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Texas redistricting plaintiffs optimistic

Thursday, March 2, 2006 by

Supreme Court justices indicate no clear preference during oral arguments

WASHINGTON – The appellants in the Texas redistricting case told a group of supporters last night they were heartened by the discussion with the Supreme Court on Wednesday, even though justices offered no conclusive support for their stand.

The Lone Star Project, run by former Congressional staffer Matt Angle, sponsored the reception, which included a discussion with a panel of lawmakers and plaintiff attorneys Paul Smith and Gerry Hebert. Renea Hicks, who represented Travis County, was in the audience, as well as four Congressional members who had lost their seats to the new map: Max Sandlin, Ken Bentsen, Martin Frost and Charlie Stenholm.

Hebert told the audience that it was hard to predict the reaction of the justices from the line of questions put to the attorneys. While a number of justices, especially Stephen Breyer, appeared especially impressed by Texas Solicitor General Ted Cruz’s arguments, they also had plenty of questions about the configuration and compactness of Congressional Districts 23 in South Texas and Congressional District 25, which stretches from East Austin all the way to South Texas. They also questioned the dismantling of Congressional District 24, an African-American opportunity district in North Texas.

After the plaintiffs lost a gerrymandering case in Pennsylvania (Vieth), plaintiff’s attorneys predicted no more than one justice would side with them, Hebert told the small crowd at the law firm of Jenner & Block Wednesday night. Instead, they had four that voted in their favor, with Justice Anthony Kennedy siding with the majority while opening the door to more discussion.

“After 35 years of practicing law, I can say you really can’t predict much with reasonable certainty,” Hebert said. “I would say after today’s arguments that at least five justices on the court would say this map should not be approved for whatever reason, whether it’s mid-decade redistricting or partisanship or using old census data. It just doesn’t pass the smell test, and you got a feeling from enough justices that I feel really optimistic that we could get at least part of this map invalidated.”

If the justices were to throw out all or part of the map, then elections on revised districts could go to the voters before the end of the year, attorney Smith predicted. Such a decision could lead to Congressional elections with revised boundary lines. Of the four former Congress members there, only one – Sandlin – indicated he would definitely be interested in another run for Congress if that happens.

During the two-hour session between the lawyers and the justices Chief Justice John Roberts pointedly returned to the same question several times: How can you call this case of political gerrymandering excessive when every case of redistricting is, by its nature, political? It was the appellants’ argument, led by Smith, that any redistricting done solely for political gain – and no other reason –exceeds legislative authority.

Cruz, who spoke for the state, said the ability to redistrict is vested with the legislature and not the courts, and it was well within the legislature’s right to redraw the lines to reflect the policy decisions of the majority party in power. That includes mid-decade redistricting at the hands of the majority party. Smith argued that the 2002 court-drawn Congressional map was consistent and appropriate within the Voting Rights Act. Cruz countered that court-drawn map of 2002 reflected the policy decisions of the Democratic majority of 1991 rather than the Republican majority of 2003, and the legislature was well within its rights to revisit the map.

In other words, the Republicans righted the wrongs of the last map, argued the state. Justice Kennedy (the acknowledged swing vote on the issue) appeared to agree the Republicans had such a right, but he also was bothered by the configuration of Congressional District 23, 24 and 25. Kennedy posed a number of questions on the subject, such as whether the Hispanics of Central Texas and South Texas – so different from each other — should share the same Congressional district, simply because they shared the same ethnicity.

Justice John Paul Stevens questioned the wisdom of breaking up Congressional District 24 into five other districts. The argument of the plaintiffs was that CD 24 was an African-American opportunity district – the state disagreed – and that it should be preserved to give African-Americans in Fort Worth a voice. Cruz said he would disagree that any prior Supreme Court decision required the protection of minority opportunity districts, especially when the overall map created additional majority-minority districts.

