Abbott’s statement on redistricting
AUSTIN—Texas Attorney General Greg Abbott will file an emergency stay application with the U.S. Supreme Court on Monday to halt the implementation of legally flawed redistricting maps drawn by a federal panel in San Antonio.
At issue is whether the interim maps imposed by a three-judge redistricting panel violate the U.S. Constitution and federal law, and exceed the proper role of the judiciary. The State of Texas alleges the panel improperly rejected the will of the elected legislature and redrew the State’s House and Senate districts without regard to any established legal or constitutional principles.
Attorney General Greg Abbott explained that a stay of the election process is needed because “elections should not proceed based on legally flawed maps that are likely to be overturned on further review.”
Because the legally flawed maps could create confusion for Texans who wish to become candidates when the filing period opens Monday, the State of Texas is pushing quickly to restore clarity to the process. An expeditious decision is necessary so candidates will not needlessly file for office based on boundaries drawn by the interim maps that are likely to be overturned upon further legal review.
Why should the State of Texas appeal this case to the United States Supreme Court? Why should the State ask for a stay of the redistricting plan proposed by two of the three judges at the lower court hearing? Why does the State believe it can and should win at the U.S. Supreme Court?
So far, only one appellate judge has considered the redistricting plan passed by the Legislature – that is Judge Jerry Smith of the 5th Circuit Court of Appeals. He dissented from the interim Texas House of Representatives redistricting plan proposed by the two trial court judges, and provided a detailed analysis as to why the interim House plan was a stark departure from the law. The italics in the following paragraphs are words written by Judge Smith that graphically detail why justice demands the interim House redistricting plan be overturned immediately.
Judge Smith agrees that the interim Texas House of Representatives map proposed by two judges in San Antonio is legally flawed. In particular, he states that the two judge majority opinion “produced a runaway plan that imposes an extreme redistricting scheme for the Texas House of Representatives, untethered to the applicable caselaw.” Judge Smith goes on to say that imposing the majority plan “is grave error at the preliminary, interim stage of the redistricting process.” Judge Smith concludes that the majority’s“plan is far reaching and extreme. It expands the role of a three-judge interim court well beyond what is legal, practical, or fair.”
Judge Smith’s opinion is filled with points that support the conclusion that the majority’s decision is legally unjustifiable and should be overturned on appeal. Following are just a few of those points:
* “[T]he federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law.” The majority opinion violated that tenet.
* “[T]he interim phase is not the time for this court to impose the radical alterations in the Texas political landscape that the majority has now mandated.”
* “[T]he majority ventures into other areas of the State and, as though sitting as a mini-legislature, engrafts its policy preferences statewide despite the fact that no such extreme modifications are required by the case law or by the facts that are before this court at this early stage before preclearance and remedial hearings.”
* In emphasizing how the majority consistently ignores the law, Judge Smith points out that “the majority’s general approach of maximizing the drawing of minority opportunity districts that satisfy the Gingles preconditions was specifically rejected in Johnson v. De Grandy.”
* The majority “engages in unconstitutional racial gerrymandering without section 2 as an even colorable legal justification.”
* “There is no legal requirement to create coalition districts (and certainly not one like this), even for the Legislature, and it is surely not appropriate for a court that is fashioning only interim relief.”
Additionally, General Abbott announced a significant addition to the appellate team that will be representing Texas at the U.S. Supreme Court. Paul Clement – one of the nation’s foremost appellate lawyers and former Solicitor General of the United States – is assisting the State of Texas with the redistricting challenge. Mr. Clement served as the Solicitor General of the United States from June 2005 until June 2008. In that capacity, he was the chief appellate lawyer for the United States and had primary responsibility for appellate arguments to the U.S. Supreme Court. He has argued over 50 cases before the U.S. Supreme Court and has argued more cases since 2000 than any other advocate. A top graduate of Harvard Law School and Supreme Court editor of the Harvard Law Review, Clement currently is a partner at Bancroft PLLC.
