Anthony Zurcher

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                    [post_content] => It's the first full day of last October's values voters summit in Washington, D.C., and Ted Cruz is electrifying his audience. Dressed in a dark suit and with a wireless mic attached to his gold tie, the former Texas solicitor general paces the stage in a ballroom at the Omni Shoreham Hotel like a cross between Atticus Finch and Tony Robbins.

Cruz, who is running for the Republican nomination to replace Kay Bailey Hutchison in the U.S. Senate, knows what the crowd of religious and social conservatives wants, and he gives it to them. Pious references to our Founding Fathers? Of course. Embracing the legacy of Ronald Reagan? Definitely. Dire warnings about the “gay rights agenda,” “Obamacare” and “government planners”? Yes, yes and yes. Hyperbolic attacks on the current president? Check. “Barack Obama is the most radical president this nation has ever had,” he intones. Each applause line is punctuated by a huge smile and a curt nod, as he waits for the audience to respond.

On occasion, his voice booms. “The American people are rising up, and together we are going to retake our nation!” At other times, he drops to an earnest stage whisper. “A big part of the reason Barack Obama got elected is because Republicans had lost their way. ... We’ve got to stand up together and defend religious liberty. ... The United States has enjoyed the greatest prosperity in the history of the world because free enterprise works.”

By the time the 15-minute speech ends, the audience is shouting “Yes, we can!” as Cruz asks whether the Republican Party can retake the U.S. Senate and defeat Obama in 2012. They send him off with a standing ovation.

Performances like this have made Cruz, the 40-year-old Ivy League-educated son of a Cuban immigrant, a darling of the national conservative movement—and potentially a major force in Texas Republican politics over the next decade.

In June of last year, Washington Post columnist George Will wrote that Cruz’s story—his Hispanic background, academic pedigree and conservative legal track record—is “as good as it gets.” He’s won the support of the anti-tax Club for Growth, former House Majority Leader Dick Armey’s tea party-inspired FreedomWorks, and Erick Erickson, founder of the influential conservative blog RedState. He’s also received the endorsement of arch-conservative U.S. Sen. Jim DeMint of South Carolina, as well as those of tea party favorites Mike Lee of Utah, Rand Paul of Kentucky, and Pat Toomey of Pennsylvania. Former U.S. attorney general and Republican Party elder statesman Ed Meese is Cruz’s national campaign chair.

A few days after his October speech in Washington, Cruz appeared on the cover of The National Review, which called him “the next great conservative hope.”

“I think he’s very Reaganesque,” said Ryan Hecker, a former tea party leader in Houston and current chief operating officer of FreedomWorks’ super-PAC, FreedomWorks for America, which has been organizing on Cruz’s behalf. “He’s not an establishment Republican, even by Texas standards. We’re looking at someone who has the potential to be one of the great conservative leaders of our time.”

But first he has to win an election. That could prove difficult for Cruz. His main opponent for the Republican Senate nomination is the state’s lieutenant governor, David Dewhurst, who doesn’t excite the party’s grassroots activists, but does have political power, statewide name recognition and lots of money, from both a bulging campaign account and an estimated $200 million personal fortune.

To pull off the upset, Cruz has tried to identify himself as the conservative choice, campaigning on tea party and evangelical support, and portraying Dewhurst as the sort of unprincipled moderate that led Republicans astray in the 2006 and 2008 elections. Club for Growth has picked up on this theme, running anti-Dewhurst television ads that label the lieutenant governor as a tax-raising “moderate” who is “wrong for Texas.”

But no matter how much buzz surrounds Cruz on the national level, he still must translate it into on-the-ground support among Texas Republican primary voters.

“How many votes does The National Review have in Texas?” said former Texas Republican state chairman and current Texas Workforce Commission Chair Tom Pauken. “That’s nice, but I don’t know that it necessarily is the arbiter of conservatism. I think conservatives are going to be very fragmented in this race, just like they are in the Republican presidential primary race, and that doesn’t work to his advantage here.”

