Burnt Orange Report

I'm curious that they're trying the voting rights angle since I thought it was knocked down before by a judge. I take it that they're wanting to make the lawsuit about the frequency of redistricting after the Colorado decision.

I think that theres a case to be made on both fronts and I think that a solid one will be made...

They've got the VRA and the partisan aspects covered. Makes sense to make both cases.

TX Bubba -- the previous Voting Rights Act case which I believe you may be referencing dealt exclusively with the matter of the two-thirds rule in the Senate as well as the punishments of absent Democratic members of the senate.

It was premised on the idea that a change in parliamentary procedure constituted an illegal "changing-of-the rules" per the VRA.

My understanding is that this ruling made no claim as to the map itself (which is what the new suit is about).

This is only tangentially related, but I'm puzzled over the lack of discussion of Craddick ignoring the House Dems a couple Sundays ago - seems like this is a pretty clear case of the rules being blatantly violated and the dems being outright ignored. What recourse is there in a case like this; taken to its extreme, what recourse would the dems have if the republican majority simply dispensed with all parliamentary procedure and refused them the right to speak at all?

I would think that the session in which Craddick ignored the protesting dems was documented somewhere; I've never been there and not seen at least several video cameras, and I would imagine there's an audio recording as well. So it should be easy to verify if Craddick simply ignored the rules and adjourned the session for the day over the protests of the dems. If this were the case, and it could be clearly shown that the rules of order were violated, what options would the dems have for doing anything about it?

I simply don't understand why a second apportionment has been allowed, because the Constitution very explicitly specifies a 10 year interval.

"Representatives... shall be apportioned... the actual Enumeration shall be made... after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." (see reference below)

So how can any apportionment be constitutionally enumerated outside of the explicitly directed ten year term? I mean, it is rare that the Constitution can be said to be so definitively explicit about things. There are specific age and citizenry requirements, a specified number of Senators per state, and some parliamentary procedural directives, but especially since Marbury v Madison, there's been a whole lotta interpretation made of constitutional language precisely because the text purposefully eschewed specificity, in order to allow for the evolution of our democracy. So in the few instances of explict use of numerical description, there has always been a very strict interpretation.

Given the Constitution's other specific numerical directives, and Tom DeLay's cavalier disregard for the once-every-10 year language, might we foresee 3 Senators from Texas (all GOP, of course) instead of the mere 2 which is specified? Will they be allowed to serve (for seats in either chamber) if they're only 20 years old, and not 25 or 30 which is specified, if they've been citizens for 3 years and not 7 which is specified? Will Texas Senators get to serve 7 or 12 years per term instead of 6 which is specified, and have 2 votes instead of the measley 1, which the Constitution specifies with its "liberal" bias against Texas Republicans?

It doesn't depart from the 10 year specification for a court to impose its will on an unresolved apportionment. Or even for a superior court (or the Supreme Court) to oblige an inferior court to make subsequent changes to a map if it is is deemed to suffer other constitutional failings. Those are a part of the standard apportionment process, with only one determinative redistricting each 10 year term. But I simply don't see how any SECOND apportionment can be constitutionally permissable within the 10 year term.

The argument that "the legislature is supposed to do it, not the courts" would preclude the Supreme Court corrective for maps which fail to meet constitutional tests of fairness, which has certainly not been the precedent, and effectively repudiates Marbury v Madison's conclusion that the Courts have the ability to review.

Once the first apportionment map drawn after the 2000 census was deemed acceptable, it met the constitutional test of "such Manner as they shall by Law direct." Any other redistricting effort is therefore foreclosed until the subsequent census, I submit, by strict constitutional direction.

http://www.house.gov/Constitution/Constitution.html

Article. I.
Section. 2.
Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. (See Note 2) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

Note 2 refers to Article XIV.(14th Amendment) which straightens out that unfortunate "three fifths of all other Persons" business
http://www.house.gov/Constitution/Amend.html

Uh, if you would've read Article I, Section 2, Clause 3 of the Constitution more carefully, bz, you would've noted that the "Enumeration" referred to is the apportionment of representatives to the states by the federal government, not the establishment of congressional districts.

All the Constitution mandates is that, after the decennial census, the federal government decide how many representatives each state receives for Congress. The details as to what districts will be created in a particular state are up to that state's legislature.

Alaso, bz, the Constitution establishes ten years as the mandatory time frame for reapportionment (and implicitly, redistricting to distribute that reapportionment)...but it says nothing about redistricting more often than that.