Mr. Clement has an established history of working with Texas on appellate matters. He joined Attorney General Abbott in successfully arguing before the U.S. Supreme Court to defend the Ten Commandments monument on the Texas Capitol Grounds. He is currently representing Texas and 25 other states in their legal challenge to ObamaCare that is currently pending in the U.S. Supreme Court.
* * * *
[My comments follow]
If the stay is granted–and the dissenting views of Judge Smith add weight to the state’s case–this case will become a major redistricting precedent. One of the key elements in the case is whether the legislature should have given more weight to Hispanic population gains, which accounted for almost all of the increase in the state’s population during the last decade. For example, my recollection is that the House map provided only one new minority opportunity district, which was not really a new district but Lon Burnam’s old district. Another issue that will surely be litigated if the case is heard by the Supreme Court is whether Section 2 of the Voting Rights Act requires the drawing of minority coalition districts that include more than one minority voting group, when the requisite population is available.
Abbott has accused the Court of favoring Democratic Hispanics over Republican Hispanics, but that charge may not stand up to scrutiny. The 23rd Congressional district, currently represented by Quico Canseco, is a swing district that could go either way. It does not favor Democrats over Republicans. (Indeed, Republicans were sufficiently worried about holding onto the district that they moved low-turnout Hispanic voters into the district and moved high-turnout Hispanic voters out.) Another district, currently represented by Blake Fahrenthold, runs north along the coast and then into the Houston metro area. It is unlikely that a Democrat could win it; indeed, a Houston Republican, former tax assessor Paul Bettencourt, has shown interest in running.
Abbott does not say in his release why he regards the Court’s maps as legally flawed, nor has the Court provide the reasoning underlying its plan.
The most intriguing question, as I see it, has always been whether Hispanic population growth compels the Court to draw a map reflecting that growth. The problem with drawing a map is that the Hispanic population, unlike the black population, is dispersed in metropolitan areas, making it difficult to draw districts that capture sufficient Hispanic voters to constitute a district.
anita says:
Where exactly was Abbott when it mattered, when his client was overreaching?
Who is paying for Paul Clement? Is it the State of Texas — at what cost? Is it an outside group — then we’re lending the prestige of the State of Texas to some third party and outside counsel?
What’s going on here? Maybe Abbott should pay attention to the job he was elected to do, instead of measuring curtains on his next office, or tweeting lies about taxes on Christmas trees.
He’s giving Combs a run on incompetence.
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jpt51 Reply:
November 27th, 2011 at 7:10 am
To answer your question Paul, the Johnson vs DeGrandy decision in 1994 ruled (7–2) that states could gerrymander election districts according to race without violating the Voting Rights A ct , if the purpose was to increase the chances of electing minority candidates to office (as earlier held in Shaw v. Reno , 1993). It rejected other claims to gerrymander districts.
Since this Supreme Court hasn’t done what they said they would at their nomination hearings, promising to rely on settled law, they may well take the case. Welcome back to the Gilded Age. As for Abbott, he’s stuck his political neck out, bowing to politics ahead of representing the entire states population. If the Supremes block the Federal District Court ruling, it will be another blow to the, one citizen one vote rule and a slippery slope to ending Democracy.
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Governor Toolshed says:
Meanwhile, as everyone loses sight of what redistricting is meant to do, the public loses all faith that this is anything more than a power grab. When was Abbott elected to be the attorney for the Republican Party?
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Pat says:
First, this could be the case where SCOTUS finally overturns portions of the VRA. Roberts strongly hinted as much in NW Austin MUD. And Clements’ presence will attract attention. Seth Waxman will likely line up against him. It could be a battle royale.
Second, Clements’ bill will be in the millions. He’s very good, and is likely $1500/hour or more. But Anita, above, has a valid point–this outcome was predictable based on any sound legal analysis. Taxpayers shouldn’t have to foot the bill for defending maps that made so little attempt to comply with black letter law. The state Republican Party should.
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Anonymous Reply:
November 28th, 2011 at 12:38 pm
What is the “black letter of the law?”
