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Reactions to Supreme Court redistricting ruling

Tuesday, October 19, 2004 by

Democrats cheer, Republicans discount meaning of remand

Attorney General Greg Abbott was the designated point man yesterday for Republicans attempting to explain the meaning of the U.S. Supreme Court's decision to remand the Texas redistricting case back to a three judge panel for further consideration. Abbott took the position that the decision was "a routine procedural step," arguing that the Pennsylvania case—which the Supreme Court instructed the Texas panel to study—“only strengthens defendant’s (the state of Texas) position." The state's chief lawyer opined that the panel would not need additional testimony and would merely call for briefs from both sides before making a speedy decision that would basically be no different than their earlier opinion.

In the Pennsylvania case, Vieth v. Jubelirer, a 5-4 majority rejected Democrats' claims that partisan gerrymandering had been unconstitutionally applied in that state's redistricting decisions. But Justice Anthony Kennedy, the swing vote in that case, may be signaling that the Texas case is significantly different from Vieth. At least that’s what hopeful attorneys for the Democrats want to believe.

Attorney Rene Hicks, who represented both Travis County and the City of Austin in their suit to undo redistricting, disagreed sharply with Abbott’s analysis, as did all those Democrats contacted.

Asked to comment on what looked like a murky two-sentence decision to a non-expert, Hicks said, “What’s not murky is they vacated the ( three judge panel's) decision. There are a bunch of legal decisions still to be made and it’s not over.” He added that the Pennsylvania case, which the three-judge panel is to study, is “a murky decision, because you had nine justices and all nine said partisan gerrymandering is bad in the constitutional sense.” However, he said four justices ruled that the courts should not decide political gerrymandering claims because there are no standards for making such decisions. Four justices disagreed, saying that such standards could be developed. Justice Anthony Kennedy was the swing vote on the court.

Nate Persily, an associate professor in the University of Pennsylvania School of Law, said the Supreme Court's decision to send the case back to the three-judge panel means the court is ready to tackle partisan gerrymandering.

"The effect of what they've done today is to say, 'We don't know how to resolve these issues. District Court, give us some ideas how to resolve this case,' " Persily said. "That's consistent with Vieth v. Jubelirer in the sense that the Court really has no answer. Vieth was an incomprehensible jumble of opinions from five different justices, with Justice Kennedy telling the lower court to think about the case in First Amendment terms." Election law expert Richard Hasen of the Loyola Law School wrote on his web site yesterday:

“I had predicted that the Court would summarily affirm the Texas case (unless the Court saw a Voting Rights Act problem), with dissents from the dissenters in Vieth. I based this prediction on the fact that four of the Justices in the plurality indicated in Vieth that partisan gerrymandering claims should be considered non-justiciable, and they pointed to the Texas re-redistricting in their opinion. Justice Kennedy was fully aware of the Texas re-redistricting case when he concurred, agreeing with the four dissenters that these cases were justiciable, but agreeing with the plurality that no one has yet found a way to separate out permissible from impermissible consideration of party identification of voters in redistricting.

“This decision today is a punt by the Supreme Court, perhaps a prudential move in light of the upcoming presidential election. Most likely it reflects Justice Kennedy's continued internal conflict on the question of how to resolve these cases. What is the lower court to do? The lower court Justices 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 will be up to plaintiffs to come up with a new standard on remand to meet Justice Kennedy's standards,” Hasen wrote.

Travis County Commissioner Ron Davis, said, “The Supreme Court’s decision to remand the lawsuit . . . is the first beam of sunlight to have broken through the clouds that began gathering over our community eighteen months ago.”

Davis and former Mayor Gus Garcia are individual plaintiffs in the redistricting lawsuit and Davis sponsored the Commissioners Court item under which Travis County joined the lawsuit as a plaintiff. Both have been vocal opponents of the redrawing of congressional boundaries.

"The Supreme Court’s instructions to retry the case in light of the decision on Congressional redistricting in Pennsylvania imply that the justices are concerned that political gerrymandering has gone too far in trampling community interests,” Davis said.

Garcia said, “This makes me hopeful that we can come up with a plan that is fair to the people of Texas.” He said that of those Democrats targeted by U.S. House Majority Leader Tom DeLay for replacement by Republicans, only one— Rep. Charles Stenholm of West Texas—would likely lose his race.

