New PR campaign for Truant Texas Dems™ moves from "Stand and Fight!" to "Run Away and Tell Lies!"

One hundred and sixty-seven years ago, the Texians — the mixed Anglo and Hispanic inhabitants of what's now the Lone Star State, but was then part of the Mexican state of Coahuila y Tejas  — fought against a tyrannical dictator, Antonio López de Santa Anna Pérez de Lebrón.  Santa Anna had stated that "Mexico was not ready for democracy" and then set about the systematic dismantling of rights guaranteed to the Texians under the Mexican Constitution of 1824.  One hundred and eighty-nine Texians made a stand to the death against Santa Anna's vastly larger army in a small church compound, the Mission San Antonio de Valero.  The bravery of those men and the common name for that church together gave rise to one of the most famous slogans of all times, shouted by the revenging Texian soldiers at the independence-winning Battle of San Jacinto six weeks later — "Remember the Alamo!"

Just three years ago, Democratic presidential nominee Al Gore decided that his prior campaign slogan, "Practical Idealism," was losing out to Dubya's "Compassionate Conservatism," so he abandoned it for the eminently more chant-worthy "Stay and Fight!" — the motto which sustained his campaign not only through the 2000 presidential election, but also the recount fight in Florida afterwards.

Fast-forward to today:  The Truant Texas Dems™ — eleven Democratic state senators whose flight to New Mexico has stalemated the ongoing battle here over Congressional reapportionment — appeared to begin their fight with a very catchy slogan, one borrowed from "Monty Python and the Holy Grail" — Run away!  Unfortunately, though, like King Arthur's friend Brave Sir Robin, the Truant Texas Dems™ found that they needed a band of bards to ... ummm ... supplement the slogan in a way that puts a better light on their brave acts. 

So the supporters of the Truant Texas Dems™ have decided to mount a new PR campaign — and they're apparently counting on their partisans' reflexive hatred of Tom DeLay to wash down the real whoppers that they have to tell in the process.  They desperately need those whoppers and that hatred to conceal the fact that just like Santa Anna, the Truant Texas Dems™ think Texas is not ready for democracy.  And worse, they think Texans can't even count to ten.

In the short history of BeldarBlog, I've already written twice about the ongoing Battle for Texas Reapportionment — "Hasta la vista for truant Texas Dems?" and "Wall Street Journal swallows truant Texas Dems' propaganda and misstates key facts about Congressional reapportionment."  I keep wishing that they'd either get one more state senator to flee the jurisdiction — Democratic state senator Ken Armbrister from Victoria has kept his dignity by refusing to flee — or that one would drop out.  "Eleven" is a hard number to coin good phrases about.  I'd much prefer either the "Truant Texas Ten" or the "Truant Texas Twelve," frankly. 

But I'll say this much for them — by enlisting some out-of-state talent, the Truant Texas Dems™ have dramatically improved on the drivel that has characterized their own whiny press conferences this summer.  Their team has been sharpening their themes and arguments — and indeed, as noted in the more recent of my two posts, they've managed to convince no less an authority than the Wall Street Journal that they "have a point" in their complaints.

Talking Points Memo's Joshua Micah Marshall finds it "truly remarkable" that MoveOn.org has raised something on the order of $600,000 — toward a desired goal of $1 million — "to defray the hotel and other expenses the pols are racking up during their sojourn in New Mexico (they're conducting state business there, essentially on their own dime) and mount a media campaign to help in their fight."  He adds his own contribution to the media campaign in the form of an article in Forward entitled "DeLay: Tammany on the Potomac." 

And predictably, the MoveOn folks themselves have put up a slick bit of pseudo-factual arguments on their own website, variously referred to as a "letter" and an "email" from Democratic state senator Rodney Ellis "from 'exile' in New Mexico," followed by "complete background information on the situation." 

Before we decide whether the Texas Truant Dems™ more resemble Col. William Barrett Travis — we can assume the Dems prefer the 1987 made-for-TV movie with Alec Baldwin in this key role — or Brave Sir Robin, let's take a closer look at their arguments.

