Texas redistricting plan ruled illegal in '03 memo by Justice Dept. lawyers Document says decision overruled By Dan Eggen, Washington Post | December 2, 2005 WASHINGTON -- Justice Department lawyers concluded that the landmark Texas congressional redistricting plan spearheaded by Representative Tom DeLay, Republican of Texas, violated the Voting Rights Act, according to a previously undisclosed memo obtained by the Washington Post. But senior officials overruled them and approved the plan. The memo, unanimously endorsed by six lawyers and two analysts in the department's voting section, said the redistricting plan illegally diluted black and Hispanic voting power in two congressional districts. It also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections. ''The State of Texas has not met its burden in showing that the proposed congressional redistricting plan does not have a discriminatory effect," the memo concluded. The memo also found that Republican lawmakers and state officials who helped craft the proposal were aware it posed a high risk of being ruled discriminatory compared with other options. But the Texas Legislature proceeded with the new map anyway because it would maximize the number of Republican federal lawmakers in the state, the memo said. The redistricting was approved in 2003, and Texas Republicans gained five seats in the US House in the 2004 elections, solidifying GOP control of Congress. J. Gerald Hebert, one of the lawyers representing Texas Democrats who are challenging the redistricting in court, said of the Justice Department's action: ''We always felt that the process . . . wouldn't be corrupt, but it was. . . . The staff didn't see this as a close call or a mixed bag or anything like that. This should have been a very clear-cut case." But Justice Department spokesman Eric W. Holland said the decision to approve the Texas plan was vindicated by a three-judge panel that rejected the Democratic challenge. The case is on appeal to the US Supreme Court. ''The court ruled that, in fact, the new congressional plan created a sufficient number of safe minority districts given the demographics of the state and the requirements of the law," Holland said. He added that Texas now has three African-Americans serving in Congress, up from two before the redistricting. Texas Republicans also have maintained that the plan did not dilute minority votes and that the number of congressional districts with a majority of racial minorities remained unchanged at 11. The total number of congressional districts, however, grew from 30 to 32. The 73-page memo, dated Dec. 12, 2003, has been kept under tight wraps. Lawyers who worked on the case were subjected to a gag rule. The memo was provided to the Post by a person connected to the case who is critical of the adopted redistricting map. Under the Voting Rights Act of 1965, Texas and other states with a history of discriminatory elections are required to submit changes in their voting systems or election maps for approval by the Justice Department's Civil Rights Division. Mark Posner, a longtime Justice Department lawyer who now teaches law at American University, said it was ''highly unusual" for political appointees to overrule a unanimous finding such as the one in the Texas case. ''In this kind of situation, where everybody agrees at least on the staff level . . . that is a very, very strong case," he said. ''The fact that everybody agreed that there were reductions in minority voting strength, and that they were significant, raises a lot of questions as to why it was" approved, he said. The memo provides insight into the politicized environment surrounding Texas's redistricting fight, which prompted Democratic state lawmakers to flee the state in hopes of derailing the plan. ----------------------------------------------------------- New Twist in Texas Districting Dispute By DAVID E. ROSENBAUM and ERIC LICHTBLAU December 3, 2005 WASHINGTON, Dec. 2 - The Justice Department acknowledged on Friday that top officials had overruled a determination by its civil rights staff in 2003 that a Congressional redistricting plan for Texas, advantageous to Republicans, would violate the voting rights law. Attorney General Alberto R. Gonzales defended approval of the plan, telling reporters on Friday morning that he was confident that the decision was correct. Conflicting views simply reflected a healthy deliberative process, Mr. Gonzales said. The plan, which had largely been developed by Representative Tom DeLay and which was subsequently upheld by a three-judge federal appeals court panel, led to Republicans' gaining five seats in the House in the election last year. Pointing to the court's acceptance, Mr. Gonzales said the skepticism of career lawyers did not "mean that it was an incorrect decision." "Ultimately, someone has to make a decision," he said. "We're not going to politicize decisions within the department." Democrats sharply disagreed. They said the rejection of the lawyers' conclusion was the latest example of how the Justice Department in the Bush administration substituted politics and ideology for sound judgment. President Bush, a former governor of Texas, has referred to the redistricting dispute and the indictment of Mr. DeLay, who stepped down as House majority in October after being indicted in a campaign finance case, as purely Texas issues with no White House connection. The general position of the staff lawyers in the Civil Rights Division was known. But on Friday, The Washington Post reported the details of a memorandum unanimously endorsed by the six lawyers and two analysts in the voting rights section that strongly criticized the plan, saying it would dilute the voting strength of minorities in violation of the Civil Rights Act of 1965. "In sum, the proposed plan reduces the level of minority voting strength," the memorandum concluded. "The state failed to follow its traditional redistricting principles preserving communities of interest and forbidding fragmentation or packing of minority voters." Despite that unequivocal finding, the Justice Department approved the plan, and Texas officials repeatedly referred to the approval in defending against the Democratic court challenge. Under the Voting Rights Act of 1965, states like Texas with histories of racial discrimination in voting have to have the Justice Department approve their redistricting. The three-judge panel upheld the redistricting plan against the Democratic lawsuit