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All the Marbles

Picture a room with no windows, with three judges and courtroom staff assembled in one corner, 30 attorneys (yes, really) seated and passing notes around a couple of large tables, a couple of dozen reporters squirming on hard wooden pews on one side in the back, and an assembly of officeholders, political hacks and all manner of aides seated on the other side in the back. At the door, a bailiff has been stationed to make sure nobody comes in unless one of the seats is emptied.

Picture a room with no windows, with three judges and courtroom staff assembled in one corner, 30 attorneys (yes, really) seated and passing notes around a couple of large tables, a couple of dozen reporters squirming on hard wooden pews on one side in the back, and an assembly of officeholders, political hacks and all manner of aides seated on the other side in the back. At the door, a bailiff has been stationed to make sure nobody comes in unless one of the seats is emptied.

The federal trial on the state's new congressional redistricting plan is finally underway, and should consume at least a week and maybe a couple of days more. Sometime during or right after the trial, the U.S. Department of Justice will release its opinion of the Legislature's work, either pre-clearing it or pointing out problems the DOJ lawyers can't reconcile with the law.

The attacks on the map came from a pack of lawyers representing various groups and members of Congress. On the first day (which is when our deadline came up), they asked the judges to throw out the maps on the grounds that the state already has a legal map in place. The lawyers for the Democrats have a range of opinions and don't agree on every particular, so we'll generalize:

They contend mid-decade redistricting is disruptive and harmful to voters. They argue that they won court approval — all the way up to the U.S. Supreme Court — on the map that's now in place, and say the state is now trying, in effect, to reopen the fight it lost last time.

They said the founding fathers designed the system to redraw lines every decade and then to leave voters alone for the four elections in between; mid-decade redistricting lets politicians "stay one step ahead of the voters."

They said the state Legislature had two years to draw maps and didn't finish until the election season was underway, and asked the court to use the old maps while the new maps are being argued, instead of trying to do all of this work on deadline. "Our suggestion is to avoid that sort of confusion and chaos," said Jose Garza, a lawyer for the League of United Latin American Citizens (LULAC).

The judges didn't rule on any of that yet, but the man in the middle seat, Justice Patrick Higginbotham of the U.S. 5th Circuit Court of Appeals, told Garza that the "rules of the game are in play" and indicated the court would plow ahead and decide everything after a trial. Higginbotham asked another lawyer about his logic: "You're saying the frustration of the voters is being accomplished by their elected representatives?" Later on, he recounted a story told by former Lt. Gov. Bill Hobby, who called redistricting a "religious experience" where you got out a grease pencil, and started work on a map to reward your friends and punish your enemies: "When did this tradition of fair play across the aisles come to Texas?"

Attorneys for the state, who don't have to share the microphone among a crowd of advocates, said the state is not barred from doing redistricting whenever it wants to, though they said the political mayhem that ensues would keep lawmakers from doing it every two years. They said the state Legislature never did a congressional map until now, and has a duty to do so. They predicted DOJ approval of the state plan, and also said small problems that turn up can be remedied by the court. And they said the lawyers for the Democrats were making policy arguments that would be more properly presented in a legislative context than in a courtroom. They flat admitted the lines were redone for political reasons. "I don't think anyone will ever take the politics out of redistricting," said Ted Cruz, the state's solicitor general.

Crayons at the Ready

The judges are ready to fiddle with the lines, should they decide to do that. The Texas Legislative Council experts who run the computers used for the political maps are on hand, with their hardware and software, to tinker with maps right there in the courtroom.

Two of the three judges were on the panel that drew the map the state is trying to replace. One question that got kicked around without an answer was whether it would be better to fiddle with the new map to make it legal (assuming there's something wrong with it) or to go back and use the current map, which has already been vetted by DOJ and by the courts. Democrats argued, in advance, that the court should pick Door Number Two. Lawyers for the state predicted pre-clearance, but also said the court could do repairs to the legislative map if need be. They'd just as soon not see the old map again.

The judges listened to all of it and didn't issue any rulings. They seem content to listen to testimony and legal arguments until they see what DOJ releases.