In fact, Cruz is a somewhat unlikely candidate to carry the tea party banner. Since leaving his job as solicitor general, he has worked in Houston as a high-priced corporate lawyer, and his Princeton and Harvard degrees and prestigious federal court clerkships aren’t credentials that usually excite grassroots conservatives. Yet polls show him to be Dewhurst’s most formidable opponent, and the primary contest is shaping up to be the latest test of tea party strength in Texas. Perhaps most important, Cruz could become the highest-profile Hispanic to win a nomination from a Texas Republican Party that has struggled to support Hispanic candidates and appeal to the state’s fastest-growing demographic segment. His potential seems limitless, if he can live up to the hype.

 

Cruz has never held elected office. He’s basing his campaign on his litigating experience and his life story. That story begins with Cruz’s father, who, as Cruz often says in his stump speeches, was imprisoned and tortured in Cuba and eventually left that country for a better life in the United States. Cruz cites his father as a source of inspiration, who taught him to value the freedom and opportunity that America offers. What Cruz usually leaves out is that Rafael Cruz was a rebel who fought on the same side as Fidel Castro against right-wing dictator Fulgencio Batista, and it was in a Batista prison that the 17-year-old Rafael Cruz was tortured. Cruz received a student visa from Cuba in 1957—a year before Castro’s rise to power—and immigrated to the United States. Rafael enrolled at the University of Texas, paying his way by washing dishes.

Unlike Florida’s U.S. Sen. Marco Rubio, Cruz has never falsely claimed his father fled from Castro, but his vagueness on the stump has led some to make that assumption. At the Values Voter Summit, for instance, conservative activist Kelly Shackelford introduced Cruz by saying his father had “escaped Fidel Castro.” When asked about this by The Dallas Morning News, Cruz emphasized that he had explained his father’s full story “many, many times”—although the paper could find no recent instances in public speeches. (The Cruz campaign didn’t respond to interview requests for this article.)

Cruz’s parents met at the University of Texas, and after graduating they started a small oil industry-related business. Ted Cruz—whose full name is Rafael Edward Cruz—was born in 1971 in Calgary, Canada, where his parents were working at the time. Cruz’s family later returned to Texas. In 1988, Cruz entered Princeton University, where he competed as a debater, winning numerous awards. Then it was on to Harvard Law, where he graduated magna cum laude in 1995, having served as primary editor of the Harvard Law Review and executive editor of the Harvard Journal of Law & Public Policy.

His first legal clerkship was with Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals, considered one of the leading conservative minds in the country. His second clerkship was with then-Chief Justice William Rehnquist, making Cruz the first Hispanic Supreme Court clerk and the first minority to clerk for a chief justice. His relationship with Rehnquist grew so close that he would serve as a pallbearer at Rehnquist’s funeral in 2005.

After a brief stint at a Washington law firm, Cruz hitched his wagon to George W. Bush. He moved to Austin to serve as a legal expert on the 2000 presidential campaign, where he met his wife, Heidi Nelson. After Bush’s election, the couple returned to Washington, where Cruz worked at the Justice Department and then the Federal Trade Commission, while Nelson joined the U.S. Trade Representative’s office, and later the Treasury Department and National Security Council. But it wasn’t until Cruz returned to Texas yet again that he really made a name for himself.

In 2003, Texas Attorney General Greg Abbott nominated Ted Cruz to become the third solicitor general in state history. The office is a relatively recent creation, formed as a division within the attorney general’s office in 1999 to oversee civil and criminal appeals involving the state. The office also handles any friend-of-the-court (amicus) briefs the state may file in cases to which it is not directly a party.

During his five years working for the state, Cruz kept busy. His office produced 70 U.S. Supreme Court briefs, and he personally participated in oral arguments before the high court eight times. Cruz developed a reputation as a top-flight litigator, winning the Best Brief Award from the National Association of Attorneys General for five consecutive years.

“Ted Cruz is one of the finest appellate attorneys in the United States,” said Edward Burbach, who worked alongside Cruz in the attorney general’s office as deputy attorney general for litigation. “He’s clearly a very brilliant individual.”

Without a legislative record to run on, Cruz has made his work as solicitor general on a series of high-profile legal battles a central part of his campaign. His website lists them as part of his “proven record,” and during speeches he rattles off their names and the conservative principles he championed.

In some, such as those involving challenges to late-term abortion, the words “under God” in the Pledge of Allegiance, the District of Columbia’s handgun ban, and the constitutionality of religious symbols on federal land, Cruz’s involvement was limited to organizing and serving as counsel of record for one of any number of amicus briefs presented to the Supreme Court. In the 2005 case Van Orden v. Perry, which dealt with the constitutionality of the Ten Commandments monument on the grounds of the Texas Capitol, Cruz was counsel of record, but Attorney General Abbott argued before the high court.