Can you define retrogression for me? And use a definition that is not disputed?
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Blue Reply:
November 28th, 2011 at 3:05 pm
I hope so. VRA preclearance is an obscene travesty of justice.
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JohnBernardBooks says:
Taxpayers shouldn’t have to foot the bill for correcting a Justice and his democrat sis-in-law legislating from the bench.
Will the democrat party foot the bill when this over reach is ruled not what the voters wanted?
If democrats file frivilous lawsuits why shouldn’t they bear the expense?
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Col. Mike Kirby Reply:
November 27th, 2011 at 10:54 pm
You’re still humping this even after being shown several times it’s BS. Typical cult boy.
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JohnBernardBooks Reply:
November 28th, 2011 at 5:41 am
Justice Orlando Garcia is married to Sen Leticia Van Putte sister. Apparently the useful idiots have a hard time grasping this.
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Col. Mike Kirby Reply:
November 28th, 2011 at 7:49 am
and you’ve been shown the disclosure document. apparently useless idiots have a hard time grasping this.
Pat Reply:
November 28th, 2011 at 12:45 am
JBB: Many voters, including committed Republicans and Democrats, often believe district lines are often drawn unfairly. Defending such maps is up to each state. And there is nothing wrong with state AGs mounting such defenses. But hiring multimillion-dollar rockstar attorneys to assist state AGs outright (as opposed to amici) in a highly political affairs, particularly in a time of budget deficits, is at least ethically questionable. Such “big gun” spending should at least face some sort of legislative veto authority.
At the end of the day, Abbott is a solid attorney and has a core staff of competent solicitors. He should use the money being spent on Clements to hire more prosecutors and reduce the backlog in criminal cases.
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JohnBernardBooks Reply:
November 28th, 2011 at 5:39 am
Democrats have no qualms about using the bench to legislate, costing the tax payers millions. These tax dollars are often wasted to push a progressive agenda which then costs the tax payers even more money.
Why should progessives get a free ride?
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Huh? Reply:
November 28th, 2011 at 7:51 am
Since you oppose legislating from the bench, I take it you oppose the use of the courts to overturn Obamacare and are quite conflicted about Clarence Thomas’ wife and his conflicts of interest on that matter?
Col. Mike Kirby Reply:
November 28th, 2011 at 8:57 am
Legislating from the bench is only bad when the decision is something wingnuts don’t like. Bush v. Gore is an example of “good” legislating from the bench.
JohnBernardBooks Reply:
November 28th, 2011 at 10:30 am
“Since you oppose legislating from the bench, I take it you oppose the use of the courts to overturn Obamacare”
hahaha….
Redistricting Insider says:
“Abbott does not say in his release why he regards the Court’s maps as legally flawed…”
Answer: In his legal briefs, General Abbott argues that the case Upham v. Seamon (1982) is controlling. That case holds that deference to policy judgments by lawmakers should be given when drawing interim maps. Two federal judges disagreed with General Abbott because in Upham deference was given only after preclearance was denied, not before.
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John Johnson says:
Reduced to its lowest denominator….Abbott did not do his job properly and allowed the intital redistricting process to overreach; he is now showing…what we have known all along…that the AG is a shill for the Republican party; and that he, and his massive staff, are not capable of handling the state’s legal matters without spending even more taxpayer money to bring in outside help. Have I missed anything? I’m not impressed.
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Kenneth D. Franks says:
When the will of the legislature was to ignore the actual growth of minorities which gave us most of the new congressional districts and then gerrymander the districts to just elect more Republicans and defeat certain Democrats the districts should have been challenged.(Example: putting Lloyd Doggett an Austin Congressman in a San Antonio district)San Antonio is large enough to have a Hispanic district without including parts of Austin. The Dallas, North Texas is certainly large enough for a district also. The legislature simply does not care about communities of interest whether it is a Congressional, state Senate or Texas Representative district, as you can tell by the weird shapes of many of the districts they drew just to increase Republican power. The Attorney General’s office s supposed to represent all Texans. It is not supposed to be a political arm of the Republican or Democratic party. How many teachers could we have kept or hired with the amount of fees the state is paying to outside representation on these cases for the Republican party’s interests?