That takes us to this correction and clarification. Due to an Unmedicated Cranial Hiccup, we wrote last week that Hanukkah starts on January 19. Sorry if you put off the hunt for things to feed the in-laws, but the holiday will be held in December, as usual. It came up because of the deadline for the Department of Justice to make its ruling on whether the new congressional redistricting plan for the state comports with voting rights laws. That deadline is on the first Monday after the start of Hanukkah, the 22nd. Sorry for the confusion.

Political Notes

We're not huge fans of the Texas Poll, but sometimes questions are as provocative as answers, and the Texas Poll, a Scripps Howard unit, is poking around in GOP politics. Pollsters wanted to know who would win a gubernatorial race between Gov. Rick Perry and U.S. Sen. Kay Bailey Hutchison. Narrowly, they said, she would, getting 45 percent of votes from Republicans to the 41 percent Perry would get. The comptroller, who changed her name after the last election and hasn't run under the new label, got creamed in the poll. Those same folks told the Texas Poll they'd favor Perry over Carole Keeton Strayhorn by a 68-17 margin. She'd lose to Lt. Gov. David Dewhurst by a 44-28 margin. It's interesting, with caveats. Wait and see how the governor looks after the school finance session: He could emerge as a king or as a crouton. Wait and see whether Strayhorn's attacks catch on, and whether voters learn her new name. As for Hutchison, don't hold your breath: She says she won't decide what to do for "a year or more."

• The four Texas Republicans at the point of the redistricting spear are caricatured on the cover of the January Texas Monthly. That's the Bum Steer Awards issue, and the cover has U.S. House Majority Leader Tom DeLay, Gov. Rick Perry, Lt. Gov. David Dewhurst and Texas House Speaker Tom Craddick drawn as the Three Stooges (if you're a true fan, you know there were more than three; if you don't, well, you might be normal). DeLay has the gavel in his hand, if you're into details. The headline: "Redistricting? Why we oughta... Nyuk, Nyuk, Nyuk."

Tomás Larralde will join the Democrats trying to unseat freshman Rep. Ken Mercer, R-San Antonio. Mercer was an upset winner in last year's election in HD-117, and the Democrats think they can knock him off if they put up a good candidate this time (just as the Republicans think they should win back the Waco seat won last year by Rep. John Mabry, a Democrat). Larralde has been around Democratic politics for a while; most recently, he was the staff director of the Senate Hispanic Caucus.

• You knew Mark Strama was looking at HD-50, where Republican Jack Stick is the incumbent. Now, Strama has decided to run — he'll announce within the next week or so. Meanwhile, Stick's fundraising pitch already includes a reference to his "well-funded" opponent. Strama, a Democrat, is a former aide to Sen. Rodney Ellis, D-Houston. Stick, R-Austin, wants a second term in the statehouse. He's kind of upscale himself, if you go by the menu for an upcoming fundraiser: Caviar, Crab Puffs, Shrimp, Beef Wellington, Assorted Cheeses, Vegetable Crudités, Wine, Champagne and Open Bar. You can get in for $100, though he suggests donor levels up to $5,000.

Vote of the Month Club

Gov. Rick Perry did your basic cut-and-paste job, declaring for the second time in a week or so that there will be a special election on January 20. This one is also for the Texas Senate, but it's in another corner of the state. Candidates who want to replace Sen. Teel Bivins, R-Amarillo, have to file by December 22. Early voting will run from January 5 through January 16, and the special election will take place the following Tuesday.

Bivins is resigning on January 12, halfway through a two-year term; the winner will serve out the rest of the term, but must run for a full four-year term to the same office in next year's regular elections, meaning they'll be on the ballot in the January special election, possibly in a February runoff, in a March primary, a possible April runoff, and a November general election. Filing is weird, too: The regular election stuff goes through the parties, which then take their full ballots to the Secretary of State. But the parties don't run special elections, so those filings go straight to SOS. The candidates have to file twice to run in both the special and regular contests. All of that for the dubious pleasure of voting on school finance — the winner of the special election will take office immediately, in time for a much-anticipated special session this spring. In exchange, he or she will get a head start on November.

All but that last bit parallels the special election to replace Sen. Bill Ratliff, R-Mount Pleasant. His spot is in northeast Texas, while Bivins' is in west and northwest Texas. And Ratliff is leaving after one year of a four-year term; his successor will get a couple of years of relative electoral leisure after the special election, not running again until 2006.