in June. The case is pending before the Supreme Court. In recent weeks, developments in the Justice Department and elsewhere in the government have involved instances in which political appointees countermanded the judgment of professional staff experts whose conclusions were not in line with the administration's philosophy. On Tuesday, the Justice Department lawyer who has led the civil racketeering case against the tobacco industry for five years announced that she was retiring because of disagreements with supervisors. "I didn't feel like I had the support at all times of the political team," the lawyer, Sharon Y. Eubanks, said. Last month, the nonpartisan examiners at the Government Accountability Office said that the Food and Drug Administration had relied on politics and ideology rather than science in rejecting over-the-counter sales of the morning-after contraceptive Plan B. In broadcasting, the inspector general of the Corporation for Public Broadcasting found that its former chairman, Kenneth Y. Tomlinson, had repeatedly crossed boundaries in the law intended to protect public television and radio from political interference. Referring to the Justice Department cases, Mr. Gonzales said the decisions were "not based on politics." Discussing the process, a spokeswoman for the White House, Dana M. Perino, said it was "entirely appropriate" that the president's appointees "develop policies for implementation by the federal government." Democrats used the tobacco case and the voting rights memorandum to renew their argument that the administration was improperly politicizing government functions. The party's whip in the House, Representative Steny H. Hoyer of Maryland, said the disclosure "that political considerations at the Justice Department apparently overrode proper enforcement of the Voting Rights Act should appall and disturb every American." In a clear allusion to the department's investigation of Jack Abramoff, the lobbyist, and his dealings with Republicans in Congress, including Mr. DeLay, Representative Rahm Emanuel of Illinois, chairman of the Democratic Congressional Campaign Committee, said the Texas decision raised "real questions about what is going to happen with other sections of the Justice Department and ongoing investigations." In 2002, Mr. DeLay, the Texan who was the Republican whip at the time, engineered enough Republican victories to take control of the state's Legislature. Normally, legislatures redraw the maps of their states' Congressional districts once a decade, after the census. But Republicans in Texas used their majority to create a new map in 2003. It resulted in Republicans' gaining five House seats in 2004, substantially strengthening Mr. DeLay's position in Washington. Mr. DeLay stepped aside as majority leader in October after being charged in a Texas court with conspiracy to violate the state's election laws by arranging for corporate contributions to be used in Republican campaigns for the Legislature in 2002. Carl Hulse contributed reporting for this article. -------------------------------------- Justice Dept. lawyers found DeLay plan cut minority voting power AG defends decision by agency officials to back it anyway By Suzanne Gamboa, Associated Press | December 3, 2005 WASHINGTON -- Attorney General Alberto R. Gonzales defended the Justice Department's decision to ignore staff lawyers' concerns that a Texas redistricting plan orchestrated by former House majority leader Tom DeLay would dilute minority voting rights. A Justice Department memo released yesterday showed that agency staff members unanimously objected to the Texas plan, which DeLay pushed through the Legislature to help elect more Republicans to the US House. Senior agency officials, appointed by President Bush, brushed aside concerns about the possible impact on minority voting and approved the new districts for the 2004 elections. Gonzales, who was not attorney general when the agency reviewed the redistricting plan, said that it was approved by people ''confirmed by the Senate to exercise their own independent judgment" and that their disagreement with other agency employees doesn't mean the final decision was wrong. The decision appears to have been correct, Gonzales said, because a three-judge federal panel upheld the plan and Texas has since elected one additional black congressman. Of the state's 32 House seats, Republicans held 15 before the 2004 elections. Under the DeLay-backed plan, Republicans were elected to 21. Six members of the Texas delegation are Hispanic (one of them a Republican), and three are black (all Democrats). The redistricting plan has been challenged in court by Democrats and minority voting groups contending it was unconstitutional and that district boundaries had been illegally manipulated to give one party an unfair advantage. The Supreme Court is considering whether to review the case. The memo released yesterday had been sought by lawsuit plaintiffs before going to court, but the Justice Department declined to surrender it then. ''The Supreme Court is our last hope for rectifying this gross injustice. We couldn't count on the [lower] court. We couldn't count on the state, and we obviously couldn't count on the politically corrupt Justice Department," said Gerry Hebert, a lawyer representing the challengers. Because of historic discrimination against minority voters, Texas is required under provisions of the Voting Rights Act of 1965 to get Justice Department approval for any voting changes it makes to ensure the changes don't undercut minority voting. ''The State of Texas has not met its burden in showing that the proposed congressional redistricting plan does not have a discriminatory effect," Justice Department officials said in the memo made public by the Lone Star Project, a Democratic group. Eight department staff members objected to the redistricting map, according to the memo, which was first reported yesterday by The Washington Post. The Justice Department said Sheldon Bradshaw, then principal deputy assistant attorney general in the civil rights division, made the final decision in the case. Hebert said that when a case is a close call, staff lawyers usually include counterpoints to their conclusions in their memo. But he said there is nothing in the 73-page memo suggesting a plausible reason for approving the map. ''All decisions made by the Justice Department involve thoughtful rigorous analysis of the law," said spokeswoman Tasia Scolinos.