to suggest otherwise.

Unlike all those other cases resolved today, Barrientos v. Texas wasn't a discretionary appeal made through an application for a writ of certiorari, but — as I've repeatedly blogged before (in the most detail, with links to the statutes, here and here) — an "appeal as of right" from a Voting Rights Act three-judge panel, a type of decision that Congress, by statute, requires the Supreme Court to fully review on its merits.  In other words, by statute, all nine Justices of the Supreme Court had to vote — not on the question of "Do we want to hear this?" but on the very different question of "Was the decision of the three-judge panel right or wrong on the merits?" 

There were no dissents — the Dems couldn't pick up even a single vote.  Instead, all nine Justices necessarily agreed not only that what the three-judge panel had written and ruled was proper and correct on the merits, but that there were no close questions at issue, and nothing to add to what the three-judge panel had already written.  And in fact, from now on, any lawyer who refers to that three-judge panel's decision will have to include in his citation a special notation — aff'd mem., 541 U.S. ___ (2004) — because the Supreme Court has effectively adopted the three-judge panel's opinion as its own.

In the simplest possible words: The Supreme Court didn't decide not to "hear" this case.  They had to consider it fully and on its merits.  When they did so, they unanimously decided that the three-judge panel's decision was correct.  That's what "summary disposition: affirmed" means in layman's terms.  The Court thought this was a no-brainer.  It's the Supreme Court equivalent of a prize fight — not one that's cancelled, but one that's a knockout in the first ten seconds of the first round.

Mr. Ratcliffe's misreporting of this basic, fundamental fact is all the more embarrassing when you look at other media reports.  The Dallas Morning News and Washington Post managed to avoid this confusion, as did the Associated Press report reprinted in the Austin American-Statesman and the Fort Worth Star-Telegram.

I don't know where this story will be in the print edition of the Chronicle tomorrow (and indeed, the Chron is notorious for monkeying with its online links without leaving clear tracks when it's done so) — but as I write this, it's on the Chron website as the first of "Today's Top Stories."  It's bad enough that this "news report" is obviously biased, but it's incalculably worse that it's just flat wrong on the core event it purports to have reported.

How very, very pathetic.

---------------

Update (Tues Apr 20 @ 5pm):  No response from the Chron to my outraged email ... of course.  Also, the Daily Texan joins the Chron in misreporting yesterday's result:

The U.S. Supreme Court declined on Monday to hear an appeal by 11 Texas Democratic senators challenging redistricting legislation that passed during last fall's special session.
....
Bob Richter, spokesman for House Speaker Tom Craddick, R-Midland, said the court's decision, which has the power of a ruling, reaffirms the redistricting effort.

Yes, it had the "power of a ruling" because it was a ruling.  Duh.

Finally, my exchange of comments on Charles Kuffner's post about this decision is an excellent illustration of the Chron's habitual disrespect for the integrity of hyperlinks.  Kuff's post and comments reveal that the Chron originally had posted the AP wire story on yesterday's decision, then replaced the AP version with Ratcliffe's article at the very same URL.  Not only does this create confusion, but it proves that the Chron replaced a correct report about the decision with something contrary and incorrect.  More's the pity.

Update (Tues Apr 20 @ 11pm):   Prof. Hasen, whose post about yesterday's ruling I linked in a comment below, was kind enough, in response to an email from me, to link this post on his blog, and in his email reply to me to very impressively and definitively answered a question I'd posed to him regarding the precedential effect of summary affirmances.   Per Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173 (1979) (internal citations omitted):

[T]he precedential effect of a summary affirmance can extend no farther than "the precise issues presented and necessarily decided by those actions." A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.  Questions which "merely lurk in the record" are not resolved, and no resolution of them may be inferred.

This confirms that the summary affirmance yesterday in Barrientos isn't likely to affect Vieth or Jackson v. Perry.  But it's still considerably more powerful than a "cert. denied" in the unlikely event that a future court should ever be called upon to consider something like the suspension of the "blocker bill" procedure during legislative redistricting.

The fat lady clears her throat on Texas redistricting: Supremes refuse to block Texas map pending appeal

The US Supreme Court's first action in the appeal of the three-judge panel's decision approving the Texas Legislature's 2003 Congressional redistricting — a case known as Session v. Perry before the panel, and now pending before the Supreme Court under the name Jackson v. Perry — has been to deny an emergency request for a stay of the three-judge panel's order pending its appeal, according to an Associated Press report republished by the Dallas Morning-News, the Houston Chronicle, and of course the ever-vigilant Howard Bashman's How Appealing legal blog.  From the Chron:

The Supreme Court refused today to block a hard-fought Republican redistricting plan in Texas that could cost Democrats as many as six seats in Congress.

The justices will announce later this year whether they will consider an appeal from congressional Democrats and others who claim the map dilutes minority voting strength. In the meantime, they rejected an emergency appeal that sought to stop the state from using the new boundaries in this year's elections.

As is unfortunately typical, this AP report gives a misimpression when it suggests that the US Supreme Court has discretion to refuse to hear the appeal on its merits.  Cases like this one — in contrast to most cases, which the Court decides on their merits only if it first grants a discretionary "petition for writ of certiorari" — are "direct appeals," taken "as of right" without first going through the normal intermediate appellate route, the United States Courts of Appeals.\note1/

The Supreme Court already has pending under submission a similar challenge to partisan gerrymandering from Pennsylvania in Vieth v. Jubelirer, which was argued on December 10, 2003.  If they followed their normal practices, immediately after that oral argument, the Justices presumably took a preliminary "conference vote" on whether to affirm the lower court's decision in Vieth — thereby presumably leaving intact the very permissive standards regarding partisan gerrymandering as established in Justice White's 1986 plurality opinion in Davis v. Bandemer — or whether to write some new restriction against partisan gerrymandering into the law.  The senior Justice in the provisional majority has presumably assigned himself or one of the other Justices voting with him to write a proposed majority opinion reflecting their decision in their post-argument conference.  Unless something very dramatic happens to change the voting line-up from the conference — rarely, but occasionally, a very persuasive proposed dissenting opinion can end up causing Justices to change their provisional votes — Vieth has already been effectively decided.  But only the Justices will know the result until all the proposed majority, dissenting, and concurring opinions have been circulated, final votes have been cast, and the final decision announced.

The three-judge panel in the Texas case ruled — quite correctly, I believe — that the Texas Legislature successfully stayed within the bounds permitted under Bandemer when it redistricted in 2003.  I also believe that if the US Supreme Court intends to write dramatic new law in Vieth that overrules Bandemer and substantially restricts partisan gerrymandering in any important way, then the same Justices who cast preliminary votes to that effect after oral arguments in Vieth almost certainly would have voted to grant the Texas plaintiffs' motion for an emergency stay pending appeal.  If they know the law is about to change in a way that would make what the Texas Legislature did in 2003 illegal, then they almost certainly would have voted to ensure that the 2004 elections in Texas would take place either under whatever new law they intend to announce in Vieth, or else under the pre-existing 2001 map — rather than permitting the 2004 elections to proceed under the Legislature's 2003 map that was approved by the three-judge panel applying the Bandemer plurality standard.

By contrast, if a majority of the Justices have already made the preliminary decision after oral argument in Vieth either to leave Justice White's plurality opinion in Bandemer substantially in place, or to replace it with an even less restrictive standard — for instance, a ruling that such issues are "nonjusticiable political questions," as Chief Justice Rehnquist and Justice O'Connor urged in their dissent in Bandemer — then those same Justices would have voted against staying the result of the three-judge panel's decision in Texas.  They would vote against staying the panel's ruling from Texas because they have already concluded that ruling will almost certainly ultimately be affirmed under the result they've already reached in their still-secret conference vote in Vieth.

Thus, my bottom-line reading of the tea leaves: Today's ruling makes it very unlikely that the Supreme Court is going to reverse the rulings that permitted partisan gerrymandering in either the Pennsylvania or Texas cases.

Another AP story that appears on the CBS News website includes this quote:

Gerry Hebert, who represents Texas congressional Democrats, said Friday: "I still remain confident that justice will prevail. It just didn't today."

Lawyer Hebert, who's been over-the-top in his public pronouncements since he first showed up in this fight, is going to have to have the fat lady actually sit on him before he gets the point, I think.  Earth to Gerry:  Justice just did prevail.

Likewise, the Austin American-Statesman has a quote with this bit of wishful thinking:

But Nina Perales, a lawyer for Hispanic civil rights groups challenging the map, said the court's decision not to grant a stay does not indicate how it might rule when full-blown appeals reach it.

"A stay is an extraordinary remedy, and not getting a stay doesn't really give you much of a clue on how the Supreme Court feels about your case," Perales said.

Normally I'd agree with Ms. Perales.  But the fact that Vieth was just argued last December 10th makes this far from the ordinary situation, and the stakes involved — a likely net swing of several Congressional seats — make it impossible that today's ruling was a casual or routine one by the Court.

------------------------------

\note1/I've explained this in more detail here. If you take a look at the docket sheet in Vieth, for instance, you'll see an entry dated June 27, 2003, which says "PROBABLE JURISDICTION NOTED." That's the Court confirming for the record that yes, this is a case they have to take as a direct appeal as-of-right. In ordinary cases in which the Supreme Court has discretionary authority whether to consider a case on its merits or not, that line would either say that the petitioner's petition for a writ of certiorari was "granted" or "denied" (as with the January 12, 2004, entry from a random case shown here, for example).

------------------------------

Update (Fri Jan 16 @ 8:30pm):  The Supreme Court's website has been updated to include this order (.pdf file, 2d page), which reads in full:  "The application for a stay or injunction pending appeal presented to Justice Scalia and by him referred to the Court is denied."  Justice Scalia presumably could have acted alone in deciding this emergency motion in his capacity as Circuit Justice for cases arising out of the Fifth Circuit (which includes Texas).  That he instead referred it to the entire Court is no surprise, however, given the nature of the case and its stakes.  That the entire Supreme Court considered and voted on the stay motion is yet another fact that bodes ill for the Dems.

------------------------------

Update (Sat. Jan. 17 @ wee-small-hours):  The Brennan Center has most of the briefing filed in the Supreme Court with regard to the stay application here in .pdf form (hat-tip to Rick Hasen's Election Law blog).

The El Paso Times quotes Texas state senator Eliot Shapleigh (D-El Paso):

"I fear for the Voting Rights Act in the future," Shapleigh said.

But Democrats now have few options, he said.

"Ours is a nation of laws. The Supreme Court has ruled. It's time to move on," Shapleigh said. "The lines drawn by the Legislature will be the lines for congressional races."

I found no surprises in other media reports from the San Antonio Express-News, Washington Post, and New York Times; and the Austin American-Statesman and Fort Worth Star-Telegram pretty much just regurgitate the AP story.  In particular, I haven't seen any major-media reports that recognize the possible significance yesterday's ruling in the Texas case may have for the Pennsylvania case as well.

------------------------------

Update (Sat. Jan 17 @ 5pm):  UCLA Law School Professor Stephen Bainbridge was kind enough to link this post with some encouraging words that will prompt me to toast him with the next good glass of wine I drink.

Prof. Rick Hasen has also been kind enough to link this post and give his take on my tea-leaf reading.  He think I am probably overstating the significance of the Court's ruling yesterday:

There could be factual issues that distinguish Vieth from the Texas case, meaning that the Justices could decide the Texas redistricting is permissible even under a new standard that might be crafted. Or, more likely, the Justices may not be willing to inject more uncertainty into the Texas redistricting process this year, leaving room to make changes for the 2006 elections if necessary.

That is not to say that the Court is in fact likely to give more teeth to partisan gerrymandering in Vieth. Reports from oral argument suggested the Court is likely to either solidify the toothless Bandemer standard or to hold partisan gerrymandering claims nonjusticiable altogether. Indeed, in reviewing the content of the 2004 election law supplement, I was reminded that the two Justices who wanted a hearing in a similar Michigan case — O'Lear v. Miller — were Justices Breyer and Stevens. It appears from the Vieth oral argument that they were the ones pushing for a stronger partisan gerrymandering standard. Probably they attracted two more votes to revisit the issue, but do not have the votes to overturn Bandemer.

In a comment to this post, GregV also follows up on a dialog he and I had been engaged in before yesterday's ruling on a comment to a post over on Charles Kuffner's excellent Off the Kuff blog.  (Yesterday was also the filing deadline, and Kuff also has a good update on who's filed where under the new map in light of yesterday's Supreme Court ruling.)  GregV's questions have certainly pushed me to look harder at the tea leaves; whether I'm actually seeing anything there or just imagining, I leave to you, gentle readers. 

But let's get our fingers busy counting votes:

For Scenario #1, you can postulate Stevens, Breyer, and Ginsburg as your core voters pushing for more federal court power to rein in hyperpartisan gerrymandering — God knows under what kind of standard, but something with more teeth than Bandemere.  It would stun me for Rehnquist, Scalia, or Thomas to buy into that.  Although O'Connor is frankly more likely to have changed her mind since 1986 than Rehnquist (both dissented in Bandemere, arguing that partisan gerrymandering is a nonjusticiable political question outside the ken of federal courts), remember that she's the only Justice who's ever been a state legislator (majority leader in the Arizona state senate); this ought to be something she hangs tough on, if there's anything she sees as a matter of absolute principle.  I certainly could imagine both Souter and Kennedy agreeing to sign on to something tougher than Bandemer in theory.  But if both of them had so voted at the conference after Vieth was argued, why wouldn't they have joined Stevens, Breyer, and Ginsburg to grant the emergency stay motion from Texas?

I tend to discount Scenario #2, simply "majoritizing" Bandemer, or a Scenario #4, as Prof. Hasen proposes, in which the Court remains split with no majority on anything.  Why would the Court bother to grant oral argument in Vieth if that's all they intended to do?  Unless someone leading the charge for one view or the other already believed they had the crucial fifth vote, why not just leave Bandemere in place?  They could have just summarily affirmed in Vieth and saved themselves the trouble (and in the case of Scenario #4, the embarrassment)!   

As for Prof. Hasen's suggestion that there are distinctions between Vieth and the Texas case which might explain why the Court would refuse to interfere in the Texas case while still possibly going beyond Bandemer's toothless restrictions in Vieth, I've now skimmed most of the briefing from both.  Prof. Hasen's a specialist in this field, and has probably read the briefing more thoroughly than I have.  But it seems to me that if anything, the Texas plaintiffs — deliberately and knowledgeably, because there are common counsel for the plaintiffs in the two cases (Paul M. Smith et al. of Jenner & Block) — tried to raise additional grounds in the Texas case, chiefly the "twice-in-a-decade" argument (which the three-judge panel, in my judgment, spent the first quarter of its opinion unanimously nailing to the wall and dissecting until it was dead, dead, dead!).   If a majority of the Court already intends to write new law in Vieth saying that really, really intense political gerrymandering is to be limited somehow, I frankly don't see how they could ignore the Texas case:  if you are going to demonize political gerrymandering, then Tom DeLay just had a star turn as your Darth Vader figure in the Lone Star State, and the panel opinion in Perry completely hinges on the court's fact-finding that partisan goals to create a durable, reliably Republican majority were the sole and overriding basis for the just-passed district map.

For Scenario #3:   If one assumes that O'Connor and Rehnquist haven't changed their minds since 1986, and that they've persuaded, say, Scalia and Thomas to their views on nonjusticiability — not a stretch to imagine at all — then they'd only need one more vote to get to five.  I figure there's no way that Stevens, Breyer, or Ginsburg could be persuaded of nonjusticiability — they've rarely met a claim they didn't like, nor hardly ever agreed to limit the powers of the federal courts vis-á-vis the states.  Nevertheless, If O'Connor and Rehnquist picked up either Souter or (more likely) Kennedy, that could be their fifth vote. 

So yes, based on yesterday's ruling in the Texas case, I'm tending toward predicting a 5/4 or 6/3 decision in Vieth overruling Justice White's plurality from Bandemer and holding that claims of pure hyperpartisan gerrymandering are nonjusticiable political questions — as opposed to claims based on race, which still are going to be red meat for the Voting Rights Act of 1965.  Simultaneously with their announcement of their decision in Vieth, the Texas case (Perry) will be summarily affirmed.

So there.  I'm all the way out on the limb!

The blogosphere digests yesterday's court ruling upholding Texas redistricting

I've written more about the 2003 Texas redistricting battle — in the Legislature, the courts, and the arena of public opinion — than I have about any other topic since I started blogging late last summer.  For those who've followed the story, this has been political theater of the highest (and lowest) caliber, with twists and turns aplenty, heroes and villains, comedy and drama, perfidy and steadfast perseverance.  And having been so immersed in it, I admit to being surprised and slightly puzzled when folks from out-of-state seem to be sort of slow to snap to the huge national political implications of what's been happening.

Thus, I'm fairly surprised that National Review Online's realtime multi-writer blog, The Corner, has so far managed only one twenty-word post on yesterday's ruling in Session v. Perry.

By contrast, UCLA law professor and blogger Stephen Bainbridge snapped to the national significance:

This is a VERY big deal. It means a likely shift of up to 7 House of Representative seats to the GOP. Given how few House seats are truly competitive, the recent debate among the Democratic presidential candidates as to which one of them has the best chance of rewinning Congress for the Democrats would seem to have been mooted.

VodkaPundit Stephen Green recognizes that this is a big deal but — perhaps due to a key factual misapprehension — makes an observation that I, and many of his knowledgeable commenters, think is way off the mark:

What the Republicans have done is throw away 200-plus years of national precedent: we only redistrict after a census. Should the Democrats take charge, even for a single session, you can bet they'll go for some sweet, sweet payback.

Short term gain: Republicans will get 5-7 new safe seats in Texas.

Long-term loss: This will come back to bite them on the ass.

Damage done: Now every state will be going through nasty redistricting fights, every time the majority changes. Currently, we only have to go through these fights every ten years, and usually only in states which gain or lose seat in Congress. "Now," said the sage, "things will be worse."

Now, it's true that the first twenty pages of yesterday's decision was devoted to finally putting to rest the Dems' claim that some provision in the US Constitution, federal law, or state law barred "mid-decade redistricting."  And the panel also noted (at pp. 20-21) that the Dems had made policy arguments that "may be" persuasive — for instance, that "frequent redrawing of district lines will undermine democratic accountability and exact a heavy cost on state independence as federal congressional leaders exert their influence to shape state districting behavior" — but that such policy arguments ought to be directed to Congress, rather than to courts in the first instance.  So yes, there's nothing — except tradition and simple aversion to continuous political blood-feuding — to prevent other state legislatures from redistricting more than once a decade.  But that was also true before the 2003 efforts in Texas; it's always been true.

What's significant, as various of VodkaPundit's commenters immediately pointed out, is that the 2003 redistricting was the first successful legislative redistricting in Texas since the 2000 census.  We have not violated the "one redistricting per decade" tradition, but rather have vindicated the very important constitutional principle that it's (small-d) democratic state legislatures, rather than panels of unelected and ill-equipped federal judges, whose duty it is to do redistricting in the first place — once each decade.  Texas Lt. Governor David Dewhurst was widely quoted after the third and ultimately successful special session of the 2003 Legislature as saying that even if the courts overturned the plan it had just passed, he had no intention of revisiting the subject of redistricting before the 2010 Census' results are in.   Perhaps VodkaPundit didn't simply didn't know these facts, and likewise didn't understand that the alternative of not redistricting was to leave in place a pro-Democratic gerrymander dating back to 1991, and to ignore the intervening 2002 election in which Texas voters eliminated the divided state government that had allowed the Dems to deadlock the 2001 attempts to redistrict.

James of Outside-the-Beltway grasps and articulates these distinctions.  And Patterico's Pontifications also links to my post from last night with kind words for my analysis, which I appreciate.  Likewise, Kevin Whited provided has provided some apt analysis and a kind link to my post, although he professes (somewhat tongue-in-cheek, I think) to have become bored with the whole topic months ago.  Mark Hardin also has a post up in which he laments the ugly face of racism.  And Owen Courrèges shares my annoyance with the Chronicle's misreporting and was also kind enough to provide a link to my post from last night.

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Update (Sun Jan 11th @ 2:30pm):  Hugh Hewitt also gets it for the Weekly Standard and on his own blog.  The Corner and NRO appear to remain uninterested, which continues to boggle my mind.

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. 

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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.

Tom DeLay as Brer Rabbit: "Don' make me talk 'bout dat redistrictin', judge!"

Charles Kuffner urges that the lawyers representing various plaintiffs in the Texas redistricting litigation be allowed to take depositions of US Congressmen Tom DeLay and Joe Barton.  The Congressmen are seeking to have their deposition subpoenas quashed, according to the Houston Chronicle.

The familiar standard for deciding whether to sustain or quash this sort of subpoena, as for most civil discovery, is whether it is reasonably calculated to lead to the discovery of admissible evidence.  Generally the proponent of the subpoena has to make some sort of more-than-speculative offering as to how he thinks that's likely to happen. 

If we accept, even reluctantly, the premise that the act of legislative sausage-making must be put under the microscope to satisfy the ever-hungry maw of the Voting Rights Act of 1965, then it seems to me that plaintiffs under that act, in general, ought to be given considerable lattitude in trying to make their case.  Showing that the recent Texas redistricting was motivated by racism is going to be difficult at best — and I believe it will prove to be impossible, since redistricting was motivated by hyperpartisan politics, not racism, and accomplished not even using by race as a proxy for voting probabilities, but by looking at voting patterns directly.  But if it can be done, it would almost certainly have to be done circumstantially.

However, in a legal, causal sense, these particular witnesses are once removed from the action.  Observers of politics can rightly note that both Republican and Democratic members of Congress have long influenced state legislatures and legislators on a variety of subjects (think highway construction for one).  But even if you could get Rep. DeLay to say under oath and on the record something that tended to prove circumstantially that he was motivated by racism in pressing for Texas redistricting — and face it, what is far more likely is an argumentative series of "have you stopped beating your wife" questions that probably will conflate correlation with causation — then you'd have to make the further connection to show how that racism was shared by state legislators who voted for redistricting.  You'd have a pretty good chance of showing from those witnesses (the Texas legislators) that they were motivated at least in part by fear of reprisals from Rep. DeLay, whose effectiveness as a party whip and leader is, like all such politicans, due to his long memory and ability to carry and act on grudges.  But showing, even circumstantially, that their votes in the Texas Legislature were motivated by Rep. DeLay's racism?  Well, good luck.

This strikes me as on the very outer fringes of what's "reasonably calculated" to lead to the discovery of admissible evidence, but like all such decisions, it'll be left to the "sound discretion of the trial court" — in this case a three-judge panel of federal judges who all read the papers, who may have been born at night but not last night, and who have not recently fallen off pumpkin trucks on the way into town.  My hunch is they won't find Rep. DeLay's or Rep. Barton's likely testimony terribly surprising or terribly probative.  But they might well agree to "hear" it — that is, to allow the depositions to be taken and written excerpts included as part of the record.  In fact, were I a judge on that panel, I'd probably allow the depositions, with pretty strict time limitations and severe up-front warnings about argumentative questions. 

And were I a lawyer defending the redistricting plan in these lawsuits, I'd treat this as an opportunity, not a liability.  The Republicans have generally been consistent in explaining the reason for redistricting — deliberately creating a map that's likely to produce a Texas Congressional delegation likely to support our favorite-son President instead of one likely to oppose him.  DeLay and Barton surely can provide that testimony.  To quote their intended beneficiary, "Bring 'em on!"  Or to quote the old (and probably now politically incorrect) story, "Don' throw me in dat briar patch, Brer Fox! Anythin' but dat!"

Imaginations run wild

In a story posted today at 6:11pm, the San Antonio Express News quotes a Democratic Congressman as "decrying the apparent agreement" just reached this afternoon on redistricting by Texas Republicans — "even before it was announced":

“The latest redistricting map is an affront to minorities and clearly dilutes the voting strength of Hispanics in Texas,” said U.S. Rep. Ciro Rodriguez, D-San Antonio.

"As Republicans cynically seek to destroy the districts of Anglo Democrats, itself an attack on the political voice of minorities, Tom DeLay and his operatives in Austin gut the voting power of Hispanics in South Texas. Lt. Gov. Dewhurst is obviously going back on his word not to undermine minority opportunity districts.

“We have come too far to stand by while Republicans in Austin and Washington work to sideline the voice of Hispanics as they work day and night to gerrymander us into oblivion,” Rodriguez added. “They split communities and create unwieldy districts with greatly diminished Hispanic voting power, especially in the border districts of South Texas. This is retrogression, plain and simple.”

But the Houston Chronicle gives this report:

Sen. Jane Nelson, R-Flower Mound, said the deal was complete except for checking the proposed map with a computer program for potential problems such as violations of the Federal Voting Rights Act or a Congressional district with too few people in it. The computer check, which began around 5 p.m., would take about two hours to complete, Nelson said.

So what do you call a Congressman who purports to be making nuanced factual judgments about a Congressional district map that he can't possibly have even seen, much less studied at length? 

My imagination fails me. 

I'm quite willing to make a large bet, however, that when we do get to see the map, we'll find that Congressman Rodriguez himself hasn't been "gerrymandered into oblivion."  Any takers?

According to another story in the Express-News, state senator Leticia Van de Putte claims that an unnamed Republican state senator "told Van de Putte that if Democratic senators acted 'like Mexicans, you will be treated like Mexicans.'"  But two other Dem senators who Van de Putte claims also were present to hear the comment — Frank Madla and Judith Zaffirini — "told the San Antonio Express-News on Tuesday that they couldn't recall the comment from any Republican colleague." 

