Texas and other states can redraw their political maps when they want to, according to the U.S. Supreme Court, but they can't dilute the strength of minority voters just to protect an incumbent those voters oppose.
The much-anticipated decision on Texas congressional redistricting was generally a victory for Republicans who sought a partisan remix of the state's Washington delegation.
But the court wants the mappers to revisit CD-23, where U.S. Rep. Henry Bonilla, R-San Antonio, is the incumbent. They say the GOP redrew that district to protect Bonilla from Hispanic voters who were on the verge of replacing him. And the court said a Mexico-to-Austin district drawn to offset what was done in Bonilla's district also needs to go. That's now held by U.S. Rep. Lloyd Doggett, D-Austin.
The justices said there's nothing to prevent a state from taking up redistricting in the middle of a decade, particularly when — as in Texas — the Legislature is replacing a map drawn by the courts with one of its own.
And they didn't find fault with the lines in Dallas County, where Republicans drew Democratic U.S. Rep. Martin Frost out of a job. Democrats had argued that minority voters were illegally cheated of their voice in that district; the court disagreed.
The court still hasn't settled on whether it's possible for political map to be so gerrymandered the courts have to step in and fix it. That remains an open question.
The nine justices wrote six different opinions and you have to draw a chart to figure out where the votes went. Only Justice Anthony Kennedy was in the majority on the two big questions — mid-decade redistricting and the Voting Rights Act violation in Bonilla's district. The conservatives joined him on the first, the liberals on the second.
What's next? The case comes back to the federal judges in Texas who decided it in the first place. They can redraw the map themselves or order lawmakers to do so. The immediate issue is whether they can get new lines in place before the November elections, or whether they'll proceed with these contests and put a new map in place later.
It's probably too late in the year for the Legislature to come back, redraw the maps and get them in place in time for the November elections. That opens the possibility that redistricting will bedevil the next regular session of the Legislature, which starts in January.
The court's full opinion is available in our Files section.
Off the Leash
If legislators can draw new political maps anytime they'd like, why wouldn't they? The U.S. Supreme Court, in its ruling on Texas congressional redistricting, said there's nothing in the law to prevent mid-decade redistricting.
Opponents of the Texas map said (among other things) that it was drawn three years after the underlying census data were collected. Areas that grew quickly after the census — but before the map was drawn — were cheated out of representation they should have got. But the opponents didn't offer up any opposing numbers — they didn't have a census of their own to fall back on — and thus couldn't show any harm.
The court let it be, and also ignored arguments that the lines are so partisan they have infringed on voters' rights. The second part of that is an ongoing question before the court, but the first part is the real news in the court's Texas ruling.
Around the country, redistricting wonks are already looking at places where current maps are out of line with current majorities, as Texas was in 2003. And they're also chattering about other possibilities. If it's legal to change maps anytime, isn't that an invitation to make small changes to reward friends and harm enemies? Isn't that a central goal of politics?
There are already efforts to limit mid-decade changes. U.S. Rep. Gene Green, D-Houston, state Sen. Jeff Wentworth, R-San Antonio, and state Rep. Mark Strama, D-Austin, are all touting bills that would try to lower the temperature on the partisan politics in redistricting. Green would limit mid-decade changes and says line-changing is bad for voters and reps alike since their geographic bonds are so loose. Wentworth and Strama both want an independent commission to draw political maps, taking this essentially political chore out of the hands of state legislators.
Sharpen Those Crayons
Lawyers on all sides of the Texas congressional redistricting case have two weeks to suggest remedies to the current political maps and a week after that to respond to filings made by others.
Federal Judge T. John Ward's order — issued a day after the U.S. Supreme Court's ruling on the Texas maps — says the lawyers should file "any remedial maps, statistical packages, and briefing" by July 14. Answers are due July 21.
He set oral arguments for August 3 in Austin before the three-judge panel that includes Ward, 5th Circuit Court of Appeals Judge Patrick Higginbotham, and U.S. District Judge Lee Rosenthal.
If they're trying to redraw the map in time for the November elections, they'll have to hurry: Election Day is November 7. That's three months after the hearings start.
A spokesman for Secretary of State Roger Williams says their office can call an election for November 7 as late as August 29, and will certify ballots on September 6 for the November elections. The courts could order waivers, but those are the rules as of now.