West Texas' SD-31, where Bivins now has the helm, is solidly Republican, if you go by the numbers. If the special election follows along the lines of the most recent off-season event — the constitutional amendment contest held in September — the geography will favor a candidate from the Panhandle. If voters in Midland and Odessa can't unite behind a candidate for some reason, Amarillo's favorite would walk away with it. That assumes there will be only one candidate from Amarillo, though. A Democrat might, under peculiar circumstances, get some traction in a special election, but it's not likely, and it's certainly not likely in November: Statewide Republican candidates in 2000 got 75 percent of the votes; in 1998, they averaged 70 percent. It's safe GOP territory.

Choosing Teams

So far, three candidates are in that race. Former Amarillo Mayor Kel Seliger is the only candidate from the north at this point. He hired Bryan Eppstein's Fort Worth shop to run his campaign. Odessa has two in the hunt: Bob Barnes, a restaurant owner who's been active in GOP politics there, and Kirk Edwards, a former Odessa city councilman who made his fortune in the energy business.

None of the three has an official blessing that we know of. Seliger was a Perry appointee to the Texas Alcoholic Beverage Commission, and Barnes was a Bush appointee to the Texas Motor Vehicle Commission. Edwards puts his connections this way on his website: "Last year he was a finalist for Governor Perry's appointment as Texas Railroad Commissioner, and this year he was appointed by the Speaker of the House to serve as his designee on an important oilfield committee." Perry didn't name any finalists at the time, but appointed Victor Carrillo of Abilene to the RRC vacancy created when Tony Garza became the U.S. Ambassador to Mexico.

The Lite Guv's fingerprints are showing in the special elections, though he hasn't officially chosen favorites. Chuck Anderson took a leave from the David Dewhurst Committee to run Kevin Eltife's campaign for the Ratliff seat. Anderson, formerly with the Texas Christian Coalition, will be Eltife's campaign manager. In SD-31, Dewhurst publicly encouraged Barnes at a fundraiser a month ago, according to local reports. Now, Barnes is talking to Dick Dresner, an out-of-state Republican consultant with ties to Dewhurst, to run his campaign.

Former state Rep. Jerry Yost, a Longview Republican, joined the pack running in SD-1. He joins Republican Tommy Merritt and Democrat Paul Sadler in that race; Eltife has said he's running, but he hasn't filed yet, according to the latest stuff on the Secretary of State's website.

Musical Houses

Former state Rep. Domingo Garcia, D-Dallas, has signed up a treasurer and is "exploring" a comeback attempt in the seat left open when Rep. Steve Wolens decided not to seek reelection. Garcia says he reestablished residence by moving from his home in Oak Cliff to a place nearby that's in the new district. He says the new residence is in both the new statehouse district and in the city council turf represented by his wife, Elba Garcia. Also looking at the race, as we mentioned, is Dallas ISD trustee Rafael Anchia. It's a solidly Democratic district (66 percent went for Paul Hobby over Carole Keeton Strayhorn in that year's skin-of-the-teeth comptroller's race), and 67 percent of the voting age population is Hispanic. Garcia is himself a former city council member. He ran against Laura Miller in the last mayor's race and once ran against Wolens. He and his former law partner, Roberto Alonzo, squared off in two elections; Garcia knocked Alonzo out of the Texas House in the first, and Alonzo returned the favor in the second. Alonzo remains in the Lege today.

Like the Candidate, Hate the Label

Houston businessman Bill White will be the next mayor of Houston, having dashed the hopes of Orlando Sanchez in a runoff in which White got 62 percent of the votes. That was a superficially nonpartisan election, but Sanchez was making his second run with heavy Republican backing. White, a former trial lawyer and official in the Bill Clinton Administration, is also a past chairman of the Texas Democratic Party.

City elections in Texas are nonpartisan affairs and party affiliations aren't listed on ballots, so you can make what you want of this: The biggest cities in the state are captained by Democrats who got where they are without their affiliations directly attached. That list includes Laura Miller in Dallas, Mike Moncrief in Fort Worth, Ed Garza in San Antonio, and now, White in Houston.