It seems Sen. Van de Putte's imagination hasn't failed her.  Nor has Rep. Rodriguez' imagination failed him.  That's because for the Dems, it's all about making people think it's all about race — regardless of the facts.

Shhhh! Truant Texas Dems™ tiptoe to US Supreme Court

I've previously expressed my opinion that the September 12th order of the three-judge panel in Barrientos v. Texas — the lawsuit filed in federal court in Laredo by the Truant Texas Dems™ (a/k/a "the Texas Eleven Ten") — is probably not a final, appealable order, but rather an interlocutory (mid-case) one.  I've also made clear my opinion that their chances of getting any relief in the US Supreme Court are slim and none, even if the order were appealable.  And in fact, the Dems may be doing their Republican opponents a favor by keeping the case open, since it might become a shortcut for the time-pressed GOP to get past inevitable lawsuits challenging whatever redistricting plan does emerge from the third special session, possibly sometime next week.

Nevertheless, lawyers for the Dems filed a three-page "Notice of Appeal" (60kb .pdf file) last Monday, September 22nd.

I'm surprised that they apparently did so with no fanfare:   I've seen no mention of this in the popular press or the blogosphere.  Nor is there any reference to it on, for example, the Texas Democratic Party website or the (re-named and regraphic'd, but not re-URL'd) Texas Ten website.  Given the eagerness with which the Dems' lawyers have sought out the TV cameras and newspaper reporters in the past, one wonders what accounts for this sudden shyness. 

Is it possible that they are capable of shame?

A shoe has yet to drop in Laredo, but another in Austin might echo there

Jim D of the Burnt Orange Report has the latest info on the redistricting map that's just come out of committee in the Texas Senate, along with some interesting comments about timing.

Meanwhile, I note that more than a week has passed since the Dems got poured out in Laredo, without the promised (and, in my judgment,
premature) Supreme Court appeal.

If I were a lawyer representing Plaintiffs Barrientos et al. in their Civil Rights Act lawsuit in Laredo, I'd advise them to withdraw their still-pending motion to amend their complaint, and certainly not to attempt a silly and hopeless Supreme Court appeal.  Why?

Because if I were Texas Attorney General Greg Abbott, the same afternoon that Gov. Perry signs whatever redistricting plan eventually passes, I'd use that pending lawsuit as a procedural vehicle to immediately file a counterclaim for declaratory judgment that there's no Voting Rights Act of 1965 violation — basically shortcutting the inevitable litigation by as much as a week or two, and taking advantage of a very smart,  pretty conservative, and obviously quick-moving three-judge panel that's already set up and ready to go.

Senators on new meds?

It's hard to tell how things stand in the Texas Senate right now.  Tuesday was apparently a big improvement over Monday, according to the Austin American-Statesman:

And on the second day of the third special session, without the raucous crowd that a day earlier had egged one side on and aggravated the other, peace and love reigned in the Texas Senate.

Tuesday's outbreak of interparty peace, including movement toward dropping fines imposed on the Democrats during their 45-day boycott, shifted the focus to GOP intraparty fighting that could become the biggest obstacle to new congressional maps.

"I think they changed people's medicines last night," Sen. John Whitmire, D-Houston, joked after watching Monday's opening day mayhem melt into Tuesday's love fest.

But in press reports about today's action, there's no visible progress yet — either on solving the Midland vs. Lubbock issue that's blocking intra-Republican agreement on a map, or on the disposition of the fines and sanctions that are pending against the truant Dems.  As to the latter:   guys, I'm willing to negotiate on the royalty fee for the Beldar Peace Plan.  Try it, you'll like it!  Win-win deals are hard to find.

Meanwhile, an incredible story in the Laredo Morning Times has this report:

The Texas Ten are claiming they are the victims of "oppression," and are requesting an investigation by the Webb County District Attorney's Office.

District Attorney Joe Rubio confirmed Tuesday that he assigned two prosecutors to investigate alleged official oppression that could lead to criminal charges.

Rubio said the investigation stemmed from a request on the part of attorney Carlos Zaffirini, husband of state Senator Judith Zaffirini (D-Laredo) and hired counsel for the Texas Ten.

Apparently hell hath no fury like an SUV-driving senator scorned.  Let's hope DA Rubio was only humoring his powerful husband-and-wife constituents, and will have the good sense and integrity to treat this like your basic flying saucer abduction claim.

Also, the Houston Chronicle has published a hysterical (in both senses of that word) op-ed by one Glenn W. Smith, whom the Chron describes as a "consultant to MoveOn.org and The Rockridge Institute in Oakland."  Gasp, he's "currently writing a book detailing the ways our political practices are destroying freedom and democracy."  Mr. Smith is elsewhere described as "managing director/consultant" to Rockridge, which describes itself as a "progressive" thinktank made up of Berkeley and UC-Davis professors (fair and balanced, I'm sure); he may or may not still live in Austin, but he doesn't hesitate to speak for all Texans in calling for disruptive public demonstrations on the floor of the Texas Senate while it's in session.  He also can't tell the difference between majority-rule voting by (small-d) democratically elected legislators of both parties and "the Government of the Bully."  I'm pretty sure this is a guy I couldn't have a friendly beer with, and whether he's actually moved to California or not, we need this kind of commentary exactly as much as the Russian people needed the Kaiser to ship Lenin back to them in 1917 in the infamous sealed railway car.

Finally, with more of the "it's all about racism" meme that I've recently debunked:   MoveOn.org is now airing race-baiting TV commercials in Spanish, complete with ominous music, which claim that "George Bush and his friends in Texas want to take away the voting power of 1.4 million Hispanics and other minority voters.  And put us in Republican districts where our votes wouldn't matter."  Minority votes only matter if they're cast for Democrats, doncha know?  Could there be any more racist presumption?

If I were David Dewhurst looking at Judith Zaffirini's Grand Cherokee ...

Per the San Antonio Express-News:

[Lt. Gov. David] Dewhurst made two predictions [on Monday] — both of them untested.

Of the Senate he said: "This body will come together in very, very short order. This is the Texas Senate. We're proud of our ability to be able to work together."

And he warned that if Sen. Judith Zaffirini, D-Laredo, parks in the Capitol drive today, her vehicle will be towed.

Earlier, fellow Democrats Eddie Lucio of Brownsville and Eliot Shapleigh of El Paso joined Zaffirini in parking in their Capitol slots. They did so despite a decision by GOP senators in mid-August to yank the AWOL Democrats' parking privileges and fine them a total of $57,000 each, among other sanctions.

Sen. Zaffirini recently broke her shoulder while ice skating, and she has one arm suspended in a sling.  (The Dallas Morning-News reported that the "Texas redistricting battle has exacted a price from the Legislature and its members, but now there's a broken bone on the list."  What liberal media?)

So if I'm David Dewhurst, what I do is make plans to have her Jeep towed Tuesday.  Then — out of my own pocket — I hire a limo service, with both a driver and another guy in a uniform to stand at her parking space with a sign with her name.  The driver circles the Capitol grounds until the guy with the sign signals him via cell phone that she's coming, and they offer to take her anywhere she wants to go, including to get her Jeep out of impound.

Sens. Lucio and Shapleigh can walk.

Sadly, I've concluded that there's no hope for the Beldar Peace Plan.  The Dems don't want peace.  They want a media circus, as is evident by the stunt they orchestrated Monday on the Senate floor and in the Senate gallery.  Sen. Leticia Van de Putte — quoted as shouting "Thank you Texas!" from the Senate floor to cheering fans in the gallery, and also as singing "Nobody Knows the Troubles I've Seen" — can't decide if she's Meryl Streep in "Sophie's Choice", Rosa Parks, or one of the Dixie Chicks, but she clearly has no interest in being a state senator anymore.  She and her colleagues are bound and determined to make themselves into martyrs, and certainly some voters are bound and determined to see them that way.

Others will simply see them as losers — and very poor ones at that.

What did the Barrientos panel do with the "redistricting twice in a decade" claim?

Greg V left a comment to my post on Friday's ruling in Barrientos v. Texas asking for my "take" on the Dems' claim that it is "illegal to redistrict mid-decade," or as they've also phrased it, "more than once in a decade."  Greg frames the issue nicely:

My first reading suggested to me that the judges would not rule on whether or not mid-decade redistricting was legal until the Texas legislature had actually redistricted. But I doubt federal judges are so cruel that they would have refused to take the opportunity to advise the parties in this case that whatever map is drawn will be thrown out.

My take is sufficiently long-winded that I decided to put it into a new post rather than replying fully in a comment.  Executive summary:   The Barrientos panel didn't discuss this claim at any length, but it clearly rejected that claim on its merits.  It's good propaganda, but utter nonsense as a formal legal claim.

Did the Barrientos panel reach the merits of the "twice in a decade" claim, or refuse to consider that claim as unripe?

In general, courts are reluctant to give "advisory opinions" and refuse to resolve controversies unless they are "ripe."  If looked at in isolation, the key phrase from the Barrientos panel opinion that I quoted yesterday — "what will directly affect the voters in this state is a redistricting bill, not the mere consideration of such a bill or the process by which it comes to the floor of the Texas Senate" — looks like it could be a determination that the issues urged by the Dems aren't yet ripe for consideration.  If what the panel intended to say was, "This dispute isn't ripe yet, come back later," then its ruling would have very, very limited precedential value.  It wouldn't be a ruling "on the merits," but rather a refusal to make such a ruling yet.

But looking at the entire opinion in context, I think it's fairly clear that the panel was not basing its ruling on the ripeness doctrine. 

The Barrientos panel opinion certainly acknowledges that this is one of the Dems' two main arguments:

The complaint primarily attacks two events:   first, the decision by the state legislature to consider congressional redistricting legislation this year, notwithstanding that a redistricting plan has already been implemented this decade; and second, the declaration by the Lieutenant Governor that redistricting legislation would be considered in a special session without adhering to the so-called "2/3rd Rule."...

(Italics added by Beldar.)  The original complaint filed by the Dems purported to state four separate "counts."  Count I claimed that the defendants violated the Voting Rights Act of 1965 by failing to obtain preclearance required under section 5 for both the "twice in a decade" redistricting and the  abandonment of the so-called "2/3rds Rule."  Count II claimed that both the "twice in a decade redistricting" and the abandonment of the so-called "2/3rds Rule" had a discriminatory intent or effect in violation of the Act.  Count III reframed the same claims as being state action that abridged the plaintiffs' constitutional rights in violation of 28 U.S.C. § 1983.  Count IV was a muddled mess, but dealt solely with the Republicans' attempt to persuade the Texas Supreme Court to force the Dems to return to Austin — which entire count was mooted by the Texas Supreme Court's refusal to do so.  The Dems also had asked permission to file an amended complaint that would add a Count V, complaining about the prospect of the Dems being arrested and fined for their quorum-breaking flight to New Mexico.

The State's motion to dismiss never urged "unripeness" as grounds for dismissal, but rather attacked the Dems' claims "on the merits."  And so, too, did the panel's opinion get to the "merits" — even though almost all of the discussion appears to relate more directly to the "2/3rds Rule" claim than the "twice in a decade claim."

Certainly the relief granted to the Republicans on page three of the panel opinion went to the merits of both the "2/3rds Rule" claim and the "twice in a decade" claim:

The motion to dismiss claims under the Voting Rights Act is GRANTED.  We also DISMISS claims under 28 U.S.C. § 1983, insofar as Plaintiffs claim that the State's decision to consider redistricting legislation and the failure to adhere to the "2/3rd Rule" violate the First, Fourteenth and Fifteenth Amendments to the United States Constitution.

(Italics added by Beldar.) This effectively disposed of Counts I, II, and III of the Dems' complaint, with Count IV being moot, and the as-yet-unfiled Count V left for future determination.

So yes, I think that the panel did deal with the "twice in a decade" claim, and did so with a dismissal "on the merits," rather than on grounds of unripeness. 

So why didn't the Barrientos panel discuss the "twice in a decade" claim at more length?

My conclusion is that the "twice in a decade" claim is so stupid that the author of the opinion either forgot to come back to it (and neither of the other two judges caught and pointed out the omission), or else deliberately decided it wasn't worth much explicit discussion in what was intended to be a brief, interim opinion.  Either way, the judges must have thought it was a "no-brainer" — a piece of garbage that, as it turned out, didn't quite get neatly swept up.

An additional reason that I strongly suspect this opinion was the personal handiwork of Judge Higginbotham is that it only cites one case — Presley v. Etowah County Commission, 502 U.S. 491 (1992) — as precedent.  That is a mark of a writer who is extremely confident that he's right on the law, and who feels no need to dress up his own writing with lots of citations in order to look confident.  And as the opinion recites, it is brief, and it obviously was prepared in a hurry to respond to the parties' needs.  If the panel in fact ends up exercising the opportunity it reserved to "issue a more detailed opinion hereafter, if appropriate," it probably will spend at least a few sentences separately addressing the "twice in a decade" claim.

But why is throwing out this claim such a "no-brainer"?

The "twice in a decade" claim makes a pretty good throw-away line in propaganda for the public's consumption because they can claim this is "unprecedented" and that there's a "plan already in place that has been declared legal."  But for this claim to have any merit as a legal argument, you have to presume that redistricting by a court is equivalent to — just as good as, just as legitimate as, and a completely acceptable substitute for — redistricting by a legislature.  That's just a laughable proposition to anyone who's read any of the Supreme Court's redistricting cases.  As I've blogged before, the federal judges themselves are intensely aware of the fact that the Civil Rights Act of 1965 requires them to intrude on a function that is intended, for excellent reasons, to be the province of state legislators.  They correctly view their role as being solely to determine whether constitutionally- and statutorily-protected voting rights have been violated, and if so, to do the minimum necessary to fix that problem, and then to get the hell out of Dodge. 

Sometimes fixing the problem requires them to actually write a new districting map — as was true in the case of the Balderas panel in 2001, which faced upcoming 2002 Congressional elections in which Texas had two new seats in the US House of Representatives for which the Texas Legislature had yet to create any districts whatsoever by the end of the 77th Texas Legislature.  The political process had deadlocked; the Governor had recognized that and announced that he wasn't going to call a useless special session; and so the three-judge panel had to find a place to stick two new districts and make the resulting necessary adjustments to equalize the populations of the others.  And that's what the panel did, but then it stopped — even though it recognized that the effect of stopping at that point had unintentionally but inevitably heavily favored the Dems — because it knew that a panel of three federal judges lacks the tools, the wisdom, and most of all the "political legitimacy" to do the kind of full-scale redistricting that legislatures do.

It seems to be true, as the Dems are asserting in both Texas and Colorado, that there's no direct historical precedent for a state legislature doing a full-scale redistricting in the same decade in which a federal court has previously done "some" redistricting.  So there is not a case that's directly on point to prove conclusively that it can be done — nor is there a case that's directly on point to prove that it can't be done. 

This was, however, one of the questions put to Texas Attorney General Greg Abbott last spring, and his formal written opinion concluded with no hesitation that

Texas legislators are entirely free to replace the court-ordered plan in Balderas and, as the court urged in McConnell, "continue efforts to fulfill their constitutional duties" as elected representatives to enact a congressional redistricting plan that comports with section 5 of the Voting Rights Act.

The Dems like — and have frequently cited (in a sort of telling of half-truths) — the other half of Attorney General Abbott's opinion, which was that if the Legislature didn't act, the map drawn by the Balderas panel would, by default, remain in effect until replaced by either a new legislatively or judicially drawn map, presumably after the 2010 Census.

But as to this part, they've yet to come up with any coherent argument to show that Attorney General Abbott is wrong and to support their "twice in a decade" claim than "it's never been done before."  That claim is given extremely shallow treatment in the Dems' court papers, with absolutely no citation to any case or statute or any other authority.  The Republicans court papers essentially ignored it as well.  And although the transcript from last week's hearing on September 11 isn't on file yet, I suspect that this claim also received minimal discussion at the hearing. 

Finally, although there's not any precedent directly on point, Attorney General Abbott's opinion cited and relied heavily on dicta — sort of an advisory opinion that wasn't directly necessary to the ruling but was thrown in anyway as part of a larger discussion — from the US Supreme Court's decision in Reynolds v. Sims, 377 U.S. 533 (1964), in which Alabama had gone six decades without a legislative redistricting:

Limitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system, although undoubtedly reapportioning no more frequently than every 10 years leads to some imbalance in the population of districts toward the end of the decennial period and also to the development of resistance to change on the part of some incumbent legislators. In substance, we do not regard the Equal Protection Clause as requiring daily, monthly, annual or biennial reapportionment, so long as a State has a reasonably conceived plan for periodic readjustment of legislative representation. While we do not intend to indicate that decennial reapportionment is a constitutional requisite, compliance with such an approach would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation. And we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable. But if reapportionment were accomplished with less frequency, it would assuredly be constitutionally suspect.

377 U.S. at 583-84 (italics added by Beldar).  So in a case in which the Supreme Court directly held that once in 60 years isn't enough, and that less often than once in 10 years is "constitutionally suspect," the Supreme Court also strongly hinted that even legislative redistricting more than once in a decade would be okay.  If it would be okay for a legislature to itself redistrict more than once in a single decade, then surely — as in Texas and Colorado — it would be okay for a legislature to thoroughly redistrict after a three-judge panel had done minimal redistricting earlier in the same decade.

The Texas Eleven Ten

Texas State Sen. John Whitmire (D-Houston) continues to be listed as a named plaintiff in the lawsuit pending in Laredo notwithstanding the very nasty and very personal things that have been said against him by his colleagues.  Sometime recently, however, whoever is running the Texas Eleven website has quietly removed his name from the webpage that lists each state senator by name.  The site's URL and all references to the "Texas Eleven" remain unchanged.

Lawyers permit Ten Truant Texas Dems™ to run amok with (premature) Supreme Court appeal

The three-judge panel in Barrientos v. Texas issued a four-page order yesterday that granted no relief to the Ten Truant Texas Dems™.  It's short, it's sweet, and it's here for you to read in full-text (in a mere 149kb .pdf file).{note1}  It's not completely free of legalese, though, and I'll provide a translation and some commentary before I'm done with this post.

According to an article in today's Fort Worth Star-Telegram, the Dems are already vowing to appeal to the US Supreme Court.  Oh, I would dearly love to make a high-stakes bet with any and all takers on the likelihood of that succeeding!  I'll spot you 20 to 1 odds, in fact, and still count myself mean to be taking your money.  But as I'll also explain in this post, there are serious doubts that the panel's ruling yesterday is appealable yet.

Can the Dems appeal?

The Civil Rights Act of 1965 does offer the highly unusual opportunity for the losing side to take an automatic direct appeal "as of right" to the US Supreme Court — which is an appeal that the Supreme Court has to review "on the merits," even if it doesn't have to write a full opinion.  This extraordinary procedural right — allowing the losing side to bypass the Courts of Appeals entirely, and to force the US Supreme Court to look at the merits — is yet another reason why I find the Dems' race-baiting PR tactics so distasteful in this whole affair:   Minority voting rights are more effectively protected than virtually any other rights secured by the Constitution or laws of the United States!

But in these appeals, as in all others, you do have to let the "court below" — in this case, the special three-judge panel that ruled yesterday — finish what it's doing before you can ask the US Supreme Court to intervene.  And I have very serious doubts that the ruling on Friday was a "final decision" by the panel that even can be appealed.  Instead, it appears to be an "interlocutory order" — a mid-case ruling that isn't appealable.  Yesterday's ruling explains that the panel

promptly issued this brief opinion because of our understanding that another special session of the Texas legislature is imminent.  We reserve the opportunity to issue a more detailed opinion hereafter, if appropriate.

Translation:   "You've gotten a ruling and a quick explanation, but if you plan on making a fuss with the Supreme Court, we're going to write a small book to explain and justify what we've done.  You really don't want us to do that, do you?"

And also still pending before the three-judge court is the Dems' motion to amend their complaint to include issues relating to the threatened "arrest" of the senators and the imposition of fines and other penalties.  As to the former, the panel noted that issue "likely will become moot.  Indeed, the [senators'] fear of being coerced to appear at a legislative session is shifting to a fear of being prevented from appearing."  As to the latter, the panel noted that future developments might also moot that question, and that in any event "neither the facts nor the law on the issue of threatened monetary sanctions are sufficiently developed at this point to permit an informed decision."  Meaning, "come back when this stuff is more than a hypothetical threat." 

But the panel did not enter a final judgment of dismissal of all claims, which would be the normal means both to terminate fully the case before them and to make the panel's decision appealable.  So I think the Supreme Court will likely refuse to "note probable jurisdiction" — that is, will take a look at the Dems' attempt to appeal and say, "Eh — not yet."

Should the Dems appeal?

The fact that you can take an appeal to the US Supreme Court doesn't automatically mean that you should take it. 

Let's start with Common Sense on Appeals 101:   You don't appeal a decision unless you have a reasonable basis for believing that the lower court got something wrong.  You have to be able to say, "The three-judge panel went wrong when they decided _____," and then fill in that blank with something that won't make the Supreme Court explode with laughter.  With all due respect to the lawyers for the Ten Truant Texas Dems™ — and in my opinion, the respect they're due is dropping with just about every day that passes — they can't meet that test here. 

Here's the absolute nub of the panel's opinion:

[W]hat will directly affect the voters in this state is a redistricting bill, not the mere consideration of such a bill or the process by which it comes to the floor of the Texas Senate.

Until you can state a complete, logical sentence to refute that one, you don't have any business taking an appeal to the US Supreme Court.  Period, end of paragraph, end of story — saddle up and ride out of town on the dusty streets of Laredo, podners.

I've written before (for instance, here and here) about the two distinct duties that a trial lawyer owes his clients — the duty to be his clients' vigorous advocate in public (think Russell Crowe in Gladiator), and the duty to be his clients' wise counselor in private (think Yoda in The Empire Strikes Back or any other Star Wars movie except Clones, when he does his own gladiator routine).  Right now, Yoda should be shaking a long green finger and saying to Leticia and the gang, "Told you, I did!  Smite you head and shoulders with the 'Loser Stick,' that did I promise the judges would do!" 

No better fate is in store for this lawsuit in Washington than what it's already met in Laredo.  If, in the privacy of their conference room, any lawyer is giving different advice to the Dems, then I respectfully submit that said lawyer is being motivated by something other than following the law, and he's failing in his own duty to his client and to abide by the oath he took upon admission to the bar. 

If I were Emperor of the World, I'd make each of the Ten Truant Texas Dems™ write the following sentence on the blackboard 1000 times:

While the reach of the [Civil Rights] Act [of 1965] is broad, it is nevertheless still "an extraordinary departure from the traditional course of relations between the States and the Federal Government" ....

So said the panel yesterday, quoting from the US Supreme Court's decision in Presley v. Etowah County Commission, 502 U.S. 491, 500-01 (1992).{note2}  As I've repeatedly blogged, it's not normal for federal courts to second-guess state legislatures on redistricting — much less to micromanage the way they go about it!

C'mon guys.  Look at those special license plates on your own cars, the ones that say "Texas Legislator."  Does that give you a clue as to where you should be fighting these fights? 

Yes, you may lose when a vote is taken.  That's called democracy.  Make your best argument, take your lumps gracefully, and then start polishing up your speeches for the next general election, so you can take your arguments to the public by trying to persuade them to put the Democratic Party back in control of the Texas Legislature.  That's how the process is supposed to work, folks.

Leticia — listen to your inner Yoda, not to those lawyers from Washington that Martin Frost and his buddies have hired to represent you.  Hie thee back to Austin, madam.  Your duty is there.

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{note1}The .pdf file that was earlier linked from Kronberg's Quorum Report is actually a page printed out from the computerized docket sheet for the case that contains a "minute entry" summarizing the court's ruling — which, while useful for some limited purposes, is not the ruling itself.

{note2}If you came to BeldarBlog looking for informed speculation and gossip, I'll try to deliver.  Yesterday's opinion was unanimous, with all three judges joining in it by name.  From quirks in the citation form, however, I am virtually certain that it wasn't written by US District Judge Lee H. Rosenthal.  In fact, I'm going to go out on a limb and speculate that it was written by US Circuit Judge Patrick E. Higginbotham — and by him personally, rather than being drafted in the first instance by one of his law clerks.  What tea leaves am I reading to divine these portents?  Very tiny tea leaves.  The "v." (abbreviation for "versus") in the middle of the case citations wasn't underscored, and the underscoring of the case citations is discontinuous (rather than underscoring the blank spaces within the case name).  Also, the citation form used throughout the opinion, while quite acceptable, was still not quite up to snuff under the hyperstrict and elitist rules prescribed and followed by law reviews.  Judge Rosenthal clerked for then-Fifth Circuit Chief Judge John R. Brown, and I know from that, and from my own history working with her as a colleague in the 1980s, that her citation form, and that which she'd permit from any of her law clerks, would be immaculate.  The discontinuous underscoring, by contrast, is something you commonly see among lawyers educated in the East or the Southeast, and it's a little bit anachronistic — but it's exactly what I'd expect Judge Higginbotham to use, given that his law degree was from the University of Alabama in 1961.  How's that for arcane?