Too Late for Lawmakers
It's not clear whether the federal judges overseeing redistricting in Texas will order new political districts for the pending November elections. But in 1996, a legal dispute over three seats (two in Houston and one in Dallas) resulted in a mid-election redesign.
The courts that year redrew the lines for 13 congressional districts, tossed the primary election results for that year and set a special election in November (held on the same day and at the same places as the regular election) to fill the delegation with candidates from legal district. Three of those elections went to runoffs in December of that year.
The U.S. Supreme Court didn't order that in this case (or in the earlier one), but it's one of the options open to the three-judge panel that has control of the congressional redistricting case here.
The court could also tell the state to do a plan, but it's probably too late in the year to get a legislative solution in place in time for November elections. First, you'd have to get the Legislature to redraw the maps. You might remember that these things can drag out.
But let's say the Legislature acts quickly. If a plan passed with less than a two-thirds majority, it wouldn't become law for 90 days. And any plan drawn by Texas legislators (as opposed to plans drawn by the courts) has to be "pre-cleared" by the U.S. Department of Justice.
It would be difficult to get all of that done in time for election officials to make the ballot changes, for the candidates to sign up and gather their wits and their shekels and run campaigns, and for voters to figure out what the heck was going on.
If it's going to be done by November, the changes will probably have to be done by the three judges on that federal panel.
Five to Watch
Last time this happened, court-ordered changes in three congressional districts in Texas rippled into ten more, and 13 districts had to run through special elections with new lines.
Most of the lawyers and redistricting wonks we've talked to say the ripples from the U.S. Supreme Court's latest decision could affect five congressional districts.
Start with CD-23. Its boundaries, the court says, violate the Voting Rights Act and need to be changed. The congressman there is Henry Bonilla, R-San Antonio. The court's majority opinion says you can't fix CD-23 without redoing CD-25. That's Lloyd Doggett's district, which runs from Austin to the Mexican border. The justices in the majority frowned at the notion that the Latino "community of interest" there was split in two with the halves separated by 300 miles.
Three more districts weren't mentioned in the opinion but could get mashed around if 23 and 25 are redrawn. One is CD-21, currently occupied politically by Lamar Smith, R-San Antonio. CD-15 runs alongside CD-25 from Bastrop County to the border. Its current occupant is Ruben Hinojosa, D-Mercedes. And on the most likely list, put CD-28, where Henry Cuellar, D-Laredo, is the incumbent. He and Bonilla each have a piece of Webb County, and in some conversations, people are saying the two could be paired in the same district if the court draws the lines that way.
So who's gonna have a real race? Bonilla and Cuellar are in the mix, particularly Bonilla, whose fortunes were helped by the map the courts now say they don't like. Some of the options available to mapmakers could be dangerous to him. If they're paired, they'll both be nervous. Contenders for those two seats — this is based on their past tire-kicking — could include former U.S. Rep. Ciro Rodriguez, D-San Antonio, state Rep. Richard Raymond, D-Laredo, and state Rep. Harvey Hilderbran, R-Kerrville. If the maps are truly dangerous for the incumbents, those lists will grow.
One more thing: If the congressional changes are in place in time for a November election, and if it's a special election like the one in 1996, a member of the Texas Legislature could be on the regular ballot for reelection and on the special election ballot the same day for Congress. That's a risk-free deal.
It's a Pig
Political ads run by the Texas Association of Business in 2002 didn't cross the fuzzy line between educating voters and advocating particular candidates, according to state District Judge Mike Lynch of Austin.
Lynch dropped three indictments against TAB in a four-page order that also took a broad slap at Texas election law. He said the case amounted to a cage match between fair and open politics on one hand and freedom of speech, association and expression on the other. That was tough, he said, but so was state law. "... [T]he instrument designed by Texas to properly balance those interests, the Texas Election Code, is an archaic, cumbersome, confusing, poorly written document in need of a serious legislative overhaul."
The judge (a former first assistant to Travis County District Attorney Ronnie Earle), said the flyers done to the benefit of Republicans and the detriment of Democrats in 2002 House races "severely test, but do not cross, the line of express advocacy..." Lynch said normal people looking at the ads would see them as clearly supporting certain candidates. But they don't — in his eyes — cross the line of "express advocacy" defined by higher courts, he wrote.
The ads were part of an effort to win a Republican majority in the Texas House, but they didn't explicitly tell voters how to vote. Instead, they raised questions about Democrats in those races without using any of the so-called "magic words" that courts have used to separate information from advocacy in political speech.
