AG says Texas remap approval not political
Democrats hoping leaked Justice memo will help their case before Supreme Court
Dallas Morning News
12:00 AM CST on Saturday, December 3, 2005
WASHINGTON – Attorney General Al Gonzales said Friday that the Justice Department was not motivated by politics when it approved a controversial Texas congressional redistricting plan in 2003, overriding objections within the Civil Rights Division that minority voters would be harmed.
Texas Democrats ousted from Congress last year under the plan orchestrated by U.S. Rep. Tom DeLay have long suspected that Bush administration political appointees within the Justice Department brushed aside concerns by career attorneys.
On Friday, the Democrats brandished a leaked 73-page Justice memo that they said proved their case, reflecting unanimous opposition to the redistricting plan by the eight Justice career staffers who extensively analyzed a Texas map designed to increase Republican clout in Congress.
"It's just too bad that unfortunately you can't get justice out of the Justice Department these days," said former U.S. Rep. Martin Frost of Dallas, one of the five Democrats who lost re-election bids under redrawn district lines.
The memo provided fresh ammunition to Democrats who long complained that the mid-decade redistricting was an egregious exercise in gerrymandering. But even they acknowledged that the document may not help them as they try to persuade the Supreme Court to take up the matter.
Mr. Gonzales, who was not attorney general when the Justice Department approved the plan, defended the decision as an appropriate one by "people that have been confirmed by the Senate to exercise their own independent judgment."
"The fact that there may be disagreement somewhere within the ranks doesn't mean that the ultimate decision is the wrong decision," he said, noting that the Texas plan was upheld by a three-judge panel and resulted in the addition of a black to the 32-member House delegation.
Mr. Gonzales' insistence that politics played no role wasn't shared by some Civil Rights Division veterans. They say the Texas case, joined by the department's recent approval of a Georgia voter ID law later rejected by the court, suggests a troubling trend of politics trumping Voting Rights Act considerations.
"The decisions are politically driven," said American University law professor Richard Ugelow, a 29-year Civil Rights Division veteran who joined the exodus of career staff from Justice in recent years.
William Yeomans, a senior voting-rights expert who left the Justice Department this year, said: "It's clear who benefits from those decisions."
He and other division veterans say it is highly unusual for political appointees to override a unanimous recommendation by career lawyers.
"It's probably not an overstatement to say it's unprecedented for that kind of overruling of the career staff to occur," said David Becker, who left the division last April after seven years.
Democrats in Austin and Washington sought to use the memo to their advantage.
The leaked memo represents a "smoking gun pointing to efforts, led by Bush political appointees and Tom DeLay, to systematically cripple the voting rights of minorities," said state Sen. Leticia Van de Putte of San Antonio, a Democratic leader in the Senate.
Election law experts said the document is unlikely to provide the Democrats any tangible help, in part because the Voting Rights Act doesn't permit a challenge to the Justice Department's decision-making once a map is approved.
Still, some Democrats were hopeful that a front-page Washington Post story – which also ran on the front of The Dallas Morning News – on the memo might provide some boost with the Supreme Court. This week was the fifth time since mid-October that the justices put seven related Texas redistricting cases on their weekly calendar to discuss whether the court should take up the matter.
"Supreme Court justices read," said Chris Bell of Houston, one of the congressmen who lost his job last year, "and they already have been hearing about the DeLay indictment and the corruption involving the campaign financing that was first stage of the redistricting process. And now, to read that the fix was in at the Department of Justice, I don't think sits well with anybody."
The lead Democratic lawyer in the case, Gerald Hebert, said he hopes the memo ends up as part of the record the high court will review.
"The process was corrupt, and we never really had a chance to convince the Justice Department to block this map," he said.
Redistricting expert Nathaniel Persily, a law professor at the University of Pennsylvania, said it was certainly plausible for Justice lawyers to approve the map because overall it did boost minority representation, with white Democratic lawmakers the main targets.
"No one broke the law here ... for all the nefarious partisanship behind the re-redistricting," he said.
But U.S. House Democratic leader Nancy Pelosi demanded an independent inquiry into what she called the "contemptible politicization of the Justice Department to rubberstamp Congressman Tom DeLay's illegal redistricting scheme."
Whatever direct impact the memo has in court, election law experts said it could spur Congress to consider changing how the federal government enforces civil rights law.
Richard Gladden, a Denton lawyer who represents a Democratic voter challenging the new Texas map, recalled huddling with other lawyers on the eve of trial before a three-judge federal panel in Austin. Arguments started Dec. 11, 2003, the day before Justice Department lawyers submitted their memo to superiors.
Within a day or two, Mr. Gladden recalled, word had filtered to Austin that the staff lawyers objected to the Texas map – though no one realized until the memo surfaced this week that the recommendation was unanimous – and lawyers batted around strategies for handling an announcement.
But the argument phase of the trial ended Dec. 19 with no word from the Justice Department. Mr. Gladden was driving home to Denton later that day when the news alert came over the radio. He was stunned.
Lawyers who opposed redistricting recalled getting a chilly reception when they made their case at the Justice Department.
"The career people were listening politely, and the political people were condescending and dismissive. They were really arrogant," said Nina Perales, regional counsel for the Mexican American Legal Defense and Educational Fund, who spent an hour in fall 2003 at Justice headquarters.
"Nobody said to me 'You're wasting your time,' " she said, but "I understood the dynamic. ... I've always felt really disappointed and carried that with me since that meeting."
Justice Department spokesman Eric Holland said officials there "do not and will not play political games. Our focus is the law. We made a legal decision."
Republicans picked up six seats in redistricting, which flipped control of the Texas delegation in the House from 17-15 in favor of Democrats to a 21-11 GOP edge.
Ousted Democrat Nick Lampson of Beaumont, who is now challenging Mr. DeLay, called the memo proof of an "unethical, partisan power grab the likes of which this state and this country have never seen."
DeLay spokesman Kevin Madden brushed off the allegation. "Ultimately the decision was up to a three-judge panel, and there's no indication they didn't make it based on the facts and the law," he said.
At the White House, deputy press secretary Dana Perino said that – as far as she could determine two years after the fact – there had been no White House "participation nor advice" in the Texas redistricting case at the Justice Department.
Staff writer G. Robert Hillman and Jim Fry of the Belo Capital Bureau contributed to this report.
E-mail tgillman@dallasnews.com and mmittelstadt@dallasnews.com
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