Skip to comments.DeLay has 'every confidence' that remap will survive challenge
Posted on 10/15/2003 7:44:43 PM PDT by Dog Gone
U.S. House Majority Leader Tom DeLay, in his first public comments since Gov. Rick Perry signed a new congressional map into law, on Wednesday defended redistricting and his role shaping it.
"The plan has been written with extensive consultation with lawyers and experts, and we have every confidence that the Voting Rights Act has been adhered to strictly. The attorney general of Texas tells us that the state Legislature did an excellent job in putting together a plan that will pre-clear the Department of Justice" and survive in court, Mr. DeLay said.
"Minority rights have been protected. The opportunities for minorities to win districts abound in the plan," Mr. DeLay said, asserting that the number of Hispanics in the Texas delegation could go from six to eight and the number of African-Americans from two to three.
Democrats dispute that, calling it deeply misleading. Two Hispanic civil-rights organizations also took aim at the map Wednesday, filing a lawsuit in federal court in Victoria to overturn it.
The Mexican American Legal Defense and Educational Fund, in a suit on behalf of the American G.I. Forum of Texas, said the remap effort unfairly diminishes Hispanic voting strength. It said the new configuration should have carved out a winnable congressional district for Hispanics in Dallas, plus one more in South Texas.
"Latinos now are more numerous than blacks or whites in Dallas," said Nina Perales, regional counsel for MALDEF and the lead lawyer for the G.I. Forum, a group of Mexican-American veterans. "We are the plurality population, but we don't have a congressional district."
Both Ms. Perales and senior Democrats in the state's congressional delegation said Republicans who drew the new map improperly shifted minority voters who now control the district represented by Rep. Martin Frost, D-Arlington, into neighboring districts where they will have little impact on the outcome.
In addition, the Democrats and MALDEF cited another flaw in the Republican-backed redistricting plan counting as a Hispanic seat the one held by Rep. Henry Bonilla, R-San Antonio, whose new district would be controlled by whites.
"It was an incumbency concern because Henry Bonilla is increasingly fragile in a district that's increasingly Latino," Ms. Perales said.
She broke ranks with Democrats, however, in applauding the new map's reduction of Hispanic population in the South Texas districts of Reps. Ruben Hinojosa, D-Mercedes; Solomon Ortiz, D-Corpus Christi, and Ciro Rodriguez, D-San Antonio.
Last week, Mr. Frost said having fewer Hispanics in the three districts put them "at risk" of being lost to a nonminority candidate.
But Ms. Perales said "those districts are packed right now, the way the Democrats like them. We'd like to unpack them so we can have a seventh, effective Latino district in South Texas. That was our position in 2001, and that's still our position."
Angela Hale, a spokeswoman for state Attorney General Greg Abbott, said his office "will defend the state's redistricting plan in this or any other lawsuit. We anticipate the [U.S.] Department of Justice and the courts will uphold the plan."
Mr. DeLay spent most of last week in Austin breaking the deadlock between state House and Senate GOP negotiators.
"The plan is a fair and open plan that presents all kind of opportunity for the people of Texas," he said. "I was very happy to play a small part in that, representing the House Republicans and trying to facilitate as much as I could the outcome of that bill.
"I felt like I could play a role as mediator in a very difficult situation between the House and the Senate," he said. "So I fulfilled my role as a citizen of Texas, as a member of Congress from Texas, and as a member of the leadership of the Republican conference."
Redistricting, he indicated, also came up briefly at a White House meeting Tuesday between President Bush, his top political adviser, Karl Rove, and GOP congressional leaders. "They just congratulated Texas," Mr. DeLay said.
The Pennsylvania case does determine the outcome of the Texas redistricting in the courts, and the only other suspense is whether the Supreme Court will hasten its decision in that case to accomodate the Texas situation.
The Supreme Court has ruled separately that viewpoint-based discrimination is a 1st Amendment violation, but has never extended that to political redistricting. Since the a number of the amici in Vieth raise that issue, the potential exists for the Supreme Court to rule on that basis instead of or along with the majoritarian principle which is the crux of the appellant's argument. That email from Rep. Barton's aide (along with a number of additional circumstances) makes this process especially susceptible to any ruling on that basis (or on the basis of subjugating traditional reapportionment principles).
Justice Kennedy is very much a wild card insofar as the eventual Vieth v Jubelirer decision, having never established any precedent on which to speculate his position on the matter. However, the following excerpt which is part of Kennedy's concurrence in U.S. Term Limits v Thornton provides insight for conjecture:
Nothing in the Constitution or The Federalist Papers, however, supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives.
