Burnt Orange Report

I've posted a response.

"The current US House districts are still gerrymandered from 1992..."

This is the biggest myth in the redistricting debate and one that the Republicans have been allowed to get away with for the most part.
The current Congressional districts were drawn up from scratch by a panel of federal judges in 2001. The judges corrected the gerrymandering abuses from the 1991 plan and relied on "neutral districting factors."

This is the point I make at my site here .. http://rhetoricrhythm.blogspot.com/2003_07_27_rhetoricrhythm_archive.html#105954375349726229

Great points, Mike. Exactly what I wanted to know.

The republicans do have the statutory authority, but as a practical matter, they will still need to demonstrate a compelling interest in court. Considering the fact that the previous session's hearings produced a record of near unanimous opposition to redistricting, and any legislation resulting from this session will go into the courts without having been committed or having been subject to public hearings, it would be difficult to see how the Lege could make the case that there is a compelling interest.

Mike's argument is completely without merit. As I just pointed out on my web log, it is a known fact that the 1992 plan was mostly kept intact and protected all Democratic incumbents.

Hey, but don't trust me, trust Hill News:

"The state Legislature failed to reach agreement on a new map during the decennial review in 2000, and the matter fell to a three-judge panel. The court largely left the previous map untouched."

And trust the Houston Chronicle:

"[T]he ... three -judge panel gave Democrats a dramatic victory by ordering a congressional redistricting plan that likely will result in a 17-15 Democratic majority in the state's congressional delegation after next year's elections. Republicans had hoped to get 20 of the state's 32 districts."

And how about the Quorum Report:

"The dust is still settling, as people review the new Congressional map. If there are no retirements, it looks clear that the Texas delegation next year will be 17 Democrats and 15 Republicans. The court decided that the numbers did not justify an additional Hispanic seat...

This map is an extreme incumbent protection map. No incumbents were paired. Republicans will easily win the two new seats 31 and 32. Except for Joe Barton's district, which only contains 44% of the voters that were within it in a the district existed in 2000, all districts have at least 63% of their voters coming from the districts as they existed in 2000. No district underwent any major change."

Comprende?

"The Texas Constitution states clearly that in the absence of a quorum, the remaining members may "compel the attendance of absent members, in such manner and under such penalties as each House may provide."

Issue 1: this seems to require, at the least, the unanimous consent of the "remaining members." Do they even have this?

Issue 2: if they have a valid interest to compel, how is it done? For example, the house still cannot exceed its jurisdiction or violate separation of powers by commandeering executive officials (e.g., the state police) to bring in the dems.

rolodomo,

Issue 1: this seems to require, at the least, the unanimous consent of the "remaining members." Do they even have this?

Where does the amendment say 'unanimous consent' is required? The rules only call for a majority vote.

Issue 2: if they have a valid interest to compel, how is it done? For example, the house still cannot exceed its jurisdiction or violate separation of powers by commandeering executive officials (e.g., the state police) to bring in the dems.

Why not? It's a violation of the state constitution, and the constitution gives the legislature the power to determine the manner in which fleeing legislators are brought in. This makes for an expressly permitted use of police powers by the legislature. I've spoken on this issue in depth on my web log.

While it may be true that the Federal Court's map heavily resembled the previous map, don't assume that the judges just took the previous map and added the new districts. In a way, both Mike and Owen are correct. Yes, incumbents were favored. But the judges did start from scratch. Read more of the opinion, and they explain the reasons for the similarities. They avoided splitting cities and counties as much as possible, particularly "double splits." They also considered district histories.

Also, they admitted that there is a built-in Democratic bias because of the protection of majority-minority districts, which lean Democratic. Their focus after all was to address Voting Rights violations. And they did address the most obviously gerrymandered districts.

To even suggest that the Federal Court intended to preserve the Democratic advantage is "without merit." When you look at the House proposed maps in particular, they divide cities and counties to gain Republican seats.

