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Thursday, September 04, 2003

Ignoring Judge Kazen, MoveOn.org begins $1 million ad campaign based on racial scare tactics

Harvey Kronberg's Quorum Report has a link to a .pdf file with the first of MoveOn.org's print advertisements, due out in today's New York Times and paid for out of the $1 million that it recently raised over the Internet.  The ad is also up on MoveOn.org's own website now (warning: several large pix, not for the impatient or timid of bandwidth).

Contributors will be comforted to note that none of the $1 million has been spent on fixing the sentence fragment previously noted in BeldarBlog when I fisked the printed justifications for their sexist and anti-democratic "Defend Democracy in Texas" program.

No, the $1 million is apparently going into racial scare tactics which are calculated to create the sort of unjustified public alarm in the minority community that US District Judge George P. Kazen deliberately went out of his way to squelch at last week's hearing on the lawsuit brought by the Truant Texas Dems™ in federal court in Laredo.

The MoveOn.org print ad contains three paragraphs of hysterical text tied together with the subheadline, "It's the worst setback for minority voting rights in four decades."  News reports indicate that radio and TV ads to like effect ("accusing President Bush and other Republican leaders of trying to disenfranchise Hispanic voters, especially in the Texas redistricting fight") will also begin within the next two weeks.

Ahem.  Well, this is again rather curious logic.  It appears that the folks at MoveOn.org are keen on keeping the map drawn up by the Balderas v. Texas three-judge panel in 2001 (which essentially perpetuated the pro-Democratic gerrymander from 1991).  And they don't want to have a democratic vote in the Legislature determine redistricting in the manner intended by the US Constitution, as interpreted by the US Supreme Court.  And the "four decades" is a loose reference to the passage of the Voting Rights Act of 1965, it seems.

But their trust in the Voting Rights Act and the DOJ and the three-judge panels of the federal court and the Supreme Court that hears direct appeals from such panels' decisions seems to be ... rather selective.

MoveOn.org's ad campaign entirely ignores the fact that any redistricting bill will have to undergo preclearance under section 5 of the Voting Rights Act of 1965, and that if any redistricting bill has either the purpose or effect of harming minority voting rights, it will be blown out of the water in the proverbial New York minute.

Currently serving as Chief Judge of the Southern District of Texas, Judge Kazen is a Carter appointee before whom the Dems were thought to have a "home court advantage" (although I genuinely don't believe that mattered much, if at all).  At the August 27th hearing, he rejected the Dems' requests for immediate emergency injunctive relief, and expressed extreme skepticism as to whether they'd managed to state a viable claim that could survive a motion to dismiss.  He did, however, grant both sides' requests to ask Fifth Circuit Chief Judge Carolyn Dineen King to convene a three-judge panel under the Voting Rights Act of 1965 to make that decision. 

More significantly for present purposes, at this same hearing, Judge Kazen deliberately went out of his way  several times to reassure everyone concerned that minority voting rights will be protected when and if a redistricting plan is eventually passed.  He repeatedly directed these comments not just to the State of Texas and to the Truant Texas Dems™, but specifically to the members of the press who were present, with the obvious intention that his comments should be widely reported to the public.

However, the press has, of course, completely dropped that ball — thereby leaving the entire field in the battle for public opinion wide open for MoveOn.org's misleading and inflamatory ad campaign.

Here's what Judge Kazen said in open court last week:

[THE COURT:] I would stress again, and I think it's important, especially, for the media to understand, that — that if, in fact, a redistricting bill passes, then there's no question the voting act applies and there's no question that it has to be precleared and there's no question that it will be in litigation and there's no question that a three-judge court can say it violates minority rights.

(Official Transcript, page 12, line 21, to page 13, line 3.)  And again:

[THE COURT:] But if, indeed, a bill passes and if, indeed, it is as pernicious as it is feared [by the Dems], there are remedies.  There are at least two remedies.  And that's — it seems to me that that's the way it's supposed to be.

(Official Transcript, page 17, lines 16-20.)  And again:

[THE COURT:] And as I say, if then — I mean, look, I don't know when this is ever going to end.  As I say, if, in fact, some day a bill is passed, then a whole new round of money and time is going to be spent inevitably on a real voting rights case, which is — you know, whether the statute discriminates against minorities, but — so, you know, we're just somewhere along the way here.

