DeLay's Redistricting Master Stroke illegal? **Gasp!!**

Part of Rep Tom DeLay's (R-TX) "legacy" was the redistricting plan that was forced through in Texas, and that "gave" the GOP extra seats in the House of Representatives.

At the time, it was controversial on several fronts:

- It was designed and implemented between census cycles. By itself this is not illegal, but poor choice, because (in theory) redistricting is meant to provide fairer representation, not just Gerry-mandering, and the demographics may have shifted significantly since the census reporting (which is presumably why the redistricting was done, due to shifts from the *prior* census cycle)

- The plan was seen as a strictly partisan effort to maximize the number of seats the GOP could win, not to provide a fairer distribution that could more fully implement the "one-man one-vote" test

- In what was seen as a symbolic, and very public, move, the Democratic members of the Texas legislature refused to take their seats for the vote, thereby depriving the legislature of a legal quorum. They even went so far as to absent themselves from the state of Texas entirely, so they could not be arrested and compelled to attend the session

- In a move that proved very embarrassing to Delay, when it was fully disclosed, Delay tried to use the services of the Department of Homeland Security to track down where the truant legislators had gone, and to send officers of the Department of Texas Public Safety (the "Texas Rangers") to arrest them, only to have the officers find that they could not so arrest the legislators, because the Rangers were out of their jurisdiction and they could not find a judge sympathetic enough to grant them jurisdiction

- The redistricting plan, as devised, was very similar to one that had already been struck down by the courts as being in violation of mandated corrective measures

- Many thought that the redistricting plan shouldn't pass muster, as it appeared to violate several points of law, but the Department of Justice declared that it was legal and met all the requirements of federal law

Except, that maybe, it really didn't meet those requirements, and maybe it really shouldn't have been approved by DOJ.

The Washington Post is reporting that the DOJ lawyers tasked with reviewing the redistricting plan unanimously (six lawyers and two other advisers) recommended against the approval, but were overridden by senior officials at DOJ, who approved the plan (Justice Staff Saw Texas Districting As Illegal)

This tactic, in a voting rights/representation case, of the career staff being overridden by the political appointees senior staff should sound familiar -- it's the same actions that were taken in Georgia, when the senior DOJ officials "pre-approved," over the objections of the career staff, the change in the voter-identification process. (See my earlier article here) Texas, as in Georgia, must submit any changes in voting procedures or redistricting to DOJ before they can be implemented.

This information is just now coming to the fore because a previously undisclosed memo, where the career staff detailed their analysis, has been obtained by the Washington Post (the .PDF file of the 73-page 12/12/03 memo is here)

A perusal of the memo can be something that can put you to sleep, until you run into some real nuggets. For example, after 7 pages of detail on how the State's proposed redistricting would "allow for more choice" in electing candidates one comes across this: (page 11 of the PDF)

Of the 55 African American and Hispanic legislators in the legislature, 53 voted against the redistricting plan..... Of the minority legislators to whome we talked, all but two opposed the redistriting plan. Of the local minority elected officials to whom we spoke, all but one opposed the redistricting plan.
//snip//
We have also received comment letters from six other state legislators, who did not attend any meetings or speak on the telephone with any staff. of these legislators, four are Hispanic and two are Anglo. Thirty-six (36) locally-elected officials from around the state sent comment letters. In total, the Section received 335 comments against the proposed plan, none in favor of it.

Also noted in the memo is an egregious "bait and switch" process -- when minorities objected to earlier versions of the new voting maps on the grounds that the new districts diluted representation for minorities, the redistricting committee agreed to make changes that would mitigate that criticism.

However, when the final redistricting plan was voted out of conference before the final vote, most of the objectionable reapportionments had been reinstated. (P 13)

Minority legislators also complained aboiut being "shut out" from the committee and conference decison-making process.

The State of Texas created an analytical model that purported to show how the new "districts" would likely vote, by block, with imputed "elections" of current representatives. This analysis was meant to show that there should be no dilution of the voting power of minority groups.

The effects of this analysis takes up a large portion of the document, with the authors maintaining that the "retrogressive" effect of minorities losing representation in some districts was not offset by probable "wins" in other districts.