The thing to remember is also that party affiliation can be meaningless in terms of the views and votes of the representative. Some Democratic U.S. reprentatives from Texas are very conservative, like Ralph Hall or Charlie Stenholm.

If all you are doing is looking at VOTERS and PARTY TOTALS, you miss the landscape of Texas voting, which has historically voted Republican at higher levels and Democratic at lower levels. Since WWII, the majority of Texans voted in presidential elections for Republicans 9 times and for Democrats 5 times. (LBJ being a favored son helped Democrats in two elections, and Wallace split the conservative vote allowing Humphrey to win a plurality of 41%.) Yet, until recently most legislators and even statewide offices were Democrats.

Finally, it is no minor point that there is lower voter turnout in some heavily Democratic districts, especially considering that districts are based on populations and not on voter percentages. If districts where there was only a Democrat and no Republican had the turn out of Republican-only-no-Democrat districts, there would be an additional 215,000 Democrat voters. District 29 had only a 3% voter turnout. Republican-heavy districts like Districts 7 still had greater voter turn-out, even at 5.7%. You cannot simply look at voter totals for each party across the state.

When you get down to it, districts are about consituents, about people with shared interests, concerns, and issues. It is NOT about voter totals. Dividing cities, combining rural areas with suburban areas, are attacks on what political representation is really about.

There is no majority of Texans in favor of redistricting, an odd thing considering the high percentage of Republican voters--odd until you consider that folks know what this redistricting is really all about.

Owen,

Regarding the first issue, I was just using your statement that the "Texas Constitution states clearly...the remaining members 'may compel...'" It does not seem like too much of a stretch that the "remaining members" would mean ALL of the remaining members and thus their unanimous consent would be required. Otherwise the "remaining members" would not be speaking. I understand that there may procedural rules in place during normal legislative sessions but do these rules speak to the fundamentally different situation where there is no quorum in the first place?

Regarding the second issue, your response presumes a violation of the Constitution. The remaining members may compel but this does not mean that a violation has occurred. Instead, the Constitution seems to recognize a vague procedure that deals with the problem. However, a violation might occur if the procedure (as interpreted by the courts) was not followed. Further, "compel" is not expressly permitting the use of police powers. Compelling by such a means and under penalties that the house may choose may be interpreted by a court as meaning the authorization of police powers, but it is not expressly written in the Constitution as such.

Even if I assumed a violation and that the "remaining members" had decided to compel, then the "manner" and "penalties" they choose to compel should be consistent with other provisions of the constitution (such as those directed to separation of powers and jurisdiction, if they even exist). Otherwise, one portion of the constitution would trump another portion of the constitution without a textual commitment to do so. I'm not an expert in the Texas constitution, however the four corners of the document should be interpreted in a way such that they are internally consistent.

You've made some good points and I've read them with interest. Although I find this Texas issue very interesting, I'm not a Texan and I don't really know enough about the issue to reach any firm conclusions. The issues I raised were more like questions and I appreciate your feedback.

rolodomo,

It does not seem like too much of a stretch that the "remaining members" would mean ALL of the remaining members and thus their unanimous consent would be required.

Acutally, it is a major stretch, considering that 1) a majority vote is usually all that is required, and 2) Section 10 was clearly intented to provide disincentive to thwart a quorum.

I understand that there may procedural rules in place during normal legislative sessions but do these rules speak to the fundamentally different situation where there is no quorum in the first place?

Yes.

"Those for whom no sufficient excuse is made, by order of the majority of those present, may be sent for and arrested wherever they may be found and their attendance secured and retained by the Sergeant-at-Arms or officers appointed by the Sergeant for that purpose" - Texas Senate Rule 5.04

"All absentees for whom no sufficient excuse is made may, by order of the majority of those present, be sent for and arrested, wherever they may be found, by the Sergeant-at-Arms or an officer appointed by the sergeant-at-arms for that purpose, and their attendance secured and retained" - House Rule 5, Section 8

Regarding the second issue, your response presumes a violation of the Constitution. The remaining members may compel but this does not mean that a violation has occurred. Instead, the Constitution seems to recognize a vague procedure that deals with the problem.