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bigmactex says:
The tenet that Texas must have minority district representation is counter to the goal of integration. Integration is the melding of racial identities into the core society. The institutionalization of Mexican-American and Black-American voting districts perpetuates segregation in our society. The Voting Rights Act was made into law nearly 50 years ago, and any instances of racial discrimination are repugnant exceptions in our culture today. We will always have the burden of a segregated society if we continue to place minorities in neat little boxes.
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Emptyk Reply:
November 27th, 2011 at 11:55 am
We used to have minorities in neat little boxes. We called them ghettos and segregated schools. The VRA is a less than elegant way to try to end what used to be known as de facto segregation. De facto, meaning, we don’t say “no minorities allowed”, we just make sure they aren’t allowed by rigging the system.
In a perfect world, racism wouldn’t be tolerated by convention. In Texas, racism is expressed by drawing electoral districts that exclude minorities from being elected to office.
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Anonymous Reply:
November 28th, 2011 at 12:46 pm
Will liberals have the same lust to protect minorities when whites are the minority in, oh let’s say, about a decade?
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Mondalejones says:
Abbott has no one to blame but his flawed legal strategy. Abbott thought he was being clever by bypassing the Obama justice department and filing in th DC Circuit. By filing in the DC Circuit for pre-clearance rather than with the U.S. Justice Dept. (which has a time limit set by statute to pre-clear or reject maps, final resolution was delayed by the litigation process, leaving the San Antonio three judge panel really no alternative but to draw interim maps until they deal with the merits after the DC Court rules on pre-clearance.
I don’t believe Judge Smith dissented to the Senate or Congressional maps, which may be more reason for the U.S. Supremes to leave it to the discretion of the Three Judge Panel, at least with regard to those maps.
I would understand why Republicans would be mad at Abbott’s handling of redistricting litigation.
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Blue Reply:
November 28th, 2011 at 3:08 pm
Obama’s DOJ would never preclear any map drawn by a Republican legislature in Texas. Not kowtowing to them was the appropriate strategy. If we’re lucky the Supremes will use this case to pull DOJ’s fangs permanently.
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Kenneth D. Franks says:
If you want to look at my blog for research or my comments please Google, Red Dirt & Sand. My Blogger account is currently being blocked by an advertisement for some reason however I will change services if this problem continues. I don’t get thousands of blog visits like some blogs but do get hundreds in a day and the ad will move me to another service if I can’t get this problem resolved.
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Anonymous says:
Abbott has accused the Court of favoring Democratic Hispanics over Republican Hispanics, but that charge may not stand up to scrutiny. The 23rd Congressional district, currently represented by Quico Canseco, is a swing district that could go either way. It does not favor Democrats over Republicans. (Indeed, Republicans were sufficiently worried about holding onto the district that they moved low-turnout Hispanic voters into the district and moved high-turnout Hispanic voters out.)
The 23rd District redraw, as well as the other Bexar County changes if they stand, would be a godsend to Pete Gallego in his bid for Congress. The court’s map shifts much of the northwestern San Antonio suburbs out of the district, which is/would be Canseco’s base, while at the same time allowing Ciro Rodriguez to look at another district (likely the 35th) to try and get back into Congress, which would remove Gallego’s main competition in the March primary (though since the election was Hispanic-vs.-Hispanic in 2010 and will likely be again in ’12, you can see why the Republicans would be a bit irked about the changes, since the district already had minority representation — it just wasn’t a Democratic Party minority).
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Jim Riley says:
79% of the Texas population growth occurred in Republican House districts. If votes in the House were based on population represented, Republicans would have a 104.3 to 45.7 majority.
The average Republican district added 33.4 thousand. The average Democratic district a sluggish 18.8 thousand.
67% of Hispanic growth, 89% of Black growth, 87% of Asian growth, and 100% of Anglo growth occurred in Republican districts.
