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The Supremes and Us By Jack D. McNamara Have you ever heard of Rick Bolanos? Probably not because he is the Democrat nominated for election in November to the U.S. House of Representatives, 23d Congressional District. Mr. Bolanos lives in the Lower Valley of El Paso. On July 4 the Vietnam veteran had been mentioned four times in the press. Two of the links produced by Google were real newspapers (online). They mentioned Bolanos, 56, who comments on the U.S. Supreme Court decision which declared the district unconstitutional. Bolanos told the San Antonio Express News (online) that the decision was for him the equivalent of hitting the lottery. The U.S. Supreme Court ended their term last week with several blockbuster decisions. One of those decisions affected us here in the borderland where the Court declared Texas Congressional District 23 as drawn by the Texas Legislature in 2003 both “illegal” and “unconstitutional.” A narrow majority decided the Texas case. Six separate opinions were written by the justices — concurring and dissenting in whole or in part with various parts of the decision. The general conclusion however is that District 23 must be reconfigured. The various litigants, including the state of Texas, must submit a new plan to the three federal judges (sitting as the district court) by middle July. But the major claim of the plaintiffs was that the entire 2003 redistricting by the Legislature was unconstitutional. The Supremes found no fault in the redistricting principle orchestrated by former U.S. House Majority Leader Tom DeLay. The legislative redistricting by a party for frankly partisan purposes is not unconstitutional. The decision is 70 single-spaced pages and with six opinions on complicated issues concerning political events since 1990. We quote from the decision published on www.findlaw.com, League of United Latin American Citizens et al. v. Perry, Governor of Texas, et al. In the Court’s words: “The Constitution’s text and structure and this Court’s cases indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own…” (page 5). In 1990 Texas Democrats saw their majority dwindling so “…the state Legislature enacted a plan later described as ‘the shrewdest gerrymander of the 1990s’…(page 9). When the new Republican majority challenged that gerrymander in 2003, Democrats sued. “A decision, they claim, to effect mid-decennial redistricting, when solely motivated by partisan objectives, violates equal protection and the First Amendment because it serves no legitimate public purpose and burdens one group because of its political opinions and affiliation…” (page 12). But the redistricting of Bonilla’s District 23 went too far. “State legislators changed District 23 specifically because they worried that Latinos would vote Bonilla out of office” (page 18). “Since the redistricting prevented the immediate success of the emergent Latino majority in District 23, there was a denial of opportunity in the real sense of that term” (page 18). Justice Anthony Kennedy quoted approvingly from a court’s decision of 1994, “Texas has a long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process. Devices such as the poll tax, an all-white primary system, and restrictive voter registration time periods are an unfortunate part of this State’s minority voting rights history. The history of official discrimination in the Texas election process — stretching back Reconstruction — led to the inclusion of the State as a covered jurisdiction under Section 5 in the 1975 amendments to the Voting Rights Act. Since Texas became a covered jurisdiction, the Department of Justice has frequently interposed objections against the State and its subdivisions.” Vera v. Richards, 861 F Supp. 1304, 1317 (SD Tex. 1994) (citations omitted)” … In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it.” The changes mandated by the Supreme Court are mostly directed at the eastern end of District 23. The Legislature’s 2003 majority removed 100,000 Latino voters from the previous district by splitting Webb County and attaching them to the adjoining district. The Latino voters were replaced with voters from the hill country west of San Antonio who are mostly white and Republican. The changes necessary to District 23 may reverberate into as many as six districts. Whether this must be done before the 2006 election is not addressed by the Court. Justices John Paul Stevens and Steven Breyer were even more critical of the state in a separate opinion. The Legislature’s plan (which replaced a 2002 court-ordered plan) “…violated the State’s constitutional duty to govern impartially” (page 28). The Court’s plan, according to Justices Stevens and Breyer, “was not only manifestly fair and neutral, it may be legitimately described as a milestone in Texas’ political history because it put an end to a long history of Democratic misuse of power in that state” (page 28). Though the majority determined that the mid-decade redistricting by a new partisan Republican majority was not unconstitutional, Justices Stevens and Breyer wrote in dissent (page 34) — “… the freedom of political belief and association guaranteed by the First Amendment prevents the State, absent a compelling interest, from ‘penalizing citizens because of their participation in the electoral process, … their association with a political party, or their expression of political views.’ Vieth, 541 U.S. at 314 … These protections embodied in the First and Fourteenth Amendments reflect the fundamental duty of the sovereign to govern impartially.” There were major dissents by the conservative wing but we must leave that to another day. Though the decision is scattered all the way from El Paso to Washington, D.C. with six separate opinions, the fact is that the moderate “swing” Justice Anthony Kennedy crafted the majority, not the conservatives. Whether this decision benefits Rick Bolanos remains to be seen. Representative Bonilla has a fat campaign chest. At least Bolanos got his name in the paper. • (Also published by the Big Bend Sentinel of Marfa, Texas July 6, 2006.) |