Oh come on... It allows the legislature to order the arrest of legislators thwarting a quorum ('compel' means 'force') and to prescribe punishments for them. How can that not be interpreted as a violation?

However, a violation might occur if the procedure (as interpreted by the courts) was not followed. Further, "compel" is not expressly permitting the use of police powers. Compelling by such a means and under penalties that the house may choose may be interpreted by a court as meaning the authorization of police powers, but it is not expressly written in the Constitution as such.

The Court must still use a reasonable interpretation of the state Constitution, granting the legislature the leverage to determine 'the manner' in which legislators are compelled to return and punished for fleeing to thwart a quorum. Moreover, they must respect the allowance granted in Article II to the legislature to exercise powers explicitly granted. To say that compelling attendence and punishing legislators cannot be done without the slighest participation of the executive or judicial branches is silly. We might as well say that legislators can't be arrested for anything.

The Texas Constitution's intentions with regard to thwarting a quorum are obvious; it's not an acceptable tactic. Moreover, it states that the legislature may force attendence and punish those who have refused. That being the case, I don't see how this power is limited, or how thwating a quorum is legitimate.

Owen,

I think you might be mixing Constitutionality with issues of discretion and punishment.

Article 3, Section 10 of the TX Constitution states "two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide."

Therefore, the TX Constitution gives the Senate the discretion on how to compel (i.e., in such manner and under such penalties as the Senate may provide).

However, you seem to erroneously conclude that this discretion, when exercised in a certain manner, makes the act of thwarting a quorum unconstitutional. For example, you state that the TX Constitution is violated because it "allows the legislature to order the arrest of legislators thwarting a quorum ('compel' means 'force') and to prescribe punishments for them." Therefore, you argue that thwarting a quorum is unconstitutional because the legislature has the discretion punish the thwarters (i.e., discretion exercised in a certain manner). However, the legislature also has power to exercise this very same discretion in other manners. For example, the legislature has the discretion NOT to punish the thwarters by simply adopting a more permissive Senate rule. Therefore, you argue that if the Senate exercises discretion in first manner (i.e., punishment), then the act is unconstitutional. From this, it must also be concluded that if the discretion is NOT exercised in said first manner (i.e., NOT punishment), then the act is NOT unconstitutional (i.e., Constitutional). Therefore, you are arguing that the exercise of Senate discretion controls the Constitutionality of the act. However, the determination of Constitutionality is a judicial act. Further, the Constitution textually committed discretion to the Senate. No textual commitment of epic proportions was given to the Senate to determine Constitutionality. Therefore, I think it is wrong to conclude that a Senate decision to exercise its discretion by adopting a Senate rule that punishes the thwarters means the act is unconstitutional.

I also think there are separation issues if the Senate decides to compel in certain manners.

Regarding separation of powers, the Article 2 of the TX Constitution states:

The powers of the Government of the State of Texas shall be divided into three distinct departments....Legislative...Executive...and...Judicial...no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted."

I think Article III fails to "expressly" permit the Legislative to exercise power over the Executive (commandeering of the police force). Instead, and as discussed above, the Constitution gives the Senate discretion on how to compel. Nothing is expressly said about exercising control over state police. It is a non-conservative jump from the text of the Constitution to get from "may compel" to "may commandeer the state police forces."

The Senate Rule 5.04 states that the Senate Sergeant-at-arms may arrest wherever the thwarters are found or may appoint officers. However, the Constitution that "no person...shall exercise any power properly attached to either of the others" trumps this lower Senate Rule.

In anticipation of this separation of powers argument, you state that "[t]o say that compelling attendance and punishing legislators cannot be done without the slightest participation of the executive or judicial branches is silly. We might as well say that legislators can't be arrested for anything."

It does NOT follow that barring the legislator from using the state police to compel attendance it saying that legislators can't be arrested for anything. The first issue is narrowly focused on obtaining legislative quorum. The second issue is broadly focused on a whole range of powers that the executive possesses to prosecute wrongdoers. For example, nothing in this discussion would lead to the conclusion that the executive cannot arrest a legislator on charges of murder, robbery, etc.