It was a multiracial coalition using feet, cars, trucks, and Uhauls to move to where they could vote for Republicans.
Slow growing areas in East Texas, West Texas, and South/Border Texas each had to lose a district, and the legislature paired 8 Republicans (they removed two districts in East Texas but created a new one). Dallas had to lose two districts and the legislature paired 4 Republicans.
They created new districts in Montgomery, Fort Bend, Williamson, Collin, and Denton to make up for the other losses. Relative growth in Texas was highly focused in these suburban areas (anything below 20% was losing ground). These districts were going to be Republican seats.
Tarrant had a bit of growth but it put them close to 11 (10.791), while Harris dropped a bit to 24 (24.413). Nothing magical here. Texas gets 36 districts despite having less than 35.5/435 of the population. The total has to add to 435, and there were a quite a few states just below 0.5. Texas got lucky.
The growth in Tarrant has been mostly in the north and the far south. So the new district had to be created in the north, and it was. The central districts had to slide south a bit, and they did.
In Harris County, the 13 Republicans represent 13.5/24 of the population, the 12 Democrats only 10.5. In the game of musical chairs the two Democrats had to share the one district.
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Tellinlikeitis Reply:
November 28th, 2011 at 7:18 am
Hispanics are not going to move into GOP areas and vote for GOPers, who:
** cut public education;
** who oppose pre K education;
** who oppose mandatory kindergarten;
** who support making it a Class A misdemeanor crime for people who can’t provide proof of citizenship;
** who support ending bilingual education;
** who support a requirement that anyone stopped for a traffic violation show citizenship papers.
The list is much longer….but here’s the point: there’s a reason 70 percent of Texan Hispanics don’t support GOPers.
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Texian Politico Reply:
November 28th, 2011 at 1:08 pm
Well said.
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Texian Politico Reply:
November 28th, 2011 at 1:09 pm
I meant “well said” to Riley’s post above, not Telli’s drivel.
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Jim Riley says:
Except it is simply not true that the legislature moved “low-turnout” Hispanics into CD-23 and moved “high-turnout” Hispanics out of the district.
CD-23 is currently overpopulated by about 150,000. If you move 150,000 persons out of a district that is 60% Hispanic, 90,000 of them are likely to be Hispanic.
The number of Hispanic voters will decrease. The number of Anglo voters will also decrease. The share of Hispanic voters did not change between the baseline district and the district drawn by the legislature.
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anita says:
Can someone shed some light on the Clement situation — who is he representing and who is paying him?
Mr. Strickland, are you out there? What’s the story?
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Emptyk says:
Paul Clement on Wikipedia http://en.wikipedia.org/wiki/Paul_Clement
W’s Solicitor General. Defends locked out NBA players, hired by the Republican US House to defend DOMA. His hourly fee should be near the top of the market. Someone should ask what it is.
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Pat Reply:
November 28th, 2011 at 11:52 am
A friend at Covington in DC told me he is in the neighborhood of $1,500/hour with a $1.5 million retainer, which is standard for the elite SCOTUS practices.
I don’t have a problem hiring outside counsel. But this is total overkill, and its overtly political.
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Blue Reply:
November 28th, 2011 at 3:10 pm
What’s the problem with being “overtly political” in the inherent political business of redistricting?
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Pat Reply:
November 28th, 2011 at 5:28 pm
Nothing. The problem is that they’re using boatloads of taxpayer money on outside counsel to defend one political party’s legislative seats. At a time when we desperately need more prosecutors. Its practically a miscarriage of justice. A million bucks would pay for a half dozen new prosecutors in Harris County and then some.
Look, if Clements never sends us a bill? Then I got no problem.
A. Palmer says:
I had high hopes for Greg Abbott. They are dashed. Another partisan, idealogue….party hack.
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Blue Dogs Reply:
November 28th, 2011 at 2:05 pm
Abbott IS running for Governor in 2014, he’s just jockeying for positioning his positions in his next campaign.
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The House does it again! says:
What else would you expect? He wants to run in a R primary in Texas and to be successful there he has to play the part of the right wing ideologue.
