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Justice Staff Saw Texas Districting As Illegal

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  • Greg Cannon
    http://www.washingtonpost.com/wp-dyn/content/article/2005/12/01/AR2005120101927.html?referrer=email&referrer=email Justice Staff Saw Texas Districting As
    Message 1 of 2 , Dec 2, 2005
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      http://www.washingtonpost.com/wp-dyn/content/article/2005/12/01/AR2005120101927.html?referrer=email&referrer=email

      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.

      The memo, unanimously endorsed by six lawyers and two
      analysts in the department's voting section, said the
      redistricting plan illegally diluted black and
      Hispanic voting power in two congressional districts.
      It also said the plan eliminated several other
      districts in which minorities had a substantial,
      though not necessarily decisive, influence in
      elections.

      "The State of Texas has not met its burden in showing
      that the proposed congressional redistricting plan
      does not have a discriminatory effect," the memo
      concluded.

      The memo also found that Republican lawmakers and
      state officials who helped craft the proposal were
      aware it posed a high risk of being ruled
      discriminatory compared with other options.

      But the Texas legislature proceeded with the new map
      anyway because it would maximize the number of
      Republican federal lawmakers in the state, the memo
      said. The redistricting was approved in 2003, and
      Texas Republicans gained five seats in the U.S. House
      in the 2004 elections, solidifying GOP control of
      Congress.

      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."

      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.

      Texas Republicans also have maintained that the plan
      did not dilute minority votes and that the number of
      congressional districts with a majority of racial
      minorities remained unchanged at 11. The total number
      of congressional districts, however, grew from 30 to
      32.

      The 73-page memo, dated Dec. 12, 2003, has been kept
      under tight wraps for two years. Lawyers who worked on
      the case were subjected to an unusual gag rule. The
      memo was provided to The Post by a person connected to
      the case who is critical of the adopted redistricting
      map. Such recommendation memos, while not binding,
      historically carry great weight within the Justice
      Department.

      Under the Voting Rights Act of 1965, Texas and other
      states with a history of discriminatory elections are
      required to submit changes in their voting systems or
      election maps for approval by the Justice Department's
      Civil Rights Division.

      The Texas case provides another example of conflict
      between political appointees and many of the
      division's career employees. In a separate case, The
      Post reported last month that a team was overruled
      when it recommended rejecting a controversial Georgia
      voter-identification program that was later struck
      down as unconstitutional by a court.

      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.

      The Texas memo also provides new insight into the
      highly politicized environment surrounding that
      state's redistricting fight, which prompted Democratic
      state lawmakers to flee the state in hopes of
      derailing the plan. DeLay and his allies participated
      intensively as they pushed to redraw Texas's
      congressional boundaries and strengthen GOP control of
      the U.S. House.

      DeLay, the former House majority leader, is fighting
      state felony counts of money laundering and conspiracy
      -- crimes he is charged with committing by unlawfully
      injecting corporate money into state elections. His
      campaign efforts were made in preparation for the new
      congressional map that was the focus of the Justice
      Department memo.

      One of two DeLay aides also under indictment in the
      case, James W. Ellis, is cited in the Justice
      Department memo as pushing for the plan despite the
      risk that it would not receive "pre-clearance," or
      approval, from the department. Ellis and other DeLay
      aides successfully forced the adoption of their plan
      over two other versions passed by Texas legislators
      that would not have raised as many concerns about
      voting rights discrimination, the memo said.

      "We need our map, which has been researched and vetted
      for months," Ellis wrote in an October 2003 document,
      according to the Justice Department memo. "The
      pre-clearance and political risks are the delegation's
      and we are willing to assume those risks, but only
      with our map."

      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."

      DeLay spokesman Kevin Madden called Hebert's
      characterization "nonsensical political babble" and
      echoed the Justice Department in pointing to court
      rulings that have found no discriminatory impact on
      minority voters.

      "Fair and reasonable arguments can be made in favor of
      the map's merits that also refute any notion that the
      plan is unfair or doesn't meet legal standards,"
      Madden said. "Ultimately the court will decide whether
      the criticisms have any weight or validity."

      Testimony in the civil lawsuit demonstrated that DeLay
      and Ellis insisted on last-minute changes during the
      Texas legislature's final deliberations. Ellis said
      DeLay traveled to Texas to attend many of the meetings
      that produced the final map, and Ellis himself worked
      through the state's lieutenant governor and a state
      senator to shape the outcome.

