Maps, Balls, and Testifying
Strange testimony and stranger bedfellows at the federal redistricting trial
Last Thursday afternoon, as the cross-examination of state witnesses in the congressional re-redistricting federal trial proceeded, Rep. Ron Wilson, D-Houston, offered to show his balls to H. Lee Godfrey, the Houston attorney questioning him on behalf of Democratic plaintiffs suing to stop redistricting. Godfrey had just pointed out that Wilson comprises "100 percent of the African-American legislators" supporting the new Republican redistricting plan.
"I am the only one who had the 'things' big enough to do it," Wilson had responded, to which Godfrey replied, "I presume the 'things' you refer to are not visible?"
"You want to see them?" asked Wilson, inviting the lawyer to the witness stand.
Godfrey declined Wilson's offer, which in any case would have been pointless unless Wilson intended to measure his testicles against all the other black men (and women) currently serving in the Lege. (For the record, in any real test of courage among legislators, black, white, or brown, the consensus money would be on Wilson's Houston neighbor, Senfronia Thompson, who vigorously opposes redistricting.)
Although it should have been, that was not quite the low point of Wilson's testimony. A few minutes earlier, responding to questions from state attorney Andy Taylor, Wilson had described all the current Texas congressional districts represented by Anglo Democrats as "beggin'-at-the-table, Stepin Fetchit districts," wherein African-American voters are confined to begging white Congress members for favors. It did not seem to occur to Wilson, the Designated Black House Member of the Texas Republican Party, that he was recklessly consigning all the black citizens in those districts to the status of Uncle Toms; nor that, should the current GOP district plan he supports be sustained, those citizens would be relegated to political invisibility and irrelevance in the half-dozen or more Republican districts into which they have been drawn.
It was a very odd moment, but it typified both the strange misalliance between, and the standard defense of, the state of Texas and Radical Ron Wilson. The Republicans and the state acknowledge that ("for partisan purposes only") they have intentionally diminished the voting influence of millions of black and Hispanic voters in East and Southeast Texas, Dallas and Fort Worth, Central and Southwest and South Texas. But in what they describe as deference to the potential demands of the Voting Rights Act -- and partly at the insistence of Rep. Wilson -- they have "offset" those losses with a putatively African-American district in Houston (proposed District 9) and a putatively Hispanic district in "South" Texas (proposed District 25, the extreme northern tip of which happens to be in Northeast Austin).
"I looked at the map when they were finished," Wilson testified. "The creation of those two seats -- the African-American seat in Harris County and the Hispanic seat in South Texas -- was enough for me to vote for it."
On Friday, Dec. 19, Secretary of State Geoffrey Connor was informed by the U.S. Department of Justice that that agency has "precleared" (as not in apparent violation of the Voting Rights Act) the map passed by the Legislature in October. The map, officially designated as "Plan 1374C," now becomes the official map to be used for the congressional primaries in the spring -- barring intervening action by the federal courts. Gov. Rick Perry and other Republican officeholders hailed the DOJ decision as vindicating the state plan, but Democrats charged that the decision by John Ashcroft's DOJ was an illegitimate action by political appointees. Their attorney Gerald Hebert, a former DOJ civil rights division lawyer, filed a Freedom of Information request that the agency release the VRA staff memorandum on the DOJ decision. Hebert wrote to the DOJ agency that sources have informed him that "the Voting Section recommended an objection to the proposed Texas plan," but that objection was overruled by appointed division administrators.
Retrogression or Opportunity?
Expecting the DOJ letter, Presiding Judge Patrick Higginbotham had set a Tuesday hearing for both closing arguments and for the parties to present their arguments concerning the DOJ decision. (This week the Chronicle, on its holiday schedule, went to press Monday evening.) The judge also told the lawyers that the court has already decided to reject the plaintiffs' motions against mid-decade redistricting, a decision that Attorney General Abbott hailed as a vindication for the state, but which plaintiffs lawyers said they anticipated. "That's a constitutional issue, and we always expected it to go to the Supreme Court," Hebert told reporters. "It's never been litigated before, because nobody's ever tried to redistrict with a legal plan in place."