That entire concurrence is indeed one of the more revealing opinions Kennedy has ever issued, and is worth reading not only as regards the forthcoming Vieth ruling but also due to its intriguing legal construction of its own accord. In any event, Kennedy's remarks from that opinion are cited in the Vieth v Jubelirer briefs as well. Finally, Sandra Day O'Connor is just as unpredictable, but for altogether different reasons (she's just inherently unstable in her legal reasoning..)
What do ya-all think?
I think the 'RATS are toast ! But I always think that ! lol !
There are so many variables, apparently, it's hard to tell. But I think we've got a new map, with the only question being is whether it gets used first in 2004 or 2006 ...
[See the orange text below. I wonder if the Revrund is really gonna bring in the rent-a-mob crowd ??]
Democrats in Congress unhappy with Redistricting
(Goodbye, Martin Frost)
Governor signs redistricting bill -
'RATS expected to take dispute over minority issues to court
The Rev. Jesse Jackson called the redistricting an affront to the Voting Rights Act of 1965.
"We must be prepared to go back to mass demonstration to diminish the effects of this," he said.
Texas Redistricting - Senate [PASSES!] new redistricting !!!
GOP's legislative map up for vote
Texas Redistricting map now online
(link is in thread)
FR Search: Keyword "Redistricting"
hehe ! Okay. G'night ...
Well, it won't be included with the Balderas motion, since that is front of the three-judge panel that drew the map in 2001. If that panel refuses jurisdiction, it certainly makes sense to combine all the suits into a single action at the District Court level.
Which court that would be is unclear, although the Tyler court did receive the suits before the Victoria court did.
I still think there's a chance that the three-judge panel in Laredo could end up with the case, but it's less likely as time passes. If the Republicans had quickly filed a motion before that court seeking a declaratory judgment that the map does not violate the VRA, the odds would have been higher.
My guess is that a District Court will hear the challenges first.
The wild card is Jubelirer, though, and the Supreme Court is going to clarify the rules and possibly set new ones.
Unfortunately, Jubelirer is not a favorable fact situation, and it's easy to have the suspicion that the Supreme Court took the case to overturn the ruling that the Pennsylvania map is legal. That would certainly increase the chances that the Texas map will have to be redrawn.
Would you elaborate on the Burton aide email and the special cirumstances when you have time? Sorry to hear about the illness of your friend. Take care.
The email presents an overview of all the new districts (with some trivial inaccuracies) of which the most relevant comments are those involving districts 24 and 26. As described at Political State Report, "the email is notable for the blunt way in which it addresses the way in which minorities were shunted from district to district, squeezing them out of districts to favor republicans where the vote was close, or else putting them into overwhelmingly republican districts where their voting power would be diluted."
This email alongside additional circumstances - Rep. DeLay's involvement, statements by GOP legislators regarding their overtly partisan intent, the subordination of 'traditional' districting principles (most notably communities of interest and protecting incumbent seniority) - leave no doubt as to motivations underlying the process. As one might imagine, this is a fairly key aspect toward establishing the factual circumstances upon which any challenges might be decided (it also closely parallels the 2002 Pennsylvania process, BTW).
As alluded, the Supreme Court has ruled previously (most prominently in a ruling involving employment discrimination against Republicans in West Virginia) that political viewpoint-based discrimination is prohibited by the First Amendment. As mentioned, the Supreme Court has never extended this doctrine to the redistricting process, and it's by no means assured that it will ever do so. My point in citing the memo and alluding to these other factors is simply that in the event that the Vieth v Jubelirer ruling is based in any part on that basis, the Texas mapping process is particularly susceptible.
More likely in my opinion, the maps will be struck down for a combination of racial gerrymander and minority retrogression. The map is vulnerable to such a reversal in several respects which are most easily reviewed in the brief filed challenging the maps. There is also the Article I issue of re-redistricting as well as the partisan gerrymander challenge pursuant Davis v Bandemer also covered in this challenge that may potentially lead to an overturning of these maps. The one element where this map does not appear vulnerable is the majoritarian principle which provides the crux of the Vieth challenge.
My basic point is that any court inclined to favor the Democrats will have no problem identifying sufficient grounds to strike down this process.
This map diminishes the number of congressmen that the Democrats will elect. That's indisputable, but not surprising. What's also indisputable is that the map, as a whole, creates more minority opportunity districts, and that more minorities will represent Texas (and be Democrats, too) under this new map than under the old one which Democrats created.
