Today our focus shifts from the expert witnesses to the fact witnesses – the people actually involved in the redistricting process. They are an eclectic group that includes Texas Legislative Council employees, lobbyists, political consultants, and others. Incidentally, Moritz College of Law has put the parties trial briefs (from Phase I of the redistricting hearing) online; the briefs were filed on July 25th, and are available at http://moritzlaw.osu.edu/electionlaw/litigation/PerezVTexas.php
But first, a short technical digression:
I. Why Do All These Witnesses Keep Talking About Red Apples?
A long time ago (i.e., in the early 90s), back when the State still employed people to do this sort of thing, a group of very talented programmers, geographers, and demographers used a suite of tools (ArcInfo, a proprietary mapping software suite created and sold by a company called Esri) in a UNIX environment to create an intuitive software platform to automate much of the redistricting process. In the course of doing so, the programmers revised and substantially upgraded existing software tools that had been created in an even more distant age (i.e., the 80s). One of those tools was and is called RedAppl, (from redistricting application), which, when combined with the Boundary Definition System (BDS) and the Spacial Integrated Cartographic Environment (SPICE), can be used to draw voting district boundary lines.
Taken together, the system is incredibly powerful, and was developed in part to ease the difficulties faced by employees of the Texas Legislative Council (the legislative agency charged with the responsibility for assisting legislators with the technical aspects of redistricting) when dealing with two problems. Problem number one is that Texas is big. Problem number two is that Texas has a much higher number of political subdivisions than any other state.
In 1996, TLC employees produced a formal paper describing their accomplishments, which can be found here: http://proceedings.esri.com/library/userconf/proc96/to250/pap219/p219.htm. In passing, the paper notes how much information a person sees when trying out changes in voting precinct boundary lines, including information about minority populations. In fact, a person sitting at a workstation in the bowels of the Texas Legislative Council gets immediate feedback on racial demographics of an enclosed area, as the information is displayed onscreen while the boundaries are being drawn. Keep this in mind, because it will turn out to be important.
II. The Witnesses (and deposition transcripts) to Watch For
1. Gerardo Interiano – former staff aide, Texas GOP
Mr. Interiano, who now works for Google, was the person responsible for inputting the GOP’s desired redistricting plans into the TLC software suite. All the plaintiffs are going to want a piece of Mr. Interiano, while the attorneys for the State of Texas will work very, very hard to ensure that Mr. Interiano gives more polished, thoughtful testimony than he did the last time he was before a panel of Federal judges.
That’s because back in 2012, Mr. Interiano said two things that were frankly not believable. For one thing, he said that his work drawing and redrawing boundary lines was done without any supervision or input from the Speaker of the Texas House (Joe Strauss) or any of the senior officers or staff of the Republican Party leadership in the Legislature.
But more disastrously, Mr. Interiano asserted (and reasserted under cross-examination) that he didn’t know the redistricting software could display any racial demographic information at the census block level, even though everyone (including the judges) knew that it did, and even though everyone knew that displays of racial demographics are part of the fundamental utility of RedAppl, front and center. In fact, it would be impossible to use RedAppl and not see the racial demographic information.
Mr. Interiano’s statement, and the lack of credibility that he brought to the witness stand prompted the D.C. district court to write:
“As unequivocally demonstrated at trial, this information was readily apparent to even a casual user, let alone one as experienced as Interiano, The implausibility of Interiano’s professed ignorance of these functions suggests that Texas had something to hide in the way it used racial data to draw district lines. The data about which Interiano claimed ignorance could have allowed him to split voting precincts along racial (but not political) lines in precisely the manner the United States and the Intervenors allege occurred.”
Texas v. United States, 2012 WL 3671924 (D.D.C.. Aug. 28, 2012).
2. Dr. James Alford
Dr. Alford, whom I mentioned in my last post, is the only expert testifying on behalf of the State of Texas. Dr. Alford asserted that the 2011 redistricting plan was not retrogressive with respect to minority voting strength because some districts in Texas had managed to elect minority representation in recent elections. When asked if individual precincts had been redrawn in such a way as to be retrogressive, Dr. Alford could not say, and did not know.
This inability to assess minority voting strength in individual precincts before and after redistricting was fatal to the State’s case in 2012. Judging from the State’s exhibit lists, the State’s expert will again review exogenous proof of minority voting strength (i.e., the fact that some Congressional districts in Texas did elect minorities), presumably to argue that even if the State plan was retrogressive, it wasn’t the State’s intention to discriminate against minorities.