The End.
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JUICE says:
“First, this could be the case where SCOTUS finally overturns portions of the VRA.”
I think this is what they’ve been angling for all along.
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Anonymous Reply:
November 28th, 2011 at 12:50 pm
Please for the love of god let that be true. It would be wonderful for Liberals and George W. Bush to stop thinking it’s still 1965 in this country and not 2011.
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Jeff Crosby says:
Y’all can get some straightforward analysis of the appeal at the Texas Redistricting blog, http://txredistricting.org/
The author has an interesting side note. Abbott filed an emergency appeal for a stay to Sparks’s ruling on the sonogram bill. Justice Scalia also got the case — and denied the stay.
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anon Reply:
November 29th, 2011 at 2:45 pm
txredistricting.org is a good source for court filings, but it is not a “straightforward analysis” – it is a blog from a self-proclaimed “Obama activist”
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anita says:
Let’s put this in perspective — the leadership of this state has cut funding to education and refused to allow the use of the RDF, citing dire consequences — but we’re hiring expensive, slick-shoe outside legal counsel with public funds to defend overtly partisan redistricting plans?
Seriously, something is really wrong with this situation.
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Tellnitlikeitis Reply:
November 28th, 2011 at 11:14 am
GOPers also kicked 220,000+ kids out of the CHIP program. That’s not a good way to win over Texas Latinos.
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Texian Politico Reply:
November 28th, 2011 at 1:10 pm
Yeah, because Latinos only care about free handouts from the government. Is that what you are trying to say Telli?
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Tellnitlikeitis Reply:
November 28th, 2011 at 1:59 pm
No Texian…
What I’m trying to get you to understand is that GOPers only care about abortion. They high-five themselves on that issue (and, I’m pro life, BTW)….but when it comes time to educate children or to make sure they have access to health care, GOPers run to the exits.
Texas has about 80,000 abortions per year, which is about 80,000 too many.
We have about 85,000 additional children entering our schools every year. GOPers refused to pay for those additonal 85,000 kids to be educated.
What would happen if we had 80,000 fewer abortions….and 165,000 additional school children to educate each year?
Anonymous says:
And yet the largest Republican majority in history was elected to the lege in 2010.
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retrocon says:
ANYONE who had those redistricting plans dumped in his lap would figure the best strategy to defend the plans would be to bypass DOJ. DOJ’s response and active opposition to Texas redistricting at the US District Court bears out that Abbott made the right initial call if he was looking to defend the plan. Of course, he could have simply sent it on to DOJ knowing it would fail and then be criticized as well for not putting effort into defending the plan.
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Blue Reply:
November 28th, 2011 at 3:11 pm
Exactly.
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JohnBernardBooks says:
Democrats know they can’t win so the whole point of them filing their lawsuit in San Antonio was to throw the elections in Texas into turmoil.
In other words if I can’t win nobody does.
The voters of Texas will remember this just as they remember the democrats fleeing to Oklahoma and abandoning their duties they swore to uphold.
Democrats have sealed their fate to be the minority party in Texas for decades.
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Blue Dogs Reply:
November 28th, 2011 at 2:04 pm
John Benard, I think the GOP knows their days in dominating TX politics will end either in 2018 or 2020, sooner or later, it’s gonna catch up with them.
See what happened to the Dems when they ran the state like the Daley-style machine tactics for decades and decades until 1978 happened.
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Blue Reply:
November 28th, 2011 at 3:12 pm
Blue Dogs, Republicans will control redistricting in 2021 the same as they controlled it this session. Get back to me on the overturning of the political order after the Democrats have managed to have a credible statewide candidate.
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Blue Dogs Reply:
November 28th, 2011 at 4:52 pm
The TX Dems tried putting former Houston Mayor Bill White (D) as a credible candidate for the Governor’s Mansion in 2010, and he lost by 13 points and carried only 28 out of 254 counties.
In 1998, Mauro carried like what 14 or 15 counties while Bush Jr., carried the rest.