On the Lege
The Senate's Happy Un-Holiday
Edited By Michael King, Fri., Sept. 5, 2003
The Texas Legislature entered the Labor Day holiday with little relief from the partisan re-redistricting rhetoric, and indeed, with hardly any holiday at all. The second special session ended without result Aug. 26; the following day Laredo federal District Judge George Kazen heard initial pleadings in the Senate Democrats' lawsuit against Lt. Gov. David Dewhurst et al. for abandoning the Senate's two-thirds rule and allowing Republican senators to impose fines and sanctions on the minority Democrats. The suit alleges both actions violate the federal Voting Rights Act. Kazen referred the matter, as well as the Democrats' request for a temporary restraining order to allow them to return home without fear of arrest, to a three-judge panel appointed shortly thereafter by U.S. 5th Circuit Court of Appeals Chief Judge Carolyn Dineen King. The panel, expected to rule in the next couple of weeks, includes Democratic appointee Kazen and GOP appointees Lee Rosenthal and Patrick Higgenbotham. (Higgenbotham served on the three-judge panel that drew the current Texas congressional district map in 2001.)
Kazen did suggest that a "cooling-off period" is in order, asking that Gov. Rick Perry provide 72 hours notice before calling yet a third special session for redistricting. Perry dismissed the judge's request, saying he is already "chilling" and would call another session whenever he deemed it "appropriate." He and the Republicans had reason to be encouraged by Kazen's courtroom doubts about the merits of the lawsuit -- as well as by letter from the U.S. Department of Justice, issued Aug. 26, informing then-Assistant Secretary of State Geoffrey Connor (who was promoted to secretary of state later that same day) that Dewhurst's change to Senate rules would not require DOJ "preclearance" under the VRA. From their home away from home in Albuquerque, the Texas 11 said they were not surprised by such a ruling from John Ashcroft's DOJ. Said Dallas' Royce West, "We are offended that the DOJ acted without even meeting with the minority Texas senators, who had asked for the opportunity to discuss the impact of the rule on their minority constituents. Our attorneys had warned us that the Department of Justice is rapidly becoming the Department of Injustice -- a place where the political staff dictates outcomes and the civil rights of Americans take a back seat to Republican politics."
The Republicans scored a major victory Tuesday night with the appearance of an unexpected schism among the the Albuquerque exiles, as Houston's
announced he would "take the fight to the Senate floor" and returned home to Houston. Late last week, Whitmire had expressed impatience with the standoff and considered returning to Texas for Labor Day, but told his colleagues he would be traveling to Santa Fe or New Orleans. On Tuesday morning, he issued a statement: "I have been in Houston since 10:00am, Thursday, August 28. ... I returned as I had always planned -- not a bolt from the group, but a planned return after sine die on Tuesday, August 26. After being in my district for five days, I have concluded my constituents are opposed to redistricting, but they also believe the fight should be on the Senate floor." Whitmire flew back to Albuquerque Tuesday morning and stayed long enough to tell the other senators he was leaving. All said they were "disappointed" in Whitmire's decision, but that they would remain in New Mexico and consider their options. Houston Sen. Rodney Ellis said that while he understands Whitmire's "frustration and anger," he is "disappointed to see him surrendering so easily." San Antonio's Frank Madla commented, "The thing that disturbs me the most is that as a matter of courtesy he should have met the other 10 of us, looked us in the eye and said I have to go back. I would understand that. It's very difficult to believe he is walking away."
Meanwhile, Dewhurst acknowledged that during the recent tropical storm Erika, Senate Sergeant at Arms Carleton Turner and his staff had staked out the homes of some South Texas Democrats -- without apprehending any AWOL senators. So unless the federal judges see fit to grant a temporary restraining order while they consider the case -- a request renewed by the Democrats' attorneys after Perry refused to promise advance warning of a session call -- it appears the Texas 11 minus one will not be able to rest easy in the meantime. Capitol rumor has it that pending the outcome of the lawsuit -- which will be appealed in any case -- the governor, wishing no distractions from his campaign for Proposition 12 (the tort reformers' gift basket) may wait to call another session until after the Sept. 13 constitutional election. Perry, currently embarked on a Texas HMO tour (assisted by first lady Anita Perry) to flog Proposition 12, isn't saying.
Austin Sen. Gonzalo Barrientos spoke to the Chronicle Friday by phone en route to Albuquerque from Denver, where he and Eliot Shapleigh of El Paso had joined a fundraiser sponsored by already re-redistricted Colorado Democrats. Barrientos said that he and his fellow Dem absentees might have to spend several more weeks in exile -- perhaps at least another month -- before the siege is ended. "The closer we get to October 6," he noted, "the more difficult it is for them to get DOJ review in a timely fashion."
Barrientos said the Democrats have been heartened by an upwelling of national support, and that the next steps may be up to the federal courts, what the House might do in the event of another session call, and "public pressure that might come down on the governor." "We are not acting in a partisan cause, nor a racial cause," said Barrientos. "We are acting in defense of democracy and of fairness."