Monday, January 09, 2012

SCOTUS hears arguments about TX redistricting, leaves us guessing

Allow me to cut to the chase: the Texas primary election date (now April 3, previously March 6) is likely going to be shifted to later in the year again.

Well aware that it must act swiftly, the Supreme Court on Monday pondered two simple ways and one considerably more complex way to let Texas go forward with its 2012 elections for state legislature and Congress, but left open the possibility that Texas’ present election calendar might have to be stretched out.  In a 68-minute argument on three redistricting cases from the Lone Star State, the Justices eagerly explored specific solutions to an unusually tangled controversy, and got into the counting of days open for them to act.

The simplest plan was to let Texas do what it wants -- use the redistricting maps its state legislature drew earlier this year, unchanged. But only Justice Antonin Scalia seemed eager to embrace that approach. The next most simple plan, and one that seemed likely to get at least grudging support from the two legal combatants, was to let Texas use any part of its maps that have not been specifically challenged in court, and then require it to bear the burden of proving that the other parts were valid, too, before it can use those parts. It was an idea floated late in the argument by the junior Justice, Elena Kagan.

Justice Anthony Kennedy's idea, ominously predicted here, is to ignore Section 5 of the Voting Rights Act.

Potentially more complex was an idea put forth by Justice Anthony M. Kennedy, to take completely out of this case any consideration of Section 5 of the Voting Rights Act, and confine it to direct questions of what parts of the Texas plan violate Section 2 of that Act, violate the Constitution, or violate one-person/one-vote guarantees. So far, that plan would put the next step up to a federal District Court in San Antonio, whose “interim” maps are under challenge...

What Kennedy appeared to be suggesting was that the San Antonio court — the only lower court whose action so far is now before the Justices — should confine itself to Section 2 and leave the Section 5 dispute to the Washington court. He did concede at one point, however, that there were potential complications with that, because the Washington court also had before it, in addition to Section 5 challenges, some challenges under Section 2 and the Constitution. As Kennedy mused over the thought, he said, almost inaudibly, “That doesn’t work.”

Moving down a little further in the article, there is this:

After several of the Court’s more liberal Justices had said, in questioning Clement, that Section 5 barred Texas from using its legislature’s plans until they had gained clearance in the Washington court, Justice Scalia commented to the federal government’s lawyer that ‘that is not an absolute rule.” Allowing Texas to use its own maps, the Justice said, would be a “reasonable exception to a non-absolute rule” about the priority of Section 5′s clearance requirements. There was no indication that any other Justice picked up on that notion.

While the federal lawyer, Principal Deputy Solicitor General Sri Srinivasan, was making his argument, Justice Kennedy said “the problem with this case” was that the San Antonio court was dealing with “a Section 2 suit,” and yet “Section 5 is driving it.” Section 5, Kennedy went on, puts some states “at a tremendous disadvantage” as they try to defend themselves against a Section 2 lawsuit while they are simultaneously trying to get clearance for their election changes under Section 5. “Why,” Kennedy wondered, “should Section 5 take precedent in a Section 2 suit.”

Kennedy did not seem content with Srinivasan’s suggestion that, when a state was covered by Section 2, “it can’t help but drive” what a court like the San Antonio court can do even though that court had no authority to rule on the Section 5 aspect of a state election plan.

Section 5 of the VRA, also known as pre-clearance by the DOJ of proposed maps by certain states due to their history of voting rights abuses, is eventually going to get struck down by this Court. Perhaps not in this case, perhaps it will only be frayed a bit around the edges, but its day with the executioner is coming. The signs seem clear enough to me, but most on-hand observers -- particularly the ones who are lawyers, unlike me -- seem more upbeat; the only thing coming out of today's hearing that they agree on is that the state's primary elections are probably moving to later in 2012, perhaps May at this point.

That's OK with me; they used to be in May for years before Texas tried to get in the Super Tuesday sweepstakes.

One more thing...