UPDATE (Sun Sep 14 @ 12:30am):   Earlier yesterday, the Austin American-Statesman had quoted one of the Dems' lawyers, Renea Hicks, as saying "he would discuss appealing directly to the U.S. Supreme Court with his clients" — which made me wonder if the Star-Telegram had jumped the gun in its report.  But the San Antonio Express-News is also reporting that the Dems plan an appeal to the US Supreme Court now.  Neither the Star-Telegram nor the Express-News cite their source regarding the plan to appeal — so it's possible either that their information is newer, or perhaps that they talked to a different lawyer for the Dems.  My bet is on the latter, and that who they talked to was Washington-based Gerald Hebert, who still — and now more than ever — owes DOJ lawyer Joseph D. Rich an apology.

By the way, I noticed that I've previously neglected to source my point that the Ten Truant Texas Dems™ are being represented by lawyers hired not by themselves, but by Democratic Congressmen who're covering their own butts in this fight.  This came from early in part three of the five-part streaming video of an hour-long interview that the Houston Chronicle conducted with Sen. John Whitmire on September 3, linkable at least for a while longer from the repeating sidebar on Chronicle stories: 

Our lawyers had seriously misled us when they reported on Wednesday after court, "Hey, couldn't have gone better.  Y'all hang tough."  Now these, these lawyers are working for the Congressional delegation, but we didn't know any better until we read the Chronicle and other sources the next day.

It's all over but the shoutin' in Laredo

Or so sez the Associated Press, as reported in the Houston Chronicle:

A three-judge federal panel in West Texas today dismissed a lawsuit filed by senate Democrats hoping to derail a new round of redistricting in Texas.

The Democrats argued that Senate rule changes by Republicans to further the redistricting effort violated federal law.

The judges, who listened to two hours of oral arguments Thursday in Laredo, dismissed those claims but withheld a decision on an amended complaint of threats to arrest Democrats and require them to pay fees for their failure to appear at a special legislative session on redistricting.

Earth to Democratic state senators: Courts writing Congressional district maps is not "normal"

The press accounts of yesterday's hearing before the three-judge panel in Laredo in Barrientos v. Texas all suggest that there was little encouragement for the Ten Truant Texas Dems™ in the judges' questions or comments.  But one particular passage from the Dallas Morning News' story was shocking:

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."

If this wasn't just some kind of political spin — and it's hard to imagine why you'd "spin" to make yourself look this naïve — this betrays a stunning lack of understanding by the unnamed Democrats of their own role in the great constitutional scheme of things as compared to that of the federal courts. 

Earth to Leticia et al.:   It's not normal or desirable for federal courts to draw Congressional districts!  That job — with all its potential for bloodfeuding over gerrymandering and its unfortunate history in Texas and elsewhere as a means for odious racial discrimination — is still a function of state legislatures.  So says the US Constitution as interpreted by the US Supreme Court, and so said the three-judge panel in the 2001 Balderas decision (on which Judge Higginbotham also served).

The notion that Judge Higginbotham would have some sort of personal pride or nostalgia or preference for the map produced by the Balderas panel is simply absurd.  Anyone who actually has read the Balderas panel opinion has to know that.  Is it possible that during their month-long vacation in New Mexico, the Ten Truant Texas Dems™ didn't find time to read that short decision? 

How could they not understand that panels of federal judges who are forced to act when the Legislature defaults on its constitutional duty have no relish for that task?

The Balderas panel explicitly recognized that on redistricting matters, it, like all such three-judge panels, lacked "political legitimacy" as compared to the Texas Legislature.  Federal judges certainly understand that in a democracy, redistricting is supposed to be a democratic process — and of all branches of the state and federal governments, the federal courts are the least democratic by nature and the least well equipped to represent the diverse interests of the voting public. 

I can almost understand how a left-wing journalist like Dr. Josh Marshall — one who, despite reminders, is apparently too busy and/or too unconcerned about the truth to acknowledge or correct significant errors of basic historical fact in his public writings — might fail to grasp this.  Maybe he was absent the week they covered the separation of powers doctrine in high school civics, and maybe the course of studies which led to his PhD in American History sort of skipped the history of American politics and our federal-state system of government. 

But how is it possible that Texas state senators — part of the very mechanism of democracy entrusted with this solemn responsibility — could have failed to understand these fundamental truths before they rushed out of Texas and rushed back into federal court?

How strained shall be the quality of mercy shown the Ten Truant Texas Dems™?

This — from Charles Kuffner of Off the Kuff about what will happen to the fines and other penalties imposed on the Ten Truant Texas Dems™ (my nickname for them, of course, and not his) — I found very thought-provoking:

[M]y best guess is that the GOP will try to impose some sanctions, and the Democrats will tell them to go pound sand. Tactically, I'd guess the Democrats are hoping that the Republicans insist on fining them and restricting their access to supplies, conference rooms, parking lots, etc. It fits in well with their renegade-victim-of-oppression story line, and will serve as a continuing rallying point for them both in Texas and nationally. As such, the smartest thing the GOP can do is to be magnanimous and drop all of the punishments in the name of restoring harmony. The fate of redistricting is entirely in the GOP's control now, so it hardly costs them anything to let bygones be bygones, and it would take a lot of wind out of the Democrats' sails if they did so. I don't think anyone will be surprised to hear me say that I seriously doubt that Rick Perry is smart enough to advocate this. But hey, I could be wrong. Again, we'll know soon enough.

I make no prediction on what Gov. Perry or the other members of the state Republican leadership will actually do, nor any comment on their inate cleverness.  But otherwise I agree with Kuff's observations.  At least in the short term, it would be politically smart — canny, astute, shrewd, efficacious — for the Senate Republicans to forgive everything.

But would it be wise?  Would it be proper?  Would it be sacrificing an important principle for the sake of short-term political gains that will be outweighed by longer-term consequences?

It is important to consider what precedent will be set for the future — and to do so in a manner that is not driven by short-term questions of how being merciful or vengeful will play in the polls.  It is no hyperbole to say that we have had a constitutional crisis in Texas this summer.  This crisis resulted not only in hard feelings and hardball politics, but also demonstrated a paralyzing impotency in the mechanisms of state government — with a heavy resulting waste of both tangible economic capital for the entire State of Texas and metaphysical political capital for members of both parties.  Unless there is a wise and comprehensive course of action undertaken to achieve political closure now, then the bitterness of this summer's fight may make such walkouts and stalemates ever more likely in the future, rather than less.

But how can both sides back down gracefully, claim to have preserved their inconsistent sets of principles, and get on about the business of governing the State of Texas?  The dilemma is clear:

• On the one hand, there can be no doubt whatsoever that the "Texas 11" deliberately violated Texas Senate Rule 5.03, which provides that "[n]o member shall absent himself or herself from the sessions of the Senate without leave unless the member be sick or unable to attend."  I assume that this particular rule has been in place for a long, long time, and at the beginning of the 78th Texas Legislature, it was unanimously approved by both Republican and Democratic senators alike.  The Texas Senate Rules do not bless or allow for the possibility of civil disobedience by senators, no matter what principle is being "defended" by the destruction of a quorum.  This isn't going to change.  And it would be very bad policy to set a precedent for the future that this rule may be violated with impunity (besides the fact that such a precedent would require the Republicans to eat more crow now than they could stomach).

• And yet on the other hand:   As profoundly misguided as I think they are, and as knowingly sloppy with the truth as I think they've oftentimes been and continue to be, I do not doubt that the Democratic senators who fled the state were, ultimately, sincere in their beliefs.  Vengeance or retribution for its own sake would be worse than petty and politically stupid; it would be unjust if carried to extreme measures.  All that nonsense about "poll taxes" aside, it would be counterproductive to insist on any meaningful penalty that would inhibit a senator's or his staff's ability to perform their jobs.  And in the present circumstances (about which, see below), it would be cruel and unrealistic to try to enforce significant monetary penalties against any of these senators in their personal capacities.  (Some of our part-time legislators would likely be driven out of office, if not also to personal bankruptcy, by the fines that nominally are outstanding now.) 

How, then, to cut through this Gordian knot?  As always, with a bold stroke of a sharp, deftly wielded sword.

The vote to impose penalties and sanctions by a majority of the Texas state senators who remained at the Capitol for the second special session — the Republicans plus Ken Armbrister, but over his and Republican state senator Bill Ratliff's opposition — did indeed have an arguable basis in the Texas Constitution and the existing Texas Senate Rules, notwithstanding the absence of a quorum.  If push came to shove, in fact, I think they'd have the better of the argument, in a technical and legalistic sense.   

The only place where push could likely come to shove, though, would be in the Texas Senate, and not in the Texas courts.  As demonstrated by the dismissals of the Republicans' attempts to "mandamus" the missing Democratic senators in both a Travis County District Court and in the Texas Supreme Court (as an "original jurisdiction" proceeding), the Texas courts will have none of this fight; it's a classic example of something that is considered to be a "political question" that, under the doctrine of separation of powers, lacks "justiciability."{note1}  So as a practical matter, the Senate has plenty of running room and flexibility here to write its own ticket so long as it doesn't expressly violate any provisions of the Texas Constitution.

Even if authorized and justifiable, the voting of penalties and sanctions was unprecedented.  That doesn't mean it was wrong.  But it means that, arguably, it came as a big surprise, and an unfair one, even if it was technically justified.  The Republicans can concede this point without any loss of face.  Moreover, they can likewise concede that it's a fundamental notion of "due process of law" that before you can penalize an offender, he has to first have been given fair notice — via a statute or via caselaw — that what he's about to engage in will land him in the soup, and indeed, roughly how hot that soup might be!{note2}

So there's your principled, equitable basis to support an act of sublime mercy — not a pardon that forgives unconditionally, wipes out the offense, and implicitly approves the misconduct after the fact, but rather an amnesty that is a measured decision to forego prosecution just this once.  "Guys, we think what you did was wrong, and we know you don't agree with that; but we can both agree that this was a novel, unprecedented situation, and we can also all agree that it would be better form for the entire Senate to agree on when and how this kind of penalty ought to be assessed."

That's only half of what's needed, though.  As part of the same unanimous Senate resolution that grants an amnesty and sets aside all fines and penalties with respect to the just-concluded second special session of the 78th Legislature, there must also be the joint statement of the "sense of the Senate" that before the next regular session of the Texas Legislature in 2005, a bipartisan commission (comprising an equal number of Democrats and Republicans, with Lt. Gov. Dewhurst voting only if necessary to break a tie) should meet to draft and propose amendments to the existing Texas Senate Rules.  Those amendments would be designed to put teeth into Rule 5.03.  As such, the rules as amended should contain graduated, automatic penalties (not requiring a separate vote in the absence of a quorum) that become more and more severe, leading all the way up to — but stopping just short of — declaring a vacancy in the seat of the most extreme offenders.  Whether the Senate could engage in that ultimate sanction without violating the Texas Constitution is a question best left for the next extreme constitutional crisis, which hopefully will never come.

To invoke the nickname of a former Texas governor (a native of my hometown, by the way):   PRESTO!  We've achieved an act of bipartisan cooperation and statesmanship that jerks the bloodstained tablecloth off the table without upsetting any of the dishes.  We'll let tempers cool until the 78th Legislature and redistricting are firmly behind us all.  We'll pick cool heads for the intersession commission to launder the tablecloth and prescribe table manners for the future.  And best of all, we'll diminish the likelihood — without necessarily foreclosing it completely — of similar walkouts by either party in the future.

(As my royalty on this proposal when adopted, I ask merely for 0.001 percent of the gross state sales tax revenues for the next five years.  Think of it as an extremely modest contingent fee.)

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{note1} There's well developed parallel federal caselaw on this, if not much Texas law for understandable reasons.  Compare, e.g., Nixon v. United States, 506 U.S. 224 (1993), with Powell v. McCormack, 395 U.S. 486 (1969).

{note2} See, e.g., Rogers v. Tennessee, 532 U.S. 451 (2001).

It's all about making people think it's all about race: Fisking Michelle Goldberg's Salon article on Texas redistricting

Writing in the online magazine Salon, Michelle Goldberg has an article out entitled "The Texas stalemate: It's all about race."  (Subscription required, or you can watch a 30-second commercial for a "day-pass"; the one I saw consisted of an ACLU ad that factually misdepicted the USA Patriot Act).  It's subtitled "Few are saying it openly, but the DeLay-Rove power grab in Austin is all about keeping white control of an increasingly Hispanic state," and it's been cited as authoritative, conclusive proof of rampant racism in Texas by such sources as the San Francisco Bay View and left-wing blogger Atrios.  So what's Ms. Goldberg got to say about the Lone Star State from her home in New York?

Sept. 3, 2003  |  ALBUQUERQUE, N.M. — Exile in Albuquerque is not glamorous. The 11 Democratic Texas state senators who fled to New Mexico more than a month ago to block a Republican power grab spend most of their days and nights at a slightly shabby Marriott hotel in the city's grim, sprawling periphery....

To prevent the formation of a quorum in the Texas Senate, the Ten Truant Texas Dems™ had their choice of any place to stay in the world, so long as it was outside Texas.  Tom DeLay didn't pick Albuquerque, much less this particular Marriott.  But in fact, Texans have been escaping the summer heat to their vacation spots in New Mexico for decades.  Ms. Goldberg, I suggest you ask New Mexico Gov. Bill Richardson, a Democrat and a vocal supporter of the Truant Texans, whether he appreciates your characterization of his state's largest city as "grim" and "sprawling."

... While most press accounts cast them as opponents of a Republican plan to grab power by redrawing legislative districts, the lawmakers-in-exile here see something at once more subtle and more important:   the latest chapter in the South's long, ugly war over minority voting rights.

Yes, even though "subtle," this theme makes for much better talking points and fund-raising than saying, "We've fled the jurisdiction to protect white, male incumbent Democratic Congressmen who will likely lose their seats unless we can maintain the pro-Democratic gerrymander from 1991."  Never mind, of course, that it was the southern wing of the Democratic Party who was guilty of the minority voting rights violations that led to the Civil Rights Act of 1965.  The question is, having wrapped themselves in the banner of Martin Luther King, can these modern-day Democrats make the banner fit?

Nine of the 10 senators remaining in Albuquerque are black or Hispanic; the other one represents a district that is mainly minority. And within a few years, experts say, Texas will join California as a state where Latinos, African-Americans and other minorities will outnumber Anglos.

The second sentence is true, and explains why Texas Republicans are so enthusiastic about recruiting and supporting conservative Hispanic candidates (e.g., Orlando Sanchez in the current Houston mayoral race).  But that second sentence doesn't logically relate to the first. 

So what's the purpose of the first sentence?  Each of the Ten Truant Texas Dems™ was elected from a state senatorial district that has already been redistricted by court decision in 2001.  It's not their seats that are at risk, nor the state-senatorial voting rights of any of their constituents that is at issue in the present fight.  The only reason for mentioning the race or ethnicity of these senators is to raise a demonstrably false impression that the Republican desire to adjust Congressional districts is intended to discriminate against them on the basis of their race.  That's not particularly subtle.  And it can't possibly true.

"This is an effort to seriously gut minority voting rights," says Sen. Leticia Van De Putte, head of the Texas Democratic Senate delegation. "We could not protect our constituents without breaking quorum" and fleeing Texas to short-circuit the Republican plot.

With all due respect, Sen. Van de Putte — and I respect you every bit as much as I respect Meryl Streep — your constituents are the people who can choose to vote for you, or not; the boundaries of your senatorial district aren't affected here.  As for the choice of the term "plot" — well, that's a nice, loaded word that appeals to grassy-knoll enthusiasts everywhere.  But it's a pretty poor "plot" when the Governor calls three special sessions for the express purpose of adjusting Texas Congressional district boundaries to make our Congressional delegation reflect the broad and deep state-wide support Texans give to our favorite-son President and his party.  Can it be a "plot" when it's so poor a secret?

If the senators are stubborn, it's partly because they've come to see their stance against redistricting as a civil rights struggle, not a political quarrel. At first, it's difficult to see that the battle over Texas redistricting is all about race. Spurred by Texas powerhouse Tom DeLay, the majority leader in the U.S. House of Representatives, and by White House maestro Karl Rove, Texas Republicans are trying to ram through a redistricting proposal that would virtually ensure that Republicans would replace between five and seven white, moderate Democratic incumbents.

(Emphasis by Beldar.)  Or maybe it's hard to see that the battle is all about race because the battle is not all about race. 

The description here of the various redistricting proposals on the table isn't far off.  The Republicans' obvious and stated motive is indeed to replace "moderate Democratic incumbents."  Now, it's not an accident that they're targeting "white, moderate Democratic incumbents" rather than black or Hispanic ones.  Regardless of whether there was an intention to target black or Hispanic incumbents based on their race, even a negative effect on such incumbents would run afoul of the Voting Rights Act of 1965.  You remember that statute, the one with a conclusive and binding presumption (based on the actions of the 1960s-and-earlier southern Democrats) that all Texans are racists who are incapable of merely unintentionally diluting minority voting strength. 

No, minority incumbent Democrats like Sheila Jackson-Lee or Rubén Hinojosa have nothing to worry about in this fight because they are bulletproof — any threat to their majority-minority districts would be blown out of the water in a New York minute.  The DOJ and a three-judge federal panel (from which there's a direct appeal to the US Supreme Court) will review any new redistricting map that comes out of the 78th Texas Legislature, and they have an absolute trump card to protect against any harm to minority voting rights.  US District Judge George P. Kazen of Laredo — currently the Chief Judge of the Southern District of Texas and a Clinton appointee — went out of his way to point this rather important fact out on five separate occasions in the first hearing on the voting rights lawsuit brought by the Ten Truant Texas Dems™, along with an express plea to the media to point this out to the general public.  (The plea was, of course, ignored, since it doesn't fit with the agitprop coming from the Dem Senators themselves, nor from MoveOn.org or sympathizers like Ms. Goldberg.)

But the fact that Ms. Goldberg concedes here — that the current redistricting fight is about the seats of "white, moderate Democratic incumbents" — is the least widely known and most misunderstood fact of the whole fight.  And the very next sentence of her article is even more stunning:

The GOP proposal would redraw the state's legislative boundaries so that minorities are concentrated into a few districts, likely leading to a net increase in the number of minority members of Congress.

(Emphasis by Beldar.)  Hello?  Did you catch that?  The Ten Truant Texas Dems™ fled the state to prevent a net increase in the number of minority members of Congress.  Ms. Goldberg calls this the "great irony of this whole imbroglio," but perhaps it's not "an irony," but a central fact!  If it's merely an "irony," then yes, this must be a very subtle anti-minority plot indeed. 

How is it supposed to work?  "[T]he voting power of blacks and Latinos would likely be diluted in other districts, giving Republicans a net gain of as many as seven seats," says Ms. Goldberg, which is why

Texas Democrats insist that the Republican redistricting plan is a deviously clever update on the party's old-fashioned divide-and-conquer Southern strategy. The Republican plan, Democrats argue, would redraw the boundaries so that blocs of Hispanic and black voters would shift from districts where they've voted in coalitions with white Democrats and independents into solidly Republican suburban districts, where their influence will be almost meaningless.

Okay.  There's the nub of it.  The plot against minority voting rights has nothing to do with "majority-minority" districts, but boils down to redrawing boundaries where Democrats — white ones, black ones, Hispanic ones — are currently sufficiently concentrated that when they all join together, they can continue to elect "moderate white Democratic incumbents," if just barely.  Well how'd that situation come about?  By accident?

Hell, no!  The way those concentrations were achieved was by over-packing Republicans into an even smaller number of highly-concentrated Republican districts back in 1991 — which, amazingly enough, Ms. Goldberg also admits much later in her article, when she quotes Rob Richie, whom she identifies as the executive director of the nonprofit Center for Voting and Democracy: 

Texas Republicans have a point that the current congressional map doesn't reflect Texas' voting patterns, Richie says. More than 50 percent of Texans voted for Republican congressional representatives in the last election, but Republicans won just 15 seats, while Democrats took 17. (Of course, given the last presidential election, there's something audacious about Republicans arguing that the system is invalid because its party won the popular vote in Texas but lost the electoral vote.) The Democrats dominate, says Richie, because of the electoral maps that state Democrats drew in 1991.

A panel of Texas judges redrew those maps in 2001, after statehouse Republicans blocked passage of a new map drawn by Democrats, who were then a majority. Republicans defended those court-drawn maps, which gave their party two extra seats, from a challenge in U.S. Supreme Court brought by civil rights groups, who said the map was unfair to minorities. Nevertheless, that round of redistricting didn't reverse all the advantages Democrats had built into the system in 1991.

Indeed, Richie calls the Texas Democrats' 1991 maps the most effective gerrymandering of that decade in the nation....

We'll charitably pass by Ms. Goldberg's parenthetical non sequitur about "electoral votes," which play no part in Congressional or state elections; in 2000, Dubya won both the popular vote in Texas and (of course, therefore) its electoral votes, so I have no clue what "audacity" she's talking about. 

With respect to the other comments she attributes to Mr. Richie, though, the Balderas v. Texas decision in fact didn't reverse any of the advantages that the Democrats "built into the system in 1991" because the panel left untouched all majority-minority districts created in 1991 and then ensured that no incumbents were likely to be unseated — and there were still more incumbent Democrats than Republicans.  The Balderas panel recognized that what it was doing had a pro-Democratic effect, even though that effect wasn't intentional on its part.

So what's the beef?  C'mon, Michelle — get to the plot part!  How's it work?

In exchange for two new minority members of Congress, Democrats say, blacks and Hispanics would lose a handful of white members whose voting records are relatively well-ranked by civil rights groups.

Oh.  I see.  And it's just a coincidence that those same white Congressmen have a moderate-to-liberal record on all other issues?  Everyone knows that it's only the rankings of civil rights groups that count — it couldn't be possible that Texans would care whether, for instance, their Congressmen were supporting our native-son President on foreign policy issues after 9/11?  Or on tax cuts and other economic policy?

The argument that a handful of sympathetic white congressmen beats two minority representatives would sound grossly self-serving if put forth by the white congressmen themselves. But the main proponents of that argument are the Texas 11.

Again, we'll ignore the fact that they're down to ten.  But let's not ignore all the other facts.  Let's notice, for example, that just as Republican Majority Leader Tom DeLay and other national Republicans may be interested in the outcome of this battle, so too are the white incumbent Democratic Congressmen whose seats are on the line.  Was it coincidence that when Sen. John Whitmire returned to Houston last week, he was met at the airport by Congressman Gene Green?  Do you not think Congressman Martin Frost — the mastermind behind the 1991 pro-Democrat gerrymander — no longer cares about his own seat?  And is it a fluke that the lawyers representing the Ten Truant Texas Dems™ in their Laredo lawsuit were hired by the Democratic Congressional delegation, not by the Texas Senators themselves?

As we say in Texas, "I was born at night.  But not last night."

[B]y targeting white congressmen elected by coalitions of minorities and white Democrats, the Republicans have found a way to disenfranchise minorities without violating civil rights laws that prohibit states from gerrymandering electoral districts on racial lines.

"Disenfranchising minorities" is of course a nicely loaded term, but it literally means preventing someone from voting.  The Voting Rights Act of 1965 was passed because Southerners were "disenfranchising minorities" with "subtle plots" like lynching them when they tried to vote.  But that act also prohibits acts and practices that have the intent or the effect of substantially harming minority voting rights, and Ms. Goldberg accuses the Republicans of being "subtle" enough to avoid doing that.  So what we're left with is this argument:   Anything you do to disadvantage white incumbent Democratic Congressmen is a racist plot, because those white boys are friendly to minorities, and in fact they do a better job of representing minority points of view than would additional Congressmen who are actually minority members themselves.

Right.  Gotcha.  I have just experienced an epiphany as to the full meaning of the term "diversity."

But ... but ... Is there actually any evidence — you know, facts and stuff — that this is all racially motivated?  Well, sez Ms. Goldberg, you have to be "attuned to the signals":

One might think the senators were being oversensitive, even paranoid, if a key Republican operative hadn't confirmed their suspicions that Republicans, led by Rove and DeLay, are playing a devious race card.

In May, the Denver Post reported on GOP attack dog Grover Norquist's strategy, saying, "The GOP can live with urban liberals, such as [California Rep. Maxine] Waters; it's moderates such as [Texas Democratic Rep. Charlie] Stenholm who are its main target." If the Texas redistricting plan is adopted, Norquist was quoted saying, "it is exactly the Stenholms of the world who will disappear, the moderate Democrats. They will go so that no Texan need grow up thinking that being a Democrat is acceptable behavior."

For those attuned to the signals, Norquist's message was clear — redistricting would drive Southern whites out of the Democratic Party. In July, he went further, telling the New York Times that Sheila Jackson-Lee, a African-American congresswoman from Texas, "will be the spokesman for the Democratic Party."

"Basically you'll be labeled a nigger-lover if you're a Democrat," [Garnet] Coleman [a Democratic state representative from Houston] says of the Republican plan. "We've already been through those times. It's all part of the Southern strategy."

Aha.  Well, now it's clear.  If you're "attuned to the signals," you'll understand that the millions of Texas voters who voted Republican in 2002 — who put both chambers of the state legislature into Republican hands, along with both the governorship and lieutenant-governorship, for the first time since Reconstruction — were all actually mindless, thoughtless robots doing the bidding of Grover Norquist.  (Never mind that not one Texas voter in 20 or probably 50 could tell you who Grover Norquist is.)  And when Mr. Norquist says he's out to make the "moderate Democrats" like Charlie Stenholm disappear, it's not possible that it's Charlie Stenholm's voting record which he objects to.  No, it's that Charlie Stenholm is a friend to minorities, that's the only possible objection any Republican could have to him. 

So, you see, the proof is in the subtext of what Grover Norquist said, as quoted in a Colorado newspaper.  Yes indeedy, that is conclusive and indisputable proof that Texas redistricting is really about labeling white Democrats as ....