Minorities do not get a bad deal under this map, unless you adopt the Democrats' apparent argument that all minorities have the constitutional right to be represented only by Democrats.
I don't personally believe that minorities get the shaft under this map; I'm just assessing how I think this challenge may fit into the jurisprudence both in Texas (Bush v Vera) as well as nationwide. In my personal view, the redistricting process should be blind to both race and party - basically determined by either nonpartisan commissions or bipartisan committees. That's not currently the case, however, and I don't know whether this Tyler court which issued the 2002 maps (where the challenge has been filed) is actually favorable to Democrats per se or just abided by the 'least-change' principle in issuing those maps. The general impression conveyed in media reports is that the court itself favors the Dem arguments, and if that's the case I simply think that there's more than enough room for interpretation to overturn the maps.
If it were up to me, I would reject the Voting Rights Act argument (in fact, I would strike down substantial parts of the Voting Rights Act itself as unconstitutional).
In any event, it will be appealed either way to the 5th Circuit, which will be considered a friendly circuit to the GOP.
The only concern I have in this is whether the US Supremes will reach a decision in Vieth v Jubelirer that will change the rules.
Well, that's virtually a given since maintaining the status quo would've required nothing more than summary affirmation. The question at hand, of course, is whether the eventual ruling will have any great impact on the Texas situation - which is quite doubtful IMHO.
Since the Pennsylvania fact situation even makes this partisan Republican think that redistricting can overreach in terms of partisan gerrymandering, I don't have a good feeling about this. The Texas map wasn't as aggressive as the Pennsylvania map, but it still divided Austin into teeny little bits that will make it very difficult for even a Republican congressman to be elected from the city. Whether "compactness" rises to a requirement under federal law and the Constitution is a question which could be decided, but perhaps not in the GOP's favor.
That's definitely true. The court kept the then current map intact as much as possible while squeezing in the two required districts. Even the Democrats don't dispute that.
Well, first of all, one must distinguish a §2 vote dilution inquiry [which applies nationwide] from the §5 retrogression standard that is limited to particular jurisdictions with a history of minority voting abridgment.
Vote dilution challenges are governed primarily under the guidelines of Thornburg v Gingles in which minority communities are presumed to be politically homogeneous:
The essence of a §2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.
The districting maneuver which I identified above as particularly suspect under §2 precedents is Martin Frost's erstwhile District 24 which involves the distribution of minority voters amongst four other districts. On its face, this would seem more susceptible to a vote dilution than to a retrogression challenge, which encompasses the entire statewide plan as a whole.
Another question: Does moving minorities from a district with many white Dems to one with few white Dems, but leaving their percentage in the district they live in unchanged, retrogression?
As stated in the Georgia v Ashcroft ruling: "any assessment of the retrogression of a minority groups effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect their candidate of choice, the extent of the minority groups opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan." Consistent with Johnson v DeGrandy:
No single statistic provides courts with a shortcut to determine whether a voting change retrogresses from the benchmark.
The "benchmark" alluded to is of key importance since any redistricting scheme must be determined nonretrogressive as compared to its previous, benchmark districting plan - in this case the court-ordered 2002 maps - as opposed to some idealized, theoretic plan. In short, "no matter how unconstitutional it may be" for other reasons (more on that in a moment) a plan that is not retrogressive should be precleared under §5.
So, the standard in §5 is quite simple: whether the new plan would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. However, here's the key guidepost presented in Gingles and DeGrandy which is reaffirmed by Georgia v Ashcroft:
[T]here are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice. Those candidates may not represent perfection to every minority voter, but minority voters are not immune from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics.
Broadly speaking, a minority community which is moved from a district in which it forms a coalition with voters of other racial groups into one in which it is unexpected to form such a coalition would constitute retrogression. In other words, the answer to your question would appear to be yes except in circumstances where the minority constitutes a decisive voting majority.
In assessing the comparative weight of these influence districts, it is important to consider the likelihood that candidates elected without decisive minority support would be willing to take the minoritys interests into account.
- O'Connor, Georgia v Ashcroft
Now, an interesting feature of the Texas map is that it dismantles a black-influence district [old TX-24] while creating a latino-majority district [new TX-25]. I'm unaware of any other instance where the elimination of a minority-influence district was defended on the grounds of creating a minority-influence district for a different racial group. In my view, the most problematic aspect of defending this interchange is simply that one could've mapped out the new latino district without eliminating the old black-influenced district (which, indeed, was the proposition rejected by the Tyler court as you alluded).