Council Member Brewster McCracken, who supported the city's decision to enter the lawsuit, said "For me as a lawyer, if I’m on the winning side of a case and the Supreme Court remands it, I do not see that as a positive development, " and vice versa. " The courts give signals and it would be surprising if they remanded this simply so the same decision could be returned. "

State Senator Gonzalo Barrientos also expressed his delight with the decision. “It’s basically what we said all along, that the redistricting was a sham. It’s the point we spent a month and half in Albuquerque to prove. The redistricting was done in the middle of the decade to favor the power bosses who couldn’t gain the seats in an honest election. Now it goes back to the lower court, which will rule and that ruling will probably be appealed back to the Supreme Court.”

Although yesterday’s ruling will have no effect on any of the districts in this year's elections, Barrientos said it might have an impact on voters’ perceptions. . He said, "It could have an effect on some people. We hope that some people who were thinking about voting for a Republican will see that they are using illegal money to try and buy seats and change their vote. This redistricting was done in a very un-Texan fashion, mostly for the benefit of Mr. DeLay. The ruling comes at a critical time just before the election. "

Democratic consultant Mark Nathan said, “In Texas, Republican state officials openly admitted that partisan considerations were their primary motivation in an unprecedented, mid-decade redistricting scheme. In fact, they even claimed their partisan motivations were a valid reason for eliminating existing minority opportunity districts and reducing the influence of minority voters statewide. I’m very hopeful that the courts will ultimately tell the state's Republican leadership and Tom DeLay that they can't have it both ways — that you can't use partisan gerrymandering as an excuse for voting rights violations. By vacating the lower Court's decision, I think the Supreme Court has sent a signal that the Texas case may ultimately become a landmark case that could result in further changes to Texas congressional districts before the 2006 elections.”

Nathan is working with Democratic strategists Kelly Ferro and Christian Archer to bring Texas back into the Democratic column. The effort is called the take back Texas Campaign, Nathan and Archer previously managed the campaigns of Austin Mayor Will Wynn and Houston Mayor Bill White and are currently serving as consultants on a number of House campaigns.

Some on South Congress still fear rail plans

Former City Council Member Max Nofziger put forward his own plan to improve Capital Metro on Monday as he announced that the Save South Congress Association, formed after the defeat of light rail in 2000, is also opposing Capital Metro's commuter rail proposal on the November 2 ballot. Nofziger says the current proposal is merely a stepping stone to the eventual installation of rail tracks along South Congress, which he says would mean the ruin of existing businesses.

"Capital Metro's plan in 2000 called for light rail down the middle of the avenue…and now their plan for South Congress calls for Bus Rapid Transit down the middle of the avenue," said Nofziger at a Monday morning news conference outside Güero’s.

Capital Metro's "All Systems Go" plan does include increased bus service in several "circulator zones" to connect riders of the proposed rail service to other parts of town not served by existing track. "In some places Bus Rapid Transit means dedicated lanes for buses only, and in that event it would be two lanes down the middle of the avenue," said Nofziger. "That would impact parking…that would impact property values…and we think that may well be the precursor to light rail. They take up the two lanes now with the bus system, come back in a few years, and put the rail line down the middle of the avenue."

Two local business owners joined Nofziger. James Maund, owner of Rue’s Antiques and a member of the South Congress Avenue Merchants Association, said business owners along the street still do not trust the transit agency. "Our concerns are a dedicated bus lane on Congress that would affect our parking. Also, the ballot language is the same this year as it was in 2000," said Maund. "It appears Capital Metro could build any type of system they wanted to if this passed. Although they're saying they're not going to do light rail, it appears they could."

State law sets the ballot language for the referendum. It allows Capital Metro to propose "operation of a fixed-rail system". The agency is also required to publish separately a notice about the particulars of the proposed system. In response to requests from certain community and business groups earlier this year to extend track through downtown or to the development at Mueller Airport, Capital Metro officials have said that the installation of any new track would require extensive federal studies and another public vote.