Earle, he wrote, "fervently believes the defendant has unfairly attempted to subvert the free election process... even assuming he is correct, these statutes and this indictment aren't equipped to do the job. You simply cannot make a silk purse out of this sow's ear."
In a statement after the ruling was issued, Earle said he's likely to appeal it, and he said he'll proceed with prosecution of a fourth indictment that charged TAB with making an illegal corporate contribution to a political action committee.
Never Can Say Goodbye
Tom DeLay isn't in Congress anymore, but he's still on the ballot for reelection. And whether he can get off is up to U.S. District Judge Sam Sparks of Austin.
After winning the Republican primary for reelection (with 62 percent), DeLay decided to resign from Congress and to give up his spot on the ballot. He did the latter by declaring himself a resident of Virginia. State GOP officials declared him ineligible to run and started the machinery to replace him on the ballot. Texas Democrats sued, saying the whole thing was a ruse to get a hand-picked replacement on the ballot to face former U.S. Rep. Nick Lampson, the Democrat in that race. DeLay has become a political liability, they contend, and is trying to get out of the way so other Republicans aren't sullied by his presence on the ballot. On the legal end, their argument is that no law requires a candidate to be a resident until the election itself. Since that hasn't occurred, there's nothing to disqualify DeLay.
Sparks will decide who's right, and in the meantime, told the Republicans not to pick his replacement. If DeLay's not disqualified, he'll be on the ballot in November. Whether or not he runs a race, that will force Lampson to spend money. Should DeLay win, and then resign again, there'd be a special election to replace him.
In the meantime, the wannabes who were hoping to become the GOP's choice for DeLay's spot on the ballot are waiting in the wings, where it's hard to raise money or support. One, Sugar Land Mayor David Wallace, claims to have $1 million in contributions and pledges (about 80 percent of it in the latter category). If the wait's long enough and the GOP still needs a replacement for DeLay, he'll be able to argue he's the only one with enough coin to make it a contest.
• If, for some reason, the federal judges working on redistricting decide to tinker with the boundaries of CD-22, it would free other Republicans to run for that seat. Newly drawn districts will have special elections. Primary results will be tossed. DeLay would be out of the way — as he wishes to be — and anyone who wants the job could file and run. That group includes the people who lost to DeLay in the primary, those vying for a Party nomination now. It reopens a door for former U.S. Rep. Steve Stockman, who tried go get on the ballot as an independent and didn't have the 500 valid signatures that requires. Changing the lines is an interesting idea, but it would mean the federal judges are reworking a lot of districts. You have to cross four congressional districts to get from the illegal one — CD-23 — to DeLay's area.
Accurate, and Incorrect
U.S. Rep. John Carter, R-Georgetown, says his comments were jumbled in a story last week that had him saying people ought to speak, read, and write in English before they can vote. But he still contends that English proficiency should be a condition of citizenship.
Carter says he was quoted correctly by the Houston Chronicle last week, but said the paper combined comments on one subject — the federal Voting Rights Act — with comments on another subject — what should be required of immigrants seeking citizenship.
"I'm not advocating a poll tax or a literacy test to be able to vote — but I do think you should be proficient in English to be a citizen," he said in an interview.
Carter isn't against extending the Voting Rights Act, either, he says. The Texas delegation stalled consideration of that extension last week, with some members saying they don't think Texas and eight other states should be subject to federal review on their voting laws if the other 41 states don't have to meet the same standard. For his part, Carter says he wants to see what the U.S. Supreme Court does with the state's congressional redistricting case, where voting rights are at issue, before considering reauthorization. If that decision doesn't require tinkering with the law, he says he's all for extending it, as it's currently written.
Carter said the Chronicle quoted him correctly when they reported him saying, "I simply believe you should be able to read, write and speak English to be a voter in the United States."
But he said he made the literacy comments in the context of a question about bilingual ballots, and he reasserted his view that people should be writing, speaking and reading English to get citizenship. "I don't back off the statement that it's important to be proficient in English," he said. "You should have some command of the language."
Even so, Carter, who was on the way to a naturalization ceremony when we talked to him, said he doesn't think there should be a test for people who are already citizens to see whether they're fluent in English.
