TEXAS REDISTRICTING

DOJ to monitor Texas primary elections

Fri, 25 May 2012 10:37:00 -0500

The Justice Department announced today that it would be monitoring the May 29 Texas primary in select counties.

Here’s the announcement:

JUSTICE DEPARTMENT TO MONITOR ELECTIONS IN TEXAS

WASHINGTON – The Justice Department announced today that it will monitor primary elections on May 29, 2012, in Fort Bend, Harris and Jefferson Counties in Texas, to ensure compliance with the Voting Rights Act of 1965 and other federal voting rights statutes. The Voting Rights Act prohibits discrimination in the election process on the basis of race, color or membership in a minority language group. In addition, the act requires certain covered jurisdictions to provide language assistance during the election process.

Under the Voting Rights Act, the Justice Department is authorized to ask the U.S. Office of Personnel Management (OPM) to send federal observers to jurisdictions that are certified by the attorney general or by a federal court order. Federal observers will be assigned to monitor polling place activities in Fort Bend and Jefferson Counties based on the attorney general’s certification. In addition, Fort Bend is subject to a court order entered in 2009, which requires the jurisdiction to comply with the minority language and assistor of choice requirements of the Voting Rights Act, as well as the requirements of the Help America Vote Act. The observers will watch and record activities during voting hours at polling locations in these counties, and Civil Rights Division attorneys will coordinate the federal activities and maintain contact with local election officials.

In addition, Justice Department personnel will monitor polling place activities in Harris County. A Civil Rights Division attorney will coordinate federal activities and maintain contact with local election officials.

Each year, the Justice Department deploys hundreds of federal observers from OPM, as well as departmental staff, to monitor elections across the country. To file complaints about discriminatory voting practices, including acts of harassment or intimidation, voters may call the Voting Section of the Justice Department’s Civil Rights Division at 1-800-253-3931.

Abbott allows depositions of legislators to go forward in voter ID case

Tue, 22 May 2012 22:29:00 -0500

Tuesday, Texas Attorney General Greg Abbott allowed depositions of 12 Texas legislators to go forward in the voter ID case notwithstanding claims of legislative privilege.

Abbott earlier had sought to block those depositions.

Instead, the court will decide legislative privilege claims on a situation-by-situatuion basis.

Tim Eaton of the Austin American-Statesman reports here.

Breaking: DC Circuit upholds the constitutionality of section 5 of the Voting Rights Act

Fri, 18 May 2012 12:39:00 -0500

In a 2-1 decision this morning in the Shelby County case, the D.C. Circuit Court of Appeals upheld the continued constitutionality of section 5 of the Voting Rights Act.

Writing for the majority, Judge Tatel said:

In Northwest Austin, the Supreme Court signaled that the extraordinary federalism costs imposed by section 5 raise substantial constitutional concerns. As a lower federal court urged to strike this duly enacted law of Congress, we must proceed with great caution, bound as we are by Supreme Court precedent and confined as we must be to resolve only the precise legal question before us: Does the severe remedy of preclearance remain ‘congruent and proportional’? The legislative record is by no means unambiguous. But Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote - surely among the most important guarantees of political liberty in the Constitution - is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People’s elected representatives.

Judge Williams dissented, writing that in his view that “when Congress passed the 2006 version of the VRA, it not only disregarded but flouted [constitutional] concerns.”

Judge Williams’ dissent went on to say:

Preclearance now has an exclusive focus - whether the plan diminishes the ability of minorities (always assumed to be a monolith) to ‘elect their preferred candidates of choice,’ irrespective of whether policymakers (including minority ones) decide that a group’s long-term interests might be better served by less concentration- and thus less of the political isolation that concentration spawns.

…

[A] congressional mandate to assure the electoral impact of any minority’s majority seems to me to be more of a distortion than an enforcement of the 15th Amendment’s ban on abridging the ‘right of citizens of the United States to vote … on account of race, color, or previous condition of servitude.’ Preventing intentional discrimination against a minority is radically different than actively encouraging racial gerrymandering in favor of the minority (really, the majority of the minority), as § 5 does.

With the opinion out, the case almost certainly looks set to be heard by the Supreme Court in its Fall term.