Other times Cruz had a leading role, serving as counsel of record and participating in oral arguments. He represented the state in challenges to Texas’ 2003 redistricting—challenges alleging that Republican-drawn congressional maps infringe on minority voting rights and amount to unconstitutional political gerrymandering—that reached the Supreme Court in 2006.

In a 2008 case involving Louisiana’s death penalty for child rapists, the Supreme Court granted Cruz the rare privilege of participating in oral arguments as a representative of Texas and other states that had filed an amicus brief in support of the law. Although the U.S. solicitor general is often invited to take part in suits in which the federal government has an interest, the involvement of other amici is unusual. Louisiana and Cruz ended up losing the case in a 5-4 decision.

Cruz claims he’s proudest of the 2008 case Medellìn v. Texas. He cited the case by name during his closing statement at the January 12 GOP Senate candidates’ debate in Austin. It’s easy to understand why. The case featured a United Nations court, federal government intrusion on state power and a Texas favorite: the death penalty. The case involved Jose Medellín, a Mexican citizen on death row for the rape and murder of two teenage girls in Houston, and 50 other similarly situated Mexican nationals who had not been informed of their right to seek legal assistance from the Mexican government following their arrests. Mexico had challenged the convictions before the International Court of Justice, which ruled that the United States had violated the Vienna Convention on Consular Relations and that the cases should be reopened.

The Bush administration attempted to force a recalcitrant Texas appeals court to reconsider Medellín’s case in light of the international court’s decision and U.S. treaty obligations. Cruz countered that neither the international tribunal nor the federal government could tell Texas courts what to do. By a vote of 6-3, the Supreme Court agreed—and Jose Medellín was executed on August 5, 2008.

Although Cruz is quick to take credit for Medellín and other Texas victories in the high court, a source familiar with the role of Texas solicitor general emphasized that “the attorney general has final say on all important issues.” The Dewhurst campaign has echoed this, with Dewhurst adviser Dave Carney telling the Austin American-Statesman in March, “The facts are clear: Ted Cruz never made a single decision on which cases to take before the Supreme Court. Those important decisions were solely at the discretion of Attorney General Greg Abbott.”

On the campaign trail, Cruz doesn’t spend much time talking about what he’s done since leaving the solicitor general’s office. In May 2008, he joined the Houston office of the international law firm Morgan Lewis, where as a partner he earned $1.2 million in 2009 and $1.7 million in 2010, representing a laundry list of deep-pocketed corporate interests. He served as counsel for drug manufacturer Pfizer in a lawsuit brought by public hospitals and community health centers. He represented the U.S. Chamber of Commerce in a challenge to the Obama administration’s Gulf Coast drilling restrictions, a student loan company challenging a court’s dismissal of a bankrupt student’s debt, and an insurance company attempting to avoid paying a plaintiff’s legal bills after a disability suit was settled out of court.

In 2010, when it looked like his former boss Greg Abbott was going to be a candidate for lieutenant governor, and as the top statewide Republicans played political musical chairs, Cruz began eyeing a run for Texas attorney general. His campaign committee amassed $1.3 million, including donations of $250,000 from PayPal co-founder Peter Thiel, $100,000 from San Antonio businessman David Spencer, $50,000 from Paulson & Co. hedge fund Managing Director Michael Waldorf, $35,000 from construction magnate and Republican mega-donor Bob Perry, and $25,000 from Paul Mitchell hair products co-founder John Paul DeJoria. When Kay Bailey Hutchison decided to retain her Senate seat, and everyone stayed put, Cruz pulled out of the race for AG rather than challenge Abbott.

In 2011, Cruz made his ninth appearance before the U.S. Supreme Court, winning a case for a French fryer manufacturer that had sued a Chinese company for stealing its technology. Another patent case, however, has come back to haunt him. In November 2010, Cruz signed on to represent Chinese tire manufacturer Shandong Linglong. The company was appealing a $26 million jury verdict awarded to Florida businessman Jordan Fishman, who alleged that the Chinese company was violating his patent by using blueprints stolen by one of Fishman’s former employees.