I've not researched into legislative history and case law so all of the above in just my 2 cents. In addition, I can still see how you would reasonably disagree. However, it does appear that the Constitution gave discretion to the Senate on how it wishes to handle quorum thwarting. Therefore, it appears that breaking quorum is an acceptable tactic. If you argue otherwise, then you argue the Constitution would allow the Senate the discretion NOT to prosecute an unacceptable tactic, which is a complicated and cynical reading of the Constitution.

rolodomo,

I think you might be mixing Constitutionality with issues of discretion and punishment.

No, I'm not. I never said that thwarting a quorum was unconstitutional, just that it's an illegitimate legislative tactic, and the constitution clearly treats it as such. A word like 'unconstitutional' needn't be employed to get this fact across.

I think Article III fails to "expressly" permit the Legislative to exercise power over the Executive (commandeering of the police force).

First of all, the police weren't 'comandeered.' The head of the executive branch, Governor Rick Perry, approved of the use of the DPS to track down the fleeing legislators.

Secondly, by using the word 'compel' and explicitly noting that punishments may be meted out, Article III does permit the legislative branch to make use of other branches. Otherwise, Section 10 wouldn't make a lick of sense. You couldn't punish legislators or effectively compel their attendence without the use of prisons, police, and possibly the courts. I think, then, that the mention of arrest and punishment qualifies as an expressly granted use of police powers by the legislature.

it does appear that the Constitution gave discretion to the Senate on how it wishes to handle quorum thwarting. Therefore, it appears that breaking quorum is an acceptable tactic.

That's completely absurd; a non sequitur in the extreme. First of all, the Senate rules themselves prohibit breaking quorum except for certain narrow reasons. Therefore it's not acceptable.

Secondly, you can't tell me that any reasonable person would read Section 10 and think anything other than that breaking quorum is unacceptable. It gives the powers of arrest and punishment, and while it leaves the use of these up to the discretion of the legislature, it is clear enough that the tactic is not regarded as legitimate. After all, why would the remaining members NOT compel attendence? The only reason for breaking quorum is to kill legislation when you can't beat the majority. You can't create a probable scenario where the legislature would opt not to go after legislators breaking quorum.

Owen,

Some of your statements may contradict each other. For example, you just stated that "I never said that thwarting a quorum was unconstitutional... A word like 'unconstitutional' needn't be employed to get this fact across"

However, in previous messages within this thread, you stated "[w]hy not? It's a violation of the state constitution" and "[h]ow can that not be interpreted as a violation?" I tend to equate violating the state constitution with being unconstitutional.

You also make the statement: "First of all, the police weren't 'commandeered.' The head of the executive branch, Governor Rick Perry, approved of the use of the DPS to track down the fleeing legislators."

My response is that if the DPS actually arrested someone they would need a valid, legal charge, therefore your distinction makes no real difference. For example, what would be the charges pressed against those fleeing Senators that Rick Perry's DPS "voluntarily" chose to arrest? How about, "you are arrested because Rick Perry decided to have the DPS track you down and arrest you just because he felt like it." Obviously, that would not stick. How about, "you are arrested because Rick Perry agreed with the Senate to have you arrested." That's getting closer, however I'm not sure that would stick either, you can't be arrested because Rick Perry reached an agreement with someone, it has to be because you violated some law. How about, you are arrested for thwarting Senate rules. Now there you go, that might stick. However, we are right back close to where I started, the arresting officer (instead of the Senate Sergeant-in-arms) has just been commandeered by the Senate to arrest a Senator for breaking a procedural Senate rule.

Your arguments about the inability to "punish legislators or effectively compel their attendance without the use of prisons, police, and possibly the courts" is an interesting one. One could say that the quorum thwarting Senator faces punishment when seeking re-election but I guess that the concept of facing the voters is too quaint. The legislature does have a their seargent-in-arms with his ability to chase after Senators, lock Senators in the senate, and even evict Senators from their seats. There could be a whole host of other remedies as well, such as suspension of pay or administrative fines but heck no, let's get the state police involved with internal Senate squabbles! Now there's a sound plan for the future.