A §5 preclearance requires any new standard, practice, or procedure ... does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color which depends on whether the change would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. It's quite arguable at this juncture whether racial minorities may be taken as a whole [in the manner of the Texas legislature] in this determination or whether each racial minority must receive separate consideration. If the latter is the case, then the Texas maps will much more likely get overturned as the elimination of the black-influenced TX-24 is not accommodated elsewhere.
Which brings us to the final point I would make, which is that Miller v Johnson explicitly forbids making race the predominant, overriding factor explaining congressional districting decisions designed to satisfy §5 preclearance requirements. In other words, the racial gerrymander prohibition established in Shaw v Reno may not be compromised toward this purpose. Bush v Vera applied the principle similarly to the Texas redistricting which had been defended on the basis of §2 compliance.
The new districts TX-15 and TX-25 would appear suspect for the same reasons that the North Carolina districts were challenged in Shaw: they "concentrated a majority of black voters arbitrarily without regard to considerations such as compactness, contiguousness, geographical boundaries, or political subdivisions, in order to create congressional districts along racial lines and to assure the election of two black representatives." Particularly in light of other features in this map [markedly reduced latino influence in districts TX-23 and TX-10] the map appears highly vulnerable to the racial gerrymander challenge [basically "packing" all those latino voters as effectively as possible].
Anyhow, I'm probably rambling at this point. Hopefully this clarifies more than it confuses.
I did want to elaborate further on a couple points above. First of all, I thought on reflection that I could more lucidly present the Thornburg v Gingles guidance which governs §2 vote dilution inquiries. In short, the 1986 ruling established a clear review standard for §2 violations known as the three Gingles factors. To prove violation, a minority group must demonstrate that:
(1) It is large and compact enough to constitute an effective majority in a district.
(2) It is politically cohesive [though under Gingles, as mentioned, minority communities are presumed to be politically homogeneous].
(3) Bloc voting by the white majority usually defeats the minority group's candidate of choice.
Some additional caveats which were implied above but not stated clearly include that §2 vote dilution inquiries - unlike §5 retrogression inquests - are decided on the basis of 'idealized' districting schemes [usually an alternative map submitted by the challengers]. Moreover, a §2 violation may be determined specific to local jurisdictions of whatever dimension as opposed to the §5 statewide review standard.
Now, when considering the dismantled TX-24 district, an issue arises parallel to that one mentioned previously: while TX-24 has been considered a black-influence district, it was not a majority-minority district unless blacks and hispanics are considered as a whole. It's quite unclear at this juncture whether the first Gingles factor may be satisfied by contemplating different racial groups as a coherent group. It's worth noting, however, that legislatures regularly consider racial minorities (i.e. non-whites) as a whole in satisfying §2 requirements, and that even if a §5 retrogression standard is interpreted to apply to each discrete minority, this would not necessarily be the case for §2.
There remains one further influential ruling that I did not present above, mainly because its impact is unclear and also contingent on the forthcoming Vieth v Jubelirer decision. In the 2001 Hunt v Cromartie 'final word' on the Nineties cycle North Carolina redistricting, the Supreme Court held that the 1997 boundaries of NC-12 could be defended on the basis of "the constitutional political objective of creating a safe Democratic seat." Some aspects of this ruling are notable:
First, several Justices who have otherwise expressed great hostility to the partisan gerrymander [Ginsburg, Souter, Stevens] have acquiesced to such rationales in their endeavor to protect race-based districting. As I've mentioned elsewhere, there's a substantial instability on the Court insofar as redistricting jurisprudence due to this evident conflict. While the conservative wing of the Court has repeatedly expressed its hostility toward the racial gerrymander, political districting permits the indirect artifice of majority-minority districts. So, while the liberal jurists have condemned the partisan gerrymander (which the conservatives have found less objectionable), they have acquiesced to the extent it maintains the vestiges of race-based districting.
Of course, the central impediment to clear jurisprudence on the matter is that Justice OConnor has issued the two definitive rulings on racial districting, which is an a priori source of legal instability. Otherwise, its speculated that OConnor may have initially been in a Hunt v Cromartie majority which wouldve struck down the redrawn NC-12, but switched when that decision wouldve reached too far for some unknown reason. Whatever the case, Hunt II does not provide state legislatures or lower courts with much guidance worth mention, nor does it substantively alter the Shaw precedent requiring States to walk a tightrope between the Voting Rights Act and the 14th Amendment.