The legal issues in the case—the applicability of U.S. copyright law to actions taking place wholly on foreign soil—have taken a back seat to intimations that Cruz is siding with a Chinese company against an American businessman. For a candidate who bases so much of his campaign on being on the “right” side of high-profile legal cases, such an alignment could prove damaging.

 

Thanks to Gov. Rick Perry’s quixotic presidential campaign attracting most of the state’s political attention, as well as the uncertainty surrounding the exact date of the primary due to the ongoing legal battle over redistricting, the Senate campaign got off to a slow start. As things heat up, however, ahead of the May 29 primary, it appears that the race is shaping up to be a battle between Dewhurst and Cruz, although former Dallas mayor Tom Leppert could self-finance his way into being a factor.

In the March 31 Federal Election Commission filings, Cruz reported having spent $1.9 million with $3.2 million cash on hand, compared to Dewhurst’s $4.4 million spent with $3.2 million in the bank (including a $2 million personal loan to his campaign) and Leppert’s $2.2 million spent with $4.1 million on hand (which includes a $3.6 million personal loan). Former SMU football star and ESPN analyst Craig James has raised about $1 million and spent almost half.

The polling data is scattered, but generally shows Dewhurst with a lead eroded by steadily growing support for Cruz. A February UT/Texas Tribune poll had the lieutenant governor at 38 percent and Cruz at 27, with the rest of the pack in single digits. A January 17 Public Policy Polling survey had the lieutenant governor at 36 percent and Cruz at 18, with 31 percent undecided—putting Cruz 11 points closer to the lead than he had been in a September PPP poll.

Given the significant advantages that Dewhurst has, Cruz’s best hope may be that Dewhurst stays below 50 percent, forcing a head-to-head runoff battle.

“If I were running somebody’s campaign in this race, my goal would be to get into a runoff with Dewhurst and hope that, with the lighter turnout, Dewhurst’s resources will have less of an impact,” said former Republican Party state chairman Pauken.

For Cruz to pull off a win, he’s going to have to overcome a number of obstacles. First and foremost, of course, is money. Cruz is up against two candidates with large personal fortunes. And while nearly $3 million in the bank is a respectable sum for Cruz, campaigning statewide in Texas isn’t cheap. (In 2008, Sen. John Cornyn spent more than $18 million on his re-election campaign.)

“I’ve heard that Cruz is having trouble raising money because the Dewhurst people have kind of defensively locked down sources of big Republican money,” said James Henson, director of the Texas Politics Project at the University of Texas. “I think they’re right to sense a certain softness in Dewhurst, but Dewhurst is kind of the Mitt Romney of the Texas race. There may be faint enthusiasm, but he has a lot of assets, and he is the establishment candidate.”

Another major hurdle is name recognition. In the January PPP poll, Dewhurst had 60 percent name recognition, with Leppert at 36 percent and Cruz at 29 percent. Of note, however, is that among the 29 percent who had heard of Cruz, he led Dewhurst 34 percent to 31 percent, which could indicate that the more Republican voters hear of him, the more they like him over the lieutenant governor.

His opponents likely will try to damage Cruz’s standing with tea party Republicans, who are nearly as distrustful of big corporations as they are of big government. The Dewhurst campaign has been quick to point out that Cruz’s law firm partners have given hundreds of thousands of dollars to Democratic candidates. Cruz’s wife is a vice president at Goldman Sachs and former member of the Council on Foreign Relations (which Cruz had, at one point, called a “pernicious nest of snakes”).

Cruz’s efforts have not been helped by what one political operative familiar with the campaign called the candidate’s sense of arrogance, which has filtered down to his staff. He said that Cruz’s lawyerly rhetoric may have helped him connect with national Republicans, but the candidate Cruz has lacked charisma in press-the-flesh situations, and sometimes comes across as overly academic, which hasn’t played well with Texas Republican primary voters.

There’s also the possibility that a segment of the Republican primary electorate will be reluctant to vote for a Hispanic candidate. In 2010, then-Texas Railroad Commission Chairman Victor Carrillo was soundly defeated in the Republican primary by little-known accountant David Porter, 61 percent to 39 percent, despite outspending his opponent by a 20-to-1 margin. In a post-election email to supporters, Carrillo blamed his loss on anti-Latino bias among Republican voters. “Given the choice between ‘Porter’ and ‘Carrillo,’” he wrote, “unfortunately, the Hispanic surname was a serious setback from which I could never recover ... .”