(Official Transcript, page 32, lines 5-12.)  And again:

[THE COURT:] I would say — and I'm — and again, I'm not predicting anything, but I'm — I would say that if a three-judge panel decides that this [case as presently on file] is not a voting rights case and if DOJ has decided it's not a voting rights case, then it may be that people need to step back and take a deep breath and see where we are at that point.  Understanding, again, that — and I can't repeat this enough, especially for the news media, so that the people of Texas who care — I mean, they already care, will really understand, if and when a redistricting bill is passed, it will unquestionably be covered by the Voting Rights Act and it will unquestionably have to be precleared and it will unquestionably generate a lawsuit, and then all the business of charts and drafts and whose perspectives — and, you know, is it discriminatory and all that.  All that will do is generate this whole new round of litigation.  So that's there.  That protection is there.

(Official Transcript, page 35, line 15, to page 36, line 7.)  And still again (referring to the letter from the chief of the Voting Section in the Civil Rights Division of the Justice Department, which confirmed that  no preclearance was required for Lt. Gov. Dewhurst's decision to enforce the Texas Senate rules as written, rather than continuing to manipulate the Senate calendar in the second special session by using the "blocker bill" procedure to give a minority the power to deadlock the Senate):

THE COURT:  Okay.  Well, we'll put this in the record.  I note their [the DOJ's] conclusion, which is what we talked about.  If and when a new redistricting plan is actually adopted and submitted to the [US] Attorney General for review, the Attorney General will review it and the — well, he says, and the process by which it has been adopted to ensure that the submitted changes have neither a discriminatory purpose nor a discriminatory effect.

(Official Transcript, page 57, line 19, to page 58, line 2.)

Beldar's blunt translation of the subtext of all these extraordinary statements (that is, the private advice that I'd give the Dems as their counselor if, god forbid, I were their lawyer):   Quit scaring the public with this nonsense in the press about "disenfranchising minorities."  The Voting Rights Act of 1965 as enforced by the DOJ, a three-judge federal panel, and the US Supreme Court, will make very sure that doesn't happen.

Posted by Beldar at 12:43 AM in Texas Redistricting | Permalink


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(1) Owen Courrèges made the following comment | Sep 4, 2003 2:26:23 AM | Permalink

One thing I'll never understand... Does this Voting Rights Act protect minority voting rights above those of the majority? If so, isn't that discriminatory and a violation of the Equal Protection Clause? I realize the court are out-of-step on this, but isn't that the most rational conclusion?

I believe that majority-minority districts should not be regarded as any different from a legal perpective than majority-white/non-Hispanic districts. Moreover, the 'disparate impact' theory of discrimination is erroneous and should never be applied to any area of law. So even if we conclude that minority districts are worthy of extra protection, it does not follow that intent to discriminate should not be necessary to prove a violation of the Voting Rights Act.

If partisan redistricting hurts minorities, that's tough, but it isn't 'racist' by any stretch of the imagination. If the courts apply the Voting Rights Act in such a slipshod manner where they conflate partisanship with racism under the Voting Rights Act, then they ought to be ignored. An ethnic minority is not entitled to greater legal recognition.

(2) Beldar made the following comment | Sep 4, 2003 8:04:58 PM | Permalink

Thank you for the thoughtful comment, Mr. Courrèges!

To answer this with any degree of confidence, I'd need to do some legal research. My hipshot answer, though, is that the Voting Rights Act of 1965, especially as applied to Texas and other states or political subdivisions with a history of race-based voting rights discrimination, is intended to be remedial. That's the only justification for the "disparate impact" protections, for instance, that are not keyed to any particular finding of current intent to discriminate against racial minorities. Courts that are crafting equitable remedies are able to make and act upon purely racial classifications in ways that would otherwise be forbidden by the Equal Protection Clause as lacking a justifying "compelling state interest."

Even at their best, such remedial actions have a troubling tendency to visit the sins of the fathers upon blameless later generations; and at their worst, the "remedies" long outlast any plausible causal connection to the original discrimination and end up perpetuating stereotypes.

And they end up confusing matters, as in the Michigan Law School case from this past year's Supreme Court term, in which Justice O'Connor made the extraordinary announcement that what's now constitutional as a race-based entitlements program will somehow become unconstitutional in 25 more years. (Note that Michigan Law School has no documented history of racial discrimination and never argued "remedial action" as a justification for its racial preferences program; Justice O'Connor's judicially legislated "sunset provision" would only have made sense if it had.)

I suspect that you and I share Dr. King's dream of a colorblind American society where people are measured only by the content of their character. I suspect also that upon announcing that in complete good faith, you and I are likely to be mocked and heckled by those whose politics tend toward the left of the spectrum.

Portions of the Voting Rights Act are up for re-authorization in the next few years, including, I think, the preclearance requirement. I'd expect all this to be debated then in some detail.

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