I really don't appreciate you’re statement that some of my comments "were completely absurd; a non sequitur in the extreme. " This is an extraordinary, absolutist claim that you base upon the prominent use of selective quoting. As I said, to argue that there is no legitimate reason to break quorum would be to argue that Constitution would allow the Senate the discretion NOT to prosecute an unacceptable tactic, which is a complicated and cynical reading of the Constitution. Your statement that "[y]ou can't create a probable scenario where the legislature would opt not to go after legislators breaking quorum" is a challenging assertion. I admit that I would have to probably put some thought into it, however I am confident I could come up with at least one scenario (I’m not agreeing that the scenario need be "probable"). Of course, the threshold question is really this, should I substitute my judgment for the judgment of the framers of the Constitution, who clearly and expressly gave this discretion to the Senate? I don't think so! Some might even consider doing so liberal activism!

rolodomo,

However, in previous messages within this thread, you stated "[w]hy not? It's a violation of the state constitution" and "[h]ow can that not be interpreted as a violation?" I tend to equate violating the state constitution with being unconstitutional.

It is a violation insofar as 1) the Senate rules make it one, and 2) the Constitution explicitly grants the legislature extensive powers to top a minority of legislators from thwarting a quorum. I do believe that thwarting a quorum runs contrary to the sentiment expressed by Article III, Section 10.

However, 'unconstitutional' generally refers to legislation which conflicts with the constitution, or a misuse of governmental power against the citizenry. This doesn't fit the traditional mold of what most would consider to be 'unconstitutional.'

My response is that if the DPS actually arrested someone they would need a valid, legal charge, therefore your distinction makes no real difference.

But they have a 'valid, legal charge' under Article III, Section 10. Besides, the DPS could arrest a material witness and hold them without charge. It isn't unheard of to arrest a person without charging them with anything.

For example, what would be the charges pressed against those fleeing Senators that Rick Perry's DPS "voluntarily" chose to arrest? How about, "you are arrested because Rick Perry decided to have the DPS track you down and arrest you just because he felt like it."

How about 'thwarting a quorum, a violation of Section III, Article 10 of the Texas Constitution, and of Senate Rule 5.04.'

[Y]ou can't be arrested because Rick Perry reached an agreement with someone, it has to be because you violated some law.

Again, this is incorrect. We already have contrary cases, like those which permit the arrest of material witnesses to retain their testimony. Besides, the Texas Constitution is the highest law of the land, and can be invoked to justify the arrest of legislators fleeing a quorum.

Your statement that "[y]ou can't create a probable scenario where the legislature would opt not to go after legislators breaking quorum" is a challenging assertion. I admit that I would have to probably put some thought into it, however I am confident I could come up with at least one scenario (I’m not agreeing that the scenario need be "probable"). Of course, the threshold question is really this, should I substitute my judgment for the judgment of the framers of the Constitution, who clearly and expressly gave this discretion to the Senate?

...But you have to use common sense in interpreting the Texas Constitution. To argue that Section 10 is neutral towards the issue of breaking quorum is downright ridiculous if you think of how it applies in reality. Do you believe the framers didn't have even a modicum of common sense? That they would see many good and likely reasons why the legislature would not want to pursue legislators breaking quorum? It's clear to see that Section 10 paints thwarting a quorum as an illegitimate legislative tactic.

And it's not using common sense when interpreting the constitution that is the heart of liberal activism...

Owen, I guess we must like Constitutional law or something because it is down to just you and me in this dying thread!

Good point about the material witness law. Under the exceptional and narrow circumstances of a material witness law, I agree that the material witness has not "violated" a law. However, is there actually a Texas material witness law? Wouldn't the material witnesses still be "charged" as being a material witness to a crime? Nonetheless, the arresting officer is still acting under a public law, which is a bit different than acting directly under the Texas Constitution.

