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Justice Staff Saw Texas Districting As Illegal

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By Dan Eggen
Washington Post Staff Writer
Friday, December 2, 2005

Justice Department lawyers concluded that the landmark Texas congressional redistricting plan spearheaded by Rep. Tom DeLay (R) violated the Voting Rights Act, according to a previously undisclosed memo obtained by The Washington Post. But senior officials overruled them and approved the plan.

The memo, unanimously endorsed by six lawyers and two analysts in the department's voting section, said the redistricting plan illegally diluted black and Hispanic voting power in two congressional districts. It also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections.

"The State of Texas has not met its burden in showing that the proposed congressional redistricting plan does not have a discriminatory effect," the memo concluded.

The memo also found that Republican lawmakers and state officials who helped craft the proposal were aware it posed a high risk of being ruled discriminatory compared with other options.

But the Texas legislature proceeded with the new map anyway because it would maximize the number of Republican federal lawmakers in the state, the memo said. The redistricting was approved in 2003, and Texas Republicans gained five seats in the U.S. House in the 2004 elections, solidifying GOP control of Congress.

J. Gerald "Gerry" Hebert, one of the lawyers representing Texas Democrats who are challenging the redistricting in court, said of the Justice Department's action: "We always felt that the process . . . wouldn't be corrupt, but it was. . . . The staff didn't see this as a close call or a mixed bag or anything like that. This should have been a very clear-cut case."

But Justice Department spokesman Eric W. Holland said the decision to approve the Texas plan was vindicated by a three-judge panel that rejected the Democratic challenge. The case is on appeal to the U.S. Supreme Court.

"The court ruled that, in fact, the new congressional plan created a sufficient number of safe minority districts given the demographics of the state and the requirements of the law," Holland said. He added that Texas now has three African Americans serving in Congress, up from two before the redistricting.

Texas Republicans also have maintained that the plan did not dilute minority votes and that the number of congressional districts with a majority of racial minorities remained unchanged at 11. The total number of congressional districts, however, grew from 30 to 32.

The 73-page memo, dated Dec. 12, 2003, has been kept under tight wraps for two years. Lawyers who worked on the case were subjected to an unusual gag rule. The memo was provided to The Post by a person connected to the case who is critical of the adopted redistricting map. Such recommendation memos, while not binding, historically carry great weight within the Justice Department.

Under the Voting Rights Act of 1965, Texas and other states with a history of discriminatory elections are required to submit changes in their voting systems or election maps for approval by the Justice Department's Civil Rights Division.

The Texas case provides another example of conflict between political appointees and many of the division's career employees. In a separate case, The Post reported last month that a team was overruled when it recommended rejecting a controversial Georgia voter-identification program that was later struck down as unconstitutional by a court.


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