The Marshall Plan:  "We've already redistricted once this decade" and other lies

¶   Let's start with Mr. Marshall's article from Forward, simply because in it, he is honest enough to concede the key political truth of this whole melodrama:

From a distance, the Texas redistricting battle looks like garden-variety political hardball. After all, gerrymandering — the practice of redrawing electoral districts to advantage your own political party — may be inherently unfair. But it's also as American as apple pie. Every 10 years, Congress reapportions the number of seats each state gets in the House of Representatives, and each state takes the opportunity to redraw the boundaries of its congressional districts. That makes controlling the state government just after the decadal year (1990, 2000, 2010, etc.) extremely important since whichever party is in the saddle can then stack the deck in its own favor for the next 10 years.

The key, though, is that it happens only once every 10 years. Or at least that's how it worked until this year in Texas. There's no law preventing states from redrawing their district lines before every new election. But the 10-year rule has been established practice since the late 19th century. And, with the exception of maps thrown out because of federal voting rights violations, that precedent hasn't been violated in any of the 50 states for the past 50 years.

The practical reason for keeping to this rule is obvious: Redistricting is an inherently political and highly disruptive process that pulls the political craziness of Washington down into each state. Sticking to the once-a-decade ritual provides some measure of fairness and regularity to the process.

(Emphasis added.)  Yes!  There's a man who gets the basic concepts of representative democracy and apple pie! 

¶   This makes it all the sadder, though, when Mr. Marshall immediately begins to slip into serious distortions:

In 2001, Texas had divided government. And after the House and Senate failed to agree on a map, a panel of federal judges (two Republicans and one Democrat) stepped in to decide on a map. DeLay and his allies have argued that the Legislature, and not unelected judges, should choose a map. But courts always step in when state governments reach an impasse, and those maps are never revisited before the decade is out. At least not until now.

Liar, liar, pants on fire!  Back to civics class for you, Mr. Marshall! 

It's not just "Tom DeLay and his allies" who have argued that "the Legislature, and not unelected judges, should choose a map."  Rather, it's the US Constitution which provides for that, and it's those unelected judges who have protested the most loudly when they've been forced to do so.  Texas Attorney General Greg Abbott — yes, he's a Republican, like every other statewide office-holder in Texas, but by god if you're going to quibble effectively about any of this you better come up with a case citation or two, Mr. Marshall! — summarized the Constitutional starting point very nicely in his April 23rd opinion on redistricting:

The United States Constitution provides that "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State," U.S. Const. amend. XIV, § 2, as determined by the decennial census, id. art. I, § 2, cl. 3.  The states have the primary duty and responsibility to redraw their congressional districts in compliance with the United States Constitution. See Growe v. Emison, 507 U.S. 25, 26 (1993). Article I, section 4 states explicitly that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ...." U.S. Const. art. I, § 4.

Attorney-General Abbott also nicely describes the reluctance of federal judges to substitute their judgments for that of state legislatures:

The United States Supreme Court has repeatedly stated that "legislative reapportionment is primarily a matter for legislative consideration and determination," Reynolds v. Sims, 377 U.S. 533, 586 (1964), because an elected legislature is the institution best positioned to reconcile conflicting goals in the people's name. Judicial relief in this area — when courts are forced to act in a pseudo-legislative capacity — should be exceedingly rare. When, however, a state legislature fails in its constitutional responsibility to redistrict timely according to federal constitutional requisites, and state courts subsequently fail to produce a valid plan, it throws to the federal courts "the unwelcome obligation of performing in the legislature's stead, while lacking the political authoritativeness that the legislature can bring to the task." Connor v. Finch, 431 U.S. 407, 415 (1977).

As a former law clerk for a Fifth Circuit judge, I'll throw in my personal two cents here:  All three of the judges who were on the Balderas v. Texas panel in 2001 would be profoundly, personally offended by Mr. Marshall's sleazy insinuation that because two of them [ed: see important correction below*] were appointed by Republican presidents, they leaned toward the Republican Party in the court-devised district map they were compelled by statute to write.  And if Mr. Marshall would bother to read what they wrote, surely it would make him ashamed of that insinuation — because nothing could be farther from the actual truth.

