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Michael Burgess

Court rules several Congressional districts were illegally drawn

Bam!

Some of Texas’ 36 congressional districts violate either the U.S. Constitution or the federal Voting Rights Act, a panel of federal judges ruled Friday.

In a long-delayed ruling, the judges ruled 2-1 that the Texas Legislature must redraw the political maps it most recently used for the 2016 elections.

Specifically, they pointed to Congressional District 23, which stretches from San Antonio to El Paso, takes in most of the Texas-Mexico border and is represented by Republican Will Hurd of Helotes; Congressional District 27, represented by Blake Farenthold, R-Corpus Christi; and Congressional District 35, a Central Texas district represented by Lloyd Doggett, D-Austin.

The 166-page ruling by the San Antonio-based district was the latest in a complicated case that dates back to 2011, and comes just two election cycles away from the next U.S. Census — when the state would draw a new map under normal circumstances.

In 2013, the district court found evidence that lawmakers intentionally discriminated when redrawing the boundaries. But the U.S. Supreme Court soon complicated the case when it struck down a key section of the Voting Rights Act that had forced Texas to seek permission before making changes to election procedures.

But that didn’t end the legal battle. The U.S. Department of Justice and other plaintiffs pressed on in the case, and Texas held elections using interim maps drawn by judges.

In its decision Friday, the court still found that “mapdrawers acted with an impermissible intent to dilute minority voting strength or otherwise violated the Fourteenth Amendment” of the Constitution.

“The Court finds that this evidence persuasively demonstrates that mapdrawers intentionally packed [concentrated certain populations] and cracked [diluted certain populations] on the basis of race (using race as a proxy for voting behavior) with the intent to dilute minority voting strength,” U.S. District Judges Orlando Garcia and Xavier Rodriguez wrote in the majority opinion.

In his dissenting opinion, Judge Jerry Smith of the U.S. Fifth Circuit Court of Appeals called the case moot under previous rulings, and he  sharply criticized the Justice Department.

Tale about a Friday news dump – I literally saw this on Facebook just before going to bed Friday night. We have been waiting forever for a ruling in this case. Note that this is only half of what we have been waiting for – there is still a ruling to come on the State House map, too. But for now, the status of the 2018 elections has changed. The Lone Star Project adds on.

The court singled out violations in the Corpus Christi region involving District 27 (Farenthold – R), in the South Texas/Border region involving District 23 (Hurd – R) and in the Austin to San Antonio region involving District 35 (Doggett – D). The Court also ruled that minority voters in the Dallas/Fort Worth area were illegally cracked under the 2011 map.

While it is too early to know exactly what changes will be made, it is fair to read the opinion as requiring that Hispanic voters put into Anglo-controlled CD27 in the current map must be returned to an effective Hispanic district, that Hispanic voting strength weakened in District 23 must be restored, and that District 35 in the Austin to San Antonio corridor will have to be modified to reunite minority voters in a far less fragmented district centered in Austin.

In Dallas/Fort Worth, the creation of District 33 (Veasey – D) in the current map may have resolved some of the blatant violations under the 2011 map; however, arguments will be made to repair remaining cracked Hispanic and African American neighborhoods in Dallas and Tarrant counties.

The ruling is a major victory for minority citizens and their advocates before the court. Minority advocacy groups including LULAC, NAACP, the Mexican American Legislative Caucus and citizen plaintiff groups led by Congressman Marc Veasey and State Representative Eddie Rodriguez had the courage to challenge the GOP map and the tenacity to stay with a long and difficult court battle. Their efforts have defended and protected the voting rights of thousands of otherwise disenfranchised Texas citizens. The Lone Star Project has been engaged in the Texas redistricting battle from the onset and will continue to provide support to key plaintiffs in this important effort.

We should expect the San Antonio Court to schedule a hearing soon to discuss the additional deliberations needed to fully resolve the case and to reach a final remedy. It is also likely that Governor Greg Abbott will refuse give up Texas GOP efforts to protect a discriminatory redistricting process and will direct state attorneys to explore appeal options.