Kennedy asked Cruz whether he would prefer a map that balanced the Republicans and Democrats precisely or one that preserved compact districts with populations that have common interests? Kennedy was clearly referring to districts such as the new Congressional Districts 23 and 24. Kennedy said it made sense that, in the case of some districts, that political gains should be secondary to the creation of appropriate districts. Cruz said such a decision belonged to the legislature.

The court could issue a ruling is expected as early as June. Plaintiffs would prefer to see the 2002 Congressional map restored in whole, but if a portion of the map – a Congressional district – has violated the law, then the Legislature would have a chance to redraw that district, Smith said.

Candidates meet with Eastside groups

Mayoral, Council hopefuls address minority representation, police relations

Eastside neighborhood leaders got the chance to question candidates for Austin City Council this week during a forum at the Iglesia Metodista Unida Emmanuel Church. About 30 people attended the meeting to hear the candidates deal with questions on property taxes, police-community relations, and the role of Hispanics in city government.

All three of the candidates in Place 2 denounced the so-called “gentlemen’s agreement” which has traditionally reserved one seat on the Council for an Hispanic candidate.

“I do believe that the time for geographical representation has come,” said Eliza May. “It is time for the city to take on the whole issue of how you create single-member districts, geographical districts so that we’re electing officials for our city government that represent some geographical areas and can more importantly support the community neighborhood plans.”

Noting that voters had rejected single-member districts on six previous occasions, May said it would take a diligent campaign to change the city’s charter to increase the size of the Council. “I do believe that having single-member districts, geographical representation is very, very critical. I wouldn’t just ask City Council to bring it forward as a charter amendment, but I would even go a step further and would work the plan that came out.” Voters last rejected single-member districts in 2002 (see In Fact Daily, May 6, 2002).

“I don’t think it’s going to be all that easy,” said Hector Uribe. “Power is not given, it’s taken. This is really still a community that is very much part of the south. When we’re talking about ‘gentlemen’s agreements’, we’re talking about agreements that are very patronizing to the minority community. I think we have to be ready to proclaim that we are entitled to more than what we are receiving now.”

Uribe said the time was not right for a challenge to the current system, but said the next Council election would be the appropriate venue to change the status quo. “We may have to file a lawsuit one more time, but I think the demographics are going to be there to establish a better case than we have in the past. I certainly don’t want to be confrontational, but let us be cognizant that power will not be surrendered. It must be claimed by us.”

Mike Martinez said he would not be in favor of legal action, but would support other means to increase Hispanic representation on the City Council. “I don’t believe that one position on the Council is enough. Austin is a majority-minority city,” he said. “But yet we still hold one seat for an African-American and one seat for a Latino. We don’t need another ‘gentlemen’s agreement,’ we need strong leadership to change government.”

Debate moderator Joseph Martinez pointed out that while all three Place 2 candidates opposed the ‘gentlemen’s agreement’, all three Hispanic candidates were running in the Place 2 seat. “It’s an open seat,” explained Hector Uribe. “That’s number one. You don’t want to run against an incumbent, that’s number two. You don’t want to run against an incumbent that’s well-financed, and you’ve got the presumption that at least you know what seat to run for. What we have now is not right, it’s not fair, and we need to change it. It ought not to be an issue that we discuss only on the East Side.”

Mike Martinez agreed with Uribe that the primary attraction for running in Place 2 was that current Council Member Raul Alvarez is not seeking re-election, while May said she chose Place 2 as the seat she had the best chance of winning. “Understanding the political landscape that exists in our community, I don’t think…at least today, for this City Council race, our community in general is ready for us to buck the system.”