The memo also notes that (page 62)

"Four of the five minority-preferred candidates who would love their seats under the proposed plan have substantial seniority experience in the House and serve on influential House Committees."

Both opponents and supporters of the proposed change agree that the *purpose* of the proposed redistricting was not to, a priori, reduce minority representation, but to maximize GOP seats in the U.S. House (page 70):

"...both proponents and and opponents of the plan agree that the main objective in redistricting was to increase substantially the number of Texas congressional seats held by Republicans. Even Minority leaders opposed to the redistricting plan recognize that partisan gain drove the redistrictying process and it's result, at times consciously overriding other considerations."

The Voting Rights law, however, does not rely only upon "intent" when reviewing whether or not a proposed change should be "precleared" or the subject of an "objection," but that *effect* on minority representation needs to be carried into effect.

If the Texas Legislature had been able to craft a redistricting plan that allowed for even the same amount of representation of minority voters, while still increasing the number of GOP seats in the U.S. House there would have been no grounds for objection, under Section 5.

Supporters of the redistricting plan point out that an appeals court upheld the plan. However, the court very likely gave much weight to the fact that the DOJ had issued a "preclearance" to the plan, and those bringing suit against the plan were denied access to this memo, so they were unable to show the courts just what the DOJ detailed analysis said.

From the Washington Post article:

Mark Posner, a longtime Justice Department lawyer who now teaches law at American University, said it was "highly unusual" for political appointees to overrule a unanimous finding such as the one in the Texas case.

"In this kind of situation, where everybody agrees at least on the staff level . . . that is a very, very strong case," Posner said. "The fact that everybody agreed that there were reductions in minority voting strength, and that they were significant, raises a lot of questions as to why it was" approved, he said.

J. Gerald "Gerry" Hebert, one of the lawyers representing Texas Democrats who are challenging the redistricting in court, said of the Justice Department's action: "We always felt that the process . . . wouldn't be corrupt, but it was. . . . The staff didn't see this as a close call or a mixed bag or anything like that. This should have been a very clear-cut case."

Hebert said the Justice Department's approval of the redistricting plan, signed by Sheldon T. Bradshaw, principal deputy assistant attorney general, was valuable to Texas officials when they defended it in court. He called the internal Justice Department memo, which did not come out during the court case, "yet another indictment of Tom DeLay, because this memo shows conclusively that the map he produced violated the law."

(Just remember, here, that Herbert is representing the opponents of the DeLay-crafted redistricting plan)

And what does DOJ have to say about this memo?

About what we have come to expect, unfortunatly.

Some exerpts from an AP article:(Gonzales defends call on Texas plan)

WASHINGTON -- Attorney General Alberto Gonzales defended the Justice Department's decision to ignore staff lawyers' concerns that a Texas redistricting plan orchestrated by former House Majority Leader Tom DeLay would dilute minority voting rights.
//snip//
Senior agency officials, appointed by President Bush, brushed aside concerns about the possible impact on minority voting and approved the new districts for the 2004 elections.

Gonzales, who was not attorney general when the agency reviewed the redistricting plan, said it was approved by people "confirmed by the Senate to exercise their own independent judgment" and their disagreement with other agency employees doesn't mean the final decision was wrong.

The decision appears to have been correct, Gonzales said, because a three-judge federal panel upheld the plan and Texas has since elected one additional black congressman.

But again, there is that question, would the appelate court have ruled that way if it had been allowed to see the document?

The memo released Friday had been sought by lawsuit plaintiffs before going to court, but the Justice Department declined to surrender it then.

"All decisions made by the Justice Department involve thoughtful rigorous analysis of the law," said spokeswoman Tasia Scolinos. "There is no place for politics in this process and to suggest otherwise is unfortunate and just plain wrong."

Eight department staffers, including the heads of the Voting Rights Division, objected to the redistricting map, according to the memo which was first reported in Friday editions of The Washington Post.

The Justice Department said Sheldon Bradshaw, then principal deputy assistant attorney general in the civil rights division, made the final decision in the Texas case.

Hebert said when a case is a close call staff lawyers usually include counterpoints to their conclusions in their memo. But he said there is nothing in the 73-page memo suggesting a plausible reason for approving the map. "So that raises a lot of suspicions about the motives" of the senior officials who are political appointees, he said.