The court’s opinion and Judge Williams’ dissent can be found here.

Court not happy with Texas in voter ID case; says it will give State one last chance for July trial

Mon, 07 May 2012 18:26:00 -0500

In a harshly worded order issued this afternoon, the court in the Texas voter ID case reprimanded the state for what it said were “well-documented” discovery violations “that can only be interpreted as having the aim of delaying the Defendants’ ability to receive and analyze data and documents in a timely fashion.”

The court said:

Texas has repeated ignored or violated directives and orders of this Court that were designed to expedite discovery, and Texas has failed to produce in a timely manner key documents that Defendants need to prepare their defense. Most troubling is Texas’ conduct with respect to producing its key state databases, which are central to Defendants’ claim that S.B. 14 has a disparate and retrogressive impact on racial and/or language minority groups. The record reflects that these databases are voluminous, complex, and essential to the preparation of the opinions of Defendants’ expert witnesses. Yet, according to Texas, the full production of such databases to the United States was only complete on May 4, 2012 - 35 days after they were initially due. The production to Defendant-Intervenors is still not complete.

The court told Texas that “[b]ased on the record to date, this Court would be well within its discretion to continue the July 9 trial date, to impose monetary sanctions against Texas, or to keep the July 9 trial date and impose evidentiary sanctions such as an adverse inference upon Texas.”

However, the court said it would give Texas one final chance, cautioning, though, that:

[T]he only way this case can be ready for trial on July 9 is if every single future deadline, and every single condition, that are set forth in this Order can and will be met by Texas. If any of these deadlines or conditions cannot or will not be met, then the delays or ancillary litigation that will result will either make a July 9 trial impossible at all, or impossible without undue and manifest prejudice to the United States and Defendant-Intervenors. If Texas does not believe in good faith that it is able or willing to abide by all of these deadlines or conditions, then it needs to inform the Court now, so that the Court and all parties will know that the July 9 trial date is truly impossible.

The conditions imposed by the court’s order include mandates that Texas not require subpoenas for appearance of any current legislators or state employees and that Texas not assert any additional claims of privilege other than those already raised with the court.

The order also directed that Texas complete database production by Thursday, May 9, and production of all other non-privileged documents by this Friday, May 11,

The court’s order can be found here.

Status conference set in Texas voter ID case; court says 'disinclined' to delay July trial

Tue, 01 May 2012 17:41:00 -0500

The three-judge panel in the Texas voter ID case has set a status conference for 3 p.m. on Thursday, May 3.

In its status conference order, the court said that it “was disinclined” to grant requests to postpone the scheduled July 9 trial in the case and said that it was “committed, if at all possible, to decide th[e] case in time for the law, if pre-cleared, to be effective for the November 2012 elections.”

The court’s order directed the parties to “meet and confer prior to the status conference and work, in good faith, to narrow all possible areas of disagreement with respect to … status, schedule, and deadlines.”

The court’s status conference order can be found here.

Trial set in South Carolina voter ID case; court says will issue decision in September

Sat, 28 Apr 2012 12:02:00 -0500

The three-judge panel in the South Carolina voter ID case has scheduled the case for five-day trial, running from July 26-27 and continuing August 1-3.

The court’s scheduling order also said the court intends to issue an opinion in ‘early September.’

Under the order, fact discovery closes June 22 and expert discovery ends July 3.

So for now at least, the Texas voter ID case is on track to be decided first.

The court’s scheduling order can be found here.

State of Texas says July trial in voter ID case possible; says DOJ/intervenors seeking delay so law can't be used in 2012

Fri, 27 Apr 2012 00:20:00 -0500

The State of Texas hit back hard today at a request by the Justice Department and intervenors in the Texas voter ID case to delay the scheduled July start of trial, accusing DOJ and intervenors of intentionally trying to delay the case so that the law would not be in place for the November 2012 elections.

The brief said:

It is no secret that the United States and the intervenors want to delay implementation of SB 14 until after the November 2012 elections. They initially requested a later trial date, knowing full week that such a late trial would foreclose any possibility of Texas implementing SB 14 in time for this year’s general election. Having lost the initial battle in this Court over the trial date, their fallback strategy is transparent: bombard the State with massive discovery requests (many of which are only marginally related to the issues in this case), claim that discovery is moving too slowly, and then insist that the trial date be moved.

