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December 03, 2005

Justice Dept. saw Texas redistricting as illegal

This is big news. We now know that the Republicans picked up five House seats in 2004 with an illegal redistricting plan:

Justice Staff Saw Texas Districting As Illegal
Voting Rights Finding On Map Pushed by DeLay Was Overruled
By Dan Eggen
Washington Post Staff Writer
Friday, December 2, 2005; Page A01

Justice Department lawyers concluded that the landmark Texas congressional redistricting plan spearheaded by Rep. Tom DeLay (R) violated the Voting Rights Act, according to a previously undisclosed memo obtained by The Washington Post. But senior officials overruled them and approved the plan. [...] [Emphasis added]

Redistricting plans have to be approved by the Justice Department. The leaked memo shows that the Justice Department's legal experts unanimously found that the plan was illegal, but that a senior political approved the plan anyway.

For more analysis of the Justice Department memo scandal see DemfromCT and Kagro X.

Hat tip to Ol' Tex.

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Majikthise succinctly extracts the key finding from a recent WaPo investigation of the Texas redistricting controversy. "The leaked memo shows that the Justice Department's legal experts unanimously found that the plan was illegal, but that a senior po... [Read More]

Comments

Unlike FDR or LBJ, there folk have subverted the processes to achieve outcomes. We will not be able to go back to the old ways. A purge (in itself non-professional) of the political hacks in the DOJ, replacing them with non-partisan professionals, will be constrained by a conservative attitude toward process. Replacing their hacks with our own creates bad precedent, and removes professionalism and experience for departments.

They want to break it completely, destroy the federal government, so they can return to the state fiefdoms that preceded the Progressives of the late 19th century. Possibly only a Constitutional Convention could fix the mess they will create, but that is extremely dangerous.

We are in fully revolutionary times, and we need to think like revolutionaries rather than reformers or "conservatives". There is little left to save.

Is this a scandal because it's basically vindication for everyone who said the redistricting was BS, or is an overruling of a DOJ decision by a politico an actual violation of the law?

Not to put too fine a point on it, but if DOJ found it "illegal," it doesn't follow that it was illegal. That would await a dispositive ruling by a court with competence to determine the question, wouldn't it?

"That would await a dispositive ruling by a court with competence to determine the question, wouldn't it?"

"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." ...WaPo link above

Bob, that would be "J. Gerald 'Gerry' Hebert, one of the lawyers representing Texas Democrats who are challenging the redistricting in court..."?
So if the party to our liking in a civil suit says p, it follows that p? If so, what would we need courts for?
I'm against the gerrymandering as much as anyone, believe me -- but I don't want to presume the judgment of the court or take a victory strut before a "Mission Accomplished" banner just yet.

Bush appointed political hacks ignore in-house expertise to ram through corrupt and/or ideological (or just plain illogical) agenda. I work at the Department of Interior where this is old news. The DOI includes: National Park Service, U.S. Fish and Wildlife Service, Bureau of Indian Affairs, Bureau of Land Management, Office of Surface Mining, Minerals Management Service, U.S. Geological Survey, and Bureau of Reclamation. What’s at stake is obvious and the Bush pirates are toiling like slaves to subvert all these agencies’ missions. Sometimes this can be comical: There’s a monthly newspaper that runs to 30 or so pages distributed to DOI facilities covering various DOI showcase projects. The first issue after the Bushies seized control had secretary Norton’s mug on every single page.

The thing about this is that a court did rule on the plan and approved it. I hate to say this but the DOJ didn't can't determine if something is illegal. I dont know but we can assume the Fed district court which approved this was chock full of 'conservatives'. I don't know if the DOJ entered arguements in favor of approval or if those carried weight in the decision or if they had fought it the obervese would be true.

Still it's important to watch our rhetoric here because the c ourts finding on this makes all arguements about the legality of the plan mute and downright silly and open to scorn.

The political hack approved a plan that he had every reason to believe was illegal. The legality of the redistricting turned on very complex, technical legal issues. There's no evidence that he was qualified or sufficiently well-versed in the case to make an independent determination. He didn't have the expertise to determine whether the plan was legal or not. That's why he turned it over to a group of experts to deliver a ruling.

The panel unanimously told him the plan was illegal, and he disregarded their advice. If you agree with the three-judge panel that subsequently deemed the plan legal, then maybe the political official got lucky when he approved the plan. However, the real outrage was that he violated the law as he understood it.