The 2000 Census gave Texas two new seats in the US House of Representatives, so two new districts had to be created.  Yes, the 77th Texas Legislature failed in its constitutional duty to do that in 2001, so the Balderas three-judge panel had to step in.  But it did so with extreme reluctance, and in a way that emphatically did not favor the Republican Party.  The panel first marked as untouchable the "existing Voting-Rights-Act-protected majority-minority districts" — that is, the panel gave automatic bulletproof status to black and Hispanic Democratic incumbents.  Based on that, it then carved out the two new districts where there'd been the most population growth, in Dallas and Harris Counties.   Finally, it "maintained intact the existing districts" drawn up in the pro-Democrat 1991 gerrymander, ensuring that minority populations were "neither enhanced nor diminished."  Where small boundary changes were needed to even out the numbers, they were done with a view toward "compactness and contiguity"; thus, two "patently irrational [district] shapes" that were "widely cited as the most extreme but successful [pro-Democrat] gerrymandering in the country" were altered, even though those changes were deemed unlikely to affect any district voting outcomes. 

As a "check against the outcome of [its] neutral principles,"  the panel reassured itself that its plan was unlikely to unseat any incumbents, and that the plan was "likely to produce a congressional delegation roughly proportional to the party voting breakdown across the state."  But this was indeed only a very "rough" proportionality because, as the panel pointed out, "any [court-drawn] plan necessarily begins with a Democratic bias due to the preservation of majority-minority districts, all of which contain a high percentage of Democratic voters."  In other words, the process started off with a heavy Democratic thumb on the scales as a result of the Voting Rights Act of 1965, and the final result very predictably reflected that.

The bottom-line result of the 77th Legislature's stalemate in 2001 and the Balderas panel's map was thus a sort of thick inertia, still rather heavily tilted to the Democrats' favor, through which the voters of Texas had to swim in the 2002 elections.  Most of the Republicans that had been disproportionately packed into fewer districts in 1991 stayed packed into those same districts, and even the white male Democratic incumbents kept the artificial protections created by the 1991 Democratic gerrymander.  The Balderas panel expressly avoided doing the kind of "bloodfeud" gerrymandering that state legislatures do — and that Mr. Marshall correctly describes as being as American as apple pie.

But the new Republican majorities in both chambers of the 78th Texas Legislature still haven't had their once-a-decade chance to bake an apple pie yet — or maybe, to extend the analogy a bit, to switch to cherry pie to accord with the changing taste of Texas voters.  That's the whole point of this fight.  Mr. Marshall's argument that the existing district map is the result of politics as normal, or anything that remotely represents small-d Democracy, is disgustingly false.

¶   So what other arguments does Mr. Marshall have?

Alternatively and more candidly, DeLay and Co. have argued that since Texas is now a Republican state, any legislative map that doesn't yield a majority of Republican congressmen is intrinsically unfair to the GOP. But even on its own terms, that argument doesn't add up either. As Democrats repeatedly point out, there are more than enough Republican majority districts to allow the GOP to dominate the state's congressional delegation as thoroughly as it does the rest of the state's politics. What stands in the way isn't gerrymandering, so much as incumbency. A handful of long-serving conservative Democrats like Charlie Stenholm continue to be re-elected by Republican-dominated districts.

Here Mr. Marshall has simply confused cause and effect.  The "handful of long-serving conservative Democrats like Charlie Stenholm" was re-elected only because the Republican majority of state-wide voters was still diluted in their districts in 2002.  Those are the exact seats that the Truant Texas Dems™ are now trying to hold on to in their flight to New Mexico — not the Congressional seats being held by blacks or Hispanics, but the ones being held by incumbent white males whom the Balderas panel of federal judges didn't want to disturb.  It's their pro-Democrat gerrymandered protection that the Texas Republicans are now trying to undo.  If they're really that popular, then Stenholm and his (white male incumbent) buddies will continue to buck the trend and will get enough ticket-splitting cross-over Republican voters to hang on.  But let's take away their gerrymandered above-the-mean-percentage of yellow-dog Democrats, undo the purposeful dilution of Republic votes left over from 1991, and then see, shall we?