Regarding the Texas Constitution, I think it is questionable whether the executive (police) could arrest directly under Article III, Sec. 10 alone. I don't think that this or other relevant articles give the executive the specific authority to arrest for these circumstances, only to faithfully execute the law (Article IV, Sec. 10). Generally, authority to arrest is given by other public law in connection with crimes that are also defined by public law. Are you aware of any situations in Texas applicable to our discussion where the executive can arrest and press charges by referring directly to the Constitution in the absence of other public law on point? I ask this question seriously because I would be very interested in finding out. However, based on what I know, I don't think the police would have a valid, legal charge under Article III, Section 10 alone.

Then there is the issue of Senate Rule 5.04. This is a procedural rule intended to govern Senate conduct, not a law that commands public conduct. Further, the law only states that Senate "Sergeant-at-Arms or officers appointed by the Sergeant for that purpose" may arrest. The sergeant at arms is a legislative officer, not an executive officer. Officers "appointed" by the Sergeant would also be legislative officers because they would be acting under the direction of the legislature. Therefore, if the sergeant at arms appointed an executive officer to arrest, then the sergeant would be commandeering an executive officer thus raising Article II separation of power concerns as I discussed above (e.g., Article II trumps the Senate rule and Article III fails to provide an express exception, that is "may compel" does not mean "may commandeer state police officers"). I also don't think that voluntary consent by the Governor would be effective. The reason is that, regardless of the Governor's consent, the Senator would still be arrested by an executive officer commandeered by the Sergeant (legislative officer) under a Senate rule that only specifies that a legislative officer can arrest (as I discussed above). That is, consent cannot be used to rewrite the law. Therefore, I don't think Senate Rule 5.04 alone or in combination with Article III, Sec. 10 would provide the police with a valid, legal charge but hey, that's just my opinion.

My focus on separation of powers is not a trivial issue. Not only does the Texas Constitution require separation of powers, but separation of powers is a time tested method to protect the public from government overreaching. As I'm sure you're well aware, each branch of government is constantly under hydraulic like pressure to increase power. Once way to keep this pressure from resulting in a huge power grab is to keep the pressure in each branch working in opposition to the other branches. There are other well-known arguments such as maintaining accountability in each branch.

You argue that if the framers even had a modicum of common sense, then they drafted Section 10 to paint thwarting a quorum as an illegitimate legislative tactic. Further, common sense would dictate interpreting the Constitution as an illegitimate tactic.

Although I'm not sure what was "common" sense at the time of the framers, I feel that it is still common sense to stick to the text. Article II states that the Senate "may...compel the attendance of absent members, in such manner and under such penalties as each House may provide." Therefore, the Constitution used the word "may" not only once as it relates to whether to compel but a second time as it relates to how to assess penalties. They also put an upper limit on the discretion by allowing to Senate to compel if they so choose. Therefore, it seems like common sense to me that the framers expressly granted discretion (two "mays") to the senate regarding the issue of thwarting quorum. Why would the framers consider thwarting quorum an illegitimate legislative tactic and then give the Senate the discretion not to compel attendance, especially when they could have so easily done the opposite, by using mandatory language such as "shall...compel?"

I think you are finally going to draw me into peering behind the objective text and getting into subjective considerations such as what was in the framer's "minds" when they expressly gave the Senate discretion to compel. I would suggest that they simply recognized that they could not foresee all the possible issues especially when peering into the future. Therefore, they gave the Senate flexibility in how they chose to handle quorum thwarting. For example, at one point in the future, the Senate may view quorum thwarting as a serious problem, therefore they can adopt rules to compel. At another point in the future, the Senate may view quorum thwarting as a matter that can better resolved using alternate dispute resolution procedures and thus the Senate can adopt more permissive rules.

BTW, do you (or anyone else if you're out there) have an historical analysis of the framers when they were drafting the Constitution? That would be interesting.

Gotta go out of town for a few days. If you decide to reply I'll try to get back in a few days.