Let's not forget that Ashcroft had a record of hostility toward civil rights when he was appointed. His pledge to uphold the Justice Department's commitment to civil rights was a transparent lie, and his filling the department with hacks was the predictable outcome of his confirmation. I think of the Ashcroft nomination whenever people laud the "centrist" Republicans, all of whom voted to confirm Ashcroft. The Democrats who voted to confirm were:

Christopher Dodd (CT)
Russ Feingold (WI)
Robert Byrd (WV)
John Breaux (LA)
Zell Miller (GA)
Byron Dorgan (ND)
Kent Conrad (ND)
Ben Nelson (NE)

What the courts actually seem to have ruled is that partisan gerrymandering is something that the courts don't have a decent standard for ruling on. My understanding is that the case is on its way back to the Supreme Court. (better legal researchers than I may have a clearer view of the state of play)

At any rate, what this comes to is that gerrymandering is something about which there is presently no effective judicial oversight. And that means that the best hope for an effective check is the Justice Department's professional Civil Rights enforcement bureaucracy. The scandal, then, is that the only effective check was subverted.

Lindsay - you are right, but miss part of the point - If you read conservative literature thru the years, a consistant point made is that they believe career civil servants undermine them. In their minds, the fact that the civil servants said it was illegal, is a reason to do the opposite.

Zwichenzug, that's my understanding of the ruling as well. I could be wrong, but it seems that the review panel and the DOJ lawyers were ruling on completely different questions.

Like you said, the judges were concerned with whether the courts had anything to say about partisan gerrymandering, per se. Whereas, the DOJ lawyers objected to the redistricting plan because Texas diluted the voting strength of some minority-dominated districts without proving that these changes were acceptable under the Voting Rights Act.

Any election law buffs want to jump in and clarify?

Maybe the review panel did address the same issue as the DOJ analysts. Or so the Justice Department would have us believe.

From the WaPo article:

But Justice Department spokesman Eric W. Holland said the decision to approve the Texas plan was vindicated by a three-judge panel that rejected the Democratic challenge. The case is on appeal to the U.S. Supreme Court.

"The court ruled that, in fact, the new congressional plan created a sufficient number of safe minority districts given the demographics of the state and the requirements of the law," Holland said. He added that Texas now has three African Americans serving in Congress, up from two before the redistricting.

Right, I saw that in the article too. But it's tough to say if that's just spin or what.

With some effort I found this post from Rick Hasen's election law blog. It's his response to the decision Gonzales is talking about. Hasen has a link to the appellate court's decision there.

Insofar as I understand the legal issues here, the upshot is pretty close to what I wrote before. The Appellate Court's decision wasn't so much an endorsement of the redistricting as it was a statement that there isn't any way for a plaintiff to meet their burden in this sort of case. I gather that the Supreme Court rejected a proposed standard (known as the 'Vieth standard') and that no new standard has emerged.

"Still it's important to watch our rhetoric here because the c ourts finding on this makes all arguements about the legality of the plan mute...."

Yes, do let's watch our rhetoric. It's moot. We're damn sure not mute. And I hope the Supremes won't be mute either, though I don't hold out a lotta hope.

And let's quit dancing around technicalities. The whole point of gerrymandering is to eliminate the value of my vote by putting me in a district with two other people who will vote opposite me.

And if that doesn't work, cheat when you count the votes.

Tex

Coming from a state legendary for it's political scandal, I would have to say there's no way to fix this. You can perhaps minimize gerrymandering somewhat but the political reality is parties in charge are going to stack the deck in their favor. Unfortunately, that's the way it is. It's frustrating, maddening, unethical, etc. but every legislative body in this country does it, period. An example from Kentucky.

An incredibly popular congressman from our 2nd district, a man name William H. Natcher (D-Ky) was in congress for nearly 50 year. He was elected when Harry Truman was president and died in office while Clinton was president. The Democrats redrew the districts to make sure his was protected and they had some pretty screwy boundary lines too. It wasn't to dilute minorities, it was making sure his hometown stayed in the district he had represented for generations. He never missed a roll call vote btw.

The point is though, it's common place and Delay handled the thing poorly regarding the money and stuff but the Republicans were working to gain the advantage. Because if the Delay's tactics, the whole thing needs to be redone but at the same time, I guess the damage has been done already.

John Stith--

Several states have redistricting done by bipartisan panels, which takes a lot of the politics out of the process.

Even though Texas doesn't, Delay wouldn't have been able to personally redraw the map without illegally directing corporate money into state races. Even then, he wouldn't have succeeded without the compliance of a corrupt Justice Department.

As you say, some gerrymandering will always be present, but there are ways to prevent cases that are as baldly corrupt as this one.

The cynical side of me says the folks in Texas should each get $10 and a fifth of bourbon with their vote from the respective candidate. At least then, they get something for their vote.

The problem with this case, the Justice Department's current position on it, and the court's ruling is that it's all self-referential.

The career experts at DoJ recommended rejecting the plan, because it would likely be found illegal by the courts. But the courts aren't the first to review the plans. That's the DoJ's job. The courts prefer to defer to the "judgment" of the DoJ on the score of a plan's acceptability, because the approval process is supposed to be non-political.

So the DoJ higher-ups approve the plan despite the unanimous opposition to it among the career analysts, and then the courts say, "Well, DoJ doesn't see any problem with this plan, and their process is non-political, so it must not be illegal."

Then the DoJ says, "See? Our plan isn't illegal. The courts said so."

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