      In their analysis, the Justice Department lawyers
      emphasized that the last-minute changes -- made in a
      legislative conference committee, out of public view
      -- fundamentally altered legally acceptable
      redistricting proposals approved separately by the
      Texas House and Senate.

      "It was not necessary" for these plans to be altered,
      except to advance partisan political goals, the
      department lawyers concluded.

      Jerry Strickland, a spokesman for Texas Attorney
      General Greg Abbott, said he did not have any
      immediate comment.

      The Justice Department memo recommending rejection of
      the Texas plan was written by two analysts and five
      lawyers. In addition, the head of the voting section
      at the time, Joseph Rich, wrote a concurring opinion.
      Rich has since left the department and declined to
      comment on the memo yesterday.

      The complexity of the arguments surrounding the Voting
      Rights Act is evident in the Justice Department memo,
      which focused particular attention on seats held in
      2003 by a white Democrat, Martin Frost, and a Hispanic
      Republican, Henry Bonilla.

      Voting data showed that Frost commanded great support
      from minority constituents, while Bonilla had
      relatively little support from Hispanics. The question
      to be considered by Justice Department lawyers was
      whether the new map was "retrogressive," because it
      diluted the power of minority voters to elect their
      candidate of choice. Under the adopted Texas plan,
      Frost's congressional district was dismantled, while
      the proportion of Hispanics in Bonilla's district
      dropped significantly. Those losses to black and
      Hispanic voters were not offset by other gains, the
      memo said.

      "This result quite plainly indicates a reduction in
      minority voting strength," Rich wrote in his
      concurring opinion. "The state's argument that it has
      increased minority voting strength . . . simply does
      not stand up under careful analysis."

      Staff writer R. Jeffrey Smith and researcher Julie
      Tate contributed to this report.
    • THOMAS JOHNSON
      From the morning s New Your Times: What Would J.F.K. Have Done? E-Mail This By THEODORE C. SORENSEN and ARTHUR SCHLESINGER Jr. Published: December 4, 2005 WHAT
      Message 2 of 2 , Dec 4, 2005
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        From the morning's New Your Times:

        What Would J.F.K. Have Done?
        E-Mail This



        By THEODORE C. SORENSEN and ARTHUR SCHLESINGER Jr.
        Published: December 4, 2005
        WHAT did we not hear from President Bush when he spoke
        last week at the United States Naval Academy about his
        strategy for victory in Iraq?

        We did not hear that the war in Iraq, already one of
        the costliest wars in American history, is a running
        sore. We did not hear that it has taken more than
        2,000 precious American lives and countless - because
        we do not count them - Iraqi civilian lives. We did
        not hear that the struggle has dragged on longer than
        our involvement in either World War I or the
        Spanish-American War, or that by next spring it will
        be even longer than the Korean War.

        And we did not hear how or when the president plans to
        bring our forces back home - no facts, no numbers on
        America troop withdrawals, no dates, no reference to
        our dwindling coalition, no reversal of his disdain
        for the United Nations, whose help he still expects.

        Neither our military, our economy nor our nation can
        take that kind of endless and remorseless drain for an
        only vaguely defined military and political mission.
        If we leave early, the president said, catastrophe
        might follow. But what of the catastrophe that we are
        prolonging and worsening by our continued presence,
        including our continued, unforgivable mistreatment of
        detainees?

        Each month that America continues its occupation
        facilitates Al Qaeda's recruitment of young Islamic
        men and women as suicide bombers, the one weapon
        against which our open society has no sure defense.
        The president says we should support our troops by
        staying the course; but who is truly willing to
        support our troops by bringing them safely home?

        The responsibility for devising an exit plan rests
        primarily not with the war's opponents, but with the
        president who hastily launched a pre-emptive invasion
        without enough troops to secure Iraq's borders and
        arsenals, without enough armor to protect our forces,
        without enough allied support and without adequate
        plans for either a secure occupation or a timely exit.

        As we listened to Mr. Bush's speech, our thoughts
        raced back four decades to another president, John F.
        Kennedy. In 1963, the last year of his life, we
        watched from front-row seats as Kennedy tried to
        figure out how best to extricate American military
        advisers and instructors from Vietnam.