The phenomenon also appeared nine years earlier, when Perry-appointed Texas Supreme Court Justice Xavier Rodriguez was defeated by a lesser-known white opponent, despite outspending his opponent $558,000 to $9,500.

“Clearly a lot of people look back and think that the Victor Carillo factor is lurking out there,” said Henson, who co-directs the UT/Texas Tribune poll. “We’ve had a couple of races where this seems to be the case, where a Hispanic surname seems to have a negative effect on GOP voting. The anecdotal evidence is suggestive.”

Texas GOP consultant Craig Murphy said he thinks that Cruz has enough resources to prevent a repeat of the Carillo effect, however. “The only time that a Hispanic surname hurts a Republican candidate is when you’re an unknown,” he said. “If you stay in the race where the candidate has enough money to advertise, then the problem disappears.”

With several million in the bank and outside support, Cruz has the resources—which means his race will be closely watched for signs of anti-Hispanic voting patterns in the Republican electorate. If Cruz performs at or above expectations, he should be well positioned for future races, even if his underdog bid to defeat Dewhurst falls short.

“I know that attorney general is ultimately his goal,” said the source familiar with the Cruz campaign. “It’s his dream ticket. I think he sees the Senate race as his path to where he needs to be.”

A Dewhurst victory means there’s still a possibility that Abbott could try for lieutenant governor in 2014, putting Cruz back where he was in 2010, eying a race for attorney general—only with better name recognition, a more extensive fundraising network, and the experience of having already run a statewide campaign. Losing the Senate race, Ted Cruz could still win in the end. And if he proves a Hispanic candidate can win the support of Republican primary voters, Texas Democrats could be facing a landscape-shifting adversary for years to come.

 

Correction: The original version of this story incorrectly reported that Republican Sen. Marco Rubio (Florida) has endorsed Ted Cruz. Rubio hasn't endorsed Cruz. The Observer regrets the error.
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In U.S. civil rights law, small, out-of-the-way places often have been thrust into the national spotlight and, with the bang of a chief justice's gavel, become the stuff of legal legend. Virtually overnight, for instance, a board of education in Topeka, Kansas, can become the rallying cry of a movement.

This year, the canon of U.S. civil rights jurisprudence has a new applicant: Northwest Austin Municipal Utility District No. 1. In a few months, it could become known as the tiny political subdivision that killed Section 5 of the Voting Rights Act of 1965. A central provision of the landmark civil rights law, the section requires many state and local governments, primarily in Southern states, to seek federal approval of any changes to voting laws to ensure they don't reduce minority rights.

Thanks to a lawsuit filed by the Austin MUD, located in the suburban Hill Country subdivision of Canyon Creek, Texas' voting rights record, in all its dubious glory, is front and center before the Supreme Court. With the help of some deep-pocketed conservative groups, the MUD is seeking an exemption, or "bailout," from the preclearance requirement of Section 5-or, barring that, to have Section 5 struck down entirely. The lawsuit contends that because the MUD has no history of discrimination, it shouldn't be punished for racial discrimination in which it played no part.

The case appears destined for a 5-4 decision, with Justice Anthony Kennedy again serving as the swing vote between the liberal and conservative blocs of the court. Given the tenor of Kennedy's questions during oral arguments on April 29, the future of this key provision of the Voting Rights Act could come down to whether Kennedy thinks Congress had sufficient evidence in 2006 to single out predominantly Southern areas for special federal scrutiny under a formula created more than 40 years ago.

The court has upheld these provisions four times in the past. But thanks to new faces on the bench and changing perceptions of racial discrimination in America, opponents see this as their best chance for a landmark victory.

"I think there's been a fundamental change in the fabric of America," says Gregory S. Coleman, lawyer for the Austin MUD. "I'm not saying there aren't still problems that arise from time to time, but by and large Americans ... want people of every intellectual persuasion, of every color, to go out, exercise their right to vote and take part in this American process we call politics."

Debo Adegbile of the NAACP, who argued before the court in favor of Section 5, paints a decidedly different picture. "Politics and voting is about power," he says. "And when the rules of the game can be manipulated, that power will lead to bad effects. Section 5 is about progress. It recognizes our history but knows that we can strive for more."

