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The Republican leadership of the Texas legislature sends agents from the Department of Homeland Security (DHS), the Texas Rangers, state troopers, and members of the Special Crimes unit to locate and apprehend over 50 Democratic state legislators who have left the state to prevent a quorum from being reached. The state Democrats left Austin, and the state, in order to prevent the Republican leadership from passing a controversial electoral redistricting plan that they say discriminates against minority voters (see 2002-2004). One Democratic lawmaker, Representative Helen Giddings, is apprehended. Many of the Democrats are staying for the time being in Ardmore, Oklahoma. One Democrat, Representative Craig Eiland, says that police officers questioned his wife in Galveston, where their newborn twins are in intensive care. He calls the law enforcement efforts to “find” him and his colleagues “bordering on harassment,” and advises, “Let the good guys go back to catching the bad guys and let the politicians deal with each other.” Under Texas law, even though the Democrats are committing no crime in refusing to participate in the legislative session, state law enforcement officers have the authority to arrest members of the legislature and forcibly return them to Austin to allow the legislature to achieve a quorum. (Root 5/14/2003)
Use of Federal Resources; DHS 'Furious' at Involvement - US Representative Tom DeLay (R-TX) says that the Speaker of the Texas House, Tom Craddick (R-Midland), has asked for the intervention of the FBI and/or US Marshals to “go up and get those members.” Craddick denies making any such request. The US attorney’s office in San Antonio says that an “unidentified person” called it with an inquiry about federalizing the “arrest warrant.” A Justice Department spokesperson says the issue is entirely a state matter, and “would not warrant investigation by federal authorities.” The Air and Marine Interdiction and Coordination Center, a federal agency under the purview of the DHS, is involved for a time in a search for a private plane belonging to former House Speaker Pete Laney (D-Hale Center). The agency’s purpose is to engage in counterterrorism activities. Craddick says that the agency was successful in locating the airplane in Ardmore, alerting him that many of the Democrats are in that town. Craddick says: “We called someone, and they said they were going to track it. I have no idea how they tracked it down. That’s how we found them.” Bush administration officials promised that DHS agencies and officials would not operate within American borders when the agency was created. (Root 5/14/2003; Smith 5/14/2003) According to DHS officials, someone in the Texas Department of Public Safety (DPS) calls the Air and Marine Interdiction Coordination Center on May 12 and says: “We got a problem and I hope you can help me out. We had a plane that was supposed to be going from Ardmore, Oklahoma, to Georgetown, Texas. It has state representatives in it and we cannot find this plane.” The center agrees to help, DHS says, because “from all indications, this request from the Texas DPS was an urgent plea for assistance from a law enforcement agency trying to locate a missing, lost, or possibly crashed aircraft.” DHS officials contradict Craddick by denying that the center found Laney’s plane in Ardmore. Senator Joseph Lieberman (D-CT) says: “I am outraged that Homeland Security resources are being used to help settle partisan scores. It’s inconceivable that anyone would waste scarce department resources for such an indefensible purpose.” Lieberman is demanding an investigation into the matter. Representative Jim Turner (D-TX), the ranking Democrat on the House Select Committee on Homeland Security, says he is reminded “of the days of Watergate, when federal resources were used for purely partisan political purposes.” According to the New York Times, DeLay is working closely with Craddick on the matter, though a DeLay spokesman denies that anyone from DeLay’s office has had any contact with DHS, and adds, “This is a smoke screen from the Democrats, who will say or do anything to change the subject from shirking their constitutional responsibilities.” DPS spokesperson Tom Vinger refuses to say specifically what his department has done to find the legislators, saying only: “We were ordered to begin an investigation into the missing legislators by the Texas House and to take them into custody if we found them and bring them back to the House chambers. Those were our orders. And we used very basic, routine investigative procedures in an attempt to do this.” DHS officials tell a Times reporter on the condition of anonymity that they are furious about being involved in the search. (Ferdinand 5/2003; Shenon 5/15/2003) Craddick soon orders all records of the Republicans’ search for the Democrats to be destroyed, sparking outrage among the Democrats, who demand accountability and say Craddick is trying to hide something. (McNamara 5/21/2003)