Calling Names
Secretary of State Roger Williams will decide soon on whether you'll be looking at Kinky or Grandma on your ballot in November. Richard Friedman's chances appear better than Carole Keeton Strayhorn's at this point.
In a letter to Friedman, Williams said "Kinky" appears to be a nickname as the law defines it, but he said Friedman's real name — Richard — will have to appear in some form. If Friedman leaves it be, he'll appear on the ballot as Richard "Kinky" Friedman.
Strayhorn got a different letter, with Williams saying "Grandma" appears to be more a slogan than a nickname and asking her to make the case that it's really a nickname. Her lawyer, Roy Minton of Austin, wrote a letter to Williams contending it really is what people call the state comptroller. " Unlike the dictionary definition of slogan, Grandma is not a phrase expressing the aims or nature of an enterprise nor is Grandma a motto or a battle cry or even a position or goal," he wrote. A spokesman for Williams said Minton's letter falls short of what they need and that they'll look at it after the holiday.
In the campaign bio she sends to supporters and potential supporters and in the "About Carole" section of her website (www.OneToughGrandma.com), Strayhorn's name is straight, with no nickname in sight. It starts with "Texas Comptroller Carole Keeton Strayhorn is a Texas Independent candidate for governor." The nickname isn't used — as a name — anywhere in the writeup. But at a press conference when the subject came up, she was insistent: "I am not a slogan. I am Grandma. That has been my nickname for 11-and-a-half years."
Fickle Texans
Another week, another survey: SurveyUSA's newest poll has 35 percent of Texas voters supporting Gov. Rick Perry and most of the rest locked up in a tight race for second place. Kinky Friedman got 21 percent, Chris Bell got 20 percent, and Carole Keeton Strayhorn got 19 percent. The pollsters talked to 1,200 people and the results are from the 576 respondents judged to be "likely voters." The margin of error is 4.2 percent with 95 percent certainty. The poll, commissioned by KEYE-TV in Austin and WOAI-TV in San Antonio, was done on June 23-25 — after Secretary of State Roger Williams said both of the independents have the support to appear on the November ballot.
They broke down the support like this: "Perry leads most groups, but achieves a majority only among Republicans, conservatives, and voters with no college education. Friedman's support is strongest among independents, liberals, and young voters. Bell does best among African-Americans and Democrats, but gets only 44 percent of Democrat votes. Strayhorn's support is concentrated among women and moderates."
You can look at the poll and the cross-tabs yourself at www.surveyusa.com.
Political Notes
More than 100 preachers, ministers, rabbis, priests, pastors, reverends, chaplains — you know, clergy — have signed on for an interfaith effort to keep partisan politics out of their houses of worship. The so-called "Respect Our Faith" campaign is designed, they say, to encourage their congregations to be involved in civics and politics without allying themselves to one political party or another. The campaign is backed by the Texas Faith Network, an offshoot of the Texas Freedom Network, as a counter to the religious right and programs like the Texas Restoration Project, a group of conservative ministers and others who seek to enlist "values voters" to go to the polls and back candidates who share their positions on moral issues. Members of the new group say they have no problem with politics, but want to get some distance between partisan politics and their work. They've got a website, at www.RespectOurFaith.org.
• Texas Republicans picked up a total of six seats with redistricting (and a party-switch inspired by redistricting), and at worst, it looks like they'll hang on to five of those seats with a redraw. They'll have 20 to 21 seats out of 32 in the Texas delegation. The GOP could lose in CD-22 if things bounce right for the Democrats there — that's Tom DeLay's district. And the Democrats could lose in CD-17 if things go their way against U.S. Rep. Chet Edwards, D-Waco. But the last two seats were on the bubble before the court's ruling. The net effect of redrawing the Texas congressional districts is that the GOP knocked five and maybe six seats from blue to red.
• Luis Cavazos, the Republican who was running against Democrat Eddie Lucio III in HD-38 in South Texas, dropped out of that contest. The seat now belongs to Rep. Jim Solis, D-Harlingen. He's not seeking reelection. Lucio, the son of Sen. Eddie Lucio Jr., D-Brownsville, faces a Libertarian in November.
Political People and Their Moves
Anthony Sadberry can remove "acting" from his title: He's now the executive director of the Texas Lottery. Sadberry, a lawyer by trade, is a former lottery commissioner. He's been running the agency since January.