However, those reassurances have not been enough to persuade Nofziger, who helped lead the campaign against light rail four years ago. He offered an alternative to rail, which he calls "Affordable Clean Air Transit". It involves replacing the current bus fleet with battery-powered buses and offering rebates for electric or hybrid cars. "It basically calls for electrifying the fleet," said Nofziger, who described a vast array of positive results from switching to buses that run on rechargeable batteries. "This plan is so effective and conservative financially that if we were to employ this plan, enough money would be left over in Capital Metro's budget that we would not need toll roads in this community, nor would we need vehicle emissions testing," he concluded. Other benefits, Nofziger said, would include improved revenues for Austin Energy that would go along with an increased number of rechargeable electric vehicles and the decreased dependence on foreign oil.

Supporters of Capital Metro's rail proposal admitted some of Nofziger's ideas had merit, but said they were unrelated to the plan to run passenger service between Leander and the Austin Convention Center. "It seems like they're fighting the 2000 light rail all over again," said David Foster, a member of the New Ways to Connect Steering Committee in support of commuter rail. "There's nothing in this commuter rail package that involves putting rail on South Congress. If there is a decision to try to put rail on South Congress, it has to go back to the voters in a separate election."

Although only a few business representatives joined Nofziger for Monday's announcement, he predicted opposition to the commuter rail proposal would run strong along South Congress. "These neighborhoods on either side of the avenue, also merchants along the avenue, are very skeptical of Capital Metro's plans," he concluded. "We think they have the same plans but they've simply changed the strategy on how to go about accomplishing these plans."

Voters eager . . . Travis County Clerk Dana DeBeauvoir is on record predicting the largest voter turnout ever for the November 2 General Election, and the first day of early voting yesterday did nothing to endanger her prediction. Figures released by county election division officials show 15,983 people—2.89 percent of registered voters—cast ballots on opening day. The top location was Northcross Mall, with 1,567 votes, followed by Randall’s Grocery on Research Blvd., 1,014 votes; Home Depot on Brodie Lane, 947; Randall’s on Bee Cave Road, 863; Randall’s on Parmer Lane, 755, and the HEB on South Congress, 730. No votes from any of the four mobile voting locations or from any of the 8948 mail-in ballots distributed were included yesterday’s totals, so the first day’s numbers could be even larger . . . Environmentalists to announce support for rail plan . . . Groups such as the Save Our Springs Alliance, Liveable City, Save Barton Creek Association, Sierra Club, and the Texas Bicycle Coalition will gather at Barton Springs at noon today to endorse the commuter rail proposal on the November 2 ballot. Representatives of these groups are expected to say that providing transportation options like commuter rail will improve air and water quality, lead to more bicycle and pedestrian-friendly transit-oriented development, and re-direct growth away from the sensitive Edwards Aquifer . . . Proof positive . . . Council Member Brewster McCracken, who is in Seattle with a Chamber of Commerce group, told In Fact Daily yesterday, “I rode a streetcar rail system with (anti-rail activist) Jim Skaggs this afternoon and I took a picture of him to prove it”. . . McCracken and the rest of the Austin group will return home tonight . . . Smoke-free vs. anti-smoking . . . American Cancer Society spokesman Rodney Ahart said yesterday he believes the group’s petitions—to put the question of whether to ban smoking in most pubic places—should be termed “smoke-free” rather than anti-smoking. Ahart says volunteers from several health organizations, including those who fight cancer, lung and heart disease are carrying the petitions . . . Toll opponents make endorsements . . . About 75 toll road opponents gathered last night for a strategy session and fund-raiser at the First Unitarian Church. Organizers of the campaign to recall Mayor Will Wynn and Council Members Brewster McCracken and Danny Thomas are seeking volunteers to gather signatures outside early voting locations and polling places on Election Day. The Austin Toll Party says it has 10,000 of the 40,000 signatures needed to trigger a recall election. The group also announced its endorsements for State Representative and Hays County Commissioner, based on candidates' stands on the toll road issue. Incumbent State Representatives Patrick Rose, a Hays County Democrat, and Todd Baxter, a Travis County Republican, both won the group's approval. In the District 20 State Representative race, the group favors Democratic challenger Jim Stauber over incumbent Republican Dan Gattis. Democratic write-in candidate Karen Felthauser won the endorsement in District 52 over Republican Mike Krusee. Democrat David Baker is the choice of the "Austin Toll Party" in the race for Hays County Commissioner, Precinct 3.

Copyright 2004 In Fact Daily

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