Gonzales Defends Approval of Texas Redistricting by Justice

By Dan Eggen
Washington Post Staff Writer
Saturday, December 3, 2005

Attorney General Alberto R. Gonzales yesterday defended the Justice Department's 2003 decision to overrule a staff recommendation and approve a congressional redistricting map for Texas, arguing that subsequent court rulings and election results show that the plan did not harm minority voters.

A December 2003 internal memo shows that eight members of the Justice Department's voting section unanimously concluded that the Texas plan would violate the Voting Rights Act by diluting the electoral power of blacks and Hispanics. Political appointees in the department disagreed and allowed the plan to go forward.

"The fact that there may be disagreement within the ranks does not necessarily make it a wrong decision," Gonzales said at a briefing with reporters in Washington.

Gonzales disputed allegations from Democratic lawmakers and lawyers that the Texas case provides additional evidence that the department's work has been politicized during the Bush administration.

Justice Department officials overruled another staff objection earlier this year in approving a voter identification plan approved by Georgia's Republican-controlled legislature. The plan was later halted in the courts as a violation of the Voting Rights Act.

"We're not going to politicize decisions within the department," Gonzales said. "We're going to make decisions based on what the law requires."

The disclosure of the 73-page memo, first reported by The Washington Post yesterday, prompted complaints from Democratic lawmakers in Congress and in Texas.

House Minority Leader Nancy Pelosi (D-Calif.) said the decision was the result of a "contemptible politicization" of the Justice Department. She called for an independent inquiry into the case.

"The Justice Department memo reveals a cynical manipulation of the democratic process designed to deny fair representation to millions of American citizens," Pelosi said in a statement.

Rep. Tom DeLay (R-Tex.) -- the former House majority leader who is under indictment in Texas for money laundering and conspiracy -- led the efforts of the Texas GOP to redraw that state's congressional map in 2003. As a result, Texas Republicans gained five congressional seats in the 2004 elections, solidifying their hold on the House.

Under the Voting Rights Act of 1965, Texas and other states with a history of discriminatory electoral practices are required to submit changes in their voting systems or district maps to the Justice Department's Civil Rights Division for approval. Gonzales and President Bush have endorsed the reauthorization of the law.

Staff lawyers and analysts at the Justice Department unanimously concluded that the Texas redistricting plan illegally diluted black and Hispanic voting power in two congressional districts, and eliminated other districts where minorities had substantial influence, according to the memo. The memo also noted that the Texas officials who endorsed the plan were aware that it might run afoul of the Voting Rights Act but pushed ahead anyway because it would maximize the number of House seats the GOP could win.

On Dec. 19, 2003, seven days after the staff memo was submitted, Principal Deputy Assistant Attorney General Sheldon Bradshaw notified Texas that the plan was "pre-cleared," or approved, by Justice. The head of the Civil Rights Division at the time, R. Alexander Acosta, was recused from the case. A Justice spokesman declined yesterday to say why.

Officials have also declined to say whether the attorney general at the time, John D. Ashcroft, was involved in the Texas decision. Gonzales said he does not believe he or lawyers in his office were briefed on the case while he served as White House counsel at the time.

A Democratic legal challenge to the plan was rebuffed by a special three-judge federal court panel in Texas, and the Supreme Court has yet to decide whether to hear an appeal of the case. J. Gerald "Gerry" Hebert, one of the lawyers representing Texas Democrats, said it is unclear what impact the Justice Department memo might have on the lawsuit, but he added that he hopes it will be considered if the high court agrees to hear the case.

Gonzales and other Justice Department officials said the rulings of the three-judge court vindicate the department's decision to approve the Texas plan.

But election law experts said the court considered legal issues that were different from those examined by the Justice Department, which is required to determine whether election changes would harm minorities under Section 5 of the Voting Rights Act. Once the department decides that a plan meets that section's standards, the decision cannot be litigated, according to a previous Supreme Court ruling, experts said.

"I don't think you can point to it as vindication of their decision to pre-clear under Section 5," said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles. "It's a different standard."

Gonzales also noted that, in the 2004 elections, Texas added a third African American to its congressional delegation, Democratic Rep. Al Green of Houston. The staff memo, however, said that Green's district was already considered "safe" for black voters and that the new map merely intensified that trend.


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