Well, I can't quite bring myself to type that odious phrase; it's bad enough to have cut-and-pasted it.  But you'll know what I meant — if you're "attuned to the signals."

"Our Senate colleagues, they think we did this for show. They're very uncomfortable every time we bring up the black or Hispanic issue," says Van De Putte. "But this is about the consolidation of power and trying to direct control of the U.S. House for the next 20 years."

Umm.  Sen. Van de Putte, it's actually about who Texas elects in the next four Congressional elections (2004, 2006, 2008, 2010) before the 2010 Census and another round of redistricting in 2011.  Maybe your colleagues are uncomfortable because they don't want to point out your math deficiencies.  Or maybe they're uncomfortable because you're accusing them — without evidence, and indeed contrary to the evidence! — of being racists.  That might do it.

No Republicans returned calls for this story. But the redistricting standoff comes at a time when blacks and Latinos are on track to become majorities in Texas, leading some Texas Democrats to believe Republicans are using redistricting to limit the effect of demographic changes. One exiled Democrat recalls the candid comment of a Republican colleague: "We have 10 years until Hispanics take over."

That's just delicious.  I've been meaning to explain, Ms. Goldberg, why I didn't return your call .... But, yup, you caught us, there's obviously no Republican anywhere who can refute what you've written.  And that line from an unidentified Democrat about an unidentified Republican ... man, that is powerful evidence.  Stronger'n train smoke.   That pretty well nails us, every one of us, on just about any issue for that matter, and at any time and place.  I don't understand why this little nugget wasn't a New York Times headline for six weeks running.

Ya know, I wonder now why Ms. Goldberg bothered to write this whole article.  Anyone who's "attuned to the signals" already knows that all Texas Republicans are hard-core racists.  That would run from Dubya down to the peach-fuzz-cheeked members of the Sam Houston State University Young Republicans.  And of course we can't leave out Presidential Counsel and former Texas Supreme Court Justice Alberto Gonzales (Hispanic) or current Texas Supreme Court Justices Dale Wainwright and Wallace Jefferson (both black).  I suspect Rep. Coleman can come up with some nice terms to describe them as well.

If you're sufficiently "attuned to the signals," you don't need or want facts — or screeds like Ms. Goldberg's — anyway.

---------------------------

UPDATE (Sun Sep 14 @ 7:30pm):   Even when he or she disagrees with you, it's always flattering to have something you've written read closely and discussed at length by another blogger, especially one as articulate as Ginger Stampley, who blogs in the cleverly named Perverse Access Memory.  I appreciate her taking the time and trouble to write and to link here via a Trackback. 

Is it "all about race" if it's about white incumbents?

Ms. Stampley writes:

One of the things that amuses me about Beldar’s comments is that when it’s about white representatives, it’s not about race. I can’t decide whether this blind spot is deliberate or not. To Republican strategists, it’s never about race, except when somebody who isn’t white points out that white people are stomping their metaphorical dick and does something about it. Then it’s anti-white racism and reverse discrimination.

Of course, my original piece started with Ms. Goldberg's use of the phrase "it's all about race" — but I'll plead guilty to some imprecise language.  As I originally stated, it's no accident that the Congressional districts being most heavily targeted for change in the Republicans' proposed redistricting plans are those with Anglos incumbents, and to that extent, I agree that the Republicans' redistricting efforts are indeed "about race."  But that's not because of an intent to discriminate against any members of minority races, which was very clearly what Ms. Goldberg meant when she said that redistricting was "all about race." 

To the extent that the Republicans' redistricting proposals discriminate against Anglos, I actually do agree that is unfortunate — even though I don't have much personal sympathy for these "good ole [white] boys" as the victims of this reverse discrimination.  But it's a discrimination that is effectively mandated by the Voting Rights Act of 1965, which makes those districts the only ones that are "up for grabs," so to speak.  So what Ms. Stampley characterizes as a "blind spot," I'd characterize instead as recognizing the practical political realities imposed by the Act.

Is it all about making people believe "white = Republican"?

Ms. Stampley also asserts that "[t]he goal of Republican strategists in Texas is to make every Democratic face in the statehouse and in the Congress black or brown," and says that she doesn't "like the idea that white liberals have no place at the table in Texas. And that is a message of this redistricting effort:   White=Republican." 

I certainly agree that such a message would be profoundly offensive.  However, the only people I see who are trumpeting that message are Democrats like State Rep. Garnet Coleman, an example of whose extremely distasteful rhetoric is quoted in Ms. Goldberg's article. 

And it's quite odd to hear Dems make this "white flight" argument at the same time they're ridiculing past and persisting efforts by the Republicans to attract minority candidates and voters — especially Hispanics who tend to be conservative on "culture war" issues.  Again, consider the 2002 elections in which two black Republicans won seats on the Texas Supreme Court, and a Hispanic Republican candidate was favored by party officials (but lost, to their chagrin, in the primary).  That's supposed to send a message from the Republican Party that "white = Republican"?

Is it all about drawing up districts on the basis of race, or on the basis of voting patterns?

Ms. Stampley concedes that "yes, the Republican party will gladly take your money and your vote if you are black or brown."  I think she's right about that, and I'd add that the Republican party will gladly consider what Congressional district you should be included in based on how you and your neighbors are voting, without regard for whether you're black, brown, or any other color.

With all due respect, Ms. Stampley comes up with no more evidence — facts, examples, specifics other than innuendo and presumptions of bigotry — than Ms. Goldberg did.  Ms. Goldberg says you have to be "attuned to the signals"; Ms. Stampley says "it takes blinders to miss it."  Okay, maybe I'm not attuned and I'm wearing blinders.  So help me out:   point me to the evidence of racial discrimination.  Ms. Stampley mentions an effort to "get blacks in Ft. Bend County out of Tom DeLay’s district to keep it safe for him."  I don't know what specific proposals have been made with respect to Mr. DeLay's district, but if what Ms. Stampley says is so, then where's the evidence that it's those voters' race — as opposed to their liberal politics — that is the motivation?  To ask it a slightly different way, is there any evidence — not speculation, not innuendo, but actual evidence, either direct or circumstantial — that it's those voters' race, rather than their past voting patterns, that's motivating any changes that are being proposed with respect to the Congressional district they'll next vote in?

Direct evidence of public racism is, I'll admit, hard to find; a politician who harbors racist views would be stupid to reveal them by admission or by other direct evidence (Cruz Bustamante's "slips of the tongue" notwithstanding).  But if race really is driving the decisionmaking, and not voting histories, then you ought to be able to find some examples of folks whose districts are being switched in a way that is irrational, inefficient, and inexplicable on the basis of their voting histories.  When and if you find that, if those voters are also members of minority groups, then you'd have at least circumstantial evidence of racism.  So, are there any such examples?  If so, I've yet to see them documented.

Does it make political common sense for redistricting to be all about race or racism?

I don't doubt the sincerity of either Ms. Goldberg's or Ms. Stampley's beliefs that — evidence or the lack thereof notwithstanding — some or most of the Republicans pressing for redistricting are motivated by racism, or at a minimum are consciously taking advantage of others' racism.  But that's all they have — a sincere but essentially unsupported belief that someone else is a bigot. 

Neither I nor anyone else can directly disprove that.  All I can say with any certainty is that I'm a Republican who's pressing for redistricting too; I can see inside my own heart, and I'm very comfortable that racism isn't any part of my motivation. 

But I can make an argument based on reason and inference.  If your goal is to gerrymander for the purpose of undoing a previous gerrymander and to benefit your own party with the new one, then in counting and classifying the blips on the map that you're trying to draw Congressional district boundaries around, it would be entirely reasonable to consider those blips' voting histories and trends, and to aggregate them based on that.  You can say, "The blips in this precinct pretty much have been straight-ticket [Democrats/Republicans], whereas the blips in this precinct have been ticket-splitters tending toward [Democrats/Republicans] on national and statewide races, but toward [Republicans/Democrats] on more local races."  I believe that the Republicans who are drawing up various maps have that goal, and I presume that they're going about it in a reasonable and efficient manner — reasonable, at least, if you accept as a given that partisan gerrymandering is both legal and customary — so I infer that they're looking at those blips' voting histories and trends pretty much to the exclusion of any other data about them. 

If you had no data about voting histories and trends, but did have data about race, then perhaps it would be reasonable to use race as a proxy based on statistically significant correlations between race and voting histories and trends.  But we do have very particularized data on voting histories and trends on a precinct-by-precinct basis now, and by contrast, the race-based correlations are imperfect and quite probably growing weaker.  One could also presumably develop data about concentration of Chevrolets versus Fords versus Toyotas on a precinct-by-precinct basis, and there might be some correlation between that and voting patterns; but why would I use that data as a proxy either?  If your goal in politics is to get yourself and members of your party elected, then it doesn't make sense to base your redistricting decisions on race, no moreso than it would to base your decisions on voters' car brands or household income or SAT scores — if you're deciding based on any of those characteristics, you're passing up a more effective and direct means to your goal.

No one can dispute that in days past, there were Anglo legislators whose irrational, racist desire to suppress political participation by either blacks or Hispanics predominated over their desire to see themselves or members of their own political party elected.  I doubt if many lynching parties stopped to ask their victims whether they intended to vote Republican or Democrat, and their basis for selecting those victims was emphatically racial and racist. 

But with all due respect for the sincere contrary beliefs of Ms. Goldberg and Ms. Stampley, I have no reason to believe that many, if any, of today's Texas politicians are being driven by those ugly motives.  I'm loathe to make that presumption because I know it's false in my own case, and because I think better of the modern American character, and because I've seen no current evidence to support it, and because it runs contrary to political common sense and efficiency. 

So I continue to believe that Texas redistricting is not all about, or even mostly about, racism.  There's no good reason for it to be about that — unless your party is in the minority, and you're desperately looking for some basis, any basis, to win either a PR battle or one in the courts that you can't win through democratic means in the Legislature.

Third time's the charm on Texas redistricting

Last Friday, I predicted that Texas Gov. Rick Perry would call a third special session of the 78th Texas Legislature "for Monday, September 15."

Ta-da!  From today's Austin American-Statesman, we learn that "Republican Gov. Rick Perry has set high noon Monday for the start of the next legislative shootout over congressional boundary lines."

I'm patting myself on the back over getting this prediction right to the very day, but otherwise I'm in a sour mood — too sour to blog at any length tonight.  In fact, I'm going to stick the explanation for my mood into a "continuation," because I don't want to be reminded of it too frequently.

I'm too depressed after reading the back-and-forth sniping between Atrios and Tapped over "identity politics."  Specifically what depresses me is how, in the course of this "I'm holier than thou" pissing match between far left blogs, both sides can throw out casual accusations that everyone who supports legislative redistricting in Texas — what Atrios refers to as "the Texas redistrcting [sic] shenanigans" — is ipso facto a racist. 

Atrios tosses out a line like this:  "... in states like Texas and California where Fear of the Brown Horde is a steady theme of right wing politicians, it's odd to criticize the Brown Horde itself for uniting and standing up for itself."  No proof, no specific facts, no limit to the scope of who he's accusing, which at a minimum seems to include "[p]aranoid Texan politicians, from the House Majority Leader on down to the governor and the Texas Legislature." 

And nobody blogging or commenting on either website even blinks. 

Excuse me?  "Fear of the Brown Horde"?  As a "steady theme" of Texas Republicans?

This is so disgusting, I don't know how to even begin to address it.  It makes me angry, but it also makes me sad.  How can these people be so filled with spite and bile and corrosive venom?  I know that there are smart, articulate, and similarly delusional madmen at both far extremes of the political spectrum.  But the continuous smug condescension, the nonstop sarcasm, the casual bigotry that I read on Atrios' website literally sickens me.  If Atrios ever feels an instant of happiness or humor or love that's unconnected with insulting those who are even slightly to the political right of him, you couldn't tell it from reading his blog.  I can't imagine having a conversation with this fellow that wouldn't end with him literally spitting in my face. 

And yet he apparently has a huge following and commands the respect and admiration of a good chunk of the blogosphere.  About that, I'm just sad, not angry.

Well.  That's not at all what I meant to write about.

Ahoy matey! Hand over that Redistricting Treasure Map, or I'll have ye walkin' tha plank!

I'm glad that the three-judge panel convened for the Barrientos v. Texas litigation has ordered a prompt hearing for September 11th, although I wish they'd picked a different date.  In fact, I wish the panel had picked September 19th, which as we all know is Talk Like a Pirate Day:

THE CLERK:    Oyez, oyez, oyez!  The United States District Court for the Southern District of Texas, Laredo Division, is now in session, the Honorable Patrick E. Higginbotham, United States Circuit Judge, presiding, with the Honorable George P. Kazen, Chief Judge of the United States District Court, and the Honorable Lee H. Rosenthal, United States District Judge, also sitting!  God save the United States and this Honorable Court!

JUDGE HIGGINBOTHAM:   Be seated please.  As our sole matter on this afternoon's docket, we have a hearing on all pending motions in Gonzalo Barrientos et alia versus The State of Texas et alia, Number L-03-CV-113.  Counsel will please enter your appearances on the record.

MR. HICKS:   Arrrrrr!  Cap'n Renea Hicks here, m'lords an' m'lady, fer tha Demmercraddick Sennadors!

MR. CRUZ:   Solicitor-Gen'ral Ted Cruz at yer service, m'lords an' m'lady, fer tha Kingdo— errrrrr, fer tha State o' Texas, an' fer Guvner Perry, an' Leftenant-Guvner Dewhurst.

JUDGE HIGGINBOTHAM:   Very well, counsel.  We'll first hear from Mr. Cruz on behalf of the Crown.   Errr, the State.  Whatever.  Mr. Cruz?

MR. CRUZ:   Aye-aye, m'lord!  May it please the Court, the State o' Tex—

MR. HICKS:   Belay that order!  Avast, m'lords, beggin' yer pardon, m'lady, but ye ert ta hear me arguments first!  Tha Sennadors' motion fer a temp'rary restrain' order ert ta take precedence!

JUDGE HIGGINBOTHAM:   I see.  Mr. Cruz, what do you say to that.  Do you have a preference as to whether to speak first or second?

MR. CRUZ:   Aye, m'lord, 'tis nonsense fer yer worthies to spend yer time on tha motion fer a temp'rary restrain' order because once yer worthies have granted the State's motion to dismiss, that'll send yon motion fer temp'rary orders to the bottom o' Davy Jones' locker wif tha rest o' tha Sennadors' case.

[Brief conference off-the-record among the Judges]

JUDGE HIGGINBOTHAM:   Very well, Mr. Cruz, we agree.  Please proceed with argument on the State's motion to dismiss.

MR. CRUZ:   Har-har!  Aye-aye, m'lord!  The nub o' this matter, m'lords an' m'lady, is whut Leftenant-Guvner Dewhurst did when tha Good Ship Legislature hoisted anchor and set sail fer its Second Speshul Sesshun. 

Leftenant-Guvner Dewhurst announced to all the swabbies aboard that there'd be no more o' this molley-coddlin' an' fussin', but instead a steady course fer pure democracy, steady as she goes.  He announced that on this voyage, when he summon'd all hands on deck an' called fer a vote, he'd count hands — or hooks, as the case may be — and the side wif tha most will win. 

But tha Demmercraddick Sennadors, m'lords an' m'lady, began ta mutterin' about a mutiny!  They asked, "Whut about tha tradishun that two-thirds o' all hands aboard must agree first afore takin' any vote?" 

But tha Leftenant-Guvener answered 'em back sharply:   "Nay, ye scurvy dogs!" he said, "tha last voyage we took ye abused that tradishun an' kept us from ever gettin' outta port!"  Whereupon tha Demmercraddick Sennadors abandoned ship and skedaddled to the Land o' Enchantment, where they've been rousin' tha rabble and keepin' the ale-houses filled to the brims wif pieces o' eight.  An' instead o' sailin' on tha Good Ship Legislature as intended, they've brought this scurvy lawsuit claimin' that tha Leftenant-Guvner is disenfranchisin' them o' their votes! 

Why, nuffin' could be further from the troof, m'lords an' m'lady!  Leftenant-Guvner Dewhurst will gladly count their hands and hooks, if'n they'll only come back aboard when tha Guvner calls another muster!  M'lords, m'lady, the Crown— errr, the State submits that the Demmercraddick Sennadors ert ta be clapped in irons and returned to their stations aboard ship, an' their lawsuit sent into tha vasty deep.

JUDGE HIGGINBOTHAM:   Very well.  Mr. Hicks, we'll hear from you now.

MR. HICKS:   May it please yer lordships an' yer ladyship, I've ne'er heard such a load o' bilge an' hogwarsh in me whole seafarin'—

JUDGE ROSENTHAL:   Excuse me, Mr. Hicks, but ... is that a parrot on your shoulder?

THE PARROT:    Stand and fight!  Stand and fight!  Bwaaawk!

MR. HICKS:    Pay no attenshun to him, m'lady, he's been followin' me since tha Battle o' tha Caribbean three years ago this November.  Blimey!  Rum bird ...

JUDGE ROSENTHAL:   Very well, Mr. Hicks, proceed.

MR. HICKS:   Yo ho ho! Yer lordships, this is just tha first shot across tha bow o' democracy by Fleet Admiral Bush an' Commodore DeLay an' their whole evil navy, and a more rummy lot ye ne'er have seen!  Why, tha Demmercraddick Sennadors had no choice but ta slip off ta tha Land o' Enchantment!  If'n they'd stayed aboard ship after Leftenant-Guvner Dewhurst changed tha rules, then he wuz gonna keelhaul an' flog 'em!  In fact, that scallywag wuz about to hornswaggle all tha landlubbers o' Texas into—

JUDGE KAZAN:   Mr. Hicks, excuse me a moment, but let me see if I understand what you're asking this Court to do.  You want us to order Leften— errrrr, Lieutenant-Governor Dewhurst to see that a phony piece of legislation — a so-called "blocker bill" that nobody in the Senate actually supports — is the first bill referred to and then reported out of any Senate Committee, so that it can be placed atop the Senate Calendar?

JUDGE ROSENTHAL:   And that's so that under the rules as written, which Lieutenant-Governor Dewhurst is still enforcing as written, no other legislation — and especially no redistricting bill — can then even be considered, unless your pirates — errrrr, your clients, whose party has lost their majority in the Texas Senate, go along with it? 

JUDGE HIGGINBOTHAM:   So that what you're asking us to do is to issue orders that require the state's executive officers to continue a charade — an artificial manipulation of the Senate rules as they're actually written — in order to permit a legislative minority to continue to prevent the majority from ever being able to hold a Senate vote?

THE PARROT:    Let every vote count!  Bwaaaawk!  Stand and fight!  Stand and fight!

[The Parrot explodes in a cloud of feathers and smoke.  Mr. Hicks' co-counsel from Washington, Mr. Hebert, tucks his flintlock pistol back into his belt and resumes his seat.]

MR. HICKS:   Well, m'lord, ummm ... Ya see, m'lord, if'n Leftenant-Guvner Dewhurst weren't changin' tha rules mid-voyage, we—

JUDGE ROSENTHAL:   That's twice you've said that now, Mr. Hicks.  Would you be good enough to direct the Court by number to the rule that you say the Republicans have changed?

MR. HICKS:   Arrrrrrr!  Blast me own scurvy eyes, I saw it here somewheres this mornin' around seven bells.  Umm ... Errrrr ... M'lords, m'lady, can ye not see that poor, poor Repursen'tive Frost will see his Treasure Map from 1991 destroyed if'n ye permit tha majority to prevail in the Texas Senate?  Can ye not shed a tender tear fer Repursen'tive Frost and his brudders?

JUDGE HIGGINBOTHAM:   I believe we've heard enough.  Thank you counsel, we'll issue a decision shortly.

THE CLERK:   All rise!  Court is now adjourned!  Gangway, me hearties!

Articulate arguments from the left about redistricting

Time for kudos to those left-of-center bloggers whom Beldar has quickly come to respect, if not agree with, regarding the ongoing Texas redistricting fight.

Burnt Orange Report, run by three UT-Austin students, proves the point of my questionably-Churchilian quote about age and politics.  I enjoyed reading and commenting on several recent posts there about redistricting (here, here, and here, for instance).  I'd gladly stand any of these guys to a couple or three pitchers of beer and a platter of nachos.  Even when I think they're badly wrong, what I've read so far has been articulate and sincere.  Hook 'em!

Charles Kuffner's Off the Kuff also continues to impress me.  He's always on top of the newest news (for example, here and here), reasonably clear-eyed and non-foamy-mouthed in his analysis, and quite often very funny.  On the only occasion I've had to point out to him via email something I thought was factually off (having to do with the composition of the three-judge panel in the Gonzalo Barrientos v. Texas lawsuit now pending in Laredo), he responded graciously and quickly, and after confirming the facts, made a conspicuous correction with a polite acknowledgement -- in other words, he acted quickly and with impeccable ethics, which impressed the heck out of me.

Charles also re-posts (e.g., here and here) from his blog sometimes on Texas issues at Political State Report.  I've been rather less impressed with the commenters there -- much more an Atrios-like than a CalPundit-like place for a conservative blogger to play devil's advocate.  (Hmmm, if I publish a response there to something that Charles originally put on his blog, would that be a riposte to a re-post?)

And I'd enjoy seeing even more Texas coverage like this from Edward Still at Votelaw; I'm no specialist in voting rights litigation, but I gather he is, as well as being a fan of politics in general.

There are probably other such that I just haven't stumbled across yet.  I enjoy reading conflicting opinions on other blogs and websites, and enjoy debating folks here whose opinions vary from my own, provided they're reasonably civil.  Maybe one or two more of them will see the trackbacks and come here to help explain what the heck Rep. Martin Frost is telling the press!

Being long-winded (and since, to paraphrase Ronald Reagan in New Hampshire ca. 1980, I'm paying for this bandwidth!), I'll reprint here the comment I left on CalPundit's post about Blog Civility:

Zizka, my interpretation of Kevin Drum's original post here was that he doesn't intend this to be a "team huddle." There are certainly other blogger-hosts on both sides of the political spectrum who are running "team huddles," but they're frankly much less interesting places to visit regardless of one's own place along the spectrum.

I'm a fairly new blogger myself, and a fairly new visitor to this one. But it's clear at even a glance that there are some very bright people who visit and comment on this site -- in addition to the very bright person who writes it -- and that most of those people have personal politics that don't overlap my own. I nevertheless enjoy reading what they have to say. I'm frequently informed of new facts when I do so; I'm very, very often amused, even by things I don't agree with at all; I'm sometimes surprised to find agreement when I didn't expect it; I often admire the eloquence or creativity of someone who impresses but fails to persuade me; and I'm sometimes actually persuaded of something that I thought I never would be persuaded of.

If I leave a comment here, it's with the hope and intention of performing some of those same functions for other readers here, and also because it helps me clarify and sharpen my own thoughts and ideas.

Personal attacks contribute nothing toward any of these goals.

Demonstrating -- bragging -- that you have a closed mind isn't likely to help you persuade anyone who's persuadable.

Anyway -- Mr. Drum, thanks for the bipartisan welcome, which I believe to have been absolutely sincerely intended, and which I find admirable in itself. I embrace and endorse your ground rules and the motives behind them.

Can you not hear a loud hissing from the rapidly deflating prospects of the Ten Truant Texas Dems™?

On Tuesday, the defendants in Gonzalo Barrientos et al. v. State of Texas et al. — the lawsuit filed in federal court in Laredo by the Ten Truant Texas Dems™ — filed a very short motion asking for expedited consideration of the State's pending motion to dismiss the Dems' case. 

On Wednesday, the three-judge panel issued a notice that at 1:00 o'clock p.m. on Thursday, September 11, in Laredo (mips! I was hoping for Houston so I could go watch!), it will conduct a hearing on all pending motions.  This hearing will  presumably include both the State's motion to dismiss and the Dems' application for a Temporary Restraining Order to immunize them from "arrest" by the Senate's Sergeant at Arms if a third special session is called; the latter becomes moot if, as expected, the former is granted.   A ruling from the bench, followed by a short written opinion (either that same day or perhaps a day or two later), would not surprise me.

On the following Saturday, September 13, Texans go to the polls to vote on a series of proposed amendments to the Texas Constitution.  Unfortunately, none of these amendments authorizes the live, statewide telecasting of the handcuffing of, administration of sodium pentothal to, and vigorous cross-examination by a volunteer blogger of state legislators who've recently fled the jurisdiction to destroy legislative quorums.

I imagine that state Republican leaders are doing some serious head-knocking behind the scenes to achieve agreement between the House and Senate Republicans on a redistricting bill.  Democratic state senators Whitmire and Armbrister may also be a part of some of those discussions, and could quite conceivably play a nontrivial role in both negotiations and a third special session, which may well be called for Monday, September 15. 

By contrast, the Ten Truant Texas Dems™ have made themselves effectively irrelevant — and if they remain outside Texas for the third special session, they will quite literally have "disenfranchised" themselves.

Beldar asks a question

Friday's Fort Worth Star-Telegram has this quote from US Representative Martin Frost (D-Texas), one of Leticia's children:

"This is a national issue," said Frost, who saluted the Texas senators for their stand. "The Republicans are trying to overturn the results of the elections two years ago. This cannot be permitted to happen."

I assume he means the elections of 2002, since there were neither statewide nor national elections two years ago in 2001.  I assume he's not talking about the California recall election either, even if he thinks that it and the ongoing Texas redistricting fight are part of some sinister master plan. 