Questioning Family Members - Law enforcement officers have questioned the children of Representative Joe Pickett, angering Pickett’s wife Denise. And Carol Roark, the wife of Representative Lon Burnam, says police officers appeared at her home in Fort Worth and announced they were there to “arrest” her husband; one officer told her, “I’m here on the order of Tom Craddick to arrest Rep. Lon Burnam.” Roark says she laughed at the officer, and says, “I think it was a pretty silly use of tax dollars.” Dallas Mayor Laura Miller, whose husband, Representative Steve Wolens, is in Ardmore, says that police officers have camped out overnight in front of her home. Miller says, “I felt very safe last night because there were two DPS officers who slept in front of my home.” (Root 5/14/2003)
Mixed Reactions - Reaction to the Democrats’ exodus is mixed. Supporters have dubbed them the “Heroes of the House” and the “Killer D’s,” the latter a reference to a similar action taken by Texas Senate Democrats in the late 1970s. Republicans in Texas and Washington have labeled the Democratic lawmakers “cowards” and “terrorists.” Many Texas news outlets have shown sympathy to the Democrats and have criticized what some call the excessive reaction by the Republican leadership. (Smith 5/14/2003) DeLay says the Democrats who have left Texas “may not be patriots,” and adds, “Representatives are elected and paid for by the people with the expectation that they show up for work and do the people’s business and have the courage to cast tough votes.” In response, Representative Martin Frost (D-Arlington) says in regards to the redistricting plan: “Tom DeLay would be perfectly happy in the old Soviet Union. He wants one-party government. He doesn’t believe in a two-party system.” DeLay’s House colleague, Lloyd Doggett (D-TX), says, “It is easier, I think, for Tom to manipulate these lines… than it is to win elections.” (Jackson 5/14/2003; Hulse 5/15/2003)
Order Expires - The order from the Republican leadership is essentially vacated on May 15, when the Texas House, formerly “standing at ease,” officially adjourns. At that point, the “call on the House,” under which law enforcement officials are authorized to apprehend and forcibly return recalcitrant lawmakers, is abated. They return to Austin on May 16. Representative Jim Dunnam (D-Waco), who helped organize the retreat, says, “Government is by the people and for the people, and we had to go to Oklahoma to say government is not for Tom DeLay.” The delay causes the redistricting bill to lapse, but it will be brought up again in the next session, according to Texas Republicans. Representative Beverly Woolley (R-Houston) says: “Texas is a Republican state by all voting population, and they [Republicans] deserve to have greater representation in Congress. Sooner or later, we will redistrict. This is not over.” (Hulse 5/15/2003; Robison, Henderson, and Elliott 5/16/2003)
Six lawyers and two analysts at the US Department of Justice (DOJ) conclude, in a classified memo, that the controversial Texas Congressional redistricting plan headed by Representative Tom DeLay (R-TX—see 2002-2004) is illegal. The memo states that the plan violates the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989) by illegally diluting African-American and Hispanic voting power in two Congressional districts. The plan also eliminated several other districts that contained substantial minority voting blocs. Texas Republicans knew the plan would likely be found to be discriminatory, the lawyers write in the memo. The memo says that the Texas legislature went ahead with the plan anyway because it would maximize the number of Republicans the state would send to Congress. The memo concludes, “The State of Texas has not met its burden in showing that the proposed Congressional redistricting plan does not have a discriminatory effect.” A concurring opinion written by one of the DOJ lawyers finds: “This result quite plainly indicates a reduction in minority voting strength. The state’s argument that it has increased minority voting strength… simply does not stand up under careful analysis.”
DeLay, Aide Ignored Concerns about Voting Rights Discrimination - One of the senior aides to DeLay, James W. Ellis, is cited in the memo as pushing for the plan despite fears that the DOJ would reject it. According to the memo, Ellis and other DeLay aides forced the adoption of the plan over two other versions adopted by the Texas Legislature that would not have raised as many concerns about voting rights discrimination. The memo quotes Ellis in an October 2003 memo writing: “We need our map, which has been researched and vetted for months. The pre-clearance and political risks are the delegation’s and we are willing to assume those risks, but only with our map.” Later testimony will show that DeLay and Ellis forced last-minute changes in the map; DeLay attended many of the meetings that produced the map, and Ellis worked through the state’s lieutenant governor and a state senator to shepherd the changes that he and DeLay desired. The final changes were not necessary, the memo finds, except to advance partisan political goals.