I’d say it’s not “likely” that Abbott appeals, it’s a 100% gold-plated certainty. Rick Hasen quotes from the majority decision to explain what that “minority voters in the Dallas/Fort Worth area were illegally cracked under the 2011 map” means:

Plaintiffs have established a § 2 violation, both in terms of intent and effect, in South/West Texas. Plaintiffs have shown that seven compact majority-HCVAP districts could and should be drawn there that would substantially address the § 2 rights of Hispanic voters in South/West Texas, including Nueces County. Defendants’ decision to place Nueces County Hispanic voters in an Anglo district had the effect and was intended to dilute their opportunity to elect their candidate of choice.

Meanwhile, race predominated in the drawing of CD35, and Defendants’ decision to place majority- in Travis County was not to comply with the VRA but to minimize the number of Democrat districts in the plan overall. Plaintiffs have established a Shaw-type equal protection violation with regard to CD35. Plaintiffs also establish a Shaw-type equal protection violation with regard to CD23. In addition, Defendants’ manipulation of Latino voter turnout and cohesion in CD23 denied Latino voters equal opportunity and had the intent and effect of diluting Latino voter opportunity. Nueces County Hispanics and Hispanic voters in CD23 have proved their § 2 results and intentional vote dilution claims. The configurations of CD23, CD27, and CD35 in Plan C185 are therefore invalid.

Plaintiffs fail to proffer a demonstration plan accompanied by sufficient evidence to demonstrate that additional compact minority districts could be drawn in DFW or Houston, taking into account traditional redistricting principles and communities of interest. However, they are not precluded from raising § 2 results claims with regard to Plan C235 during the trial on that plan. Plaintiffs have proved intentional vote dilution through packing and cracking in DFW and also establish a Shaw-type racial gerrymandering claim with regard to CD26, but not CD6. However, they fail to prove intentional vote dilution in the Houston area, and fail to prove that mapdrawers acted with racially discriminatory purpose when drawing the districts represented by the African-American Congresspersons.

Well, okay, we’ll need to see a proposed remedy to understand what that means, but the bottom line is that four districts could be directly affected – CDs 23, 26, 27, and 35 – with ancillary changes to some number of adjoining districts. In a subsequent post, Hasen provides some extra guidance to this decision.

2. Bail in. It probably is not obvious to those not steeped in this area, but the big fight here is not about these particular districts (although that is important) but whether Texas gets put back under Section 5 preclearance for up to 10 years. That is possible under Section 3, the “bail-in” provision of the VRA which gives a court the ability to impose preclearance after a finding of intentional race discrimination. That finding is here, and the case is still going to go forward on that issue (as well as some other issues). Further, the finding of intentional race discrimination will almost certainly be relied on if, as I expect, the trial court in the Texas voter id case, finds intentional racial discrimination and orders bail in. So this is huge. (The caveat is how a Trump DOJ would enforce such rights if Trump is still in office. I’m not optimistic, and there’s no appeal of a DOJ decision to grant preclearance. Preclearance of post-2020 redistricting will depend on who wins the 2020 presidential elections.)

3. Race or party. I have been writing a lot about the race or party question: what to do about claims of racial discrimination when, as in the American South, race and party are so closely correlated. The majority approach, is subtle and sophisticated on this question, and seems to fall mostly on the party as a proxy for race (“party as race”) approach to the question. When you make it harder for minority voters to exercise political power for your own political reasons (such as protecting incumbents or your party), this counts as intentional race discrimination. Judge Smith takes the “race or party” approach, and he believes he knows what’s “really” going on: this is all about party, rather than race. It is either blind to the realities or ignoring the fact that these two criteria are really inseparable in Texas.