Please:    Would someone who's left-of-center — or at least very familiar with their arguments — leave a comment to identify for me (a) what "elections" Frost is referring to, and (b) in what sense the Republicans are attempting to "overturn" their results?

This is a sincere question.  I genuinely have no idea what point Rep. Frost is trying to make other than the sort of general "Republicans are bad" meme.  My best current guess as to the answer to part (a) is that he's referring to the election of 17 Democrats (including himself) as part of the Texas delegation to the US House of Representatives, but I'm not confident that is what he means, and whether it is or not, I have utterly no clue about part (b)'s intended meaning.

UPDATE (Sat Sep 6 @ 12:30pm):   Edward Still at Votelaw offers an articulate response to my question on his own blog.  He too assumes that Frost was referring to the 2002 Congressional elections, and has this to say:

The Republicans are seeking to "overturn" the elections by redrawing several congressional districts where the voters split their tickets and vote for Republican candidates most of the time, but continue to re-elect Democratic representatives.

One of the pithy little sayings about redistricting is that it is an opportunity for representatives to choose their voters. This applies to a body redistricting itself, but in this case it refers to the Republican Party — from Karl Rove and Tom DeLay to Rick Perry and David Dewhurst and the Republicans in the Legislature — to rejigger the election results till they get the "right" result.

I will admit that most redistricting has the goal of determining in advance the composition of the body to-be-elected. But usually we restrict ourselves to once a decade.

Overall, this is so commendably honest, it makes me want to give Mr. Still a big hug. 

I agree with him entirely that accomplishing a legislative redistricting once a decade is enough; it's just right, in fact.  We still haven't had ours in Texas yet for this decade.  Instead, we had a court-imposed redistricting that — for reasons I've previously blogged (here and here, for instance) — not only gave no opportunity for the new majority party in the state to express the democratic will of its people, but instead actually had the self-acknowledged effect of further entrenching incumbent Democrats who were artificially protected by the 1991 pre-Democrat gerrymander.  This is why I continue to insist that yes, this is a battle about democracy — but the Democrats are on the anti-democratic side of it.

I also expect that Mr. Still's polite formulation is about as good a job at defending Rep. Frost's word choice as can be done.  But it's still off the mark — trying to make square words fit in round holes, so to speak. 

The Republicans whom Mr. Still names — and add "Beldar" to that list, along with the millions of other Texans who voted in 2002 to put both legislative chambers and both top executive offices into Republican Party hands — are indeed trying to accomplish a different result for future elections "by redrawing several congressional districts where the voters split their tickets and vote for Republican candidates most of the time, but continue to re-elect Democratic representatives."  We're being very candid about it — we think that especially since 9/11 and the overt beginning of the War on Terror, Texans want a Congressional delegation that supports our native-son President — and the publicly announced goal of redistricting is to do that.  We'd probably reformulate the description to say that we're trying to redistribute loyal straight-ticket Republicans who were disproportionately packed into a few districts by the 1991 pro-Democrat gerrymander, but I don't even quibble much with Mr. Still's description of the means being used. 

I do, however, strongly object to Rep. Frost calling this the "overturning" of past elections.  That is simply an untruth — indeed, from someone as experienced and knowledgeable as he is, I have to conclude that the choice of those words makes it a lie.  And it's a particularly powerful one because it accuses the Republicans of trying to do something politically illegitimate, instead of politically routine.  Yes, redistricting a/k/a gerrymandering is indeed "rejiggering" something until you get the "'right' result."  But you aren't rejiggering the results of past elections, you're rejiggering district boundaries to try to get a different result in future elections.  The latter is (ugly) small-d democracy in action; the former is an anti-democratic coup d'état. 

Rep. Frost and MoveOn and the Ten Truant Texas Dems™ want Texas redistricting to be about coups d'état and "stolen" elections because it fits their overall theme against the Bush administration.  I understand the theme.  But to make it fit here in the Lone Star State, you have to tell lies, and that's simply shameful.

Ignoring Judge Kazen, MoveOn.org begins $1 million ad campaign based on racial scare tactics

Harvey Kronberg's Quorum Report has a link to a .pdf file with the first of MoveOn.org's print advertisements, due out in today's New York Times and paid for out of the $1 million that it recently raised over the Internet.  The ad is also up on MoveOn.org's own website now (warning: several large pix, not for the impatient or timid of bandwidth).

Contributors will be comforted to note that none of the $1 million has been spent on fixing the sentence fragment previously noted in BeldarBlog when I fisked the printed justifications for their sexist and anti-democratic "Defend Democracy in Texas" program.

No, the $1 million is apparently going into racial scare tactics which are calculated to create the sort of unjustified public alarm in the minority community that US District Judge George P. Kazen deliberately went out of his way to squelch at last week's hearing on the lawsuit brought by the Truant Texas Dems™ in federal court in Laredo.

The MoveOn.org print ad contains three paragraphs of hysterical text tied together with the subheadline, "It's the worst setback for minority voting rights in four decades."  News reports indicate that radio and TV ads to like effect ("accusing President Bush and other Republican leaders of trying to disenfranchise Hispanic voters, especially in the Texas redistricting fight") will also begin within the next two weeks.

Ahem.  Well, this is again rather curious logic.  It appears that the folks at MoveOn.org are keen on keeping the map drawn up by the Balderas v. Texas three-judge panel in 2001 (which essentially perpetuated the pro-Democratic gerrymander from 1991).  And they don't want to have a democratic vote in the Legislature determine redistricting in the manner intended by the US Constitution, as interpreted by the US Supreme Court.  And the "four decades" is a loose reference to the passage of the Voting Rights Act of 1965, it seems.

But their trust in the Voting Rights Act and the DOJ and the three-judge panels of the federal court and the Supreme Court that hears direct appeals from such panels' decisions seems to be ... rather selective.

MoveOn.org's ad campaign entirely ignores the fact that any redistricting bill will have to undergo preclearance under section 5 of the Voting Rights Act of 1965, and that if any redistricting bill has either the purpose or effect of harming minority voting rights, it will be blown out of the water in the proverbial New York minute.

Currently serving as Chief Judge of the Southern District of Texas, Judge Kazen is a Carter appointee before whom the Dems were thought to have a "home court advantage" (although I genuinely don't believe that mattered much, if at all).  At the August 27th hearing, he rejected the Dems' requests for immediate emergency injunctive relief, and expressed extreme skepticism as to whether they'd managed to state a viable claim that could survive a motion to dismiss.  He did, however, grant both sides' requests to ask Fifth Circuit Chief Judge Carolyn Dineen King to convene a three-judge panel under the Voting Rights Act of 1965 to make that decision. 

More significantly for present purposes, at this same hearing, Judge Kazen deliberately went out of his way  several times to reassure everyone concerned that minority voting rights will be protected when and if a redistricting plan is eventually passed.  He repeatedly directed these comments not just to the State of Texas and to the Truant Texas Dems™, but specifically to the members of the press who were present, with the obvious intention that his comments should be widely reported to the public.

However, the press has, of course, completely dropped that ball — thereby leaving the entire field in the battle for public opinion wide open for MoveOn.org's misleading and inflamatory ad campaign.

Here's what Judge Kazen said in open court last week:

[THE COURT:] I would stress again, and I think it's important, especially, for the media to understand, that — that if, in fact, a redistricting bill passes, then there's no question the voting act applies and there's no question that it has to be precleared and there's no question that it will be in litigation and there's no question that a three-judge court can say it violates minority rights.

(Official Transcript, page 12, line 21, to page 13, line 3.)  And again:

[THE COURT:] But if, indeed, a bill passes and if, indeed, it is as pernicious as it is feared [by the Dems], there are remedies.  There are at least two remedies.  And that's — it seems to me that that's the way it's supposed to be.

(Official Transcript, page 17, lines 16-20.)  And again:

[THE COURT:] And as I say, if then — I mean, look, I don't know when this is ever going to end.  As I say, if, in fact, some day a bill is passed, then a whole new round of money and time is going to be spent inevitably on a real voting rights case, which is — you know, whether the statute discriminates against minorities, but — so, you know, we're just somewhere along the way here.

(Official Transcript, page 32, lines 5-12.)  And again:

[THE COURT:] I would say — and I'm — and again, I'm not predicting anything, but I'm — I would say that if a three-judge panel decides that this [case as presently on file] is not a voting rights case and if DOJ has decided it's not a voting rights case, then it may be that people need to step back and take a deep breath and see where we are at that point.  Understanding, again, that — and I can't repeat this enough, especially for the news media, so that the people of Texas who care — I mean, they already care, will really understand, if and when a redistricting bill is passed, it will unquestionably be covered by the Voting Rights Act and it will unquestionably have to be precleared and it will unquestionably generate a lawsuit, and then all the business of charts and drafts and whose perspectives — and, you know, is it discriminatory and all that.  All that will do is generate this whole new round of litigation.  So that's there.  That protection is there.

(Official Transcript, page 35, line 15, to page 36, line 7.)  And still again (referring to the letter from the chief of the Voting Section in the Civil Rights Division of the Justice Department, which confirmed that  no preclearance was required for Lt. Gov. Dewhurst's decision to enforce the Texas Senate rules as written, rather than continuing to manipulate the Senate calendar in the second special session by using the "blocker bill" procedure to give a minority the power to deadlock the Senate):

THE COURT:  Okay.  Well, we'll put this in the record.  I note their [the DOJ's] conclusion, which is what we talked about.  If and when a new redistricting plan is actually adopted and submitted to the [US] Attorney General for review, the Attorney General will review it and the — well, he says, and the process by which it has been adopted to ensure that the submitted changes have neither a discriminatory purpose nor a discriminatory effect.

(Official Transcript, page 57, line 19, to page 58, line 2.)

Beldar's blunt translation of the subtext of all these extraordinary statements (that is, the private advice that I'd give the Dems as their counselor if, god forbid, I were their lawyer):   Quit scaring the public with this nonsense in the press about "disenfranchising minorities."  The Voting Rights Act of 1965 as enforced by the DOJ, a three-judge federal panel, and the US Supreme Court, will make very sure that doesn't happen.

Remember Landru!

The New York Times of course manages to completely miss the distinction between "rules" and "traditions," swallowing and then regurgitating the agitprop of the Truant Texas Dems™ by reporting in tomorrow's edition that

[b]ecause of quorum requirements and a longtime rule requiring a two-thirds majority to bring up a bill, the Republicans need two Democratic votes to move legislation.... After Democrats thwarted a first special session in June, Lt. Gov. David Dewhurst suspended the two-thirds rule, angering Democrats and prompting the flight.

(Say it with me, friends and neighbors:   It's ... a ... LIE!)

But I was more interested in two more minor bits from this story.  The first was the report that Sen. Whitmire is "known as Boogie from his avid partying in younger years."  My respect for him grows hourly by leaps and bounds.

The other was this quote, referring to Sen. Whitmire's status as the longest-tenured member of the current Texas Senate:   "As dean, I have a responsibility to protect the integrity of the body," he said.

These are wise words, for those who refuse to learn from history are doomed to repeat it.

Spinners spun by sharks, but transcript scrapes scales from Senator's sockets

Who ya gonna believe?  Your own lyin' eyes and a transcript, or your high-priced lawyer from Washington?

Texas Sen. John Whitmire (D-Houston) did something smart this past weekend:   He read the actual transcript of last week's hearing before US District Judge George P. Kazen in Laredo in the Voting Rights Act lawsuit in which Sen. Whitmire is one of the co-plaintiffs.

What can I say, Senator?  You coulda just read BeldarBlog on the Internet from Albuquerque!

My poor, loyal dog just thought I was having a heart attack.  She was switching into her "Lassie-go-get-help" barking and scratching-at-the-door mode because I was laughing so hard that I was doubled up and gasping for air. 

Here's the just-posted report from the Houston Chronicle that did it to me:

While in Houston, Whitmire read the transcript of a federal court hearing on the Democrats' voting rights lawsuit.

Though the Democrats portrayed U.S. District Judges George P. Kazen's decision last week to send the case to a three-judge panel as a victory, Whitmire found the transcript troubling.

In it, Kazen said the case had little merit.

But the Democrats' lawyers told their clients the news was good, Whitmire said.

"Somebody really did one on us," he said. "We were told in no uncertain terms to be optimistic."

Reporters were allowed to listen in on a teleconference call between the lawyers and the senators last week in which the lawyers gave a rosy view of the judge's statements. The lawyers and senators also talked behind closed doors.

Gerry Hebert, one of the lawyers, declined to respond to Whitmire's complaint.

I'm a frankly a little surprised that the press accounts hadn't tipped Sen. Whitmire off to begin with.   But Sen. Whitmire, despite being a lawyer himself, evidently got caught up in the enthusiasm of some lawyers trying to put the best face on a very bad situation. 

Of course, inviting reporters in to hear the post-hearing report from the Dems' lawyers was an extraordinary farce.  Doing so absolutely destroys attorney-client privilege, and thus ensures that you are not going to hear your trial lawyer's candid advice in his distinct capacity as your private counselor, but instead that you'll continue to hear your lawyer in full-blown (non-objective) advocate-mode.  Lawyer Hebert had already found his way to the TV cameras that morning to engage in a bit of the Politics of Personal Destruction with respect to one of his own (Janet Reno-promoted) successors at DOJ, so perhaps the spin RPMs were just too high to wind down from in whatever private discussions he and his fellow sharks had with the Truant Texas Dems™.

But once out of the New Mexico highlands — with the benefit of Houston's warm August breezes off the Gulf, lightly scented with the petrochemical perfume that means "home" and "commerce" to all of us who live here — apparently Sen. Whitmire had no trouble reading both the text and the subtext of Judge Kazen's comments in the full transcript from the hearing.  As I blogged last week after reading the same transcript, Judge Kazen's actual remarks were even less encouraging than the way they were reported in the popular press.  And as interpreted by anyone with much courtroom experience, the only question would be whether you'd pick the term "catastrophic" or "apocalyptic" as most apt to describe the subtext.

Meanwhile, in the "30 years in the Legislature but what have you done for me lately?" category, we have this report from tomorrow's Dallas Morning News:

Several Democrats ridiculed [Sen.] Whitmire at a news conference.

"We've had enough of powerful, special interests, and we've had enough of puppets and liars," said Sen. Judith Zaffirini, D-Laredo.

[Sen. Eliot] Shapleigh [(D-El Paso)] alluded to Democrats' suspicion that Mr. Whitmire stands to gain personally or politically from his move.

"I have no doubt that he will be rewarded upon his return to Austin by those whom he serves," Mr. Shapleigh said.

This reminds me of a crazed, frenzied animal gnawing off its own leg to escape the teeth of a steel trap.  Unfortunately, I'm pretty sure the Ten Truant Texas Dems™ (at last! my alliterative impulses are satisfied!) are gnawing off the wrong leg.

Connecting the dots between Sen. Whitmire's quotes

From quotes in today's papers, I remain convinced that Texas Sen. John Whitmire (D-Houston) is sincere when he says he's not just "giving up" by returning to Texas, but that he has some sort of plan in mind that would result in an overall compromise, and he's in active if secret negotiations with Texas Republicans toward that end.

From the press comments I've linked and quoted below, my strong hunch is that he sees a serious danger that the "blocker bill" procedure — misleadingly and disingenuously referred to as the "two-thirds rule" — will be done away with not just for the present redistricting fight, but for all Senate deliberations in the future.  And that would indeed change the fundamental nature of the Texas Senate.  Among other things, it would make all of the minority-party state senators something close to irrelevant, as they watched vote after vote pass by simple majority rule without any influence from themselves on the process.  Sen. Whitmire may have concluded that winning the redistricting battle — to save the skins of white male incumbent Democratic Congressmen like Charlie Stenholm, or even his old friend Gene Green (who met him at the Houston airport last night) — isn't worth the price of losing that war.

From this morning's Houston Chronicle:

Whitmire said Tuesday night that he had assurances he was safe from arrest for a few days, but did not elaborate.

From this morning's San Antonio Express-News:

Whitmire said he's confident Perry will not immediately call another special session.

"But if he does, my spies will notify me. I have an escape plan, and if need be, I'll leave (Texas) again. I have not given up, I have not surrendered," Whitmire said.

He denied that Republican leaders influenced his decision.

"I am working on a plan that will restore the collegiality to the Senate, and I am fearful that if the two-thirds rule is permanently removed, the Senate will no longer exist as we know it," Whitmire said.

From this morning's Austin American-Statesman:

Whitmire said he is concerned that continuing the boycott would cause irreparable damage to the Senate. He likened the standoff to the vitriolic debate of a campaign.

"Both sides, we're polling, we're running advertising, we're holding daily news conferences," he said. "Elections have an election date, but we don't have an election date for this campaign."

He said he intends to talk to both sides to try to "lower the rhetoric."

UPDATE (Weds. Sep 3 @ 11:45pm):   Seems I was right (and that the Houston Chronicle's Rachel Graves is still getting the "rule vs. custom" bit wrong):

Whitmire feared that staying in Albuquerque would push Republicans to permanently scrap a Senate rule that gives a third of the Senate the power to block a bill from being considered.

Republican Lt. Gov. David Dewhurst abandoned that rule during the second session, a move that prompted the Democrats to flee.

"Without it, 16 members run the entire Senate," Whitmire said, adding that he does not want that to be the case on other legislative issues. "Redistricting is really important, but so is school finance. So is criminal justice."

Overheard

"Damn, and we just paid for this URL for a whole year!" — heard outside the offices of the webmaster of Texas11.org.

"So, does this mean we can keep the million?" — heard outside the headquarters of MoveOn.org.

A grown-up, perhaps a statesman, amongst political adolescents

This, just posted on the Houston Chronicle, is simply amazing:

State Sen. John Whitmire said he is returning to Houston tonight in a move that could potentially end the holdout of Texas Democratic senators who fled Austin on July 28 to stop a vote on congressional redistricting.

Whitmire, who had not even unpacked his bags after returning today from Houston where he spent the Labor Day weekend, said his decision to return to Houston was not well-received by his fellow Democrats.

"There were varying degrees of disappointment is all I can say," he said. "The bottom line is that, redistricting is real important but there are other equally important issues such as allowing the Senate to function as it always has where people respect each others opinions. That is not the current situation.

"It's my job and my responsibility as dean of the Senate to attempt to restore some civility to the Senate and that's why I think we need closure to this matter."

Whitmire indicated he would keep his options open as to whether he would flee again if Gov. Rick Perry calls another special session to deal with redistricting.

The only thing I'm sure of is that there is more to this story — and more to what Sen. Whitmire accomplished on his holiday weekend — than has yet been revealed.

I do not believe that Sen. Whitmire is by nature a turncoat, and I do not believe his motivation is simply that he is tired of life as an outlaw (although I'm sure he is indeed tired).  I don't see him jumping parties.  Unless he's sufficiently disgusted with his colleagues that he's ready to announce his retirement — which would be another shocker — then he's doubtless prepared to fade the heat he's about to have to take, and to give back as good as he gets. 

I believe that if there's not some sort of deal he's worked out, there's at least a plan for one, and it's a deal-or-plan that he can argue with a straight face is making the best of a bad situation for his party.  But the fact that he announced his return solo almost certainly means that in meetings today, he failed to convince the other ten Truant Texas Dems™ to join in the deal-or-plan.

For political junkies who have been following this bloodfeud, this is just breath-taking, though, under any imaginable explanatory scenario. 

Plus, I for one also want to know:   Who shaved the sides of Sen. Whitmire's head between the time of his official portrait (taken from his Senate webpage) and the Chronicle's picture in tonight's edition?  Was this Sen. Van de Putte's doing?  Is this some sort of message being sent by the "Texas 10" regarding what happens to collaborators?

Charles Kuffner has links to MS-Word files with (extremely unpolished) statements from the other Dems and from Sen. Ellis, as well as some interesting speculation as to what it all might mean.

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UPDATE (Tues Sep 2 @ midnight):   Edward Still of Votelaw has a post up linking to an even more revealing article from the Dallas Morning News (no-cost registration required):

"You got to know when to hold them and when to fold them," said Sen. John Whitmire of Houston, who was one of 11 Democrats who left Texas to prevent a quorum assembly of the Senate, preventing consideration of a Republican redistricting bill.

....

Mr. Whitmire predicted Republicans will obtain a quorum and pass a new map of congressional districts, and he urged fellow Democrats to continue their battle in federal court.

....

Mr. Whitmire was cryptic as to his plans if another session is called, saying, "I will consider all options," including that he might hide in Texas. "There are steps you can take to make sure you're not surprised," he said. "My staff watches the Senate floor."

....

But the strain among Senate Democrats was visible.

"He gave us no notice, and he sort of dropped us in the grease," Sen. Juan "Chuy" Hinojosa of McAllen, said of Mr. Whitmire's return home.

'Breaking the rules' vs. 'changing the rules'

I've blogged until I'm blue in the face about the claim by the Truant Texas Dems™ that Lt. Gov. David Dewhurst and the Republicans trying to pass a redistricting bill have "changed the rules in the middle of the game." 

The Dems' new website repeats this claim yet again as the very first 12 words of their explanation as to why they're in New Mexico instead of Austin:  "On July 28, 2003, Lt. Governor David Dewhurst changed the Senate rules ...."

The Texas Senate does indeed have a formal set of written rules that were approved by both parties at the beginning of the 78th Texas Legislature, and not a one of them has been changed, abandoned, or ignored by Lt. Gov. Dewhurst or the Republican Senators.  In particular, Rule 5.12, which provides that bills shall be listed on the Senate calendar and considered in the order they're voted out of committee, and Rule 5.13, which provides that no bill "may be considered out of its regular calendar order unless the regular order is suspended by a vote of two-thirds of the members present," are both in place and fully effective.

Rather, what Lt. Gov. Dewhurst announced was that he would stop using an artificial parliamentary manipulation — the placing of a piece of bogus legislation, a "blocker bill," atop the Senate's legislative calendar — to continue to give a Senate minority the power to block all legislation.  Under the formal rules as written, unless there's such a bogus blocker bill atop the calendar, then a redistricting bill will be the first item on the calendar in any special session, and a simple majority-rule vote can pass that bill.  What the Dems have fled from is not a change in the rules, but only Lt. Gov. Dewhurst's promise to enforce the Senate rules exactly as they're written.

But there is a fairly important rule that's not being ignored or changed, but rather that's being violated:

ABSENCES

      Rule 5.03.  No member shall absent himself or herself from the sessions of the Senate without leave unless the member be sick or unable to attend.

The Truant Texas Dems™ agreed to Rule 5.03, and now they're deliberately breaking it.  They don't have "leave" they aren't sick; they aren't "unable to attend."  They're just ... rule-breakers.  Period.

In fact, as State Rep. David Swinford points out, the Texas Constitution places "on elected senators a mandatory duty to attend the Senate when called, stating in Article III, Section 5 that all Legislators 'shall meet . . . when convened by the Governor.'"  Not only did the Truant Texas Dems™ vote for Rule 5.03, they also

voluntarily bound themselves by unanimous vote to the Senate's duty of compulsory attendance by taking an oath swearing that they would "faithfully execute the duties of the office" of state senator and "preserve, protect, and defend the Constitution and laws of the United States and of Texas."

Why have I never read of, or seen, or heard, a single reporter ask about Senate Rule 5.03 at any of the Dems' press conferences?

How long shall be the exile?

R.G. Ratcliffe's article in today's Houston Chronicle is entitled, "Low on options, Senate Democrats realizing there's no easy way home."  He quotes Truant Texas Dem™ Sen. Mario Gallegos as saying that even if their Voting Rights Act lawsuit is rejected by the three-judge panel just assigned to hear it, there's a "magic date" which is

sometime between mid-September and mid-October after which any redistricting bill passed by the Republican majority probably could not be used in the 2004 elections. [Gallegos] said the senators may have to stay out of state that long.

"That is the golden period," Gallegos said. "That's the breathing room that we're being asked to give them ... the lawyers, the congressmen, the people who support us and us, the Texas 11."

I don't know what the practical deadline is to pass redistricting legislation and still comply with the pre-clearance requirements of section 5 of the Voting Rights Act.  But I strongly suspect Sen. Gallegos is dreaming if he thinks Gov. Perry wouldn't bother to call another special session for redistricting even after that date, whenever it is.

From now until the 79th Texas Legislature is seated in 2005, the Republicans can absolutely count on controlling both legislative chambers, the governorship, and the lieutenant governorship.  And even after the 2004 elections, there will be three more congressional elections — in 2006, 2008, and 2010 — before the 2010 Census and redistricting based on it in 2011.

I'm sure Charlie Stenholm and the other white male incumbent Democratic Congressmen who comprise  Leticia's Children would be grateful for even another two-year reprieve, and I don't mean to minimize the political significance of merely frustrating the normal democratic processes for one more election cycle.  But if that's all they can do, it will become increasingly apparent that this hasn't been a fight by the Truant Texas Dems™ to protect some high-flown principles — but rather, just an attempt to screw things up.

Let's compromise on the basis of 'you lose, we win'

From an editorial in today's Houston Chronicle entitled "Ample Exits:   Plenty of ways to end state's redistricting standoff":

The wayward senators say they will return to Texas if Dewhurst agrees to reinstate the Senate's traditional two-thirds rule, which for decades has applied to the Senate's most important legislation....