Although by definition lawyers are never at a loss for words, it's hard to imagine what they might say Tuesday that hasn't already been said -- in some legislative or judicial context stretching back to January. The plaintiffs' attorneys -- representing several groups of Democratic voters from East and South Texas, intervening congressional Democrats, the NAACP, LULAC, MALDEF and the American GI Forum, the Texas Coalition of Black Democrats, and a few amicus briefs -- spent a week laying out their evidence, in both fascinating and excruciating detail, that on its face the proposed plan represents "retrogression" for the voting rights of minority Texans all over the state, and that circumstantial evidence suggests that the Republicans "knew or should have known" what they were doing to minority voting rights -- and did it anyway. The state has responded -- on the whole with surprisingly little vigor, bordering on complacency -- that the motivation for redistricting was entirely partisan, that the plan will achieve its explicit goal of a majority Republican congressional delegation, and that in fact it enhances the voting rights of minorities by creating two new "minority opportunity districts" that can elect minority candidates.
The plaintiffs concluded their case Thursday morning with the testimony of U.S. Rep. Sheila Jackson Lee, D-Houston, who testified primarily on the effect the plan would have on the historically black District 18 (her own) and that of Dallas Rep. Eddie Bernice Johnson (District 30). The state didn't even bother to cross-examine Jackson Lee, and called only four witnesses: former Rep. Bob Davis, who consulted on the computer drafting of the map; Rep. Wilson; Rep. Phil King, R-Weatherford, who carried the plan in the House; and Todd Giberson, a mapping expert who supported on technical grounds the state's contention that racial gerrymandering does not "predominate" under 1374C. Under lengthy cross-examination, Davis played spectacularly dumb, and said little more than that at the direction of Republican legislators he had drafted the map to increase the number of Republican seats, and that if any minority voters got moved in the bargain, he was barely aware of it. The unflappable King reiterated that the redistricting motivation was entirely partisan, and that it negatively affects minority citizens "only if you presume that Republicans cannot well represent minorities. I don't agree with that."
The most significant evidence may have been what the state attempted to leave out, declining to call their own expert, political scientist Keith Gaddie of the University of Oklahoma, who they sent home Thursday rather than put on the stand the next day. Taylor said the decision was strategic, because "the plaintiffs have not proven their case," but the plaintiffs said it is because Gaddie's findings actually contradict the state's position. After some debate, the court ruled that the plaintiffs can submit Gaddie's report and deposition as "rebuttal" to the state's case. "They withdrew Gaddie," said Texas NAACP director and counsel Gary Bledsoe, "because they know he hurts their case, even though he's their witness. He's an honest researcher, and he described what he found, and it undermines the state's position on racial gerrymandering."
Attorney General Greg Abbott repeated Friday morning what Solicitor General Ted Cruz confidently told reporters several times during the week: that the burden was on the plaintiffs to demonstrate predominantly racial motives in the drafting of the plan and that they had not been able to make that case. Presumably that was why he and Taylor did very little cross-examination and called so few witnesses. "As long as the predominant motivation was to make party distinctions," said Cruz, "the fact that race might also be involved does not constitute a violation of the Voting Rights Act."
"If the proposed map holds up, it means the Voting Rights Act has no application." So declared U.S. Rep. Max Sandlin, D-Marshall, outside the courtroom Wednesday. Sandlin testified early and has attended most of the trial, "because there's a tremendous amount of interest among the rural and minority voters in my district." He represents District 1, one of the rural East Texas districts Wilson dismissed as little more than 21st-century plantations, and has been elected four times with slightly less than half of white votes but the virtually unanimous support of African-Americans. ("He's got a right to his opinion," said Sandlin of Wilson, "but he's completely ignorant of my district, my constituents, and my record.") Of the Republican defense, he said, "They believe that political gerrymandering is acceptable, and if they have to eliminate minority voting rights to do that, well, then the end justifies the means. I don't think that's legal or moral."