…

There is no doubt that this case can proceed to trial on the current schedule. The issues in this case implicate a limited universe of facts. This is not a redistricting case; it is a case that turns on the purpose and effect of a discrete voting change - a change virtually identical to one already upheld by the United States Supreme Court. The Court will not need extensive testimony to determine why particular legislative decisions were made or who made them. The parties already have the benefit of a complete, publicly available record spanning two sessions of the Texas Legislature, and that record provides extensive information about the purpose of SB 14.

The state’s response brief can be found here.

DOJ moves to compel production of documents in Texas voter ID case

Wed, 25 Apr 2012 23:38:00 -0500

This evening, the Justice Department asked the court in the Texas voter ID case to compel the State of Texas to turn over three groups of documents that it says the state is withholding in clear contravention of discovery rules.

According to the DOJ’s motion:

First, Texas has improperly asserted that the deliberative process privilege over documents in the possession, custody, or control of the Office of Governor. Second, the State has claimed a state legislative privilege extends to communications between a legislator and a state agency, as well as to purely internal documents produced by a state agency after communications with a legislator. Third, the State of Texas has incorrectly asserted that the attorney-client privilege extends to communications between the Texas Legislative Council and state legislators, although the State has not yet produced a privilege log concerning documents in the possession of the TLC.

The DOJ noted in an accompanying brief that privilege claims involving communications with the Texas Legislative Council had already been rejected once by the three-judge panel in the Texas redistricting case.

The DOJ argued that in withholding the documents, the state was deliberately trying to keep relevant evidence from being heard in court:

The ‘fundamental political right to vote’ hangs in the balance in this litigation, and ‘the possibility that qualified voters might be turned away from the polls’ requires ‘careful consideration’ of the implications of S.B. 14. See Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curium). The State’s serial assertions of state confidentiality rules and privileges - with varying degrees of plausibility - suggests that the State intends to limit the evidence before this Court to unchallenged declarations made on the floor of the legislature.

The DOJ motion to compel can be found here and its accompanying brief can be found here.

Separately, the state advised the court today that all 14 Republican legislators whom the DOJ and intervenors sought to depose would be asserting a legislative privilege.

DOJ also requests postponement of Texas voter ID trial, citing delays by State of Texas

Tue, 24 Apr 2012 10:48:00 -0500

In a filing late Monday night, the Justice Department joined intervenors in the Texas voter ID case in asking for postponement of the July 9 start of trial in the case, telling the court:

Texas has failed to produce critical discovery in a timely manner or at all, and has asserted wide-ranging, shifting, and sequential privilege claims that will continue to require significant resources from the parties and the Court to resolve. These discovery delays have been caused by the State’s own conduct and strategic decisions, and have occurred despite the Attorney General’s best efforts to facilitate the expedited litigation of this matter. While the Attorney General shares the parties’ and the Court’s interest in resolving this matter as quickly as is reasonable, the State’s litigation decisions and discovery delays have rendered a July 9, 2012 trial date both impractical and severely prejudicial to the Attorney General … The State of Texas, which professes that ‘implementing SB 14 for the November 2012 elections is the paramount goal of this litigation,’ (ECF 83) has taken precisely the opposite approach at every step.

DOJ said the delays had made it extremely difficult for it to review documents and to be able complete depositions before the June 15 discovery cutoff, which it noted was only three weeks before the scheduled start of trial.

The department did not propose an alternative trial date but said that the date should be reset “after all privilege motions are filed, briefed, and ruled upon.”

DOJ’s postponement request can be found here.

Request to delay Texas voter ID trial

Mon, 23 Apr 2012 23:43:00 -0500

Intervenors in the Texas voter ID case asked the court today to delay the scheduled July 9 start of trial in the case, citing discovery delays by the State of Texas. The intervenors said the delays had already put the parties at least five weeks behind schedule.

According to the motion:

From the outset, Texas has asked for speed from others, but conducted itself as if time were not of the essence … Despite months of lead time, Texas has not been prepared to meet the very accelerated scheduled for which it petitioned this Court.