So far, litigation has solved nothing, but Gov. Perry could end the war single-handedly by promising not to add redistricting to the next special session. If Perry and U.S. House Majority Leader Tom DeLay really believe redistricting would benefit the citizens of Texas, however, the governor should have the next special session consider legislation to create a nonpartisan commission to redraw congressional district lines after the 2010 U.S. Census. The primary House sponsor is state Rep. Scott Hochberg, D-Houston. State Sen. Jeff Wentworth, R-San Antonio, filed similar legislation in the Senate. 

This makes my teeth hurt.  If I'm ever in a room together with a journalist who says Lt. Gov. Dewhurst has abolished or abandoned or changed a Senate rule in the redistricting fight, said journalist is likely going to show up at the nearest emergency room suffering from the adult equivalent of "shaken baby syndrome."  It's ... a ... LIE!

And the Chronicle's proposed compromise amounts to nothing more than "Dems win, Republicans lose."

As I've said several times before, I'm in favor of taking redistricting out of the hands of the Legislature and making it nonpartisan.  I don't know enough about Rep. Hochberg's or Sen. Wentworth's specific proposals to comment on either.

But I'm at a loss to understand how, on the one hand, the Chronicle can recognize that all gerrymandering is ugly, and on the other hand it suggests that we spend the next seven years and the next four Congressional elections under what's essentially a set of Congressional boundaries gerrymandered to be pro-Democrat based on the 1990 Census.

[sarcasm on] Uh-huh!  Right!  Oh yes, that's a sound basis for compromise!  Let's let the Dems retain a gerrymandered majority in the Texas delegation to the US House for the rest of this decade.  Let's ignore the 2002 election results, and let's ignore the fact that the Legislature — not the federal courts — are assigned the task of redistricting by the US Constitution as interpreted by the US Supreme Court.  By 2011, there will probably be a renewed appetite among Democratic legislators for another extended stay in New Mexico. [/sarcasm off]

Litigation actually is about to solve something.  When the Truant Texas Dems™ get poured out by the three-judge panel just convened in Barrientos v. Texas, their choices for how to proceed will be cut to exactly two:

• Come home for a third special session with a majority-rule vote that they will lose; or

• Stay outside the boundaries of the State of Texas until their legislative terms expire after the 2004 elections — and hope they can keep solidarity among at least eleven Democratic senators for this entire long exile. 

We're approaching the end-game either way, and the time for them to make a real compromise is fast slipping away from them.

When do 'mistakes favoring your side' become 'lies'? Tick-tock ...

A very slick website called "SaveTexasReps" collects pro-Truant Texas Dems™ info, editorials, and links.  I've emailed its webmaster, however, to point out that on one purely factual matter — the number of Republican-appointed judges on the three-judge panel who created the present Texas Congressional district map — it's dead-bang wrong.  This particular falsehood is extremely widespread — Sen. Leticia Van de Putte has frequently repeated it at press conferences, for instance. 

So the question is, do the Truant Texas Dems™ and their supporters give a damn about being factually accurate?  When confronted on a falsehood on a matter of objective, historically verifiable fact, will they acknowledge and fix the falsehood?  Or will they continue in repeating something that — after they've been put on notice — can then only be characterized as a deliberate lie?

From my email to the webmaster:

----------------------------------------------

From: William J Dyer
To: [email protected]
Sent: Sunday, August 31, 2003 3:14 AM
Subject: Notice of factual error on your website and request for correction & acknowledgement of same

Dear "SaveTexasReps.com" Webmaster,

Your website's homepage at http://savetexasreps.com/ contains this blurb:

These partisan special interests are trying to force the Texas Legislature to draw new congressional districts -- even though the current plan was devised by a panel of three Republican-appointed federal judges and has been approved by the Republican-dominated U.S. Supreme Court and ruled on by the Republican Texas Attorney General, who says that it can stay in place until 2010.

You are in error.  The Balderas v. Texas panel in 2001 that created the current Congressional district map consisted of one circuit judge appointed by a Republican President (Judge Higginbotham, appointed by Ford to the Northern District of Texas bench, and later elevated by Reagan to the Fifth Circuit) and two district judges appointed by a Democratic President (Eastern District of Texas Judges John H. Hannah, Jr. and T. John Ward, both appointed by President Clinton). 

I invite you to independently confirm these facts, or, if you'd like a shortcut, you can find links documenting these facts at this link.

Much of what is being said in the redistricting battle consists of opinions or metaphors or analogies, all subject to subjective interpretation and spin.  The composition of the Balderas panel, however, is a matter of verifiable and objective historical fact, about which there can be no reasonable doubt. 

The particular canard that appears on your website — and variations on it which claim that there were two Republican-appointed judges on the panel — have been widely spread in the press, on the internet, and even in press conferences by some of the Democratic Senators.

I request that you correct your error and — as would any good and ethical journalist — publish an acknowledgement of the correction that's at least as prominent as the original error.  If you decline to do so, it may suggest to fair-minded observers that telling the truth is a low priority on your website.

Best regards,

- William J. Dyer
a/k/a Beldar of BeldarBlog
http://beldar.blogs.com/beldarblog/

----------------------------------------------

UPDATE (Mon Sep 1):  I received this prompt reply by email from the webmaster:

From: Nathan Wilcox
To: William J Dyer
Sent: Sunday, August 31, 2003 3:38 AM
Subject: RE: Notice of factual error on your website and request for correction & acknowledgement of same

Thanks for the info, I'll research the issue and change if/when convinced that you are correct.

However, I'm not a journalist. SaveTexasReps is an openly partisan site, I'm not claiming to be objective, I'm a citizen expressing my own viewpoint.

thanks,
Nathan Wilcox
Save Texas Reps

Note the time — within minutes after my original email!  I was impressed, and surprised to find another holiday-weekend night-owl.

Mr. Wilcox' point about not being a journalist is a fair one.  The question, more fairly put, was whether he merely an honest and mistaken political webmaster, or a lying one.

Over a full day later, the falsehood is still posted.  In fact, the same falsehood also appears on the "What's at Stake" and "Redistricting Primer" linked pages as well as the website's home page, by the way.

So now it would seem that the question is whether Mr. Wilcox is at best an honest, mistaken, and slow political webmaster, or instead a lying one.

And after some email exchange with him about a week ago, I'm still waiting for Dr. Josh Marshall to publicly correct his mistake in his article in The Forward in which he said the Balderas panel contained "two Republicans and one Democrat."  No one can say for certain whether any of these judges actually belong to either party, but one can say with absolute certainly which party the President who appointed them belonged to — which, it's clear from our email, is what he was trying to do when he made the mistake.  It appears I rather overestimated Dr. Marshall's integrity and attention to detail, which saddens me.

UPDATE (Thu Sep 4 @ 7:30pm):  A little after noon today, Mr. Wilcox emailed to advise me that his website has corrected its errors regarding the composition of the Balderas panel — "and rather quickly, I feel, considering the holiday weekend," said he.  One might quibble about that, given that during the same period he (or someone) managed to do more-frequent-than-daily updates of other parts of the website, send mass emails to their mailing list, and carry on with other activities.  One might also note that no acknowledgement of the errors or the corrections appears on the website, so those who have been misled by this falsehood in the past are likely to remain misled; this too says a great deal about one's passion for accuracy and ethics, or the lack thereof.  As he wrote, he is not a journalist, but rather a partisan; still, is it not possible to be partisan and concerned with accuracy?  But given that he did eventually make the corrections, I'll give him the benefit of concluding that he is an honest, mistaken, and slow partisan webmaster, rather than a deliberately lying one.

I've heard nothing from Dr. Marshall either, which truly does disappoint me.  I have no reason to believe that his was other than an honest mistake, made and repeated in good faith.  But he is a journalist, or holds himself out as one.  I had hoped for better of him.

What Judge Kazen really said on Wednesday

I owe Southern District of Texas Chief Judge George Kazen an apology!

In my post on Wednesday about the hearing he conducted that morning, I said:

From the combined press reports of his comments, it looks as if Judge Kazen wandered a bit off the farm in his public policy critiques. But I'm not too torqued about that since that stuff was all dicta — not precedent, not binding on anyone, and not actually any of his business as a federal judge.

But I've now read the official 77-page transcript of the hearing, and all I can say is:   Mea culpa maxima, Judge Kazen!  I made the cardinal mistake of believing the popular press accounts of what you'd said!

For instance, Houston Chronicle reporter R.G. Ratcliffe, whom I mistakenly praised on Wednesday for the "best reporting of the day," had said this in the second sentence of his article:

U.S. District Judge George P. Kazen said he believes Gov. Rick Perry and Lt. Gov. David Dewhurst's push for mid-decade congressional redistricting is wrong and a waste of taxpayer money.

Pretty strong stuff!  The only problem is, Judge Kazen never said the key words "wrong" or "waste."  And what he did say, he expressly said speaking as a "private citizen," not as a judge.

In a BeldarBlog-scoops-the-world original, here's what Judge Kazen actually said:

[BY THE COURT:]  For example, I mean, the argument [by the Dems] that even thinking about redistricting [before the 2010 Census] is a voting rights violation strikes me as almost bizarre.  I mean, I — I would say that it's bad policy.  I mean, I think as — again, as a citizen, it's sort of like the California recall.  I mean, you have an election one year and then do it all over again the next year and waste a lot of time and money.  I mean, the reason people don't redistrict every other year is because it's a horrendously controversial task.  It's a cumbersome task.  It's an expensive proposition.  It generates litigation and so forth.  I think it's a bad idea, but — the idea that it's somehow — the mere thought of passing a bill is a voting rights violation, it seems to me, is — is odd.{1}

At the most, these few lines, taken out of context, possibly suggest that the Republican leaders of the state are engaging in "bad policy" that is a "bad idea"  in Judge Kazen's view "as a citizen," rather than as a judge.  But that's a far cry from a federal judge saying in his capacity as a federal judge that the Republican leaders' attempt to achieve a legislative redistricting for the first time since 1991 is "wrong" — which was the word Ratliffe's article used, as if it had been a combination indictment, conviction, and sentence from the bench.

What about the "waste of money" comment?  Again, that's a much stronger formulation than the actual words Judge Kazen used:

[BY THE COURT:]  But, Counsel, let me tell you something, and then we are probably just digressing.  And I — again, I'm speaking partly as a private citizen.  I mean, my — if I were a state senator, I might be doing the same thing.  I mean, I think it's not, by any stretch, the highest priority in the State of Texas.  I think if you asked a thousand people what's the biggest problem in the State of Texas, congressionally redistricting would be way down at the bottom.  I thought the State was virtually broke and, yet, they're spending all this money to do all this.

But the fact of the business is the — you know, in a legislative body, you know, you win some and you lose some.  I mean, it's not that the senators are not — I know they represent people. But if they're in the minority — let's leave the voting rights out of it.  If they're in the minority, they're going to lose some votes.  I mean, the democratic party in Washington loses all the time now.  And — and to say, well we — you know, we — but we can do all these things without any kind of sanctions because we're representing our people and, gee, if we show up, we're going to lose the vote, I mean, that's what the country — that's how the country works.

MR HICKS:  But that's not how —

THE COURT:  The majority — the majority wins, which is why it's important for people to go to the polls and wake up and decide who they want to be in — in power or not.  Because the majority generally wins in a — in a legislative body.{2}

If you read the entire transcript, it is absolutely clear that Judge Kazen was musing, thinking out loud, speculating — rather than trying to announce his formal assessment on any issue except for one, that being whether the Dems' lawsuit is so entirely frivolous that it doesn't even merit convening a three-judge court for the purpose of deciding whether to toss it out.   

And the lines I've quoted here are just about the only even semi-encouraging words that Judge Kazen had for the Dems in 77 pages of transcript.  Even they are surrounded by critical observations — in the first excerpt, Judge Kazen's skepticism of the Dems' claim that it's an automatic violation of the Voting Rights Act for the Republicans to try to pass any sort of redistricting bill at all before the 2010 Census, and in the second excerpt, Judge Kazen's skepticism that merely losing a majority-rule vote in the Legislature in and of itself qualifies as the abridgement of a protected minority voting right, even if the losing legislator or his constituents are members of a protected minority class.

I speculated from the press reports that Judge Kazen was looking for a way to throw some cold water on both sides to move them toward settlement.  It's much harder to draw that inference from the actual transcript.  Other than a throw-away compliment that the judge made regarding the quality of the Dems' briefing — the kind of solace you give to a lawyer when you're shooting him down in flames on the merits — there was essentially nothing in this hearing from which the Dems should have taken any comfort.

Ratcliffe wasn't alone in hearing what he wanted to hear, however.  Gary Susswein and Laylan Copelin, writing for the Austin American-Statesman, didn't use the sexed up words like "wrong" or "waste," but were equally guilty of taking isolated musings of the judge, speaking as a private citizen, and reporting them as if they were official judicial pronouncements:

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.

It's not part of a federal judge's job description to take sides as between two political parties, nor to substitute his own judgment for that of elected legislators on matters of state public policy.  But that's what the liberal press wants federal judges to do in this case, and like Sen. Van de Putte, their perception of events can obviously sometimes be skewed by that desire.

I should have known better, frankly, than to think that Judge Kazen would "wander off the farm."  At the most he can be gently faulted for musing aloud as a private citizen while he was on the bench, in the presence of reporters from the popular press, and "on the record."  For anyone who understands the process, his doing so was trivial, definitely a case of "no-harm, no-foul" with respect to the merits of anyone's claims or defenses in the lawsuit. 

I doubt that any of the lawyers present were as deluded as the reporters apparently were.  But I frankly, naively, expected better from experienced political reporters from a couple of the state's largest and most respected newspapers.  I dunno why, but I did.

---------------------------------

{1}"Transcript of Hearing Before the Honorable George P. Kazen, United States District Judge," dated August 27, 2003, reported by Leticia E. Verdin, Certified Shorthand Reporter, and filed on August 29, 2003, under Docket Entry No. 23 in Gonzalo Barrientos et al. v. The State of Texas et al., No. L-03-CV-113 in the United States District Court of the Southern District of Texas, Laredo Division, at page 12, lines 7-20.  The full transcript, in a .pdf file that's 2.6MB in size, can be downloaded via Pacer for about $7 if you have a Pacer account set up.

{2}Transcript at page 26, line 15, to page 27, line 19; emphasis added by BeldarBlog.

Sexist, anti-democratic MoveOn.org nears $1 million goal for "Defend Democracy in Texas" ad campaign

The trademarked graphic for MoveOn.org is subtitled "Democracy in Action."

As its "Current Campaign," MoveOn.org now has its "Defend Democracy in Texas" program — to raise $1 million for an ad campaign to support the Truant Texas Dems™ — at the very top of its website's homepage.  This in turn links to a page with the familiar text entry fields for your MasterCard or Visa number — along with a bar graph which reveals that MoveOn's "progress thus far" toward their $1 million goal is "98.77 percent funded" as of the moment I'm posting this.

Besides being overtly sexist, however, their website demonstrates that the folks at MoveOn.org — if they really want to have anything to do with "Democracy in Action" — ought to spend some of that $1 million to buy a clue as to what constitutes small-d "democracy"!

Here's the homepage teaser designed to take you back to the page with the field for your credit card info:

Impeachment. The 2000 Election. The California Recall. The pattern is becoming clear:   there's a group of men in power who will do anything to consolidate that power, including undermining our democratic institutions. We've got to fight back. In Texas, they are fighting back. And while the world is focusing on the California mess, they are fighting alone. They need our help.

A partisan plan pushed by Karl Rove and Tom Delay [sic] will redistrict up to 7 Democrats out of Congress. Right now, 11 Democratic State Senators are hiding across state lines — with the Texas Governor calling for their arrest — to prevent this illegitimate plan from being strong-armed into law. They have put their reputations and careers on the line for all of us. Please help us launch a hard-hitting ad campaign to fight back in Texas.

(Emphasis added.)   It's not quite as dramatic as watching the numbers climb on a Jerry Lewis Telethon, but there probably will be some folks in Albuquerque punching their browser "reload" buttons on the page with the bar graph all weekend.  Sen. Gonzalo Barrientos and Sen. Eliot Shapleigh only raised $4200 at a fundraiser in Colorado on Thursday.  A Reuters report in the Houston Chronicle quotes MoveOn.org's "organizing director," Zack Exley, as saying that the "Defend Democracy in Texas" program is "the single biggest fund-raising campaign we have done on a single issue."  (Hat-tip to Votelaw for the link.)

Maybe if they get to $1 million, MoveOn.org can afford to fix the sentence fragment at the end of their bullet point list in the "letter" from Sen. Rodney Ellis that I Fisked on August 22nd.

But rather more seriously, does it strike anyone else as Orwellian when a campaign designed to thwart a majority-rule legislative vote is described as a campaign to "defend democracy"?  Or when the holding of a majority-rule legislative vote is described as "strong-arm[ing]" a plan into law?  Or that simply trying to achieve a Senate quorum — specifically for the purpose of discharging the responsibility for Congressional redistricting that the United States Constitution assigns to the democratically elected state legislative and executive branches, rather than to a panel of unelected federal judges — is described as "undermining our democratic institutions"?

As for the "group of men who will do anything to consolidate that power":   Does it occur to the folks at MoveOn that there were a few women among the millions of Texas voters who in the 2002 elections gave the Republicans their first majorities in both chambers of the Texas Legislature since Reconstruction and denied the Democrats every one of Texas' 29 state-wide offices? 

And doesn't MoveOn.org owe an apology to Republican Texas Senators Jane Nelson and Florence Shapiro for implying that the votes they would cast on behalf of their constituents — votes favoring redistricting — somehow don't count? 

Senator Nelson happens to represent my older brother, a white male Republican orthodontist, a conservative born-again Christian who plays tennis pretty well.  He and my sister-in-law Shelli have raised three beautiful kids in the affluent suburbs mid-way between Dallas and Fort Worth, one of those places where Texas' population has just boomed since the 1990 census.  I know he's anathema to MoveOn.org, and it to him, but — well, he does pay his taxes, quite a bit more than I do, in fact, and even though we disagree sometimes, he and Shelli do agree with me and Sen. Nelson on the need for redistricting.  He'd like to see a little bit of small-d democracy on his behalf, notwithstanding all those disabilities.  Is it really unfair for him to expect that the State Senator who he helped elect will at least get a chance to cast a vote on this issue?

While they're at it, shouldn't MoveOn also apologize to the nineteen women serving as Republican State Reps — Betty Brown, Carter Casteel, Myra Crownover, Diane Delisi, Mary Denny, Peggy Hamric, Linda Harper-Brown, Suzanne Hupp, Elizabeth Jones, Lois Kolkhorst, Jodie Laubenberg, Geannie Morrison, Anna Mowery, Elvira Rayna, Debbie Riddle, Vicki Truitt, Arlene Wohlgemuth, Martha Wong, and Beverly Wooley?  Those are women whose votes for redistricting have also been thwarted by the House and Senate Democrats who've fled from Texas this summer for the sole purpose of protecting gerrymandered districts that are rigged to keep in office several white male incumbent Democratic Congressmen.

I was one of the 53.1 percent of the voters — 24,524 people in State Representative District 134 — who elected former Houston City Councilwoman Martha Wong as a rookie to the Texas House in 2002.  She voted for redistricting.  Are she and her entire constituency part of the "group of men who will do anything to consolidate [their] power"? 

Or does Martha Wong — and do I and 24,523 other voters in District 134 — just not count at all when MoveOn.org defines small-d "democracy"?  Is this the "disenfranchisement of minorities" about which the Truant Texas Dems™ are prattling on?

Meanwhile, in the US House of Representatives, I'm represented by a white male Democrat, Rep. Chris Bell.  Rookie Bell succeeded Ken Bentsen, another Democrat, with 55 percent of the vote in 2002, and he's one of the white male incumbent Democrats whose seat was protected by the 2001 Balderas panel of judges, but now may be at risk in redistricting.  I guess he's one of Leticia's children, too, but all things considered, I'd be glad to see him lose his gerrymandered-to-stay-Democratic district.

I've said before, and I repeat, that this is indeed a fight about democracy.  It's just that MoveOn.org and the Truant Texas Dems™ are on the side against democracy.

Clueless in D.C.

Although the Texas press and the blogosphere are paying attention, the national conventional news outlets seem to be slipping into a stupor when it comes to Texas redistricting.

From the transcript of "Washington Week Online" printed in today's WaPo and listed as "Thursday, August 28, 2003; 2:00 PM":

San Francisco, Calif.: Please talk about the Texas redistricting and the threatened arrest of the fleeing Democrats. Why is this not getting the attention that the California recall debacle is receiving?

[Moderator, Managing Editor & PBS Anchor] Gwen Ifill: Eleven Senate Democrats are still holed up in Albuquerque, New Mexico, and the legislature has adjourned. So nothing new is actually happening in the Texas redistricting case. Meanwhile, in California, the country's most populous state, the voters are poised to throw the recently reelected governor out on his ear, possibly replacing him with a movie actor. You tell me which one of those stories sound more like news to you.

(Emphasis & bracketed portions added by BeldarBlog.)  Good catch, Gwen!  You've managed to completely miss yesterday's federal court hearing and ruling — the direct results of which may end up causing a several-vote swing in the composition of the 2004 US House of Representatives. 

I could find no mention of the hearing, in fact, anywhere in today's WaPo, or on the PBS/Newshour website, or even in today's edition of the nation's "newspaper of record," the NYT.  For that matter, I haven't seen the hearing mentioned on any major national blogs, left or right — which is grassy-knoll odd!

AP affiliates all over the world, however, do have a typically mangled version of the story (continuing to refer to Lt. Gov. Dewhurst as "dropping a rule that requires two-thirds of senators to agree to consider a bill," for instance).

The panel picked, Beldar makes a plea and a prediction

The Fort Worth Star-Telegram (oddly enough picked up by out-of-state papers via Knight Ridder Newspapers before it's on the S-T's own website!) reports that the three-judge panel to hear the lawsuit brought by the Truant Texas Dems™ will consist of —

• US District Judge George P. Kazen of Laredo, a Carter appointee who's the Chief Judge (based on seniority) of the Southern District of Texas;

• US District Judge Lee H. Rosenthal of Houston, a GHW Bush appointee; and

• US Circuit Judge Patrick E. Higginbotham of Dallas, a Ford appointee to the district court who was promoted by Reagan to the Fifth Circuit.

Judge Higginbotham was also on the Balderas v. Texas three-judge panel in 2001 which created "Plan 1151C," the Congressional district map that was used in the 2002 election and remains in effect today.  The panel was selected by Fifth Circuit Chief Judge Carolyn Dineen King of Houston, a Carter appointee.

The US Court of Appeals for the Fifth Circuit is headquartered in New Orleans, and press accounts often misleadingly make it sound as though all of its work takes place there; but its judges live in various cities scattered throughout Texas, Louisiana, and Mississippi, and in fact often hear oral argument on appeals in cities other than New Orleans.  This special three-judge panel could choose to meet in Laredo, but it wouldn't surprise me if for the convenience of all concerned, it decided to convene instead in Houston.

The case is styled Gonzolo Barrientos et al. v. the State of Texas et al., No. L:03CV113 in the United States District Court for the Southern District of Texas, Laredo Division.  The biographies for Judges King, Higginbotham, Rosenthal, and Kazen that I've linked are courtesy of the Federal Judicial Center website.

A nonpartisan panel of professionals

I don't know Judge Higginbotham or Judge Kazen personally.  But I had the privilege of working as a law clerk for Judge King during her second year on the bench in 1980-1981.  And from 1981-1987, before her appointment to the bench, Lee Rosenthal and I were colleagues at Baker & Botts.  My respect and admiration for both of them is boundless; they are among the smartest, hardest working, and most ethical lawyers I've ever met.  I'd willingly play high-stakes draw poker with either of them over the telephone, with either of them dealing.

People will assume that these judges' personal politics match that of the Presidents who appointed them.  That may be the case, but it's not necessarily so — and more fundamentally, it's beside the point.  With respect to Judge King and Judge Rosenthal, I've seen them work, and I know their fundamental character.  I can say with 100 percent certainty that to the extent a human being can possibly compel herself to be strictly nonpartisan, each of them does so.  I'm reasonably confident that the same is true of Judge Higginbotham and Kazen.  These are professionals in the very best sense of that word, and the three judges on the panel will be keenly aware at all times of the highly circumscribed boundaries of their proper roles as this political drama plays out. 

In fact, if you were to suggest to me in person over a beer that, for instance, Judge King would ever stack the panel to make sure that Democrats fare better in this fight, I'd probably punch you in the nose before I could help myself — and ditto if you were to make the same sort of comment about Judge Rosenthal and the Republicans.

In theory this three-judge court can take evidence from fact and expert witnesses in a full-blown non-jury trial; it can make credibility evaluations, decide who's lying and who's telling the truth, accept or reject the opinions of the experts.  But frankly, in contrast to, say, the redistricting panel in Balderas — which actually had to create a map, which is a hugely fact-dependent and fact-intensive project! — the underlying facts (as opposed to the spin put on them) are probably going to be essentially undisputed for this case.  I'll be very surprised if the panel agrees to hear much, if any, live testimony. 

Dems face longshot odds

We already have what amounts more or less to an advisory opinion, albeit a preliminary one, from Judge Kazen that's only slightly less lopsided than the ruling on Fox News' request for an injunction against Al Franken.  The Austin American-Statesman quoted a remark from Judge Kazen that pretty well cuts to the heart of matters:

"The fact is, in a legislative body, you win some and you lose some. I know the senators represent people, but if they're in the minority, they're going to lose votes," he said. "That's how the country works. The majority wins."