3. Clare Dyer
Clare Dyer (if you actually read that 1996 technical paper on RedAppl, you might have seen Clare Dyer’s name in the credits) will likely talk about how redistricting plans are processed in the Texas Legislature, and how the Texas Legislative Council urges legislators to keep Voting Rights Act requirements in mind when creating districts. More importantly, Dyer will describe how one could shift boundaries by small amounts to get a much more fine-grained distribution of nonvoting minorities in a Congressional district.
4. Ryan Downton
Ryan Downton is a conservative Republican politician and lobbyist who in 2011 assisted Mr. Interiano with the task of drawing districts to the liking of the Republican leadership in the Texas legislature.
5. Eric Opiela
Eric Opiela (who might or might not be called to testify at Phase II of the hearings) is a Republican politician and lobbyist who, while working for Speaker of the House Joe Strauss, devised the plan to shift blocs of nonvoting minorities (such as prison inmates) to create the illusion of minority-opportunity districts. Mr. Opiela discussed this strategy via email with Mr. Interiano.
4. Thomas Arrington
Dr. Arrington is the lead expert for the plaintiffs, and in addition to testifying that the 2011 redistricting plan was retrogressive with respect to minority voting rights, will also describe how the specific shifts in boundary lines reflect intentional discrimination against minority voters.
These are the witnesses to watch for. That’s not to say that there weren’t many other people who testified or were deposed in 2012, or who will testify at Phase II. Often, the role of the additional witnesses and other experts was to highlight and emphasize the specific boundary line shifts for particular regions of the State (while Dr. Arrington was looking more at the State as a whole).
III. What About the State’s Witnesses?
Most of the State’s evidence will be read from selections of depositions that were done in 2012, and from cross-examination of the plaintiffs’ witnesses.
The State’s defense, more or less, will be that (1) Eric Opiela’s email proposal was a bad idea that never got implemented in practice, because the statistical data that would have been required to implement such a plan simply didn’t exist, and (2) the State can and does split voting precincts for legitimate reasons that have nothing to do with race, and can rationalize many of the precinct splits on non-racial grounds.
Perez v. Perry: The Witnesses, or Programs, Programs, Getcher Programs! You Can’t Tell the Players Without Yer Programs!
In the spring of 2011, a number of plaintiffs filed lawsuits against the State of Texas, challenging the implementation of a hastily-completed legislative redistricting plan. For the sake of judicial economy, these suits were consolidated together into one rather complicated lawsuit. At least, Perez et al. v. Perry is complicated procedurally by the large number of plaintiffs, the sometimes numbing technical details of geographic boundary line definitions and census data, and the statistical projections of voter turnout and projected voting patterns.
Complication and redistricting litigation go hand-in-hand, for a number of reasons. Each of the plaintiffs have specific, sometimes divergent demands regarding the shape and composition of particular districts, and each of the attorneys involved in the case have their own views regarding the best tactical choices and approaches.
Take a quick look at the Moritz College of Law repository containing the bulk of the pleadings filed in the case so far. http://moritzlaw.osu.edu/electionlaw/litigation/PerezVTexas.php
Impressive, isn’t it?
Luckily for the casual observer, while the parties are numerous and the fights over discovery and disclosure of relevant evidence are varied, the key witnesses and the important players in the redistricting process at issue are pretty easy to keep straight. For starters, here’s the list of witnesses expected to be called by the Department of Justice for Phase II of the trial (representing the United States, an intervening party in the suit).
That’s not so bad. Six witnesses for sure, plus a slightly larger number of “maybes.” Because this case is three years old, and because all the principal parties have been deposed and have testified before, a lot of actual testifying is already done and in the can. That’s why, when you look at the deposition excerpts that the United States wants to read into the record, it’s a lot longer.
The following document is the U.S. declaring which parts of which depositions it would like in the record. Of course, the defendant will object to some of these, or will offer other parts of the same depositions in an effort to provide context for the quotes being used by the plaintiff.
Okay, so that’s a little intimidating, but at least the gist of that material can be summarized in a fairly straightforward way.
What sort of testimony will the plaintiffs want to elicit from their witnesses? For a clue, we can look to the prior trial transcripts and the depositions filed in the case.
First, there are the plaintiff’s experts:
Dr. Arrington will generally testify that the Texas Legislature engaged in a deliberate and sometimes brazen practice of reducing Hispanic voting strength. Although he’s likely to discuss several aspects of the redistricting plans, the centerpiece of his testimony is an explanation of how the boundaries of districts were deliberately drawn to ensure the dilution of Hispanic votes in superficially Hispanic areas.
Mr. Fairfax is a demographer, and is likely to be relied on for a description of the dilution of African-American voting blocs in the Congressional districts representing areas of the Houston and Dallas-Fort Worth area, among other topics.