For all intents and purposes, the Supreme Court requires that legislatures satisfy the §2 and §5 provisions of the Voting Rights Act without actually taking race into account as a primary factor in drafting boundaries; almost as if vote dilution and retrogression must be avoided, but only by vague accident in the course of applying traditional districting factors. This is a quite unstable jurisprudence (courtesy of Sandra Day OConnor) which must be reconciled sooner or later (perhaps Vieth v Jubelirer will initiate that process).
There is one crucial, final caveat to account for Hunt v Cromartie as it applies to the Texas redistricting challenges. Justice Breyers concluding paragraph states:
...the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance.
If the eventual resolution to this Balderas v Texas challenge is to reconcile Shaw I and Hunt II, it may well do so on the grounds that whereas the maintenance of NC-12 permitted a significantly greater racial balance, the creation of the latino-majority TX-25 did not provide for greater racial balance (especially in light of the TX-24 dismantlement). I'm uncertain where the distinction would appear as a practical matter, probably since this exists nowhere in statute outside the arbitrary discretion of a five justice majority.
This ended up a lot lengthier than I thought it would, but I wanted to cover the points I left out above.
That is about as succinct a summary of the problem as I have ever seen.
It seems as if the courts would prefer as many districts as possible where minorities, in alliance with white liberals, would elect a Democrat. That's the only rationale that remains consistent in these cases.
The fact is that political gerrymandering and racial gerrymandering cannot be separated because minorities, particularly blacks, are reliable Democrats.
Very well put. The whole scheme as you suggest leaves in theory very narrow windows within the objective function, and is unstable. SCOTUS would do well do simply ban chopping up cohesive minority districts (what to do with multi minority districts is a toughie), and call it a day, and butt out. This retrogression stuff is pernicious, because it is sort of like the high jump, where the bar over time just keeps getting higher and higher, and is really not based on anything other than some notion that the Constitution requires the slow maximization of minority voting influence based on some notion of block voting.
If I had to characterize the objective of this unstable Nineties cycle jurisprudence, I would say that it closely parallels that established within this past session's affirmative action rulings. Basically, that race may be a factor of consideration, but only as one factor amongst many, and only for an undefined period until racial biases cease to exercise a significant influence. The implicit limit to race-based districting is whatever hypothetical future time at which the partisan coherence of minority voting breaks down to to the point that this cannot be arrived at tangential to political factors.
It's also the sort of arbitrary, conditional judicial reasoning that I find most objectional; all the more so when it's contrived via linguistic ambiguity in the absence of actual constitutional principles..
I wanted to make one final clarification to the above remarks. The closing speculation may read as if I expect the courts to in fact reconcile Shaw I and Hunt II in the fashion I suggested. To be sure, that was just a random hypothetical which I don't think very likely at all. The Supreme Court may just as well not bother to reconcile the matter of race-based districting at all - and this is the more likely outcome, in my assessment. While I would not be surprised to see Balderas v Texas granted review because it presents such a variety of issues, I don't see the Court as much inclined to revisit the Shaw/Hunt decisions anytime soon.
Of course, if a lower court overturns the maps on the basis of racial gerrymander (which I consider low probability as I think they'll fixate on VRA issues), the odds for SCOTUS reviewing that issue increase substantially. Finally, all of the above remains contingent on the outcome of Vieth v Jubelirer, which needless to reiterate could change the entire calculus in a most dramatic way.
AUSTIN -- Federal lawsuits filed over Texas' new congressional redistricting map have been consolidated into one case.
A hearing will be held Nov. 3 in U.S. District Judge T. John Ward's courtroom in Marshall.
A three-judge panel has been assigned to the case. The judges are Ward, federal Circuit Court Judge Patrick Higginbotham and U.S. District Judge Lee Rosenthal, said Nina Perales, an attorney in one of the lawsuits.
Several lawsuits have been filed since lawmakers approved the GOP-backed redistricting map, which Republican Gov. Rick Perry signed into law this month.
"I think we knew we were going to get consolidated," said Perales, an attorney for the Mexican American Legal Defense and Educational Fund, which filed a lawsuit in federal court in Victoria on behalf of the American GI Forum of Texas. The GI Forum, a Hispanic rights group, alleges the new map does not create enough Latino districts.
The Texas attorney general's office has said it expects the Legislature's redistricting plan to be upheld in court.
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