Because the Court has been told that new maps must be in place by February 1, if the presently scheduled April 3 primary is to go forward, the Justices are expected to act quickly, though on no specifically known timetable. It is conceivable that they could issue a fairly brief order, with an explanation to come in a later opinion. Both of the two District Courts involved in the Texas cases have taken that very approach. However, if the outcome the Supreme Court chooses is to include new guidance for the San Antonio court, that presumably could not await the preparation of a later opinion.

And one last thing specific to Section 5 from Harvey Kronberg:

In one of the weekend talking head shows, Attorney General Greg Abbott lead with a core argument in challenging the Voting Rights Act. He said there was a fundamental shift because Texas Republicans were electing Hispanics.

His comments were part of his explanation about the arguments before the United States Supreme Court this afternoon which some see as a possible vehicle for overturning key elements of the VRA.

But General Abbott’s argument was misleading. The Voting Rights Act is less about election outcomes than it is election inputs.

The Voting Rights Act is about enabling African Americans and Latinos to impact the outcome of elections as communities of interest -- not guaranteeing a proportional quota of brown and black faces in a legislative body.

The VRA is intended to prevent the bank shot disenfranchisement of minorities that results by splintering their communities into politically neutered entities.

Harvey is, as always, correct.

Update: Republican lawyer and blogger Robert Miller has his take.

Update II: And some additional insight from HK.

Several justices queried counsel on both sides of the case on whether pushing back the primary date further into the spring or early summer would pose a problem. At one point, Justice Sonia Sotomayor asked Jose Garza, who presented oral arguments for the plaintiffs challenging the Texas maps, a detailed set of questions on how late could a decision be handed down to have a late June primary (my emphasis). The last Presidential primary this year is June 26. After doing some back of the envelope math, they seemed to agree that late March would be the latest possible date for establishing interim maps.

Late March? The primary is currently scheduled for April 3. This part makes no sense to me. And a ray of light:

Many court observers in recent days have speculated on whether Supreme Court justices hostile to the pre-clearance section of the Voting Rights Act would seize on this case to make a further statement on the section’s viability. But Chief Justice John Roberts seemed to take such speculation off the table when he pointedly interrupted Garza to state that the VRA’s constitutionality wasn’t at issue today.

The Weekly Wrangle

The Texas Progressive Alliance thinks that watching football this past weekend -- in particular the Houston Texans' victory over the Cincinnati Bengals -- was a much better use of your time than watching the 388th and 389th Repubican presidential debates. Here's this week's roundup.

Off the Kuff discusses the state's appeal of the injunction granted against the horrible sonogram law.

WCNews at Eye On Williamson posts on the fact that our politics can't be fixed until the money is taken out of our political process: It's the money.

The case against the Texas Republicans' redistricting argument (beginning before the SCOTUS on January 9) rests almost entirely on two generations of legal precedent. And with a Court that has indicated an interest in eviscerating the Voting Rights Act, precedent doesn't mean diddly, either. PDiddie at Brains and Eggs elaborates.

BossKitty at TruthHugger has had enough of the religious bullying by the 2012 Republican presidential candidates, specifically Rick Santorum. Why do we need a Jesus candidate?

At TexasKaos, Libby Shaw explains why Romney's "job creator" lies are, well ... lies. Check it out: Mitt Romney: A Job Killer, Not Creator.

From Bay Area Houston: The Texas Ethics Commission, Jerry Eversole, and the GOP. Texas sized embarrassments.

BlueBloggin sees the consequences of not paying attention when corporate-funded American politicians make it easy to break environmental rules, ruin natural resources and not be held accountable to the human victims.

Neil at Texas Liberal noted a certificate he received in the mail from the Department of Veterans Affairs that noted his recently deceased father's military service. Neil's dad, a Korean War combat veteran, would have been glad that the certificate was signed by Barack Obama and not by a draft-dodging liar like George W. Bush.

Sunday, January 08, 2012

Sunday Funnies

This post was almost comprised completely of Rick Santorum quotes as captions for New Yorker cartoons. But after yesterday's takedown, I didn't want you to think that I was being overly harsh on the man.