Dr. Murray can be expected to testify about how the contested redistricting plans diluted African-American and Hispanic voting strength generally, with an emphasis on the division of African-American voting blocs among white-dominated voting districts in the Dallas and Houston area.
Similar testimony (with different emphasis on particular parts of the State) will presumably be offered by:
Dr. Robert Brischetto;
Dr. Brischetto will probably focus more on the historical evidence of prior bad intent by the State, as part of arguing that the State acted with discriminatory intent.
Allen J. Lichtman;
Henry Flores, and;
Richard I. Engstrom.
A lot of these witnesses testified in the case referred to as the “Section 5” lawsuit – that was the suit filed by the State of Texas in the Federal District Court in D.C., as an end-run around the Department of Justice. Texas did not do well in that suit, and the D.C. court refused to preclear the bulk of the 2011 redistricting plans.
The expert on the defendant’s side is Dr. John Alford.
Dr. Alford will presumably use recent election data to argue that minority voters in specific counties (based on county election results) are successfully selecting their candidate of choice, notwithstanding their aggregation with non-minority voters in other counties, and that therefore their voting strength would not have been diluted under the 2011 plan.
The above list is by no means a complete list of all the experts who testified in the Section 5 case or in prior hearings relating to Perez v. Perry. Two important witnesses not listed above and not scheduled to testify are Dean Rogelio Saenz and Professor Orville Burton. In particular, Professor Burton issued a report that provided a historical context for the current suit. The report describing specific detailed instances of racial discrimination in Texas after the Civil War and up to the present.
In the next post, I’ll look at the key players – the people who actually drew the controversial maps.
As Perez et al. v. Perry et al. enters its second phase (today was set aside for a pretrial conference on discovery issues, etc), with the bench trial on the 2011 Congressional districts set to begin on August 11th, another redistricting lawsuit is going on in Irving, Texas. (per the Dallas Morning News, www.dallasnews,com/news/community-news/irving)
At issue is whether Irving ISD has managed to create the appearance of minority opportunity single-member districts for its board elections without actually solving the problem of entrenched, decades-long hostility toward Hispanic voters. The district’s population demographics have changed substantially over the last few years, with much of the growth in population coming from an increaze in the district’s Hispanic population, but the district has resisted abandoning its at-large system for electing board members, only recently adopting a 5-2 plan (five single-member districts and two at-large positions).
There are a couple parallels between this lawsuit and the huge one getting national attention down in San Antonio. Both involve political responses to a shift in demographics that increases the number of Hispanics relative to white voters, and both involve a somewhat subtle argument about the use of blocs of Hispanic populations that are ineligible to create superficially balanced single-member voting districts.
The suit itself is interesting, but my favorite part of the Dallas Morning News coverage is the appallingly awful testimony elicited by the plaintiff’s attorney from one of the school board trustees.
Steven Jones was the only trustee who voted against creating five single-member districts. He wanted to keep the at-large system so candidates would have more opportunities to run.
Before taking the stand, he called the lawsuit “money flushed down the toilet.” On the stand, his knowledge of the issue was questioned by Bickel & Brewer lawyer Kenneth Hickox.
“You don’t really have any idea how the Voting Rights Act applies to the school district, do you?” Hickox asked.
“No,” Jones said.
“You don’t think it’s important enough?” Hickox asked later.
“No,” Jones said.
That’s the kind of testimony that can prompt an attorney to ask for a short recess to confer with the witness.
Another trustee quickly admitted that the board had been racially non-representative of the school district population for decades, but argued that the fault lay with Hispanic voters for failing to enlist candidates from their community.
It will be interesting to see if the court replaces the current 5-2 plan with a 7-0 plan (seven single-member districts) as is the common outcome in litigation like this to remedy minority underrepresentation on a school board. I expect it’ll be the 7-0 plan in the end.
The title is a reference to descriptions by the Austin American-Statesman’s Ken Herman of his favorite bits of testimony from the recently concluded first phase of the redistricting hearings going on in San Antonio. In his Sunday op-ed piece (behind the paywall at www.mystateman.com), Herman compares the evergreen demand for redistricting litigators to the evergreen demand for tattoo removers, because (in a nice turn of phrase), people often get tired of the lines drawn on them.
Mr. Herman was in a particularly folksy mood when he wrote this piece, to the point where he is almost frustratingly oblique about the specifics of the current litigation. That’s fine – he’s not trying to do straight reporting. But given the limited press coverage of the testimony offered, it might have been nice if he had provided a slightly more grounded piece than something which more or less reads as, “Lawyers Say the Darnedest Things!”