My personal politics are obviously hostile to the Dems, but strictly on the undisputed facts and the applicable law, I also sincerely believe that there is no merit to the lawsuit brought by the Truant Texas Dems™. 

I'm not saying it's a foregone conclusion.  I don't expect an opinion that says, "There are hard cases and there are easy cases, and this is an easy case."  But notwithstanding the depth of political feeling on each side, based on a nonpartisan application of the law, this just isn't a very hard case to decide.  If I were a betting man with unlimited capital, I'd gladly give five to one odds against the Dems, or maybe better, to any and all takers.

If the Dems lose, they have a direct appeal to the US Supreme Court "as a matter of right" — meaning that unlike the overwhelming majority of other cases, the US Supreme Court more or less has to consider that appeal on its merits (and can't just "deny certiorari" to refuse to hear the appeal).  But all that's likely to produce is the notation "aff'd mem." — meaning "affirmed by memorandum," effectively adopting the three-judge panel's opinion without further discussion.  In my judgment, the odds of the US Supreme Court reversing this panel if it denies relief to the Dems are infinitesimally small.

The Republicans must be smelling victory, million-dollar ad campaign from MoveOn.org notwithstanding.  They have the high cards, frankly, and we're not far from the point where all the cards are going to be in-play, face-up, and on the table — meaning someone's going to rake in all the chips. 

Wanted:  Transcendent statesmanship

And so, paradoxically, this may be the best possible opportunity for a deal to be cut.  Winning in a bloodbath that leaves bitter enemies sucks, and martyrdom sucks even worse.  My personal hope is that someone from each side will undertake the role of statesman rather than politician.  I'd suggest that the structure ought to be an agreed map that is predicted to result in modest Republican gains, based on 2002 voting patterns — one that is likely to result in a change of three seats.  (Easier said than done, I know, if you're one of the gored white male Democratic incumbents — but guys, it's time for about three of you to "take one for the team"; cash in to become a lobbyist or a retired rancher or a professor at the LBJ School or something like that!)  Scratch the fines and penalties.  Hold a huge "welcome home" barbecue on the Capitol grounds, invite both the Aggie and Longhorn Bands to play, set up a vegetarian booth off to one side, and sell really cold beer for a nickel a cup.

But the most important part of a compromise should be this:     Announce a genuine, good-faith, bipartisan commitment to pass a reform bill in the next regular session that ends gerrymandering for good.  Become the first large state in the United States to do so.  End the circus, lead the way, and bask in the resultant respect that both parties could earn through transcending partisan politics.

Do I think this will happen?  Hell, no.  I think several of the Dems are too far out on a limb to back down, and there are too many Tom DeLay-haters egging them on into political suicide.  I predict the bloodbath end-game, frankly. 

And I'm likely to end up punching someone in the nose for insulting one of these judges, I guess, when they do their duty under the law and pour the Truant Texas Dems™ out of court.

-----------------

UPDATE (Fri Aug 29):   Charles Kuffner's left-of-center blog, Off the Kuff, gets some background facts about the new panel a bit garbled, but reports that "[o]n a side note, a good friend of mine spent a year clerking for Higginbotham and had nothing but praise for the man. Take that for what it's worth." 

Votelaw also has a couple of recent posts up about the current status of the fight (here and here).

Judge Kazen drops back 3 steps, stops to fuss, then punts Truant Texas Dems™ to 3-judge panel

I credit R.G. Ratliffe of the Houston Chronicle for the best reporting of the day on today's federal court proceedings in Laredo:

A federal judge told lawyers for runaway Democratic senators today that he believes their lawsuit seeking voting rights and free speech protections is all but totally frivolous, but he agreed to leave the final decision to a three-judge panel.

U.S. District Judge George P. Kazen said he believes Gov. Rick Perry and Lt. Gov. David Dewhurst's push for mid-decade congressional redistricting is wrong and a waste of taxpayer money. However, Kazen also criticized the Democratic senators for fleeing to Albuquerque, N.M., to break the Senate's quorum.

Judge Kazen's comments on the lack of merits of the legal claims made by the Truant Texas Dems™ aren't going to be binding on the three-judge panel.  Those comments should, however, have served as a reality check for the Dems — but they apparently didn't:      Senator Van de Putte was quoted from Albuquerque as saying:  “The judge says our case has merit, that's good for us!" 

Maybe she really does think Charlie Stenholm is one of her children, I dunno.

The Austin American-Statesman suggests that Sen. West took a breath from his misplaced rant against John Ashcroft long enough to voice a slightly more realistic assessment:     "Even if he said it was a 'shred of merit,' " said Sen. Royce West, D-Dallas, "it got us to the next phase."

From the combined press reports of his comments, it looks as if Judge Kazen wandered a bit off the farm in his public policy critiques.  [ed: I discovered later when I read the actual transcript that these press reports were wrong; see the quotes in my apology to Judge Kazen for this remark.] But I'm not too torqued about that since that stuff was all dicta — not precedent, not binding on anyone, and not actually any of his business as a federal judge. 

Other than that, however, I'd have done the same thing were I in his shoes.  In short, the judge made a decision that (1) made everyone sorta happy, (2) advanced the ball because it guarantees expedited resolution of this dispute at both a trial and appellate level, (3) gave him a chance to fuss at both sides (to try to encourage a compromise), and (4) CAN'T be reversed — very important from the standpoint of any trial court judge!

Houston's Charles Kuffner of Off the Kuff has a good set of quotes and links from other press coverage on today's hearing (it's also reprinted on Political State Report).   Byron L at Austin's Burnt Orange Report is also gearing up to follow this fight.

Houston Chronicle improves press coverage on background facts

I was very gratified to see that later in his article, Ratliffe of the Houston Chronicle finally got his basic background facts right about the "rule change" argument (although most of the other Texas newspapers and the AP continue to bungle this, as do most bloggers):

The 11 Democratic senators took off for Albuquerque on July 28 as the first special session ended and they learned Perry planned to call a second session immediately. Dewhurst already had announced plans to change Senate procedures so the Democrats could not block congressional redistricting in the second session.

The change in procedure amounted to dropping what has become known as the "two-thirds rule." So long as the procedure was in place, the 11 Democrats could block redistricting without having to break the Senate's quorum.

Under standard Senate procedure, a supermajority of the Senate's 31 members must give permission for a bill to be debated. The vote is required to take legislation out of its regular order on the calendar.

But Dewhurst announced that congressional redistricting would be the only thing on the calendar so a simple majority could pass it.

Would that the Texas press and the national wire services could have been this clear during the last month!

But still ...

I still have to quibble a bit.  Senate Rule 5.13 is still in place — it's not being "dropped."  It's just that by its terms it only ever comes into play when there's a proposal to take up a bill that's not at the top of the calendar, and that's not going to happen with redistricting in the third special session, nor would it have in the second (if the Senate had ever gotten a quorum). 

Am I being entirely too anal about this?  I really don't think so.  The public has an extremely strong sense of fair-play that ties directly into their perception as to whether "rules" are being "abandoned" or "changed" or "dropped."  Such public legitimacy as Dubya was able to scrape together out of Florida in 2000, for instance, was directly based on roughly half the country's perception that the Gore forces were "changing the rules" on the recount until they found some combination of chad-conditions and counties that would produce a different result. 

Frankly, Lt. Gov. Dewhurst and the Republican media consultants have done a crappy job of educating the press and the public on this — they've let the Dems mis-define the issue as being a "rules change" until just this week, when they finally began to snap to the importance of the verbal formulation when forced to do so by this lawsuit.

In friendly fire incident, Truant Texas Dems™ blast ruling made by Reno-era DOJ voting-rights head

The outrage of the Truant Texas Dems™ at Attorney General John Ashcroft and the "US Department of Injustice" for yesterday's ruling by the DOJ's Civil Rights Division was entirely predictable.

But in an apparent episode of "Ready, Fire, Aim!" they've managed to blast a career civil servant who was put into his sensitive executive position not by John Ashcroft, but by Janet Reno.

Oops.

The background:

Before the second special session of the 78th Legislature, Lt. Gov. David Dewhurst announced that he would not follow the common practice of manipulating the written Texas Senate Rules in a manner that would allow a minority to deadlock the Texas Senate.  Specifically, he said he wouldn't follow the custom of putting a "blocker bill" — a piece of bogus pseudo-legislation rushed through the committee referral and reporting-out process, with no intention that it ever be passed — atop the Senate's legislative calendar. 

As I explained in my post last Sunday, when a "blocker bill" is atop the calendar, Texas Senate Rule 5.13 requires a two-thirds vote to consider any other bills "out of order" — meaning that as a practical matter, nothing can pass the Texas Senate without at least a two-thirds super-majority vote when the "blocker bill" manipulation has been performed. 

Given the inability of the 77th Legislature to agree on a redistricting bill in 2001, and the inability of the 78th Legislature to agree on one during its regular session or the first special session, Lt. Gov. Dewhurst decided that using a "blocker bill" in the second special session was simply a courtesy that the Senate could no longer afford.  Indeed, the Texas Senate has dispensed with using the "blocker bill" manipulation during redistricting in prior years when the Senate was controlled by a Democratic Lieutenant Governor and a Democratic majority. 

Thus, no written rules were changed or abolished or ignored; rather, the decision made was to enforce the rules exactly as written, without using the "blocker bill" technique to artificially manipulate the Senate calendar.

As reported Tuesday evening by the Austin American-Statesman, the Department of Justice has therefore promptly confirmed that the decision whether to use or not use the "blocker bill" practice is "an internal legislative parliamentary rule or practice — not a change affecting voting — and therefore is not subject to the preclearance requirement" of the Voting Rights Act of 1965.

The Truant Texas Dems™ immediately reacted with predictable outrage, according to that same news story:

Sen. Royce West, D-Dallas, said he was not surprised because Republicans run the "Department of Injustice."

"I was hopeful they would set aside partisan politics and hear input from us before making a decision," he said.

And they worked up even more condemnatory zeal, as reported in the El Paso Times:

"We are disappointed, but not surprised, by the abrupt action of a Bush-Ashcroft Justice Department that has consistently put politics above the voting rights of Americans," said Sen. Royce West, D-Dallas.

"We always assumed justice would have to be found in the courts, not a department inappropriately named Justice."

The Democrats' lawyer, Gerald Hebert, who is a former director of the Justice Department's Voting Rights Division, also blasted the decision [by] Attorney General John Ashcroft's office.

"The unusual expedited handling of this matter and the timing of their release of the letter confirms what many of us who have previously worked in DOJ have known for some time — that the Bush-Ashcroft Justice Department is the most politically corrupt ever to administer the Voting Rights Act," Hebert said.

And West is quoted in the Fort Worth Star-Telegram as saying, "The Ashcroft Justice Department has spared no injustice in its pursuit of an ideological, racist agenda. We call the president to get his right-wing troops under control now."

But about three minutes with Google reveals that lawyer Joseph D. Rich has been with the Justice Department since at least 1987, and that in February 2000 he was speaking on behalf of Clinton Administration Attorney General Janet Reno as the new "acting chief of the department's Voting Section" in approving "Arizona Democrats' plan to vote online in the March 11[, 2000] presidential primary."

D'oh!  For the second time this month, I find myself defending a Clinton Administration Justice Department official!  Who'da thunkit?

[sarcasm on]  I do sniff a whiff of potential scandal here, however.  Lawyer Hebert apparently was at DOJ not only during the early Clinton Administration, but also during the Reagan and GHW Bush Administrations.  It's not clear whether he had Mr. Rich's job during a Democratic or Republican regime.  Regardless, however, let's hope that before he started taking fees from the Truant Texas Dems™, he fully disclosed to them that he had worked during a substantial portion of his career for Ed Meese's DOJ. [/sarcasm off]

"Sleepless Summer Tour" produces hallucinations: Dean suffers partisan flashback attack

In an article entitled "Dean's Bush-bashing talk energizes Austin crowd," today's Austin American-Statesman reports Democratic presidential hopeful and former Vermont governor Howard Dean's comments after his speech yesterday:

After the speech, Dean told reporters that he's proud of the Democratic state senators who fled to New Mexico to block Republican efforts to draw new congressional districts. Dean referred to the redistricting effort as "this ridiculous nonsense of trying to steal an election."

This is definitely standard-issue Democratic Party agitprop — but it appears that Mr. Dean thinks he's in Florida in November 2000. 

Of course, in Vermont, it's pretty hard to gerrymander the single Congressional district, so perhaps that's the source of his confusion.

Poll shows Texans condemn Dems' flight from state, but lies leave some still confused about redistricting

The Scripps Howard Texas Poll released yesterday reflects a fair amount of confusion about reapportionment and redistricting.  On the one hand, there is an overwhelming disapproval of the Truant Texas Dems™ for fleeing to New Mexico:  "Only 29 percent of Texans agree with the Democrats' leaving the state to block redistricting." 

This surely reflects an intense public skepticism that fleeing the jurisdiction is a proper solution to any legislative problem.  The public expects to see Texas Senators at work in the Texas Senate — not dodging the sergeant-at-arms by fleeing to Albuquerque.

The Truant Texas Dems™ have to spin pretty hard to put a better face on this finding:

"We are very, very confident that people are opposed to redistricting," said state Sen. Judith Zaffirini from New Mexico. "I believe the people probably didn't understand the issue and why we left. It's a complex issue that is difficult to explain in sound bites. We didn't take this action on polls, but on principles."

I tend to believe, however, that such success as the Dems have had in making their PR campaign so far has been the result of three big lies they're repeating over and over — lies that do make good sound-bites:

• The first lie is the claim that Texas has already had its normal redistricting for this decade. 

• The second lie is the claim that the Republicans are "changing the rules" to try to pass redistricting in the Senate.

• The third lie is the claim that this is a fight to protect minority voting rights (instead of to protect white male incumbent Democrats in the US House of Representatives).

The press has uncritically repeated these three lies until they've gotten some traction.  As a result, "[f]orty-six percent of Texans oppose the Legislature redrawing current congressional districts, while 40 percent support the effort." 

I'll bet those numbers would change dramatically if the poll asked the question this way: 

"Do you prefer that the Congressional district borders be drawn by the Texas Legislature as specified in the US Constitution, or by an unelected panel of three federal judges acting under the Voting Rights Act of 1965?"

And I'll bet the current two-to-one disapproval of the flight of the Truant Texas Dems™ would soar even higher if you polled on this question: 

"The Lt. Governor has decided to stop artificially manipulating the written Texas Senate Rules in a way that has permitted a minority of Senators to deadlock the Legislature.  Does this decision justify the actions of eleven Democratic state senators in leaving Texas to prevent the Senate from reaching a quorum?"

Because those are the real questions, friends and neighbors — they're just not the questions that the Democrats care to face up to, and they're not the questions that the press or the pollsters are asking.

UPDATE (Tues Aug 26):  Today's article in the Houston Chronicle entitled "Special legislative session ends without redistricting" almost gets it.  It refers to Lt. Gov. Dewhurst's announcement that he'd refuse to use a "blocker bill" to manipulate the Senate Rules as "doing away with a Senate procedure under which Democrats had enough votes to block redistricting."  That's not nearly so bad a lie as saying that Dewhurst "changed the rules," but it's still not right — calling the use of a "blocker bill" to manipulate the Senate calendar a "Senate procedure" still gives it more dignity than it deserves.  (The article also has a nice graphic with more details on the Scripps Howard poll.) 

The Austin American-Statesman actually comes quite close to getting it right about the non-rule, describing it thusly today: 

The Democrats object to Lt. Gov. David Dewhurst's decision to abandon a Senate tradition, dating to the 1950s, that requires two-thirds of the Senate to agree to debate a bill.

The same story notes that "Dewhurst, a Republican who presides over the Senate, has cited examples of his Democratic predecessors abandoning the tradition in past redistricting controversies."

The Associated Press, however, continues to give nationwide repetition of this particular lie by referring to the "two-thirds rule" as having been "dropped for the second special session."

I've also run across three political blogs that are further promulgating the "rules change" lie:

• Political State Report ("The Justice Department dealt a blow to State Democrat’s legal hopes on Thursday by ruling that the Texas Senate had the authority to eliminate a rule requiring a two-thirds majority of senators to agree to any legislative measures.")

• Votelaw ("the state has requested preclearance for the rule change (dropping the usual 2/3 requirement for consideration of a bill in the Senate"); and

• Cogicophony: A Zoo of Thoughts ("Attempts were made to declare the abolition of the traditional 2/3rds rule as somehow unconstitutional").

The last of these had this to say, which I think is a fairly clear-eyed argument from a left-of-center point of view — a principled argument that doesn't try to pretend that gerrymandering is an exclusively Republican warcrime against humanity:

[The Scripps Howard Texas Poll is] split on party lines for the most part, and most people don’t want the congressional lines re-moved; they just don’t like what the Democrats tried to do to break it.

Let’s face it: neither do I. They shouldn’t have had to. It’s highly poisonous to the democratic process. But then, so is the redistricting. This is a lose-lose position for the Democrats in Texas, and they are definitely going to have to come back eventually. At this point, I say: come back, and spend the rest of the campaign season, once the redistricting is past, highlighting exactly how the Republicans decided to sacrifice representation in the state for representation nationally.

The author also argues that the Dems

are no more “avoiding their jobs” than anyone taking a principled stand of civil disobedience. It’s not avoidance, it’s an active decision that in “doing their job”, they’d actually end up not representing those who voted for them.

Again, a principled argument — but I can't equate ordinary civil disobedience to the deliberate sabotage of the Legislature's performance of a duty assigned to it by the US Constitution.

Also today, the San Antonio Express-News again repeats the "rule change" lie in the process of reporting that the DOJ has quite sensibly recognized that Lt. Gov. Dewhurst's announced intention to stop manipulating the rules as written isn't a change in voting procedures that would require preclearance under the Voting Rights Act of 1965:

The Texas secretary of state's office had asked the Justice Department whether Dewhurst's plan to change the rules needed to be cleared by the Justice Department, as Democrats have argued.

Joseph D. Rich, the chief of the voting section of the Justice Department's Civil Rights Division, said in a letter to the state agency released today that no preclearance was necessary.

“If and when a new redistricting plan is actually adopted by the Texas Legislature, signed into law by the governor, and submitted to the Attorney General for Section 5 review, the attorney general will review the entire proposed plan and the process by which it has been adopted, to ensure that the submitted changes have neither a discriminatory purpose nor a discriminatory effect,” the letter states.

Yup yup.  This letter also thus reconfirms — not that there was ever any doubt — that because of the Voting Rights Act of 1965 preclearance requirement, minorities need not fear that any redistricting plan which does eventually make it through the Legislature will affect their voting rights.  "Disenfranchising minorities" or even diluting minority voting rights is not what this fight is all about!

The Austin American-Statesman quotes another key paragraph from Rich's letter that hits the nail right on the head:

"Our analysis indicates that the practice in question is an internal legislative parliamentary rule or practice — not a change affecting voting — and therefore is not subject to the preclearance requirement," Joseph Rich, chief of the voting section in the Justice Department's civil rights division wrote to state officials.

UPDATE (Wed Aug 27):  WaPo avoids the "rule change" lie in a story that is factually accurate and that makes an obvious attempt to present some of the best arguments from each side.  Sadly, the cross-town rival WaTimes repeats the lie ("[t]hat two-thirds rule was dropped for the second special session").

The Houston Chronicle is still sadly confused, continuing to state as a fact that "Dewhurst announced that the two-thirds rule would not be in place for the second session."  It's ... a ... LIE!  Someone give me some carpet to chew while I ponder the fact that the liberal-leaning newspaper of Woodward & Bernstein can get this right, while the only-a-bit-left-of-center newspaper of Jesse Jones can't. 

This same Chronicle story also makes this boneheaded assertion:  "The divided [77th] Legislature did not pass a congressional district map [in 2001], so a three-judge federal court panel drew districts that protected incumbents of both parties and gave two new districts to Republicans."  Nuh-uh.  That's not at all what the panel opinion in Balderas said it was doing with the two new districts (although it did expressly concede that it was protecting incumbents, most of whom at the time were Dems).  The panel put the two new districts where there had been the greatest population growth since the 1990 Census — Harris and Dallas Counties — but did not do so with any intention to create "Republican" districts.  RTFO, gang!  This isn't rocket science, it's just politics.

You can fool some of the people all of the time, especially if they're reporters

From an AP story printed in today's Houston Chronicle:

In the first session that started June 30, 12 senators, including one Republican, opposed bringing up redistricting in the Senate. But in the second special session called July 28, the lieutenant governor removed a rule that requires two-thirds of senators to agree to take up a bill. That took away Democrats' blocking power, so they fled the state.

(Emphasis added.)  How a major newswire — along with the biggest daily newspaper in the state that's published in the nation's fourth largest city — can consistently swallow this claim is simply beyond my comprehension.  This isn't a fuzzy issue upon which reasonable minds can disagree.  It's a matter of straightforward fact, on which the AP, the Chronicle, and virtually all the other national and Texas media are repeating as gospel the outright lies told by the Truant Texas Dems™.

The Austin American-Statesman repeats the same lie:  "He [Lt. Gov. Dewhurst] decided to junk the Senate's longstanding rule requiring two-thirds of its members to agree to bring a bill up for debate, which is what provoked the 11 to leave."

And it's repeated again in another AP story reprinted far and wide, this one about whether the "average Texan" understands the issues:

In the first session, which began June 30, a dozen senators, including one Republican, opposed bringing up redistricting in the Senate.

Under Senate rules at the time, those numbers were enough to block consideration in the 31-member chamber.

But in the second special session called July 28, Republican Lt. Gov. David Dewhurst removed the two-thirds rule so Democrats no longer had that blocking power.

The average Texan would stand a better chance of understanding the issues if the news media weren't willing mouthpieces for the telling and retelling of this particular lie!

This is so very Orwellian.  It is an obvious — yet effective — ploy to play on Americans' instinctive sense of "fair-play," the notion that you shouldn't "change the rules mid-game."  But in Truant Texas Dem™-speak, "enforcing the rules as they're written" = "changing the rules" = "removing a rule."

Given the particular way I'm hard-wired, though, what I really want to do is not to punch each of the Truant Texas Dems™ in the nose, nor even shout at them.  No ...

What I really, really want is to quietly and methodically cross-examine them under oath.  Isn't that weird?  That's my natural reaction when I see someone telling huge lies.  I want each of them in the witness chair, one by one, and I'll start by asking permission to approach the first witness to hand her a copy of Beldar Exhibit A, the Rules of the Texas Senate.  And then someone's gonna be sweating some bullets.  Then someone's going to be ... vivisected.

Would that it could be.  Alas, it cannot, and I will only cross-examine Sophie — errrrr, Leticia, Gonzalo, and the gang in my fantasies.

But if you see me running naked and slobbering down the street, screaming and plucking out clumps of hair, this kind of story will likely be the explanation.  I sure hope that Judge Kazen in Laredo will speak out as clearly and forcefully on this matter as Judge Chin in New York did on Fox News' lawsuit against Al Franken.

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.

-----------

*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.

New PR campaign for Truant Texas Dems™ moves from "Stand and Fight!" to "Run Away and Tell Lies!"

One hundred and sixty-seven years ago, the Texians — the mixed Anglo and Hispanic inhabitants of what's now the Lone Star State, but was then part of the Mexican state of Coahuila y Tejas  — fought against a tyrannical dictator, Antonio López de Santa Anna Pérez de Lebrón.  Santa Anna had stated that "Mexico was not ready for democracy" and then set about the systematic dismantling of rights guaranteed to the Texians under the Mexican Constitution of 1824.  One hundred and eighty-nine Texians made a stand to the death against Santa Anna's vastly larger army in a small church compound, the Mission San Antonio de Valero.  The bravery of those men and the common name for that church together gave rise to one of the most famous slogans of all times, shouted by the revenging Texian soldiers at the independence-winning Battle of San Jacinto six weeks later — "Remember the Alamo!"

Just three years ago, Democratic presidential nominee Al Gore decided that his prior campaign slogan, "Practical Idealism," was losing out to Dubya's "Compassionate Conservatism," so he abandoned it for the eminently more chant-worthy "Stay and Fight!" — the motto which sustained his campaign not only through the 2000 presidential election, but also the recount fight in Florida afterwards.

Fast-forward to today:  The Truant Texas Dems™ — eleven Democratic state senators whose flight to New Mexico has stalemated the ongoing battle here over Congressional reapportionment — appeared to begin their fight with a very catchy slogan, one borrowed from "Monty Python and the Holy Grail" — Run away!  Unfortunately, though, like King Arthur's friend Brave Sir Robin, the Truant Texas Dems™ found that they needed a band of bards to ... ummm ... supplement the slogan in a way that puts a better light on their brave acts. 

So the supporters of the Truant Texas Dems™ have decided to mount a new PR campaign — and they're apparently counting on their partisans' reflexive hatred of Tom DeLay to wash down the real whoppers that they have to tell in the process.  They desperately need those whoppers and that hatred to conceal the fact that just like Santa Anna, the Truant Texas Dems™ think Texas is not ready for democracy.  And worse, they think Texans can't even count to ten.

In the short history of BeldarBlog, I've already written twice about the ongoing Battle for Texas Reapportionment — "Hasta la vista for truant Texas Dems?" and "Wall Street Journal swallows truant Texas Dems' propaganda and misstates key facts about Congressional reapportionment."  I keep wishing that they'd either get one more state senator to flee the jurisdiction — Democratic state senator Ken Armbrister from Victoria has kept his dignity by refusing to flee — or that one would drop out.  "Eleven" is a hard number to coin good phrases about.  I'd much prefer either the "Truant Texas Ten" or the "Truant Texas Twelve," frankly. 