Findings Overruled - Regardless of the findings, the lawyers and analysts’ judgment is overruled by senior officials at the DOJ, all appointed by the Bush administration. The DOJ’s civil rights division will affirm the plan as legal and valid. The memo is kept secret for almost two years, and the lawyers and analysts involved in the case, including the authors of the memo, are bound to silence under an unusual gag rule. The DOJ is under no legal burden to accept the findings of the memo, but historically, such findings are given great weight in DOJ rulings. Former Justice Department lawyer Mark Posner later says that it is “highly unusual” for the DOJ to overrule a unanimous finding such as this one: “In this kind of situation, where everybody agrees at least on the staff level… that is a very, very strong case. 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. (US Department of Justice 12/12/2003 ; Eggen 12/2/2005) In December 2005, the Washington Post will reveal the existence of the memo (see December 2, 2005). Days after the Post article, Posner will write an article for the prestigious legal Web site FindLaw that will opine that the DOJ memo was ignored for partisan political reasons, and not because of honest differences of opinion between legal experts (see December 5, 2005).
Mark Posner, a law professor at American University who served in the civil rights division of the US Department of Justice (DOJ) for 23 years and supervised the DOJ’s “Section 5” reviews under the Voting Rights Act (VRA—see August 6, 1965, 1970, 1975, April 22, 1980, and June 29, 1989) for 10 years, writes an article for the prestigious legal information Web site FindLaw that says the DOJ found the controversial Texas redistricting plan (see 2002-2004) legal for purely partisan political reasons. Posner’s article is spurred by the recent revelation of a 2003 DOJ memo (see December 12, 2003 and December 2, 2005) that found the redistricting plan to be illegal, and the Washington Post’s finding that the memo was rejected by political appointees at the DOJ, who saw to it that the plan was approved by the civil rights division. Posner is more specific than the Post article, writing: “A Republican appointee overrode the staff recommendation and granted approval, allowing the plan to go into effect for the 2004 Congressional elections. In so doing, the official sided with his political party and with one of the most powerful Republicans in Washington.” Posner notes that the Bush administration has defended the decision, claiming that it was merely the result of what he calls “an honest disagreement between the career and political staff about how to apply the law to a complex set of facts.” In spite of the defense, including a statement by the attorney general, Posner writes that “this is not a case of an honest disagreement between lawyers. Rather, there is strong objective evidence that politics prevailed over the requirements of the Voting Rights Act.” The civil rights division of the DOJ is required under the VRA to “pre-clear,” or approve, any redistricting plan that might result in the unwarranted dilution of minority voting strength in particular districts. Texas, as a state with a history of discriminating against its minority citizens, is one of a number of states required to obtain DOJ approval for new redistricting plans. The DOJ has examined some 435,000 election changes since 1965, Posner writes, and thusly must “follow procedures which… ensure that preclearance decisions are based on the law and the facts, and not on extraneous factors. Among other things, these procedures must guard against the temptation that some political appointees can have to decide matters based on what would benefit their political party.” The DOJ career staff play a key role in such procedures, though the assistant attorney general (AAG) for civil rights makes the final decision. Until the Texas redistricting plan, Posner writes, AAGs have generally relied on the opinions and findings of their staff to help them craft a final decision. “When the career staff unanimously recommends that preclearance be denied, the AAG almost never overrides that recommendation and approves the change. On the flip side, the staff’s unanimous preclearance recommendation always results in the change being approved.” But the Texas redistricting approval upended the usual procedure. Despite the unanimous recommendation from the staff that the DOJ block Texas from implementing the plan due to its discriminatory effect, the AAG granted approval to the plan. “The influence of politics is evident,” Posner concludes. The DOJ “significantly and substantially deviated from the decisional practice which, for nearly four decades, has served the department well in enforcing Section 5 in a fair and nonpartisan manner.… [T]he evidence points to a single conclusion: the Justice Department did not serve the interests of minority citizens in this case, but, instead, served the political interests of the Republican Party.” (Posner 12/6/2005)