The intervenors cited to what they said was the insistence of the state on formal discovery before producing even basic documents such as transcripts of the legislative process.

More critically, they said the state had yet to produce “essential commuter data” from its voter registration, driver’s license, and concealed weapon permit databases that the intervenors said they needed to prepare detailed expert reports on the effect of the law on minority voters. They said those problems were compounded by misrepresentations by the state about the information maintained in its databases and the fact that, even when the state had produced information, it delayed in providing the intervenors with the passwords necessary to access the data.

The intervenors also said that the state’s repeated assertions of broad evidentiary privileges had “resulted in weeks, if not months, of delay in discovery.”

Texas has said unless the law is precleared by August 15, the state will not have enough time to put the law into effect for the November 2012 election.

The court has given the State of Texas until April 26 to respond to the request to delay trial.

The parties’ motion can be found here.

Court in voter ID case refuses to bar depositions of legislators (for now)

Fri, 20 Apr 2012 15:59:00 -0500

In an order issued this afternoon, the panel in the voter ID case declined to issue the blanket protective order sought by the State of Texas to bar depositions of 14 key legislators involved with the voter ID bill on grounds of legislative privilege.

While disagreeing with the Justice Department that “every litigated Section 5 case under the Voting Rights Act … constitutes an ‘extraordinary instance’ warranting a need to ‘intru[de] into the workings’ of the state legislature,” the court also found that the relief sought by the state was too broad:

That said, we think it inappropriate to carve out the contours of such a privilege in a blanket protective order that preemptively shields legislators and their staffs from discovery requests. Such an order - which would put us in the uncomfortable position of deciding potential issues before we even know whether they will arise - strains our preference for adjudicating concrete issues as they come.

The court noted that some legislators might choose to waive the legislative privilege, as they did in the redistricting case, and that “whether and how the privilege applies may depend on whether Texas chooses to rely on legislative testimony on the merits.”

The court said instead that:

If any legislators assert the privilege in response to specific requests for depositions or to justify withholding the production of specific communications, Defendants can move to compel in the appropriate court and Texas can oppose the motion or renew its motion for a protective order. At that point, the precise scope of the privilege can be determined.

The court’s order can be found here.

Video of hearings on increasing the number of SBOE seats

Thu, 19 Apr 2012 02:29:42 -0500

Video of Tuesday’s hearings on whether to increase the number of state board of education seats (currently set at 15):

Morning session

Afternoon session

Redistricting: The U.S. way as an outlier?

Sun, 15 Apr 2012 02:00:00 -0500

While Texans continue the wait for a preclearance ruling from the D.C. court, Columbia Law School’s Nicholas Stephanopoulos looks at how the United States does redistricting compared with countries around the world - and finds the answer discomforting:

Compared to other countries with similar electoral systems, the American model of redistricting is an extreme outlier. And not only is the U.S. model different from its peers, it is also inferior. When it comes to elections, it’s clear that American exceptionalism is a vice, not a virtue.

District design raises three key questions, each of which America answers differently from almost every other Western democracy. The first is which institutions should have authority over the line-drawing process. Though there are exceptions, the typical position in the United States is that state politicians should hold this power, and that their decisions then should be reviewed carefully by the courts. Abroad, in contrast, districts are usually crafted by independent commissions staffed with geographers, political scientists, and the like.

The full article here.

DOJ's Tom Perez talks about Texas redistricting & voter ID litigation (& the constitutionality of section 5)

Sat, 14 Apr 2012 10:10:00 -0500

From remarks yesterday by Assistant Attorney General Tom Perez at Rutgers Law School yesterday:

In Texas, for example, where the state asked a federal court to review its statewide redistricting plans, we have opposed the state legislature’s maps for both the State House and the Texas delegation to the United States Congress because it was our view that the state had not met its burden under Section 5 – the evidence showed, in our view, both that the maps had a retrogressive effect, and that they were enacted with an intentionally discriminatory purpose.   With regard to the Congressional map, for example, Texas was allocated four new congressional seats because of population growth, and although most of that increase was caused by a growth in the Hispanic population, the state proposed adding zero additional seats as Hispanic ability-to-elect districts.