Candidates in Place 6 were questioned about their stance on granting more authority to the Office of the Police Monitor. Daniel Llanes of the Govalle neighborhood wanted to know if the candidates would favor giving the office the ability to subpoena witnesses and evidence. “I would be very open to that, as long as it does not violate the investigative process,” said Darrell Pierce. “We need to make sure there is a balance, and balance also means equal access to information. I think that is critical.” Sheryl Cole had more reservations about granting subpoena power than Pierce did. “As for whether they need full subpoena power, I do not have an opinion on that,” she said. “Because I’m an attorney, and I recognize what subpoena power entails. It’s very, very sweeping. So I don’t know that the Police Monitor’s office has been set up to properly protect the investigation if they instantly had the ability to subpoena all the documents. I would be for them having the information once it was determined that the investigation had been concluded.”

DeWayne Lofton drew on his own experience with the Police Monitor’s office to form his conclusion about the need to expand its powers. “Sheryl’s reservations I reject outright,” he said, announcing his support for granting the office subpoena powers. “The Police Monitor and Assistant Police Monitor are both licensed attorneys, so they both understand what subpoena power is. They understand the rules of civil procedure. So there should be no question as to whether that agency knows what to do with the power that it will be given should it have subpoena power.”

Lofton said his own case with the Police Monitor was not properly investigated, and he believed the monitor could have done a better job if granted additional authority. Lofton filed a complaint in 2004 against Officer Scott Glasgow, the same officer involved in the shooting of Jessie Lee Owens. Lofton accused Glasgow of acting improperly when he was pulled over for a traffic stop. The officer issued him a warning for violating the city’s noise ordinance by playing his car stereo too loudly. “The Police Monitor validated the complaint. The police department changed the recommendation,” Lofton said. “But I think that had they had the ability to subpoena some documents, there would have been a different outcome. So I very strongly would support subpoena power for the Police Monitor’s office.”

Any change to the authority of the Office of the Police Monitor or the Citizen Review Panel would have to be negotiated during the next Meet-and-Confer agreement with the Austin Police Association.

Mayor Will Wynn and Mayor Pro Tem Danny Thomas both attended the forum, marking the first time that the two have stood side-by-side to take questions as candidates. Anthony Edwards of the Holly neighborhood asked the two men about their plans for the Holly Street Power Plant once it is de-commissioned. “My desire is…the whole thing should just come down,” said Wynn, noting that the Holly St. facility did not have the same architectural re-use possibilities of the Seaholm Power Plant. “That whole area should be cleaned up environmentally and re-claimed, essentially parkland and open space,” he said. He listed some possibilities for the site including using the land to connect to parts of the city’s hike and bike trail, create additional ball fields, or even a skate park “The power plant itself essentially has no re-use per se,” he concluded.

Thomas indicated he would be interested in seeing some residential uses on the site. “First of all, we will continue to communicate with the citizens that live in the surrounding area,” he said. “I used to patrol there, and I know that the Holly Plant has never been a friendly neighbor. It needs to be torn down, and after we do that we need to make sure it’s environmentally safe. But I also believe that once that it’s cleared, with the neighbors input, we can figure out what to do with the land. Affordable housing…housing that is worth about $75,000 to $80,000…I think it should be that we have to consider the neighbors that have been there for years.”

As expected, none of the groups issued endorsements following the forum.

Mayoral candidates need Austin history lesson Wynn and Thomas had a second chance to appear together as candidates last night. Democracy Texas asked the pair to appear at its monthly gathering at Mother Egan’s.

They both flunked the test on Austin history. Thomas told the crowd he would not be supporting the charter amendment that would allow the city to provide health insurance to the domestic partners of city employees because voters approved a charter amendment prohibiting such benefits in 1995. Although he was right about the amendment, it was actually approved in 1994.

Thomas knew the audience would not be with him on this. He said, “Some people might disagree, but there are morals and family values that I have to stand on.”

Wynn, who supports the health insurance amendment, also cited the date as 1995. He said, “I respect the electoral process but I think a lot of attitudes have changed since then, not only in this city, but also across our society. I will also be voting in support of some program—there’s two or three variations of the domestic partner program.” He was interrupted at that point by applause.

