TX Redistricting and the Justice Dept.

Dems say that the plan was flagged by career types who were then overridden by political appointees. My guess is a lot of leaks came the Dems way from the career lawyers and now they are trying to get the evidence that might prove the whispers. Could get interesting.
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Democrats Won't Get Justice Memo
Texans Say Document Could Embarrass GOP

By Dan Eggen
Washington Post Staff Writer
Thursday, January 22, 2004; Page A23


The Justice Department has formally refused a demand from Texas Democrats to release a lengthy internal memo about a Republican redistricting plan that experts believe could produce a GOP gain of as many as seven House seats in that state later this year, according to documents and officials.

The internal legal opinion, which includes a 73-page narrative and 1,750 pages of accompanying documents, is eagerly sought by 14 Democratic House members from Texas as part of their attempt to halt the GOP redistricting. The new voting map was enacted in October by the Republican-controlled Texas legislature after months of conflict, and Attorney General John D. Ashcroft cleared it in December.

The Justice Department notified the Texas lawmakers last week that it would not release internal documents on the case because they contain "predecisional deliberative material" that is exempt from public information laws, according to a copy of the letter.

The Democrats' lead attorney, J. Gerald Hebert of Alexandria, responded with an appeal to the Justice Department yesterday, alleging that career attorneys had recommended an objection to the redistricting plan, but were overruled by political appointees. Democrats argue that the Texas map violates the Voting Rights Act of 1965 because it eliminates two districts in which minorities make up a majority of the voters.

"Clearly the Department of Justice is stonewalling this request to avoid the embarrassment that will surely ensue when the memorandum is made public," Hebert wrote in his appeal, which was filed with the department's Office of Information and Privacy. "Unfortunately, the political appointees of the Justice Department appear committed to dismantling the Voting Rights Act. They are hiding this report, because it will make their intentions clear."

Department officials have declined to comment on the details of the case, including whether the attorneys assigned to the case had raised objections to it. Sources say the team is under a strict gag order.

"These are internal deliberations, and we would not comment on deliberations that take place in these kinds of cases," department spokesman Jorge Martinez said.

Officials notified the Texas secretary of state in December that Ashcroft "does not interpose any objection to the specified changes" in congressional boundaries enacted by the Republican legislature. Under the Voting Rights Act, any changes to congressional districts in Texas and several other states, primarily in the South, must be approved by the Justice Department.

A three-judge federal panel in Texas upheld the plan earlier this month, and the Supreme Court last week declined to hear an emergency appeal from Democrats.

The Texas delegation in the U.S. House is split between Republicans and Democrats at 16 seats apiece. The existing district lines were set by a panel of federal judges in 2001 after the legislature failed to enact a redistricting plan after the 2000 Census.

Republicans argue that the court-imposed redistricting plan does not reflect the state's increasingly GOP-dominated politics. In a move spearheaded by House Majority Leader Tom DeLay (R-Tex.), Republicans overcame a series of Democratic walkouts last year and successfully pushed the new map through the divided Texas legislature. Political analysts have said the map could result in a 23-9 edge in the state delegation for Republicans after the Nov. 2 elections.

Experts in voting rights law said courts have rarely forced the Justice Department to turn over documents related to internal deliberations about redistricting cases.

Hebert and other lawyers said the length of the memo provides a strong indication that career lawyers were building a case against the map, but faced opposition from higher-level Bush administration appointees. Hebert wrote in his appeal letter that "sources inside the Department of Justice" have told him that was the case.

"There's no reason to spend a lot of time bolstering your case if you're pretty sure the front office is going to go your way anyway," said Pamela S. Karlan, a Stanford University law professor who teaches voting rights law. "It's just a lot of wasted motion. . . . It could very well be that this very long memorandum recommends denial."

But Paul F. Hancock, a Miami attorney who oversaw the Justice Department's voting rights section during the Clinton administration, said career attorneys could have prepared a long opinion to defend their position in a controversial case, regardless of whether they were for or against it. Hancock and other lawyers noted that a recent Supreme Court ruling involving redistricting in Georgia significantly altered the legal tests for determining violations of the Voting Rights Act.

"It doesn't necessarily indicate that it's a recommendation to object to it," Hancock said. "I do think it indicates that people at the staff level probably thought it was controversial and perhaps a close call."