And in both the state House and Congressional maps, there was evidence that the map-drawers intentionally manipulated the map lines based on their knowledge of low Hispanic turnout in some areas to draw districts that would give the appearance of minority control, but that were actually designed to minimize minority electoral strength.   We completed a full trial on the merits in that case two months ago, and we’re waiting for a written opinion from the court.

We are also involved in a number of Section 5 matters arising out of recently enacted state laws relating to voter identification requirements, voter registration requirements, and changes to early voting procedures.   In December, we interposed an objection to South Carolina’s voter identification law.   In March, we objected to a photo ID requirement from Texas on the ground that the law would have a retrogressive effect on Hispanic registered voters.   The disparity between the percentage of Hispanics and non-Hispanics who lack these IDs ranges from 46.5% to 120% – a Hispanic registered voter is at least 46.5%, and potentially 120%, more likely than a non-Hispanic registered voter to lack the required identification.

And also last month, we filed a notice in court taking the position that several of Florida’s recent election law changes – including changes to the early voting period, changes to the procedures for third-party voter registration organizations, and changes that affect people who move between counties and want to update their address on election day – did not meet the Section 5 standard and should not be precleared.

…

These are just a few examples that illustrate why the Department must – and will – continue to vigorously defend Section 5 against challenges to its constitutionality.   And so far, the courts have agreed with us.   A few months ago, a federal district court judge here in D.C. rejected two different constitutional challenges to Section 5 of the Voting Rights Act, and correctly noted that “Congress determined in 2006 that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment.”   Those cases are now continuing on appeal, and although the litigation may be far from over, we are firmly committed to vigorously defending Section 5’s constitutionality.

Perez’s full remarks can be found here.

DOJ says circumstances around enactment of Texas voter ID offer substantial evidence of discriminatory intent

Wed, 11 Apr 2012 10:48:00 -0500

The Department of Justice told the panel in the Texas voter ID case in a brief filed Wednesday that depositions of Texas legislators were needed because even on the limited public record, there was “substantial indicia of discriminatory purpose, including the anticipated effect of S.B. 14, the historical background leading up to passage of the bill, and the nature of legislative debate.”

The State of Texas had earlier asked the court to block the depositions of 14 Republican legislators involved with the voter ID bill’s process through the legislature.

The DOJ brief cited, among other things, the failure of bill proponents to address substantive concerns or answer questions in floor debate about the bill’s impact on minority voters, the refusal to consider amendments that would have lessened the impact on indigent voters, and the refusal to fund studies to track the law’s impact or to education programs targeted at low-income and minority voters.

DOJ said that the state’s request to block the depositions sought “to shield from discovery the very witnesses it identified in its initial disclosures and responses to interrogatories” and that the “facts are more than sufficient to demonstrate that depositions of Texas state legislators and discovery of the documents lawmakers considered are warranted.”

The DOJ brief can be found here.

House redistricting committee to take on size of state board of education districts

Sun, 08 Apr 2012 13:31:00 -0500

The House Redistricting Committee will meet on Tuesday, April 17, at 10 a.m. in Room E1.030 of the Capitol Annex to take up a possible increase in the number of state board of education seats (currently set at 15).

Here’s the full hearing notice:

The Committee will meet in a public hearing to hear testimony on the following interim charge:

“Study State Board of Education districts to determine whether the size of the districts inhibits the ability of board members to provide representation to their constituents and whether a change to the number of districts or the makeup of the board would enhance the ability of the board to perform its duties.”

More briefing ordered on request to take depositions of Texas legislators involved with voter ID bill

Tue, 03 Apr 2012 23:03:00 -0500

After hearings today, the panel in the Texas voter ID case entered an order directing more briefing on the state’s motion to block the depositions of 12 GOP legislators who were involved with the voter ID bill.

The court’s order said:

At oral argument on Texas’s motion for protective order, the United States indicated that it can submit information that provides a factual basis in support of its request for discovery from Texas legislators. The United States is ordered to submit, by no later than April 10, 2012, such information. Texas may respond no later than April 13, 2012. In light of these deadlines, the April 9, 2012 deadline requiring depositions to commence and the April 20, 2012 deadline for the United States to inform the Court whether it intends to assert discriminatory purpose (set forth in the Court’s and Scheduling Orders) are VACATED.