As a backgrounder on the suit, the opinion piece is somewhat biased, relying on the narrative that when the Democratic Party was effectively the sole party in Texas, the Legislature was free to use redistricting to ensure that the Democrats would stay in power, but when the Republican Party tries to do the same thing, the Republicans aren’t given as much room to maneuver.
What the Repubs did was discriminate on the basis of party, which is kind of what they’re supposed to do. There are rules and laws about that, but there are even tighter rules against discriminating based on race. And it just so happens that an overwhelming majority of Hispanics and African-Americans vote Democratic. So by bank shot if nothing else, discriminating against Democrats often equals discrimination against Hispanics and African-Americans.
So the fact may be that the GOP, when it’s running the show, has less freedom to mess with Dems than when it’s the other way around.
Herman, Ken, “Redistricting carousel a ride the never stops” Austin American-Statesman (July 27, 2014, p. E3).
This is followed by a statement that might draw a few angry letters to the editor.
That’s because Repubs tend to be white. There’s nothing wrong with white people as a group, but there are fewer laws protecting them in such matters.
Mr. Herman then goes on to say that for some attorneys, the motive behind redistricting doesn’t matter, but merely whether or not a change in boundaries has diluted the voting strength of minority voters, and that it was the racial discrimination practiced by the racist Southern Democrats that compelled the need for protective laws in the first place.
In other words, Mr. Herman is making the defendants’ case to the public, since the court would likely only impose Department of Justice oversight with respect to voting upon a legal determination that the 2011 redistricting plan amounted to intentional discrimination (per Section 3 of the Voting Rights Act).
But his “aw shucks, I’m just a simple newspaperman telling it like I see it” tone is misleading. He neglects to mention that a significant part of the state’s growth in population came from minority voting populations, but that the added U.S. Congressional seats were disproportionately distributed to conservative white populations. In the course of failing to actually describe any of the litigation, he also neglects to mention the specific strategy used by the GOP to reapportion the growing population.
When initiating the redistricting process in 2011, the Republicans could have written to the Texas Legislative Council (the technical wonks who maintain the software, maps, and demographic information used in redistricting), and asked, “Dear Legislative Council. Please show us where the Democrats and Republicans in Texas are located, so that we can draw safe Republican districts.”
Instead, the Republicans asked the Texas Legislative Council to figure out where the non-voting Hispanics lived, so that those Hispanics could safely be split off from existing districts and added to newly created Republican districts, giving the new districts the appearance of being “minority-opportunity” districts without actually being “minority opportunity” districts. The whole focus wasn’t on the party identification of the voters, but on the race of the voting-age inhabitants.
In other words, the Republican strategy relied on intentionally diluting minority voting strength. The question for the court is whether such a strategy constituted intentional discrimination on the basis of race.
Mr. Herman is a good writer, and I’ve enjoyed his rambling op-eds. But his thoughts on redistricting frustrate me, in that (1) he is dismissive of the whole redistricting process as make-work for lawyers; (2) he views the 2011 redistricting plan as something that, if it did do anything wrong, probably only diluted minority voting strength by accident, and (3) he managed to get about 40 column inches of copy with highlights about tattoo removal, the funny animal shapes that redistricting makes, and the goofy things that lawyers and legislators say when defusing the tension of redistricting fights. But he left out the Voting Rights Act, the Shelby County decision, the changing demographics of the state, and that the Federal District Court in D.C. had already determined that the 2011 Texas Congressional and state House redistricting plans could not be cleared for implementation because they violated the Voting Rights Act.
In the course of trading comments with Charles Kuffner about a Houston Community College District trustee who, as a conclusive matter of law, calls a warehouse his domicile, I pointed out that candidate eligibility issues like residence are generally settled by the voters, and that if the trustee is perceived as an outsider, his seat on the college district board becomes more attractive to other challengers. Mr. Kuffner pointed out that while the trustee might have been made more vulnerable because of questions about residence, the seat doesn’t go up for election again for another 5 years, because the trustees are elected to 6-year terms.
Once upon a time in Texas (between 1876 and 1894), in reaction to an unpopular Reconstruction government, the people of Texas specified that no term of public office could exceed two years. Tex. Const. Art. XVI, Sec. 30.
That decision may have been a bit hasty. Two years turned out to be a little too short as terms go, and so certain offices were given longer terms in the usual ad hoc, piecemeal way that typifies our comically long state constitution.
With the establishment of the Railroad Commission to handle the crisis of rail line placement, we got our first regulatory agency with seasoned commissioners holding six-year tenures. Then in 1912, public post-secondary educational institutions got approval to have boards whose members served six years, which is why Dave Wilson (who was elected in 2013) will serve on the Houston Community College District board until 2019. Tex. Const. Art. XVI, Sec. 30a.