4. The remedy and what comes next. The trial court does not order anything to happen right now. The parties will fight about the remedy. Likely Texas will get a chance to redraw districts with some deference to Texas as to that which is not a violation. The parties will fight over the plans. And this will get dragged out. But presumably there will be new maps in place for the 2018 congressional elections, unless the Supreme Court intervenes. I fully expect Texas to try to get the Supreme Court to intervene in the interim. At most these lines would last 2 elections, and then we are back to a new round of redistricting. And this shows what is lost by preclearance. We’ve now had three elections that arguably should never have taken place under these lines.

There’s more, so read the rest. If this case proceeds from here as the post-2003 redistricting litigation did, we will get a bunch of November of 2018 special elections in these Congressional districts, with the possibility of special elections in some number of redrawn State House districts as well. If that doesn’t sound like your idea of fun, then you’re reading the wrong blog. Daily Kos and the Chron have more.

Federal education funds officially on their way

That’s $830 million that the Senate was counting on for education funds that it will now officially have.

Just two weeks after a bipartisan federal budget deal ended an eight-month impasse over $830 million in federal education funding, the U.S. Department of Education agreed Friday to send Texas the money that previously had been in dispute.

U.S. Education Secretary Arne Duncan quietly made the announcement on Good Friday. But Texas Republicans immediately declared victory in a two-front political war that had been waged for months.

“Today our schoolchildren and teachers received the funding they should have never been denied,” said Rep. Michael Burgess, R-Lewisville, who led Texas House Republican efforts to secure the aid. “This $830 million will give our schoolchildren, teachers and communities additional funding during this financial crisis. Today is indeed Good Friday.”

Burgess said he received word of the aid reversal during a conversation with Texas Gov. Rick Perry, who had condemned the attempt by Texas congressional Democrats to attach strings to the federal school funding.

Texas Democrats, led by Rep. Lloyd Doggett, D-Austin, had required the state to pledge that it would not divert the federal education funding to other uses as the Legislature attempts to plug a state budget shortfall.

Republicans will celebrate the political win, which resulted from the budget deal that avoided a federal government shutdown, and everyone in Texas is no doubt glad to have these funds, but Doggett was right to do what he did. In the end, this money will be used for education and not for plugging other holes in our own budget, so as far as that goes Doggett got some of what he wanted as well. What happens in 2013 will be up to that Legislature.

House repeals Doggett Amendment

This may be a partial answer to my earlier question about the status of the $830 million in federal education funds that await Texas if Governor Perry will attest that they will be actually spent on education.

In the latest round of the political feud over $830 million in federal funding, House Republicans, led by U.S. Rep. Michael Burgess, R-Lewisville, passed a bill Saturday that blocks the enforcement of the Texas-specific Education Jobs amendment.

Republicans do not like the amendment, introduced by U.S. Rep. Lloyd Doggett, D-Austin, last summer, because it requires Texas — and only Texas — to guarantee that it will maintain state funding for education throughout 2013. Democrats support the amendment because it requires the state to use the federal money to supplement, rather than supplant, its public education funding.

[…]

“There is a clear path to get this money,” Doggett said. “All the governor needs to do is sign a three-page application, like the one he signed to get the $3.25 billion of aid he kept for purposes other than education.” That $3.25 billion would be the federal stimulus money— marked for education — Perry accepted in 2009 and used to offset spending in other areas of the budget.

In a statement, Burgess said, “The schoolchildren and teachers in Texas will finally have the opportunity to receive the $830 million they should have had in the first place. This money should have never been denied when the original bill passed, and it is a shame that Mr. Doggett put education funding at risk.”

The legislation still has to make it through the Democratically-controlled Senate, where U.S. Sens. Kay Bailey Hutchison and John Cornyn have sponsored a companion bill.

Two points. One, if this thing makes it through the Senate I have a hard time seeing it get Presidential approval, given that Education Secretary Arne Duncan recently warned Texas to fish or cut bait. What possible reason could President Obama have to fold on this and give Rick Perry an unqualified propaganda victory?