        Although neither of us had direct responsibility on
        Vietnam decision-making, we each saw enough of the
        president to sense his growing frustration. In typical
        Kennedy fashion, he would lean back, in his Oval
        Office rocker, tick off all his options and then
        critique them:

        Renege on the previous Eisenhower commitment, which
        Kennedy had initially reinforced, to help the
        beleaguered government of South Vietnam with American
        military instructors and advisers?

        No, he knew that the American people would not permit
        him to do that.

        Americanize the Vietnam civil war, as the military
        recommended and as his successor Lyndon Johnson sought
        ultimately to do, by sending in American combat units?

        No, having learned from his experiences with Cuba and
        elsewhere that conflicts essentially political in
        nature did not lend themselves to a military solution,
        Kennedy knew that the United States could not prevail
        in a struggle against a Vietnamese people determined
        to oust, at last, all foreign troops from their
        country.

        Moreover, he knew firsthand from his World War II
        service in the South Pacific the horrors of war and
        had declared at American University in June 1963:
        "This generation of Americans has had enough - more
        than enough - of war."

        Declare "victory and get out," as George Aiken, the
        Republican senator from Vermont, would famously
        suggest years later?

        No, in 1963 in Vietnam, despite assurances from field
        commanders, there was no more semblance of "victory"
        than there was in 2004 in Iraq when the president gave
        his "mission accomplished" speech on the deck of an
        aircraft carrier.

        Explore, as was always his preference, a negotiated
        solution?

        No, he was unable to identify in the ranks of the
        disorganized Vietcong a leader capable of negotiating
        enforceable and mutually agreeable terms of
        withdrawal.

        Insist that the South Vietnamese government improve
        its chances of survival by genuinely adopting the
        array of political, economic, land and administrative
        reforms necessary to win popular support?

        No, Kennedy increasingly realized that the corrupt
        family and landlords propping up the dictatorship in
        South Vietnam would never accept or enforce such
        reforms.

        Eventually he began to understand that withdrawal was
        the viable option. From the spring of 1963 on, he
        began to articulate the elements of a three-part exit
        strategy, one that his assassination would prevent him
        from pursuing. The three components of Kennedy's exit
        strategy - well-suited for Iraq after the passage of a
        new constitution and the coming election - can be
        summarized as follows:

        Make clear that we're going to get out. At a press
        conference on Nov. 14, 1963, the president did just
        that, stating, "That is our object, to bring Americans
        home."

        Request an invitation to leave. Arrange for the host
        government to request the phased withdrawal of all
        American military personnel - surely not a difficult
        step in Iraq, especially after the clan statement last
        month calling for foreign forces to leave. In a May
        1963 press conference, Kennedy declared that if the
        South Vietnamese government suggested it, "we would
        have some troops on their way home" the next day.

        Bring the troops home gradually. Initiate a phased
        American withdrawal over an unannounced period,
        beginning immediately, while intensifying the training
        of local security personnel, bearing in mind that with
        our increased troop mobility and airlift capacity,
        American forces are available without being stationed
        in hazardous areas. In September 1963, Kennedy said of
        the South Vietnamese: "In the final analysis, it is
        their war. They are the ones who have to win it or
        lose it." A month later, he said, "It would be our
        hope to lessen the number of Americans" in Vietnam by
        the end of the year.

        President Kennedy had no guarantee that any of these
        three components would succeed. In the "fog of war,"
        there are no guarantees; but an exit plan without
        guarantees is better than none at all.

        If we leave Iraq at its own government's request, our
        withdrawal will be neither abandonment nor retreat.
        Law-abiding Iraqis may face more clan violence,
        Balkanization and foreign incursions if we leave; but
        they may face more clan violence, Balkanization and
        foreign incursions if we stay. The president has said
        we will not leave Iraq to the terrorists. Let us leave
        Iraq to the Iraqis, who have survived centuries of
        civil war, tyranny and attempted foreign domination.

        Once American troops are out of Iraq, people around
        the world will rejoice that we have recovered our
        senses. What's more, the killing of Americans and the
        global loss of American credibility will diminish. As
        Senator Chuck Hagel of Nebraska, a Republican and
        Vietnam veteran, said, "The longer we stay, the more
        problems we're going to have." Defeatist? The real
        defeatists are those who say we are stuck there for
        the next decade of death and destruction.

        In a memorandum to President Kennedy, roughly three
        months after his inauguration, one of us wrote with
        respect to Vietnam, "There is no clearer example of a
        country that cannot be saved unless it saves itself."
        Today, Iraq is an even clearer example.