Thomas stressed the inclusive nature of his candidacy and the need for Austinites to carry on an extensive dialogue across the various parts of the city. In order to reach a higher level as a city, he said, “we have to be open to listen to everybody’s opinion, everybody’s concern…When we come together we can mend the hurt that is in east, that is in west, that is in north, that is in south.”

Wynn talked about the hard times Austin has faced and the fact that things have improved greatly over the past three years, with him at the helm. This will no doubt be a familiar refrain with the Mayor as he campaigns for re-election: “Willie moved here in the 70s and never left; Michael Dell moved here in the 80s and never left; Lance Armstrong moved here in the 90s and never left.”

©2006 In Fact News, Inc. All rights reserved.

Two of three complaints rejected . . . The Texas Ethics Commission has sent a notice to Travis County Libertarian Party Chair Wes Benedict that two complaints he filed against people identified with the SOS Alliance and its political action committee did not comply with legal and technical requirements. The commission accepted a complaint against Melanie Oberlin, who was treasurer of the SOS PAC in 2003. Oberlin is no longer with SOS. The commission rejected complaints against Dick Kallerman and Kirk Mitchell. The statutes Benedict cited in filing his complaints relate to collecting money for a political committee and failing to report it and not filing a notice of change of campaign treasurer. Those laws do not apply to anyone but the political committee’s campaign treasurer, according to the commission’s letter. Since neither Kallerman nor Mitchell is or was treasurer of the SOS PAC, they could not be in violation. Kathy Mitchell, who is not related to Kirk, is treasurer of the Clean Water Clean Government PAC, a group formed to raise money for passage of the two amendments supported by SOS. Ms. Mitchell was designated treasurer of the new PAC the day Benedict filed his complaints. Benedict says he is still looking at whether to file any further complaints . . . Roller Girls to rock Council . . . The Lone Star Roller Girls, stars of A&E’s show Rollergirls, are addressing the Council today and they won’t be coming to complain about their neighborhood. When members of the team show up at Citizens Communications, they are expected to tell the Council a sad story about how they lost their facility, the Crockett Center on North Lamar, which was shut down due to permit violations. That caused the skaters to cancel the last two bouts, at a loss to the group of $50,000. Worse than that, without the Crockett Center, they had no place to hold a national game with roller derby leagues from across the country that was scheduled during SXSW. But Mike Blizzard, who is assisting the skaters, said yesterday that the City of Austin has stepped in and offered to provide the Roller Girls the Convention Center for that national bout. They are hoping to have a deal signed by the time they appear before the Council at noon today. But they still need a permanent home . . . Council matters . . . The Council is scheduled to take up various charter amendment proposals at 10:30am today. There are numerous contested zoning items on the 4pm agenda and the Council will hear citizens’ thoughts about dogs on restaurant patios . . . Award for DeBeauvoir . . . Travis County Clerk Dana DeBeauvoir has been invited to accept a "Champions of the Republic" award from Secretary of State Roger Williams at 11am today — Texas Independence Day. The award recognizes Travis County's turnout record in the November 2005 Constitutional Amendment Election. Williams will present the Champions of the Republic Award to DeBeauvoir in a ceremony at the Secretary of State's Capitol office (Room 1E.8). . . Early voting . . . There are only two days left for early voting in the March 7 Texas Primary. Voters in Travis County have cast 8,920 votes through Wednesday, a total of 1.63 percent of the 545,797 registered voters. Early voting ends Friday, with Election Day next Tuesday . . . Services for McDaniel . . . The funeral service for Williamson County Commissioner Tom McDaniel will be at 1:30pm Friday at the First Baptist Church in Georgetown, 1333 W. University Ave. Visitation will be Thursday evening at The Gabriels Funeral Chapel, 393 N. IH 35. In lieu of flowers, the family asks that donations be made to the Williamson County charity of your choice. County offices will close at noon on Friday in honor of Commissioner McDaniel and so employees may attend the funeral service.

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