We Didn't Do It, and It's Legal
Sandlin's position was very much the burden of the plaintiffs' case, with some small variations in emphasis. The LULAC and American GI Forum plaintiffs focused primarily on Hispanic voters, in South Texas and elsewhere, and argued that the removal of Hispanic voters from District 23 to protect Republican Rep. Henry Bonilla (who fails to win a majority of Hispanic votes) constitutes retrogression, and that "substituting" District 25, from Austin to McAllen, is no solution to that problem. (Several South Texas officeholders, including Rep. Aaron Peña, D-Edinburg, testified pointedly that the prohibitive favorite for the "Hispanic" District 25 seat is current Rep. Lloyd Doggett, D-Austin, a judgment echoed by UT-Pan American political scientist Jerry Polinard.)
The state's response on District 23 is contradictory: They argue it is not a minority opportunity district, and minority opportunity District 25 replaces it. They make the identical case on District 24; it is not a minority opportunity district (although Dallas Sen. Royce West, among several other local pols and experts, insisted that it is), and minority opportunity District 9 in Houston replaces it. To the seemingly absurd proposition that the state can take away the voting rights of Hispanics in Laredo or blacks in Fort Worth in exchange for enhancing the rights of Hispanics in McAllen or African-Americans in Houston, the state responds, "For voting rights purposes, the map is to be judged as a whole."
There were also a few intriguing schisms on the plaintiffs' side, most visibly in the separate representation of Reps. Sheila Jackson Lee and Eddie Bernice Johnson by their own attorney, Anthony Griffin of Galveston. In her blunt testimony, Johnson made plain the reason for that division -- she has reason to distrust Dallas Rep. Martin Frost, House minority leader, because he "double-crossed" her over redistricting in 1996, she said, with the misleading help of lead plaintiffs' attorney Gerald Hebert. But her mistrust of Frost did not lead her to support redistricting, and she testified that her historically African-American district will be "balkanized" under the new map, and that submerging so many African-American voters across the state into majority Anglo Republican districts will eliminate their political influence. "I like all of my Republican colleagues -- all of them, including my good friend Tom DeLay -- but they do not represent minority interests." (Hebert later stood to defend himself, telling the court that Johnson was "incorrect in her recollections." Back among the spectators by then, Johnson muttered acidly under her breath, "I am not.")
There was somewhat less testimony on matters that were loudly vexed questions during the Legislature. The questionable legitimacy of mid-decade redistricting was raised only in opening arguments for summary judgment. And state Sens. Bill Ratliff and Rodney Ellis both testified on the damaging effects of Lt. Governor David Dewhurst's decision to abandon the Senate's "two-thirds rule." Ratliff acknowledged that change was more important than redistricting as a factor in his decision to retire ("I never wanted to serve in Congress," he said, "because it is so partisan"). And Ellis pointed out sardonically that the rule had last been successfully abandoned in 1957, at the height of the civil rights era, to enact a "Segregation Forever" legislative program, and that conservatives had themselves used the rule for a decade to prevent passage of hate crimes legislation. "I don't think it's any coincidence," Ellis testified, "that at the first historical moment that minority legislators achieve the numbers to employ the two-thirds rule, it's done away with."
There was much expert (as well as gruelingly inexpert) testimony on historical patterns of discrimination in Texas, and the necessity of maintaining the Voting Rights Act as a protection against abuses -- especially as it comes up for congressional renewal in 2007. But among the most eloquent witnesses was Robert E. Starr of Fort Worth, vice-president of the Fort Worth/Tarrant Co. branch of the NAACP, who said he took his initial membership in the 1940s in his dog's name, "because it wasn't safe to belong in those days." Starr began his life as a cotton field hand and a shoe-shine man, and eventually rose to prominent positions as an educator and in the Equal Employment Opportunity Commission. He denounced the dismantling of District 24 and the merging of African-American neighborhoods there into districts running, among other places, north into the white suburbs of Denton and Cooke counties ("that's up where I used to pick cotton") and on to the Oklahoma border. "Whoever split the black community was definitely a mean son ..." -- he paused -- "they were trying to decimate the black community. The persons who approved that plan had no respect for any black person in Tarrant County."
Robert Starr wasn't in the courtroom when Ron Wilson testified, but it would have been interesting to hear Wilson explain his vote for Plan 1374C to the straight-backed and plain-talking man from Fort Worth.