But I'll say this much for them — by enlisting some out-of-state talent, the Truant Texas Dems™ have dramatically improved on the drivel that has characterized their own whiny press conferences this summer.  Their team has been sharpening their themes and arguments — and indeed, as noted in the more recent of my two posts, they've managed to convince no less an authority than the Wall Street Journal that they "have a point" in their complaints.

Talking Points Memo's Joshua Micah Marshall finds it "truly remarkable" that MoveOn.org has raised something on the order of $600,000 — toward a desired goal of $1 million — "to defray the hotel and other expenses the pols are racking up during their sojourn in New Mexico (they're conducting state business there, essentially on their own dime) and mount a media campaign to help in their fight."  He adds his own contribution to the media campaign in the form of an article in Forward entitled "DeLay: Tammany on the Potomac." 

And predictably, the MoveOn folks themselves have put up a slick bit of pseudo-factual arguments on their own website, variously referred to as a "letter" and an "email" from Democratic state senator Rodney Ellis "from 'exile' in New Mexico," followed by "complete background information on the situation." 

Before we decide whether the Texas Truant Dems™ more resemble Col. William Barrett Travis — we can assume the Dems prefer the 1987 made-for-TV movie with Alec Baldwin in this key role — or Brave Sir Robin, let's take a closer look at their arguments.

The Marshall Plan:  "We've already redistricted once this decade" and other lies

¶   Let's start with Mr. Marshall's article from Forward, simply because in it, he is honest enough to concede the key political truth of this whole melodrama:

From a distance, the Texas redistricting battle looks like garden-variety political hardball. After all, gerrymandering — the practice of redrawing electoral districts to advantage your own political party — may be inherently unfair. But it's also as American as apple pie. Every 10 years, Congress reapportions the number of seats each state gets in the House of Representatives, and each state takes the opportunity to redraw the boundaries of its congressional districts. That makes controlling the state government just after the decadal year (1990, 2000, 2010, etc.) extremely important since whichever party is in the saddle can then stack the deck in its own favor for the next 10 years.

The key, though, is that it happens only once every 10 years. Or at least that's how it worked until this year in Texas. There's no law preventing states from redrawing their district lines before every new election. But the 10-year rule has been established practice since the late 19th century. And, with the exception of maps thrown out because of federal voting rights violations, that precedent hasn't been violated in any of the 50 states for the past 50 years.

The practical reason for keeping to this rule is obvious: Redistricting is an inherently political and highly disruptive process that pulls the political craziness of Washington down into each state. Sticking to the once-a-decade ritual provides some measure of fairness and regularity to the process.

(Emphasis added.)  Yes!  There's a man who gets the basic concepts of representative democracy and apple pie! 

¶   This makes it all the sadder, though, when Mr. Marshall immediately begins to slip into serious distortions:

In 2001, Texas had divided government. And after the House and Senate failed to agree on a map, a panel of federal judges (two Republicans and one Democrat) stepped in to decide on a map. DeLay and his allies have argued that the Legislature, and not unelected judges, should choose a map. But courts always step in when state governments reach an impasse, and those maps are never revisited before the decade is out. At least not until now.

Liar, liar, pants on fire!  Back to civics class for you, Mr. Marshall! 

It's not just "Tom DeLay and his allies" who have argued that "the Legislature, and not unelected judges, should choose a map."  Rather, it's the US Constitution which provides for that, and it's those unelected judges who have protested the most loudly when they've been forced to do so.  Texas Attorney General Greg Abbott — yes, he's a Republican, like every other statewide office-holder in Texas, but by god if you're going to quibble effectively about any of this you better come up with a case citation or two, Mr. Marshall! — summarized the Constitutional starting point very nicely in his April 23rd opinion on redistricting:

The United States Constitution provides that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State," U.S. Const. amend. XIV, § 2, as determined by the decennial census, id. art. I, § 2, cl. 3.  The states have the primary duty and responsibility to redraw their congressional districts in compliance with the United States Constitution. See Growe v. Emison, 507 U.S. 25, 26 (1993). Article I, section 4 states explicitly that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ...." U.S. Const. art. I, § 4.

Attorney-General Abbott also nicely describes the reluctance of federal judges to substitute their judgments for that of state legislatures:

The United States Supreme Court has repeatedly stated that "legislative reapportionment is primarily a matter for legislative consideration and determination," Reynolds v. Sims, 377 U.S. 533, 586 (1964), because an elected legislature is the institution best positioned to reconcile conflicting goals in the people's name. Judicial relief in this area — when courts are forced to act in a pseudo-legislative capacity — should be exceedingly rare. When, however, a state legislature fails in its constitutional responsibility to redistrict timely according to federal constitutional requisites, and state courts subsequently fail to produce a valid plan, it throws to the federal courts "the unwelcome obligation of performing in the legislature's stead, while lacking the political authoritativeness that the legislature can bring to the task." Connor v. Finch, 431 U.S. 407, 415 (1977).

As a former law clerk for a Fifth Circuit judge, I'll throw in my personal two cents here:  All three of the judges who were on the Balderas v. Texas panel in 2001 would be profoundly, personally offended by Mr. Marshall's sleazy insinuation that because two of them [ed: see important correction below*] were appointed by Republican presidents, they leaned toward the Republican Party in the court-devised district map they were compelled by statute to write.  And if Mr. Marshall would bother to read what they wrote, surely it would make him ashamed of that insinuation — because nothing could be farther from the actual truth.

The 2000 Census gave Texas two new seats in the US House of Representatives, so two new districts had to be created.  Yes, the 77th Texas Legislature failed in its constitutional duty to do that in 2001, so the Balderas three-judge panel had to step in.  But it did so with extreme reluctance, and in a way that emphatically did not favor the Republican Party.  The panel first marked as untouchable the "existing Voting-Rights-Act-protected majority-minority districts" — that is, the panel gave automatic bulletproof status to black and Hispanic Democratic incumbents.  Based on that, it then carved out the two new districts where there'd been the most population growth, in Dallas and Harris Counties.   Finally, it "maintained intact the existing districts" drawn up in the pro-Democrat 1991 gerrymander, ensuring that minority populations were "neither enhanced nor diminished."  Where small boundary changes were needed to even out the numbers, they were done with a view toward "compactness and contiguity"; thus, two "patently irrational [district] shapes" that were "widely cited as the most extreme but successful [pro-Democrat] gerrymandering in the country" were altered, even though those changes were deemed unlikely to affect any district voting outcomes. 

As a "check against the outcome of [its] neutral principles,"  the panel reassured itself that its plan was unlikely to unseat any incumbents, and that the plan was "likely to produce a congressional delegation roughly proportional to the party voting breakdown across the state."  But this was indeed only a very "rough" proportionality because, as the panel pointed out, "any [court-drawn] plan necessarily begins with a Democratic bias due to the preservation of majority-minority districts, all of which contain a high percentage of Democratic voters."  In other words, the process started off with a heavy Democratic thumb on the scales as a result of the Voting Rights Act of 1965, and the final result very predictably reflected that.

The bottom-line result of the 77th Legislature's stalemate in 2001 and the Balderas panel's map was thus a sort of thick inertia, still rather heavily tilted to the Democrats' favor, through which the voters of Texas had to swim in the 2002 elections.  Most of the Republicans that had been disproportionately packed into fewer districts in 1991 stayed packed into those same districts, and even the white male Democratic incumbents kept the artificial protections created by the 1991 Democratic gerrymander.  The Balderas panel expressly avoided doing the kind of "bloodfeud" gerrymandering that state legislatures do — and that Mr. Marshall correctly describes as being as American as apple pie.

But the new Republican majorities in both chambers of the 78th Texas Legislature still haven't had their once-a-decade chance to bake an apple pie yet — or maybe, to extend the analogy a bit, to switch to cherry pie to accord with the changing taste of Texas voters.  That's the whole point of this fight.  Mr. Marshall's argument that the existing district map is the result of politics as normal, or anything that remotely represents small-d Democracy, is disgustingly false.

¶   So what other arguments does Mr. Marshall have?

Alternatively and more candidly, DeLay and Co. have argued that since Texas is now a Republican state, any legislative map that doesn't yield a majority of Republican congressmen is intrinsically unfair to the GOP. But even on its own terms, that argument doesn't add up either. As Democrats repeatedly point out, there are more than enough Republican majority districts to allow the GOP to dominate the state's congressional delegation as thoroughly as it does the rest of the state's politics. What stands in the way isn't gerrymandering, so much as incumbency. A handful of long-serving conservative Democrats like Charlie Stenholm continue to be re-elected by Republican-dominated districts.

Here Mr. Marshall has simply confused cause and effect.  The "handful of long-serving conservative Democrats like Charlie Stenholm" was re-elected only because the Republican majority of state-wide voters was still diluted in their districts in 2002.  Those are the exact seats that the Truant Texas Dems™ are now trying to hold on to in their flight to New Mexico — not the Congressional seats being held by blacks or Hispanics, but the ones being held by incumbent white males whom the Balderas panel of federal judges didn't want to disturb.  It's their pro-Democrat gerrymandered protection that the Texas Republicans are now trying to undo.  If they're really that popular, then Stenholm and his (white male incumbent) buddies will continue to buck the trend and will get enough ticket-splitting cross-over Republican voters to hang on.  But let's take away their gerrymandered above-the-mean-percentage of yellow-dog Democrats, undo the purposeful dilution of Republic votes left over from 1991, and then see, shall we?

¶   In his concluding paragraph, Mr. Marshall waxes eloquent:

But the slide to all-out political war illustrates a deeper point. Constitutions and laws dictate the basic structure of government: stuff that must always happen and things that can't ever be tolerated. But if that was all there was to the machinery of the state, it would constantly break down into confrontation or paralysis, as it is now in Texas. To compensate, the body politic, like a human body, is also made up of all manner of ligaments, cushioning cartilage and connective tissue that allow the system to function smoothly and last for years. Government screeches into crisis after crisis without some respect for precedent, established usage or just some sense of limits.

Well, yes.  Most voters would include among "things that can't ever be tolerated" their elected state senators fleeing the jurisdictional boundaries of the state to avoid a voting showdown, even one they're likely to lose.  We're indeed in a state of "confrontation [and] paralysis" in Texas, but I flatly reject the notion that "go along to get along" courtesies are more important than the Constitutional duty of the Legislature — not the federal courts! — to draw Congressional district boundaries.  If you'll check with some folks off the street who haven't been poisoned already with lies like "We've already done our once-a-decade redistricting!" — most folks' "sense of limits" would keep a state senator in the state, in the capital city, and at his job.  Instead, the Truant Texas Dems™ are in a state of (choose one):  (a) New Mexico, (b) Oklahoma, or (c) denial.

The Ellis/MoveOn Manifesto

As packaged by MoveOn.org, Senator Ellis' propaganda is about as slick as, but far less honest than, Mr. Marshall's article. 

¶   Let's start with the heart-wrenching opener:

I am writing to you from a hotel room in Albuquerque, New Mexico, where I and 10 of my colleagues in the Texas Senate have been forced to reside for the past 20 days. If we return to our homes, families, friends, and constituents, the Governor of Texas will have us arrested.

ARRESTED?  Oh my god!  And with what punishment, pray tell us?

You'll have to go back to Austin, Senator Ellis — Austin, still the paradise of the state, at least in the hearts of all UT grads like me, and a damn nice place to be in the opinions of about everyone who's been there.  They'll take you to the very stately and recently refurbished Texas Capitol Building, whose dome is even taller than the one over the US Capitol.  And there — you'll have to stay in  a closed room while everyone .... VOTES!  Why, you might even be punished with ... THE SOFT CUSHIONS or THE COMFY CHAIR while you're there!

Well, actually, you might also have to participate in some small-d democracy — which means you'll vote one way, and a majority of the other people in the same room will vote the other way, and your side will lose.  It's the certain knowledge of that which explains why the Truant Texas Dems™ ran away.  But it could be worse — it's likely to be more publicity for you, Senator, and far less boring for everyone else, than your average C-SPAN telecast. 

¶   What else is on your list, Senator?

The Republican redistricting effort shatters the tradition of performing redistricting only once a decade immediately after the Census — making redistricting a perpetual partisan process.

This is a bald-faced lie.  See above — the Texas Legislature has yet to complete one redistricting for the 2001-2010 decade.  There fortunately is not yet a "tradition" that ad hoc panels of three federal judges convened under the Voting Rights Act of 1965 shall excuse the Texas Legislature from ever again performing its duty under the US Constitution.

¶   Next?

It elevates partisan politics above minority voting rights, in contravention of the federal Voting Rights Act.

No, Senator, as you well know, when a redistricting plan finally does obtain a majority vote in both chambers of the Texas Legislature and the Governor's signature, that plan will still have to undergo pre-clearance with the Justice Department under the Voting Rights Act of 1965, and it's also certain to face private-party court challenges.  That's precisely why every redistricting plan under serious discussion goes well out of its way to avoid any dilution of minority voting rights.  Just tell the truth, Senator, and admit to the public that the only "racial discrimination" involved is your attempt to protect white male incumbent Democrats.

¶   How about this one?

Republican efforts to force a vote on this issue by changing the rules of legislative procedure threaten to undermine the rule of law in Texas.

Senator, there's a big difference between the "rule of law" and rules of courtesy.  What you're talking about is a rule of courtesy, a "good ole boys" tradition that does indeed encourage compromise and discourage extreme partisanship.  However, you had your chance to operate under those courtesies in the 77th Legislature, the regular session of the 78th Legislature, and the first special session this summer.  And you've abused those rules of courtesy to achieve a deadlock that's blocked the Legislature from doing its duty under the US Constitution.  If you want to know about the "rule of law" Senator, I really suggest you start with the US Constitution, which tells you that your butt ought to be in Austin instead of on the golf courses of Albuquerque.

¶   He's shocked, shocked:

Now Tom Delay [sic] has made it his priority to force the Republican-controlled Legislature to enact a new redistricting plan to increase the number of Republican-leaning Congressional districts.

Yes.  This is called "gerrymandering," but it's not just Representative DeLay's priority.  It's part of what Texas voters are conclusively presumed to have intended when, in our system of representative small-d democracy, they put all the levers of state government entirely into the hands of the Republican Party in the 2002 election.  Read Mr. Marshall's article, Senator, the part about apple pie ....  Oh, wait — you ought not need to do that, Senator, you were in the Legislature in 1991 when the Democrats crammed down the gerrymandered district map you're trying to preserve today!

¶   And the sky will surely fall:

If the Republicans succeed in redrawing the Texas Congressional lines to guarantee the election of five to seven more Republicans, it will ensure that Republicans hold the majority in the U.S. House of Representatives for the entire decade and will likely result in Tom Delay [sic] becoming Speaker of the House.

"Ensure" is a bit strong — not all gerrymanders work as planned.  But yes, that's rather the point of the process (although your numbers are probably high).  You're completely wrong, though, to speak of "the entire decade" — did you forget that we've already had one of the decade's five Congressional elections under essentially the same gerrymandered plan you voted for in 1991?  There's another Census in 2010, and whatever happens this year, the Texas Legislature that convenes in 2011 will again have to deal with redistricting.  Believe it or not about your fellow Texans, Senator, but just about all of us can count to ten.

As for the prospect of Tom DeLay becoming Speaker of the House, it makes a wonderful scare tactic, Senator, for those who substitute personal fears and hatreds for principled arguments.  But we both know that's not going to happen.  Congressman DeLay has his fans, but he also has "high negatives" sufficient to ensure that regardless of how much power he wields as House Majority Leader, he'll almost certainly never be the Speaker.

¶   Time to try again to "play the race card":

The Republican advantage would be gained by removing many African American and Hispanic voters from their current Congressional districts and "packing" them into a few districts that already have Democratic majorities. The voting power of these minority voters would be dramatically diluted by the Republican plan, in contravention of the federal Voting Rights Act. If the Republicans succeed, over 1.4 million African American and Hispanic voters will be harmed. It would be the largest disenfranchisement of minority voters since the Voting Rights Act was passed.

"Disenfranchisement" means preventing someone from voting altogether.  You don't mean that — although it's a great word to use when you're telling lies about redistricting, since it sounds so much worse than "diluting."  It conjures up vivid images from the civil rights struggles in the 1950s and 1960s that the Democratic Party very much wants to keep alive.  As propaganda, it's right up there with painting a Hitler moustache on Dubya's picture, Senator.

More fundamentally, it's rather beyond the power of the Texas Legislature to repeal the Voting Rights Act of 1965.  We're all still statutorily presumed to be bigots here in Texas, so regardless of actual intentions, any plan with even the unintended effect of significantly diluting the rights of minority voters will be tossed out by a three-judge panel in the proverbial New York minute.  The one thing everyone in this argument can be absolutely certain about is that there will be no fewer minority Congressmen when we're done.  If you really believed this argument, Senator, you'd take your medicine in Austin now, and then let the federal courts ride to the rescue of the "disenfranchised minority voters."

¶   Well, how about "It's just not done that way!" as an argument?

[R]edistricting has always been conducted immediately following the U.S. Census' decennial population reports. Tom Delay [sic] now proposes a new redistricting plan two years after the Census report simply because Republicans gained control over the Texas Legislature in 2002 and now have the power to enact a much more Republican-friendly plan than the one drawn by the federal courts two years ago. This is an unprecedented approach to redistricting, one that subordinates its original purpose of ensuring the principle of "one man, one vote" to the purpose of perpetual partisan politics. Redistricting, in this model, would never be a settled matter, and districts would constantly be in flux depending on the balance of political power in the Legislature.

There's nothing normal or desirable about redistricting being done by unelected federal judges.  There's nothing unprecedented about gerrymandering (although it's true that the Republicans haven't had a shot at it in Texas since Reconstruction days).  What's unprecedented is the idea that you have the right to run away to another state when you've been elected to sit in the Legislature of this one. 

"Perpetual partisan politics" over redistricting will indeed be at an end until 2011 — just as soon as you and your truant comrades go back to Austin, Senator.

¶   Can't we just all get along?

The Texas Legislature has traditionally been defined by a spirit of bipartisanship and cooperation. This issue has polarized the legislature in a way that threatens to destroy that tradition. The Republicans have effectively exiled their Democratic counterparts in a power play that makes our state look more like a banana republic than a dignified democracy.

Actually, the Texas Legislature wasn't bipartisan at all until recently — it was mono-partisan, filled with an overwhelming majority of Democrats.  Your "exile" is what now threatens to destroy whatever tradition of cooperation and dignity has been established, but that exile is entirely self-imposed, and it will end as soon as you show up for a vote. 

I do agree that state senators who tell obvious, palpable lies and who think their constituents can't count to ten do tend to make the state look like a banana republic.

¶   Okay, back to the "I am a Fugitive from a Chain Gang" approach:

The deployment of state law enforcement officials to apprehend boycotting legislators erodes the separation of powers between the executive and legislative branches of government, and diminishes legislators' ability to represent their constituents as they see fit. The unilateral Republican effort to penalize Democratic Senators and their staffs

Whoops, that argument ends in a sentence fragment, Senator.  You're not getting your money's worth from your propagandists if they leave sentence fragments mid-argument.  "Unilateral Republican effort" ... hmm, usually that's followed by something about Iraq.  Was your staff intending to work something about Iraq and quagmires into this piece, Senator?

Anyway, it's true enough that when you cross the border back into Texas, you're likely to have a respectful law enforcement escort.  As for their diminishing your ability to represent your constituents, though, that's just another damned lie.  Senator, quit painting an image of Sheriff Bubba standing over your desk in the Senate Chamber, ready to blow out your brains if you don't cast a vote in favor of a Republican-sponsored plan.  Every Republican in this state will be tickled to see you vote in whatever manner you think best represents your constituents — so long as you haven't fled the jurisdiction to break a quorum and prevent everyone else from voting.

Stand and fight, Senator!  Remember the Alamo!

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*Correction (Mon Aug 25):  While reading through the "Killer D's" website, I saw this statement:  "In 2001, Texas Congressional districts were drawn by a panel of three Republican-appointed federal judges."  I'd read in Dr. Marshall's post and elsewhere, and I had repeated here, that there were two Republicans on the three-judge Balderas panel.  Actually, however, both of the district judges on the panel — John H. Hannah, Jr. and T. John Ward — were appointed by President Clinton.  Only the circuit judge, Patrick E. Higginbotham — whose vote on this panel counted no more than that of the two district judges — was appointed by a Republican President.  (Ford appointed him to the district court bench, then Reagan promoted him to the Fifth Circuit.)  I'm admitted to practice in the Eastern District of Texas, where the case was filed, and I know or know of most of the district judges there — so I have no good excuse for not noticing this sooner.

As is typical in such cases, the Balderas opinion was written "per curiam," rather than as an opinion signed by one and concurred in by two others; so we don't know who was its principal author, nor even whether there was a principal author.  There was no dissent, and by writing "per curiam" the three judges deliberately spoke with one voice. 

I stand by my original point, however, which is that it's a mistake — and very insulting, actually — to suggest that the personal politics of any of these three judges played any conscious part in this decision.  Anyone reading their written opinion will immediately conclude that these three judges were being "judicial conservatives" — meaning that they were keenly aware of their unfitness for the task thrust upon them by a political breakdown, and they were determined to do the minimum necessary to permit the 2002 elections to go forward.  They expressly recognized that their minimalist approach had a pro-Democrat effect, but that wasn't an outcome they maneuvered to create, nor frankly one they tried to avoid. 

The only reason their party affiliation is relevant at all to this discussion — and I'm guessing that their personal party affiliations match that of the Presidents who appointed them, but even that is a wild guess (and I know of examples where it wouldn't be true) — is because it's another example of the kind of factual distortions upon which the Truant Texas Dems™ and their supporters have relied.

Wall Street Journal swallows truant Texas Dems' propaganda and misstates key facts about Congressional reapportionment

In an article misleadingly entitled "Incumbent Protection Racket" (but more aptly subtitled, and teased from the home page as, "The liberal media are shocked, shocked to find gerrymandering going on") in the Wall Street Journal's online opinion section, OpinionJournal, I read this today:

Democrats and the media are especially incensed by the GOP's current efforts to gerrymander Texas, and they have a point. The GOP is trying to redraw House seats for the second time this decade, when the tradition is only once after every Census. Angry Democrats in the legislature have now fled the state twice to prevent the quorum that Republicans need to push it through.

(Emphasis by BeldarBlog.) This just about knocked me out of my chair.  If in fact Texas Republicans were trying to complete a second gerrymandered redistricting in one decade, then yes, indeed, the Dems would have a reasonable political objection (although even that would be constitutionally permissible, and has been done in the past by the most aggressive partisan gerrymanderers).

But nothing could be farther from the actual truth. 

As recounted in a recent opinion from Texas Attorney General Greg Abbott, the actual fact is that

[t]he Seventy-seventh Legislature failed to enact a redistricting plan for the United States House of Representatives, and a three-judge federal court therefore created a plan used for the 2002 general election. See Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D. Tex. Nov. 14, 2002) (per curiam)[a three-judge panel under Voting Rights Act of 1965, with two district judges and one circuit judge sitting as a special trial court with original jurisdiction], aff'd mem., 122 S. Ct. 2583 (2002).

Each party blames the other for the failure to get a redistricting bill out of committee in the Texas Senate in 2001.  In 2002, however, the voters made changes that broke those deadlocks by electing — for the first time since Reconstruction — a majority of Republicans to the Texas Senate, along with a Republican Lt. Governor.  And based on undisputed caselaw quoted at more length in Attorney General Abbott's opinion,

Texas legislators are entirely free to replace the court-ordered plan in Balderas and, as the court urged in McConnell, "continue efforts to fulfill their constitutional duties" as elected representatives to enact a congressional redistricting plan that comports with section 5 of the Voting Rights Act.

In fact, in the granddaddy of reapportionment cases, in discussing how often state legislatures must redraw Congressional district boundaries to avoid falling into constitutional infirmity, the US Supreme Court held that "if reapportionment were accomplished with less frequency [than every 10 years], it would assuredly be constitutionally suspect."  Reynolds v. Sims, 377 U.S. 533, 584 (1964). 

The Balderas panel expressed clear-eyed recognition of how redistricting works in the real world:

[T]o state directly what is implicit in all that we have said:  political gerrymandering, a purely partisan exercise, is inappropriate for a federal court drawing a congressional redistricting map.  Even at the hands of a legislative body, political gerrymandering is much a bloodfeud, in which revenge is extracted by the majority against its rival.  We have left it to the political arena, as we must and wisely should.  We do so because our role is limited and not because we see gerrymandering as other than what it is:  an abuse of power that, at its core, evinces a fundamental mistrust of voters, serving the self-interest of the political parties at the expense of the public good.

(Slip op. at 10; emphasis by BeldarBlog)  That last bit is a rather wistful condemnation of politics-as-actually-practiced, and implicit in it is a suggestion that we'd be better off without gerrymandering.  That might be so, but forty-nine of the fifty states still leave reapportionment to the partisan process of state legislatures. 

Without any doubt whatsoever, what's happening now is the back-swing of a pendulum that Texas Democrats gave a huge push in 1990 with the express purpose of protecting their majority in Texas' Congressional delegation against their party's rapid erosion at the polls in Texas.  Even if you want to argue that we should stop these pendulum swings, no one can make a principled argument that the pendulum's current position is representative of the views of the majority of Texas voters.