The state Republican Party blames the lack of labeling, and says the candidates in the unmarked city elections are able to obscure their party affiliations. If they listed them, the GOP folks say, they might have a harder time. They concede, however, that the cities are more Democratic than the suburbs, and their attentions to Sanchez (stronger two years ago than this year, but still strong) indicate their concerns about it.

The next best test might come in Dallas County, where a partisan fight for sheriff is on the burner. Democrats, even with their labels on, have been gaining on Republicans in Dallas County elections over the last several years. Local politics may be the last bright spot for Democrats in Texas at the moment; Republicans, meanwhile, want to consolidate their political bases at the state level by trying to win more local contests.

An Election without a Property Tax Garnish

After some conversation about it, the State Republican Executive Committee decided not to prime the March primary pump with issues. Party officials talked about a referendum on property tax caps, a hot issue last legislative session with officeholders from Houston, but decided not to put the matter on the ballot. That might be just as well, since the state is in the hands of the Republicans and the Republicans at the top are lining up the ducks for a spring special session on school finance. That subject leads to property taxes and to taxes in general, and the folks trying to work out a policy solution don't want their mittens tied together. The property tax limits could be an element of the school finance solution, too. The governor's office is trying to sell lawmakers and lobbyists on the idea that the special session should also tackle property appraisal reform. That's a voter hot button and it would also give political foes of Comptroller Carole Keeton Strayhorn some room to work. She's the state official with oversight of property taxes, and trouble there could splash on her.

Poof!

Just like that, the United States Supreme Court took away the "magic words test" that had — in a vague, informal, and widely debated way — described the line between electioneering and educating in political commercials. And with the decision, the court may have stripped the Texas Association of Business and Texans for a Republican Majority — two political action committees instrumental in last year's Republican landslide in Texas — of their central legal protection.

Lawyers for the committees said the court actually bolstered their position, but they didn't elaborate (the same lawyers were bunkered for the beginning of the redistricting case), and the majority opinion seems to undermine their legal position. They contend, in a written statement, that their case centers on free speech rights still protected by the courts.

The magic words test originated in a footnote in an early Supreme Court decision on campaign finance. They listed a bunch of words as examples of what they meant by electioneering. Over the years, political people developed a working definition that went like this. It was voter education, the line went, if the ad didn't use magic words like "vote for," "support", and "approve." Everything else was considered to advocate a position instead of a candidate and served only to educate voters about the preferences of the group doing the advertising.

Generally speaking, corporate and labor union money can't be used to support candidates, but can be used to advocate positions. Over time, political campaigns pushed the limits, muddying the definitions and blurring the distinctions between one kind of advertising and another. In the process, they blurred the apparent lines governing the use of what money can be spent on what messages.

In Texas, that came to a head a little over a year ago, when corporate money was used to fund a targeted campaign aimed at unseating almost two dozen Democrats in the state House. The ads didn't use the magic words, but did tell recipients that this incumbent or that one was against, say, education. The mailers didn't suggest who the voters support, but were designed to make the targeted candidates less attractive than their opponents.

Most of the candidates on the hit list lost their elections and TAB hit the streets right after the elections to make sure reporters and opinion leaders in the state knew that the trade group was taking credit for delivering the House to the Republicans for the first time in more than a century.

Back to the Grand Jury

Within a few weeks, Travis County prosecutors were poking around to see what money paid for those ads. Attorneys for the two groups said the ads were protected by the magic words case law, and said the names of the companies were protected by free association provisions in the U.S. Constitution.

The new federal campaign laws turned that aside, instead using a window of the weeks leading up to an election as the key to what can be said, by whom, and what sort of money can be used to fuel the message. And the justices said the magic words test was never a constitutional protection anyway, but an example of their interpretation of a federal law.

That's important because TAB was saying the state law should be seen through the lens of the U.S. Constitution. With the judges removing that notion, the prosecutors who are digging around on this say state law should be taken at face value; they read that to say their position on the legality of the political ads was right all along.

The term of the first grand jury that looked at the political ads expired while the lawyers were chasing appeals. Prosecutors won every round in court, and were rewarded with a pile of new material from the PACs. They've been looking through that stuff and say they will take their case to a new grand jury shortly.