And two, I seem to have lost the ability to determine when it is that federal funds for Texas are evil and fascistic and must be resisted lest they pollute our precious bodily fluids, and when they are good and wholesome and must be fought for. Is there, like, a Wikipedia page or something I could use as a guide to aid me in these matters? Thanks.

An early look at redistricting

The House Redistricting Committee is holding some hearings around the state in advance of the 2011 Census reports, and if there’s one thing we know already, it’s that West Texas will be losing influence next year.

The state population increased from 20.8 million in 2000 to an estimated 24.8 million in 2009, or 18.8 percent, but the Hispanic population grew at a faster rate, Jordan said. If the trend continues, as early as the next decade Hispanics will be the largest ethnic group in the state.

Though in more than a half-dozen counties in the Panhandle/South Plains region Latinos are now the majority, their population growth won’t compensate for the fact that the region stands to lose at least a Texas House seat and a congressional district when the Texas Legislature redraws the districts next year, some lawmakers said after the two-hour hearing ended.

“The Dallas area is going to gain some districts, but we are going to lose some,” state Rep. Delwin Jones, R-Lubbock, chairman of the Redistricting Committee, told reporters after the hearing. “Right now this is guesswork, or maybe I should say an estimate, because we won’t know for sure until December when we get the official figures.

“However, it doesn’t look good for us in West Texas,” Jones added. “We are going to lose representation.”

Other lawmakers reached the same conclusion.

“One way or another the Panhandle is going to be in trouble,” said Rep. Chente Quintanilla, D-Tornillo, in El Paso County.

[…]

At a hearing in February, members of the Redistricting Committee were told that the new congressional districts would represent 811,221 people compared to about 750,000 now, and Texas House districts would represent about 167,652 compared to about 140,000 now. This means the Panhandle/South Plains region would have to have at least one million people to keep all of its six House districts. Current estimates put the region’s population at about 800,000.

Three senior members of the Lege from West Texas won’t be back next year – Jones, who was defeated in the Republican primary; Carl Isett, and David Swinford, each of whom retired. It’s going to be a rough year for that part of the state next year. In addition to that, you have to wonder what will become of Rep. Michael Conaway’s district, which was created in 2003 at the insistence of then-Speaker Craddick, who wanted a Congressional seat for Midland. Objectively speaking, there was no real reason for that, and the Census data will make it even harder to justify. Without someone of influence pushing to protect it, who knows what will happen.

As the story notes, West Texas’ loss will likely be the Metroplex’s gain.

Rep. Roberto Alonzo, D-Dallas, said lawmakers next session will have a chance to create winnable districts for Hispanics in North Texas — not just in the Texas House, but state Senate and U.S. House.

“I would hope that everybody sees the light, that Texas has diversified,” Alonzo said.

He recalled it took a voting rights lawsuit for him to have a chance to win 17 years ago in House District 104, redrawn by the courts to enhance Mexican-American voters’ chances of electing one of their own.

“In Texas, we’ve had to go through litigation to make it happen,” Alonzo said. “I would hope we don’t have to go to that point.”

I wouldn’t count on that, but you never know. The more I think about it, the more I believe that the new Congressional district slated for the D/FW area will have to be a Democratic seat. The Congressional map up there is anything but representative right now. Of the 25 legislative members who represent Dallas and Tarrant counties, 13 are Democrats, yet only one member of Congress (Eddie Bernice Johnson) out of the nine whose districts include either Dallas or Tarrant is a Democrat. Among other things, the electoral trends are not sustainable for the Republican incumbents – Kenny Marchant and Pete Sessions need some help, with Sam Johnson and Michael Burgess not far behind them. Drawing a new seat to soak up some Democratic voters would benefit them.

Anyway. I believe a compromise at the Congressional level, one that aims to mostly protect incumbents, is still a viable possibility. The main reason for that not to happen is for someone with an interest in the outcome to push for a more partisan plan. As yet, I have not seen an indication of that, but it’s still early days. Legislative redistricting worries me more, especially if Rick Perry gets re-elected. We’ll see how it goes.