The Texas primary will May 29 in case anyone was wondering

Mon, 02 Apr 2012 01:22:00 -0500

There’s the old saying about March coming in like a lion and leaving like a lamb, and that certainly seems to have played out in the redistricting litigation.

March began with a furious flurry the release of interim maps and changes to the election schedule.

But with campaigning having begun in earnest and March having ended without a preclearance decision, so too, in all likelihood, did the prospect of further revisions to the interim maps and a further delay of the Texas primary to June 26, with an August 28 runoff.

Now, the preclearance decision when it comes down still might yet require changes to the interim maps before they become the permanent remedial maps. It’s just that those changes likely will have to wait until 2014 to take effect.

The reason is simple - revising the interim maps at this juncture would push the runoff into September and run into deadlines for the general election. Military and overseas ballots for the November general election need to be mailed by September 22 but ballots take 2-3 weeks to print after the primary runoff.

There is a slim possibility for further changes to this year’s maps if the changes to the maps are limited to a district or two (or three). In that case, it is just possible - but by no means most likely - that the court would make the changes and order “jungle primaries” for those districts in November in which candidates of all parties would be listed together, with the top two vote getters (regardless of party) going to a runoff if no candidate gets a majority in round one.

But doing that would be entirely discretionary with the court, even if the changes to the maps were minimal.

And if more extensive changes are required - and any changes to Travis County would create a domino effort given the way the county is cut apart - then a delay of all changes until 2014 seems more likely than not.

Court in voter ID case sets oral argument for 4/3 on request to block legislators' depositions

Fri, 30 Mar 2012 15:37:00 -0500

The panel in the Texas voter ID case has set aside one hour on TUesday, April 3, for oral argument on the State of Texas’ request to block the depositions of 12 Republican legislators who were involved with the voter ID bill, including State Sen. Dan Patrick and state representatives Debbie Riddle and Leo Berman as well as Speaker Joe Straus.

The court’s minute order said:

The United States and Texas shall be prepared for oral argumentation on Texas’s Motion for Protective Order at the April 3, 2012 telephone conference. It is not anticipated, unless the panel has specific questions for the Defendant-Intervenors, that the Court will hear argumentation from the Defendant-Intervenors. The telephone conference is scheduled for one hour.

DOJ and intervenors say State of Texas' claims of legislative privilege in voter ID case baseless

Thu, 29 Mar 2012 21:32:00 -0500

The parties in the Texas redistricting cases exhaustively briefed and argued the issue of legislative privilege, so the emergence anew of a privilege dispute in the voter ID case seems more than a little distinctly deja vue to many observers.

And in responses filed this afternoon, both the Justice Department and intervenors in the voter ID case threw sharp barbs at the State of Texas’ request that the D.C. district court block the depositions of 12 Republican legislators who were closely involved with the voter ID bill.

DOJ officials called the state’s claim of privilege “novel” and, quoting from Judge Collyer’s opinion in the preclearance case, said “’[t]here is no state legislative privilege identified in the Federal Rules of Evidence and the D.C. Circuit has never recognized one.’”

Instead, DOJ argued - as it did in the redistricting cases - that the state was confusing “legislative immunity” with “legislative privilege” and that it was well-established that “[i]ndividuals who are immune from suit may nonetheless be compelled to testify.”

DOJ lawyers also said that - whatever privilege existed - it was at best qualified and had to yield in voting rights cases to the need to obtain evidence of discriminatory intent that likely was not readily obtainable from merely reviewing the public record.

Minority intervenors in the case echoed that concern, arguing that “Texas’ all-encompassing claim of legislative privilege … would preclude disclosure of any information from the legislative process other than what the legislators themselves have placed in the public record.”

Noting that Texas did not address the privilege opinions from the redistricting cases, the intervenors said “the significant federal interests at stake in a Section 5 preclearance action, and the key nature of legislators’ testimony and documents, counsel against the recognition of any legislative privilege.”

The state has until Monday, April 2, to file a reply brief.

DOJ’s response can be found here.

The intervenors’ response can be found here.