        --- Greg Cannon <gregcannon1@...> wrote:

        >
        http://www.washingtonpost.com/wp-dyn/content/article/2005/12/01/AR2005120101927.html?referrer=email&referrer=email
        >
        > 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.
        >
        > The memo, unanimously endorsed by six lawyers and
        > two
        > analysts in the department's voting section, said
        > the
        > redistricting plan illegally diluted black and
        > Hispanic voting power in two congressional
        > districts.
        > It also said the plan eliminated several other
        > districts in which minorities had a substantial,
        > though not necessarily decisive, influence in
        > elections.
        >
        > "The State of Texas has not met its burden in
        > showing
        > that the proposed congressional redistricting plan
        > does not have a discriminatory effect," the memo
        > concluded.
        >
        > The memo also found that Republican lawmakers and
        > state officials who helped craft the proposal were
        > aware it posed a high risk of being ruled
        > discriminatory compared with other options.
        >
        > But the Texas legislature proceeded with the new map
        > anyway because it would maximize the number of
        > Republican federal lawmakers in the state, the memo
        > said. The redistricting was approved in 2003, and
        > Texas Republicans gained five seats in the U.S.
        > House
        > in the 2004 elections, solidifying GOP control of
        > Congress.
        >
        > 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."
        >
        > 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.
        >
        > Texas Republicans also have maintained that the plan
        > did not dilute minority votes and that the number of
        > congressional districts with a majority of racial
        > minorities remained unchanged at 11. The total
        > number
        > of congressional districts, however, grew from 30 to
        > 32.
        >
        > The 73-page memo, dated Dec. 12, 2003, has been kept
        > under tight wraps for two years. Lawyers who worked
        > on
        > the case were subjected to an unusual gag rule. The
        > memo was provided to The Post by a person connected
        > to
        > the case who is critical of the adopted
        > redistricting
        > map. Such recommendation memos, while not binding,
        > historically carry great weight within the Justice
        > Department.
        >
        > Under the Voting Rights Act of 1965, Texas and other
        > states with a history of discriminatory elections
        > are
        > required to submit changes in their voting systems
        > or
        > election maps for approval by the Justice
        > Department's
        > Civil Rights Division.
        >
        > The Texas case provides another example of conflict
        > between political appointees and many of the
        > division's career employees. In a separate case, The
        > Post reported last month that a team was overruled
        > when it recommended rejecting a controversial
        > Georgia
        > voter-identification program that was later struck
        > down as unconstitutional by a court.
        >
        > 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.
        >
        > The Texas memo also provides new insight into the
        > highly politicized environment surrounding that
        > state's redistricting fight, which prompted
        > Democratic
        > state lawmakers to flee the state in hopes of
        > derailing the plan. DeLay and his allies
        > participated
        > intensively as they pushed to redraw Texas's
        > congressional boundaries and strengthen GOP control
        > of
        > the U.S. House.
        >
        > DeLay, the former House majority leader, is fighting
        > state felony counts of money laundering and
        > conspiracy
        > -- crimes he is charged with committing by
        > unlawfully
        > injecting corporate money into state elections. His
        > campaign efforts were made in preparation for the
        > new
        > congressional map that was the focus of the Justice
        > Department memo.
        >
        > One of two DeLay aides also under indictment in the
        > case, James W. Ellis, is cited in the Justice
        > Department memo as pushing for the plan despite the
        > risk that it would not receive "pre-clearance," or
        > approval, from the department. Ellis and other DeLay
        > aides successfully forced the adoption of their plan
        > over two other versions passed by Texas legislators
        > that would not have raised as many concerns about
        > voting rights discrimination, the memo said.
        >
        > "We need our map, which has been researched and
        > vetted
        > for months," Ellis wrote in an October 2003
        > document,
        > according to the Justice Department memo. "The
        > pre-clearance and political risks are the
        > delegation's
        > and we are willing to assume those risks, but only
        > with our map."
        >
        > 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."
        >
        > DeLay spokesman Kevin Madden called Hebert's
        > characterization "nonsensical political babble" and
        > echoed the Justice Department in pointing to court
        > rulings that have found no discriminatory impact on
        > minority voters.
        >
        > "Fair and reasonable arguments can be made in favor
        > of
        > the map's merits that also refute any notion that
        > the
        > plan is unfair or doesn't meet legal standards,"
        >
        === message truncated ===
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