Why should anyone trust the TCEQ?

Rick Perry wants the EPA to back off. I know, I’m as shocked as you are.

Gov. Rick Perry, citing improvements in Texas air quality, asked President Barack Obama on Friday to get regional Environmental Protection Agency administrators to back off efforts to take over the state’s air quality permitting process for refineries and power plants.

Perry told Obama the state process has improved air quality while ensuring economic growth.

“EPA’s unwarranted actions will kill good American jobs, reduce our economic output and undermine critical domestic energy and petrochemical supplies for all 50 states,” Perry said in a letter to the president. “Worse still, EPA’s actions are unwarranted given the tremendous air quality improvements that have been made in Texas.”

Neil Carman, Clean Air Program director for the Sierra Club said improvements in Texas’ air quality stand out only because of how polluted the state was.

“The problem with the comparison of Texas to the rest of the nation is Texas has so much pollution,” Carman said. “You can have a significant reduction and still be the most polluted.”

Perry’s letter said Texas has achieved a 22 percent reduction in ozone and a 46 percent decrease in nitrogen oxide emissions in the past decade.

“Houston is second only to Atlanta in the total percent decrease in ozone for metropolitan areas since 2000, even with a 20 percent increase in population,” Perry said.

However, records from the EPA website show Houston still far exceeds Atlanta for ozone pollution.

That’s the thing about being the worst at something: You can improve a lot, and still be the worst at it. The state is getting exactly what it deserves from the EPA, which by the way first picked this fight over the Clean Air Act back in 2006. The fault lies entirely with the TCEQ and its industry-friendly “flex permits”. Any protests by TCEQ or the Perry administration that things are getting better are belied by the fact that we’re still lagging behind the rest of the country in compliance, and by the fact that the TCEQ’s own record of performance is so bad that even some Republicans are calling them out.

U.S. Rep. Michael Burgess had some strong words for the Texas Commission on Environmental Quality today following news that it presented inaccurate results to the Fort Worth City Council and failed to notify the city or the public for weeks after it realized the error.

The Lewisville Republican wants an investigation into why the agency didn’t make immediately clear that its testing of air quality in Fort Worth related to gas drilling had some problems as soon as they became aware of it.

“Those responsible should be held fully accountable, and I believe that a robust investigation by the Texas Attorney General’s office would be appropriate,” Burgess said in a statement.

Burgess said he was recently briefed by TCEQ on air quality issues related to gas drilling and he’s not happy to find out now that he wasn’t presented with all of the data.

“I relied on the information I was given, as did many others in North Texas,” Burgess said. “I find it personally offensive to find out that what I have been told may not be the full story on the air quality issues in the area that affect millions of North Texans. There are a lot of questions that TCEQ needs to answer, and the public is right to demand accountability.”

As BOR notes, Rep. Burgess is anything but an environmentalist. If he doesn’t trust TCEQ, why should anyone else? This matter isn’t directly related to the EPA issue, but it’s all of a piece. TCEQ is broken. It’s not working in the public’s interest, and there are direct costs that all of us in the state of Texas are paying as a result. And the problems with the TCEQ are the same as the problems with TxDOT and with the Division of Workers Compensation and with HHSC and with the TYC and with every other failing, dysfunctional agency in the state: They’re all Rick Perry’s responsibility. The people at these agencies are Rick Perry’s people, carrying out Rick Perry’s policies. Every last problem at every state agency is ultimately owned by Rick Perry. The only way to fix this is to put someone else in charge.

Here’s a press release from State Sen. Wendy Davis on the Fort Worth issue. Press releases from State Sen. Rodney Ellis and State Rep. Ellen Cohen about the EPA issue are beneath the fold. Finally, while we have to wait till November to do something about the Governor, there’s a Sunset review going on for the TCEQ. The Alliance for a Clean Texas will be hosting a call on Thursday, June 10, to kick off their TCEQ sunset campaign. Details if you want to dial in are at that link.

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