Statewide and then local offices got longer terms, and in 1954, all the county offices got changed from two to four-year terms, in return for some concessions. Tex. Const. Art. XVI, Sec. 64.
In short, if one were paraphrasing our state constitution’s answer to the question, “What is the duration of a term of office?” the answer would read, “Two years, absolutely. Unless we say otherwise, Which we do. Often. So two years, or four years for some offices. Or six years. But never more than six years.”
In Wednesday’s Austin American-Statesman (July 23, 2014), Shane R. Saum offered his prescription for fixing what ails Texas partisan politics. Analogizing the redistricting process to a flat tire, he recommended that we scrap “winner-take-all” elections altogether, and instead adopt some system of proportionate voting. (Saum, Shane, “Texas Redistricting Case Should Be About Failed Voting System,” Austin American-Statesman, p. A11 (July 23, 2014)).
Mr. Saum’s reasoning proceeded as follows – partisan gerrymandering is used to preserve the political advantage enjoyed by a ruling political clique. But if Texas had something more like a parliament, with legislative seats doled out in proportion to the votes received by various candidates, then voting turnout would go up, minority political representation would be assured, the party in charge would be forced to treat with a balancing and vigorous coalition of the Distinguished Opposition, and we would never need to worry about a lack of parity in voting strength when comparing voters across the state.
This is certainly an imaginative approach toward the issue of unequal representation and gerrymandering. It’s also a really weird way to sell the argument against winner-take-all, two-party systems, and most of the architecture of local, state, and federal representative government in the United States.
At the risk of seeming mean, I have to say that Mr. Saum’s well-intentioned suggestion is singularly naive, myopic, impractical, in direct conflict with our state constitution and the U.S. Constitution, and fundamentally at odds with political reality. Finally, and most sadly, proportionate representation is worse than no solution to violations of the Voting Rights Act. Proportionate representation is irrelevant to the problem of racial discrimination in the context of voting and elections.
Notice I didn’t say that proportionate representation is a bad thing in the abstract – as with so much in government, it’s neither good nor bad, just different. Governments that are organized to provide proportionate representation are perfectly workable, and we have examples of such governments from all over the world, usually in the context of national legislative assemblies like the Japanese Diet, the Israeli Knesset, the Parlamento Italiano, and so on. Various political parties run a slate of candidates, and then get to seat their candidates based on some formula that reflects the relative success of those parties in an election.
So one can certainly imagine an alternate universe version of Texas in which the state would be governed by a regional Chamber of Deputies whose membership would reflect various mainstream and fringe political ideologies, in varying proportion to their popularity. And one can also imagine a United States with a national parliament, maybe with a couple hundred members representing a dozen or more factions and parties, all jockeying intensely for numerical presence in a coalition government. And all this multiparty activity and coalition-building might very well suffer from as much or more racial discrimination as we see in our own world.
Two-party politics, winner-take-all, and partisan gerrymandering do not cause racial discrimination, and while these elements of the electoral process reflect racial discrimination, these elements are not symptomatic of racial discrimination.
The use of proportionate voting systems may aid in the elimination of two-party politics, first-past-the-post elections and single-member districts, but it will not eliminate racial discrimination. Racial discrimination is symptomatic of cultural tensions that will be expressed by and through one-party, two-party, any-party, no-party and multi-party politics, as evidenced by the ongoing present race-based exclusion of candidates and suppression of voters in not just partisan elections, but also in purely non-partisan local races, single-party nominating elections, party caucuses and conventions, and even in measure elections that answer pure policy issues, in which there are no candidates at all.
Per Rick Hasen’s election law blog, I see that those endlessly inventive folks in Wisconsin are contemplating allowing cameras into polling places in order to, you know, check up on what the voters are doing.
The policy reasons for excluding cameras, tape recorders, and other recording devices from the sacrosanct confines of the polls are many and obvious. For one thing, it’s certainly creepy and intimidating to allow someone to watch a voter as they vote – whatever happened to ballot secrecy? If voters are watched, it makes it easier for bad guys to threaten voters. To be fair, the policy analysts who were asked to draft the proposed law have pointed out that they think admission of cameras to the polls is not a good thing. But this is Wisconsin we’re talking about – the Republican majority under Governor Walker has already displayed a propensity for embracing bad ideas when it comes to voting restrictions.
There’s been no corresponding push to let cameras into Texas polling places, for which I’m grateful. And Texas law currently imposes strict prohibitions against such intrusions into the peace and quiet of the polling place. Tex. Elec. Code Section 61.014.