¶   In his concluding paragraph, Mr. Marshall waxes eloquent:

But the slide to all-out political war illustrates a deeper point. Constitutions and laws dictate the basic structure of government: stuff that must always happen and things that can't ever be tolerated. But if that was all there was to the machinery of the state, it would constantly break down into confrontation or paralysis, as it is now in Texas. To compensate, the body politic, like a human body, is also made up of all manner of ligaments, cushioning cartilage and connective tissue that allow the system to function smoothly and last for years. Government screeches into crisis after crisis without some respect for precedent, established usage or just some sense of limits.

Well, yes.  Most voters would include among "things that can't ever be tolerated" their elected state senators fleeing the jurisdictional boundaries of the state to avoid a voting showdown, even one they're likely to lose.  We're indeed in a state of "confrontation [and] paralysis" in Texas, but I flatly reject the notion that "go along to get along" courtesies are more important than the Constitutional duty of the Legislature — not the federal courts! — to draw Congressional district boundaries.  If you'll check with some folks off the street who haven't been poisoned already with lies like "We've already done our once-a-decade redistricting!" — most folks' "sense of limits" would keep a state senator in the state, in the capital city, and at his job.  Instead, the Truant Texas Dems™ are in a state of (choose one):  (a) New Mexico, (b) Oklahoma, or (c) denial.

The Ellis/MoveOn Manifesto

As packaged by MoveOn.org, Senator Ellis' propaganda is about as slick as, but far less honest than, Mr. Marshall's article. 

¶   Let's start with the heart-wrenching opener:

I am writing to you from a hotel room in Albuquerque, New Mexico, where I and 10 of my colleagues in the Texas Senate have been forced to reside for the past 20 days. If we return to our homes, families, friends, and constituents, the Governor of Texas will have us arrested.

ARRESTED?  Oh my god!  And with what punishment, pray tell us?

You'll have to go back to Austin, Senator Ellis — Austin, still the paradise of the state, at least in the hearts of all UT grads like me, and a damn nice place to be in the opinions of about everyone who's been there.  They'll take you to the very stately and recently refurbished Texas Capitol Building, whose dome is even taller than the one over the US Capitol.  And there — you'll have to stay in  a closed room while everyone .... VOTES!  Why, you might even be punished with ... THE SOFT CUSHIONS or THE COMFY CHAIR while you're there!

Well, actually, you might also have to participate in some small-d democracy — which means you'll vote one way, and a majority of the other people in the same room will vote the other way, and your side will lose.  It's the certain knowledge of that which explains why the Truant Texas Dems™ ran away.  But it could be worse — it's likely to be more publicity for you, Senator, and far less boring for everyone else, than your average C-SPAN telecast. 

¶   What else is on your list, Senator?

The Republican redistricting effort shatters the tradition of performing redistricting only once a decade immediately after the Census — making redistricting a perpetual partisan process.

This is a bald-faced lie.  See above — the Texas Legislature has yet to complete one redistricting for the 2001-2010 decade.  There fortunately is not yet a "tradition" that ad hoc panels of three federal judges convened under the Voting Rights Act of 1965 shall excuse the Texas Legislature from ever again performing its duty under the US Constitution.

¶   Next?

It elevates partisan politics above minority voting rights, in contravention of the federal Voting Rights Act.

No, Senator, as you well know, when a redistricting plan finally does obtain a majority vote in both chambers of the Texas Legislature and the Governor's signature, that plan will still have to undergo pre-clearance with the Justice Department under the Voting Rights Act of 1965, and it's also certain to face private-party court challenges.  That's precisely why every redistricting plan under serious discussion goes well out of its way to avoid any dilution of minority voting rights.  Just tell the truth, Senator, and admit to the public that the only "racial discrimination" involved is your attempt to protect white male incumbent Democrats.

¶   How about this one?

Republican efforts to force a vote on this issue by changing the rules of legislative procedure threaten to undermine the rule of law in Texas.

Senator, there's a big difference between the "rule of law" and rules of courtesy.  What you're talking about is a rule of courtesy, a "good ole boys" tradition that does indeed encourage compromise and discourage extreme partisanship.  However, you had your chance to operate under those courtesies in the 77th Legislature, the regular session of the 78th Legislature, and the first special session this summer.  And you've abused those rules of courtesy to achieve a deadlock that's blocked the Legislature from doing its duty under the US Constitution.  If you want to know about the "rule of law" Senator, I really suggest you start with the US Constitution, which tells you that your butt ought to be in Austin instead of on the golf courses of Albuquerque.