Dr. David Smith, former chancellor at the Texas Tech University System and former commissioner of what was then called the Texas Department of Health, will be the next president of the State University of New York's Upstate Medical University in Syracuse. Smith headed Tech's medical school before becoming chancellor five years ago.
Eric Bost will be the next U.S. Ambassador to South Africa. He's the former head of the the old Texas Department of Human Services and more recently, the Under Secretary for Food, Nutrition, and Consumer Services at the U.S. Department of Agriculture. He won Senate confirmation.
Houston businessman Peter Coneway will be the new U.S. Ambassador to Switzerland. He's an advisory director at Goldman, Sachs & Co.
Glen Maxey will run field operations for Democratic gubernatorial candidate Chris Bell. Maxey, a former state lawmaker who's been working as a political and legislative consultant, finished second a couple of weeks ago in the race for chairman of the Texas Democratic Party. But he showed well, and the organizing he did for that effort, along with his work on Howard Dean's presidential campaign and other efforts set him up for this gig. Maxey tried to sell the Democrats on the idea of using more technology to organize and connect voters; he said in the Bell announcement that he hopes to do that sort of work in the governor's race.
Tom Stephens is retiring from Atmos Energy, where he's been in charge of governmental affairs for ten years (and where he worked in other capacities for two decades before that). He'll fool around for a few weeks and then plans to hang out his own shingle and consult/lobby for others.
Kevin Christian has a new gig: He's an associate general counsel at Abilene Christian University and an officer of the ACU Foundation. Christian, a former House aide, lost the GOP primary to replace his boss, Rep. Bob Hunter, R-Abilene, earlier this year.
El Paso lawyer Kathleen Campbell Walker is the new president-elect of the American Immigration Lawyers Association.
Doug Carmichael of Pampa and Sue Evenwel of Mt. Pleasant are the newest Rick Perry appointees to the Texas Funeral Service Commission. Carmichael owns and operates a funeral home; Evenwel is vice president of marketing for Technical Image Products and a partner in something called Designin' Women.
Perry named three new people to the State Board for Educator Certification: Christopher Barbic and Janie Baszile of Houston, and Jeanne Marcum Gerlach of Southlake. Barbic founded and runs YES College Preparatory Schools. Baszile is a special education teacher in the Galena Park ISD (that's where Texas Education Commissioner Shirley Neeley was superintendent). Gerlach is dean of the education college at the University of Texas at Arlington.
Deaths: Former Texas Supreme Court Justice and Baylor University Law School Dean Charles Barrow, of San Antonio. He was 84.
Quotes of the Week
Texas Solicitor General Ted Cruz, in The Dallas Morning News: "We're very gratified with the decision. The Supreme Court has clearly decided that state legislatures — not the courts — should decide issues of partisan politics."
Rolando Rios, the lawyer for LULAC, the League of United Latin American Citizens, in the San Antonio Express-News, on the court's ruling that it's okay to redraw political maps anytime: "That isn't good for democracy, or for the democratic process because it will allow the incumbent politician to decide what voters he wants, as opposed to the voter deciding which politician he wants. And it will cancel the voters' ability to hold their politicians accountable."
J. Gerald Hebert, the lawyer for Texas congressional Democrats in the redistricting lawsuit: " "Let the redistricting festivities begin. This really signals that the federal judiciary will not step in even in the most extreme cases."
Republican attorney Benjamin Ginsberg, disagreeing that other states will jump at the opportunity for mid-decade remapping, in USA Today: "Oh, God no. As the Texas case showed, it is a traumatic activity to go through."
Supreme Court Justice Anthony Kennedy, in the majority opinion on Texas redistricting, on changes the state made to U.S. Rep. Henry Bonilla's congressional district: "In essence the State took away the Latinos' opportunity because Latinos were about to exercise it."
Chief Justice John Roberts, dissenting on that issue: "I do not believe it is our role to make judgments about which mixes [emphasis is his own] of minority voters should count for purposes of forming a majority in an electoral district, in the face of factual findings that the district is an effective majority-minority district. It is a sordid business, this divvying us up by race."
Gov. Rick Perry, talking to a teacher group, quoted by the Associated Press: "Unless we measure what our students know, we won't know what they know."
Texas Weekly: Volume 23, Issue 4, 3 July 2006. Ross Ramsey, Editor. Copyright 2006 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (512) 302-5703 or email biz@texasweekly.com. For news, email ramsey@texasweekly.com, or call (512) 288-6598.