Saturday, January 07, 2012

Rick Santorum on pre-existing conditions



Falling ill because you did "things wrong" seems to be in complete contradiction to what Jesus actually said about pre-existing conditions.

Rick Sanctimonious is really not just the worst kind of Republican or even the worst kind of Christian; he's the worst kind of human being. Because he either willfully ignores the teachings of Jesus for the sake of political expediency, or he's a bald-faced liar and prevaricating ass masquerading as a pious man.

But more importantly this reveals in its purest form the rationale (sic) of the ultra-conservative Christian. If you are healthy God has blessed you because you are a devout Christian, if you are sick God is punishing you for something. In this delusion you may also substitute for healthy/sick the words rich/poor -- this particularly is the gospel of Joel Osteen -- and white/any other skin color, etc. Consequently ... why should I pay more in taxes because you sinned?

Understanding it is really as simple as this: My Faith is Better and Stronger Than ANY Science. This in turn explains their disbelief in evolution, climate change, the Frankenstein-like transformation of women's reproductive choice into "baby-killing", and so on and so forth.  When Pat Robertson says that New Orleans was flooded by a hurricane because God perceived the city as full of sin, that's part of it. When Rick Perry says that the nation is in crisis and the only thing that can save it is thousands of people gathering in a football stadium to simultaneously pray, that's part of it too.

This is plain old Christian Science. Most Christians don't want to admit that.

The worst part is that this is not the kind of thinking that can be improved with education. This is chosen ignorance; a lucid rejection of facts and logic. I'm using the word 'lucid' in its most generous definition (#2, here).

I almost want to avoid exposing this charlatan in the hope that the GOP presents him as their presidential nominee -- almost as much as I do Ron Paul -- but rarely does a man this vile provide such an opportunity to crucify himself with his own words.

Just couldn't let that pass.

Friday, January 06, 2012

Texas redistricting case hinges on legal precedent

The case is as cut and dried as the beef jerky at Buccee's.

The U.S. Supreme Court would have to close its eyes to precedent if it agrees with the state of Texas regarding disputed redistricting maps, a voting rights expert said Thursday.

The court will hear arguments Monday on efforts by the state of Texas to stop interim maps drawn by a federal court in San Antonio. The state wants to use maps drawn by the Republican controlled Legislature, which minority and civil rights groups contend discriminate against minorities.

The legislative-drawn maps have not been cleared by the Department of Justice or, alternatively, by a federal court in the District of Columbia. Because the state’s map has not been pre-cleared, it can’t be used for the 2012 election, said Pamela S. Karlan, co-director of the Supreme Court Litigation Clinic at the Stanford Law School. She also made the short list of candidates to replace Supreme Court Justice David Souter when he retired.

[...]

“This case, as a sheer matter of law, is such a straightforward case under the Supreme Court’s existing precedent,” Karlan said in a conference call with reporters. “It’s pretty clear what they have to do here.”

We already know that this Court has a fondness for disregarding precedent, between Bush v. Gore and Citizens United.

The state’s map also has a serious flaw in the congressional district (No. 23) stretching from south San Antonio into far west Texas. The court struck down the drawing of that district in a 2006 ruling when (Supreme Court Justice Anthony) Kennedy said it denied Latinos an opportunity to elect a candidate of their choice.

An expert witness for the state conceded during a trial last fall that the 23rd Congressional district was not a minority-opportunity district, which the law required.

“This time around the state has gone back and done it again – in exactly the same district,” Karlan said, suggesting the replay could have a powerful effect on the court.

“The Supreme Court, for all the other things it doesn’t like, one of the things they really don’t like is when states disregard the Supreme Court’s own decision,” she said. “And the Supreme Court’s decision was Texas had denied Latinos on the border an opportunity to elect candidates of their choice, and now we see Texas doing it again.”

