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; 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."