Meanwhile, it's a new election season. The Republicans already have their majority, so the push to win seats in the state House isn't as great as it was in the 2002 elections. They won't have to immediately say whether they would do the same thing again.

Political People and Their Moves

Justice is Bland: Gov. Rick Perry appointed Jane Nenninger Bland of Houston to a spot on the 1st Court of Appeals there. She's been a state district judge since 1997, when George W. Bush appointed her to that post, and before that, she was a lawyer with Baker & Botts... The Guv named David Lattimore Evans of Fort Worth to be judge of the 48th Judicial District Court in Tarrant County. Evans has been in private practice for 20 years, and worked for former Sen. Bill Meier in the late 1970s... President Bush tapped Arturo Duran to be commissioner of the International Boundary and Water Commission. Duran was manager of a water district in Clint, near El Paso, and before that was an environmental regulator with the federal EPA... Byron Schlomach, an economist who's worked at the Texas Education Agency, for Rep. Kent Grusendorf, R-Arlington, and for the comptroller's office, is joining the Texas Public Policy Foundation behind the title "chief economist." He's been a senior fellow at TPPF for several years, and joins the fulltime staff on the eve of a special legislative session on school finance... Dya Campos, who'd been lobbying for Vinson & Elkins, crossed over to Hillco Partners, where she'll work on public relations and lobbying... No mutinies at the Texas Farm Bureau, where they elected Kenneth Dierschke of San Angelo to another term as president, Lloyd Arthur of Ralls to another term as veep. Ralph Detten of Hereford will be the group's secretary-treasurer... Deaths: Azie Taylor Morton of Bastrop County, after a stroke. Morton began as a civil rights activist and worked her way up to Treasurer of the United States, the first Black woman to win that post; she signed all the money issued from 1977 to 1981. She was 67.

Quotes of the Week

From the majority opinion in the U.S. Supreme Court's ruling on campaign finance laws: "We are under no illusion. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day."

Larry Noble, executive director of the Center for Responsive Politics, in a Dallas Morning News story on George W. Bush's ability to raise money: "He's really shaved the fundraising machine down to its essence — get these people to hear a speech, feed them as little as possible... tell them what they want to hear... and collect the contributions."

Bruce Bartlett, an economist with the National Center for Policy Analysis, quoted in a Washington Post story about conservatives' concerns about federal spending: "The budgetary situation is getting so off track that you simply can't propose any more tax cuts without looking like a complete idiot."

County Judge Louis Bruni, crabbing about media coverage of a rain-making contract, quoted by the San Antonio Express News: "Now I know why our founding fathers said our government is too precious to be left in the hands of the people."

University of Texas political scientist Bruce Buchanan, on George W. Bush's reelection chances in his home state of Texas: "You can't beat somebody with nobody, and the Democrats haven't come up with a credible opponent."

Justice Patrick Higginbotham of the U.S. 5th Circuit Court of Appeals, talking to a roomful of lawyers gathered for the state's redistricting trial: "If you call all of those on your will call list, maybe by Easter we'll be out of here."

Later, Higginbotham recounted former Lt. Gov. Bill Hobby saying that redistricting is a "religious experience" where you get a grease pencil and start marking a map to reward your friends and punish your enemies: "When did this tradition of fair play across the aisles come to Texas?"

Redistricting lawyer Gerald Hebert, quoted in the Houston Chronicle, arguing that emails and memos gathered from aides to U.S. House Majority Leader Tom DeLay, taken together, show that lines were redrawn with disregard for voters' rights: "Sometimes you don't get a smoking gun. All you get is fingerprints, bullets, and a dead body."

Gov. Rick Perry, quoted in the Dallas Morning News: "I have a very good idea that about a year from now, no one except political partisans are even going to remember redistricting."


Texas Weekly: Volume 20, Issue 26, 15 December 2003. Ross Ramsey, Editor. George Phenix, Publisher. Copyright 2003 by Printing Production Systems, Inc. All Rights Reserved. Reproduction in whole or in part without written permission from the publisher is prohibited. One-year online subscription: $250. For information about your subscription, call (800) 611-4980 or email biz@ texasweekly.com. For news, email ramsey@ texasweekly.com, or call (512) 288-6598.


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