I appreciate the helpful suggestions in constitutional reading. But apportionment and redistricting are not mutually exclusive propositions.

Mark observes that the Constitution is silent about undertaking the process more often than 10 years - implicitly characterizing the 10 year interval as merely a floor rather than a fixed term. With respect, if this is to be the interpretation by which we are to govern, folks better plan on watching redistricting battles in every single legislative session, in every state in the nation, from now on. Maybe even more than once a session, depending on circumstances.

I dare say the framers chose the specific 10 year time frame with purposeful intent that it would be a fixed interval. Otherwise the choice of wording would have been less precise, and indeed, more clearly indicative of greater frequency for the process.

And while Jonathan makes an excellent and noteworthy point that apportionment is - in the broad sense - the federal exercise to determine the number of representatives, and redistricting is narrowly the state action to determine just what geographic areas are represented, that seems to me to be an issue entirely beside the point. The two are rather inter-related. The apportionment process, as a whole, includes redistricting.

And - if one accepts the notion that "10 years" actually means 10 years and not less - then once one determinative map has been instituted for that 10 year interval, then regardless what authority resides with a state government, each state only gets one map per term.

The state authority - through the state courts - already instituted one legitimate and uncontested map. The apportionment process, as a whole therefore, was completed for the 10 year term. As I say, if that is not the case, and states can without limit undertake redistricting whenever and as many times as they want, there simply won't be much time left for other legislation.

Folks better take care for what they wish. What goes round comes round.

TxBubba, with all due respect to him, Jim D is simply wrong: The Barrientos v. State lawsuit that the truant Democratic state senators (f/k/a "The Texas Eleven," n/k/a "The Texas Ten") filed in Laredo definitely included a claim that "redistricting twice in a decade" was illegal, in addition to their claim that Lt. Gov. Dewhurst's failure to follow the Texas Senate's "two-thirds rule" (which isn't a rule at all) violated the Voting Rights Act of 1965. In its very brief, expedited opinion, that three-judge panel only briefly noted the "twice in a decade" claim. But a careful analysis of the opinion reveals that the panel dealt with the claim "on the merits" as opposed, for example, to finding the claim "unripe" or "not yet justiciable," which would have resulted in a dismissal without prejudice and left that issue open for relitigation now. I explain why this is so in my usual longwinded and tedious way on my own blog if you're interested: http://www.beldar.org/beldarblog/2003/09/what_did_the_ba.html

Notwithstanding having lost on this exact issue in September, however, the Dems are rearguing it in their new filing purportedly made in the older Balderas v. Texas case which itself is a very bizarre procedural twist, about which I'll probably write at more length tonight or tomorrow on my blog.

Jim D is quite correct in stating, however, that the September 12th ruling in the Laredo case (Barrientos v. Texas) did not address the merits of the new map (which, of course, didn't come into existence until the end of the just-concluded third special session).

SMurph, there is essentially zero chance that any state or federal court will ever intervene on the adjournment motion. Courts usually treat that sort of parlimentary detail as being a "political question" that is outside their jurisdiction to hear; legislative bodies set their own rules, interpret them, and enforce them within extremely broad bounds.

bz, I've blogged at great length (for instance: http://www.beldar.org/beldarblog/2003/09/earth_to_dem_se.html and http://www.beldar.org/beldarblog/2003/08/letitias_choice.html ) about why court-devised redistricting is not remotely comparable to legislative redistricting. No one with even a passing familiarity with the two different processes could possibly argue that they're alike in any significant respect, and in fact you need go no farther than to read the 2001 Balderas v. Texas panel opinion ( http://gis1.tlc.state.tx.us/static/pdf/opinion.pdf ) to see why that's so. Attorney General Greg Abbott's formal opinion ( http://www.oag.state.tx.us/opinopen/opinions/op50abbott/ga-0063.htm ) that blessed this year's redistricting efforts nicely summarizes the relevant constitutional and statutory provisions, along with pertinent caselaw from the US Supreme Court and elsewhere. The just-passed map is Texas' first legislative redistricting of this decade. Lt. Gov. Dewhurst's recent remarks notwithstanding, if this map is torpedoed in the courts, the Legislature would be absolutely justified in trying yet again before the end of this decade.

Byron, thanks for posting the link to the newest filing saved me a few bucks getting it online via Pacer. :-)

And no serious person, Beldar, could claim as you do that a legislative travesty like the one we have just witnessed creates political legitimacy.

Go ahead, keep shilling for DeLay and company.