¶   He's shocked, shocked:

Now Tom Delay [sic] has made it his priority to force the Republican-controlled Legislature to enact a new redistricting plan to increase the number of Republican-leaning Congressional districts.

Yes.  This is called "gerrymandering," but it's not just Representative DeLay's priority.  It's part of what Texas voters are conclusively presumed to have intended when, in our system of representative small-d democracy, they put all the levers of state government entirely into the hands of the Republican Party in the 2002 election.  Read Mr. Marshall's article, Senator, the part about apple pie ....  Oh, wait — you ought not need to do that, Senator, you were in the Legislature in 1991 when the Democrats crammed down the gerrymandered district map you're trying to preserve today!

¶   And the sky will surely fall:

If the Republicans succeed in redrawing the Texas Congressional lines to guarantee the election of five to seven more Republicans, it will ensure that Republicans hold the majority in the U.S. House of Representatives for the entire decade and will likely result in Tom Delay [sic] becoming Speaker of the House.

"Ensure" is a bit strong — not all gerrymanders work as planned.  But yes, that's rather the point of the process (although your numbers are probably high).  You're completely wrong, though, to speak of "the entire decade" — did you forget that we've already had one of the decade's five Congressional elections under essentially the same gerrymandered plan you voted for in 1991?  There's another Census in 2010, and whatever happens this year, the Texas Legislature that convenes in 2011 will again have to deal with redistricting.  Believe it or not about your fellow Texans, Senator, but just about all of us can count to ten.

As for the prospect of Tom DeLay becoming Speaker of the House, it makes a wonderful scare tactic, Senator, for those who substitute personal fears and hatreds for principled arguments.  But we both know that's not going to happen.  Congressman DeLay has his fans, but he also has "high negatives" sufficient to ensure that regardless of how much power he wields as House Majority Leader, he'll almost certainly never be the Speaker.

¶   Time to try again to "play the race card":

The Republican advantage would be gained by removing many African American and Hispanic voters from their current Congressional districts and "packing" them into a few districts that already have Democratic majorities. The voting power of these minority voters would be dramatically diluted by the Republican plan, in contravention of the federal Voting Rights Act. If the Republicans succeed, over 1.4 million African American and Hispanic voters will be harmed. It would be the largest disenfranchisement of minority voters since the Voting Rights Act was passed.

"Disenfranchisement" means preventing someone from voting altogether.  You don't mean that — although it's a great word to use when you're telling lies about redistricting, since it sounds so much worse than "diluting."  It conjures up vivid images from the civil rights struggles in the 1950s and 1960s that the Democratic Party very much wants to keep alive.  As propaganda, it's right up there with painting a Hitler moustache on Dubya's picture, Senator.

More fundamentally, it's rather beyond the power of the Texas Legislature to repeal the Voting Rights Act of 1965.  We're all still statutorily presumed to be bigots here in Texas, so regardless of actual intentions, any plan with even the unintended effect of significantly diluting the rights of minority voters will be tossed out by a three-judge panel in the proverbial New York minute.  The one thing everyone in this argument can be absolutely certain about is that there will be no fewer minority Congressmen when we're done.  If you really believed this argument, Senator, you'd take your medicine in Austin now, and then let the federal courts ride to the rescue of the "disenfranchised minority voters."

¶   Well, how about "It's just not done that way!" as an argument?

[R]edistricting has always been conducted immediately following the U.S. Census' decennial population reports. Tom Delay [sic] now proposes a new redistricting plan two years after the Census report simply because Republicans gained control over the Texas Legislature in 2002 and now have the power to enact a much more Republican-friendly plan than the one drawn by the federal courts two years ago. This is an unprecedented approach to redistricting, one that subordinates its original purpose of ensuring the principle of "one man, one vote" to the purpose of perpetual partisan politics. Redistricting, in this model, would never be a settled matter, and districts would constantly be in flux depending on the balance of political power in the Legislature.

There's nothing normal or desirable about redistricting being done by unelected federal judges.  There's nothing unprecedented about gerrymandering (although it's true that the Republicans haven't had a shot at it in Texas since Reconstruction days).  What's unprecedented is the idea that you have the right to run away to another state when you've been elected to sit in the Legislature of this one. 