Let's back up in the article and pull out the specific legal precedent the SCOTUS -- more specifically Justice Kennedy -- would have to overturn:

In a 1991 redistricting case (Clark v. Roemer) Kennedy, writing for a unanimous court*, said: “Section 5 requires States to obtain either judicial or administrative preclearance before implementing a voting change… Failure to obtain either judicial or administrative preclearance 'renders the change unenforceable.'”

Simply stated, the State of Texas, Attorney General Greg Abbott, and his hired gun Paul Clement do not have a case ... unless Anthony Kennedy has changed his mind 180 degrees from Clark v. Roemer twenty years ago. *Note in that link that even Justice Antonin Scalia voted in favor. For many reasons, this one among them, it wouldn't be hard to imagine that either man would reverse himself.

And on the chance that Kennedy has changed his mind, that would represent the epitome of a flip-flopping judicial activist. And the only good thing about that outcome is that we won't have to endure Republicans' cries of agony if Kennedy decides to put on the robe emblazoned "I busted up the Voting Rights Act".

Their confidence in this outcome may have been tipped by Abbott's taking a few days off last week from preparing for the case and rolling up to Iowa to campaign for Governor Oops.

The trial begins Monday and will conclude before the end of the month, with a swift decision expected, possibly by January 31st.

Update: Via Michael Li, from Facebook...

The State of Texas keeps hinting in various courts that there are constitutionality problems with section 5 of the Voting Rights Act (the so-called preclearance provisions). However, in Gov. Perry's Virginia ballot access suit, he argues that Virginia's ballot access rules are not legal because (wait for it) they have not been pre-cleared under the Voting Rights Act.

Thursday, January 05, 2012

Republicans in turmoil following Iowa

Frank Luntz, one of the guys who tells the Republican party what to say, do, and think, is scared. And speaking about it publicly indicates how scared he is.

At Ron Paul's caucus night event in Ankeny, Iowa, most of his supporters were celebrating. Paul finished a strong third in Tuesday night's caucuses.

But one man in the crowd -- famed Republican strategist Frank Luntz-- was much more concerned with what happens next.

"I think over the next 24 to 48 hours, the campaign's gonna get a little bit meaner, a little darker, and a little bit more personal, as the candidates now fight for their life," said Luntz, who spoke with NPR in between television appearances Tuesday night.

For Luntz, the lack of a clear GOP front-runner will make for a protracted primary season that could drag on through April. And he says it won't be pretty: "Republicans are not gonna like what's about to happen. ... I think a war is about to break out within this primary field."

The Christian conservative elitists -- James Dobson, Donald Wildmon, Gary Bauer and many of the people who organized Rick Perry's Prayerpalooza in Houston last August -- have called an executive session with God to help them pick between Newt Gingrich and Rick Santorum.

A group of movement conservatives has called an emergency meeting in Texas next weekend to find a “consensus” Republican presidential hopeful, POLITICO has learned.

“You and your spouse are cordially invited to a private meeting with national conservative leaders of faith at the ranch of Paul and Nancy Pressler near Brenham, Texas, with the purpose of attempting to unite and to come to a consensus on which Republican presidential candidate or candidates to support, or which not to support,” ...

Following Rick Perry's about-face in spandex yesterday, you have to think he's still under prayerful consideration from the God Squad. It's South Carolina we're talking about, after all. Perry still has $3.5 million to spend, and is just the kind of guy they like in SC. Newt is clearly bitter and wants to take a piece out of Romney. Santorum, the luckiest last man standing before Iowa, is already defensive about his earmarks and his racially-charged statements. Ron Paul is, well, Ron Paul. Nobody in the GOP really cares for the man except for his brainwashed caucus, and it turns out most of them aren't Republicans anyway. He will eventually be excommunicated, but that will take another month or two to finish.

This theory that Mitt Romney loses by winning is plausible. Yesterday the Atlantic made the case, and reading that today you can see how the scenarios have been scrambled again just by Rick Perry's forgetting to drop out (yet). I have no doubt that the folks assembling outside of Houston next weekend convinced Governor Oops to stay in the race long enough for them to figure out what God is telling them.

I need another pallet of popcorn delivered by forklift. How about you?