"Perpetual partisan politics" over redistricting will indeed be at an end until 2011 — just as soon as you and your truant comrades go back to Austin, Senator.

¶   Can't we just all get along?

The Texas Legislature has traditionally been defined by a spirit of bipartisanship and cooperation. This issue has polarized the legislature in a way that threatens to destroy that tradition. The Republicans have effectively exiled their Democratic counterparts in a power play that makes our state look more like a banana republic than a dignified democracy.

Actually, the Texas Legislature wasn't bipartisan at all until recently — it was mono-partisan, filled with an overwhelming majority of Democrats.  Your "exile" is what now threatens to destroy whatever tradition of cooperation and dignity has been established, but that exile is entirely self-imposed, and it will end as soon as you show up for a vote. 

I do agree that state senators who tell obvious, palpable lies and who think their constituents can't count to ten do tend to make the state look like a banana republic.

¶   Okay, back to the "I am a Fugitive from a Chain Gang" approach:

The deployment of state law enforcement officials to apprehend boycotting legislators erodes the separation of powers between the executive and legislative branches of government, and diminishes legislators' ability to represent their constituents as they see fit. The unilateral Republican effort to penalize Democratic Senators and their staffs

Whoops, that argument ends in a sentence fragment, Senator.  You're not getting your money's worth from your propagandists if they leave sentence fragments mid-argument.  "Unilateral Republican effort" ... hmm, usually that's followed by something about Iraq.  Was your staff intending to work something about Iraq and quagmires into this piece, Senator?

Anyway, it's true enough that when you cross the border back into Texas, you're likely to have a respectful law enforcement escort.  As for their diminishing your ability to represent your constituents, though, that's just another damned lie.  Senator, quit painting an image of Sheriff Bubba standing over your desk in the Senate Chamber, ready to blow out your brains if you don't cast a vote in favor of a Republican-sponsored plan.  Every Republican in this state will be tickled to see you vote in whatever manner you think best represents your constituents — so long as you haven't fled the jurisdiction to break a quorum and prevent everyone else from voting.

Stand and fight, Senator!  Remember the Alamo!

-----------------------

*Correction (Mon Aug 25):  While reading through the "Killer D's" website, I saw this statement:  "In 2001, Texas Congressional districts were drawn by a panel of three Republican-appointed federal judges."  I'd read in Dr. Marshall's post and elsewhere, and I had repeated here, that there were two Republicans on the three-judge Balderas panel.  Actually, however, both of the district judges on the panel — John H. Hannah, Jr. and T. John Ward — were appointed by President Clinton.  Only the circuit judge, Patrick E. Higginbotham — whose vote on this panel counted no more than that of the two district judges — was appointed by a Republican President.  (Ford appointed him to the district court bench, then Reagan promoted him to the Fifth Circuit.)  I'm admitted to practice in the Eastern District of Texas, where the case was filed, and I know or know of most of the district judges there — so I have no good excuse for not noticing this sooner.

As is typical in such cases, the Balderas opinion was written "per curiam," rather than as an opinion signed by one and concurred in by two others; so we don't know who was its principal author, nor even whether there was a principal author.  There was no dissent, and by writing "per curiam" the three judges deliberately spoke with one voice. 

I stand by my original point, however, which is that it's a mistake — and very insulting, actually — to suggest that the personal politics of any of these three judges played any conscious part in this decision.  Anyone reading their written opinion will immediately conclude that these three judges were being "judicial conservatives" — meaning that they were keenly aware of their unfitness for the task thrust upon them by a political breakdown, and they were determined to do the minimum necessary to permit the 2002 elections to go forward.  They expressly recognized that their minimalist approach had a pro-Democrat effect, but that wasn't an outcome they maneuvered to create, nor frankly one they tried to avoid. 

The only reason their party affiliation is relevant at all to this discussion — and I'm guessing that their personal party affiliations match that of the Presidents who appointed them, but even that is a wild guess (and I know of examples where it wouldn't be true) — is because it's another example of the kind of factual distortions upon which the Truant Texas Dems™ and their supporters have relied.