Congress passed the Voting Rights Act to combat discrimination against minority voters through federal intervention in what had previously been the province of states and localities. Section 2 prohibits discriminatory voting practices and procedures, and allows aggrieved individuals anywhere in the nation to take their cases to federal court. Congress determined, however, that a more aggressive remedy was needed in parts of the country with particularly invidious histories of racial discrimination. So it devised a special remedy.

Section 5 requires advance federal approval of voting-related changes-such as moving or eliminating polling places, changing election times, or redrawing the boundaries of electoral districts-by states and political subdivisions that had limited voting in the 1964 elections through poll taxes or literacy tests. The affected areas also had voter registration and participation under 50 percent. Six Southern states and Alaska were covered entirely. Some counties and towns in four other states qualified.

Congress extended Section 5 in 1970 and 1975, when it also expanded coverage to include discrimination against "language minority groups"-a move that brought Texas, Arizona, and parts of six other states into the fold. Texas qualified because, in 1972, more than 5 percent of its voting-age citizens were Latino, its election materials were available only in English, and fewer than 50 percent of its voting-age citizens registered or voted.

As the Supreme Court wrote in 2006, "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."

"The significance of Section 5 is enormous, especially in places like Texas" with large minority populations, says Michael Jude Pitts, a former Justice Department voting rights attorney who's currently a law professor at Indiana University-Indianapolis. "It has ramifications for what every single political subjurisdiction in Texas does."

Even Section 5's harshest critics concede that the accomplishments of the Voting Rights Act have been remarkable. Minority voter registration and participation across the country have increased dramatically. African-Americans have been elected to public office in the South in significant numbers. In Texas, similar gains have been made by Latino voters and candidates-thanks in no small part to Section 5.

From 1982 to 2006, the U.S. Department of Justice ruled that at least 107 Texas voting changes were discriminatory, including 10 statewide actions-second only to Mississippi. At least another 54 proposed changes were withdrawn prior to a Justice Department ruling. Federal Section 5 lawyers have been particularly busy during Texas redistricting battles, when state map-drawers have had a habit of fragmenting some minority voting blocs and packing others into districts to minimize minority power elsewhere.

The Justice Department found that Texas' post-1990 census district map was deliberately discriminatory. It also raised objections to newly created maps following the censuses of 1980 and 2000. (Parts of the 2003 redistricting were struck down by the Supreme Court in a Section 2 lawsuit; Section 5 was used to enforce the ruling in follow-up actions.)

In Waller County in 2004, Section 5 was used to prevent election officials from reducing an early voting period that would have limited participation of Prairie View A&M students who would be on vacation during primary day. The section prevented Seguin from altering voting-district lines and shortening candidate-filing periods after the 2000 census-actions designed to keep Latinos from gaining a majority on the city council. In 1990, the Justice Department blocked Freeport from instituting a majority-of-the-vote requirement for city council elections after a Latino-backed candidate received a narrow plurality. In 2006, Section 5 stopped the North Harris Montgomery Community College District, covering an area of more than 1,000 square miles, from reducing its number of polling sites from 84 to 12. If the change had been enacted, one polling place would have served 6,500 mostly white voters. Another, in an area that was 80-percent minority, would have accommodated 67,000.

According to Pitts, Section 5's most important role is deterrence. "Everybody knows they have to go to Washington to get approval for changes," he says. "And that means you're going to do your darnedest to try to keep from running afoul of what the government requires in terms of protecting the place of minority voters."

In 1982, when Congress extended Section 5 for 25 years, it expanded a provision allowing political subdivisions that oversee elections-counties, parishes, and independent cities-to "bail out" from preclearance requirements if they could demonstrate they've had a clean voting rights record for 10 years. Few districts have been allowed to bail.

Section 5 is not without its critics. Every time the Voting Rights Act has been renewed, the preclearance provision has been challenged in court as an unconstitutional and unnecessary infringement of state sovereignty. So it was no surprise that eight days after President George W. Bush signed the latest reauthorization into law in 2006, a challenge emerged-from Northwest Austin Municipal Utility District No. 1.

Located in the tiny community of Canyon Creek, an 80-percent white, suburban enclave along the western edge of Austin, the MUD and its five-person board are in charge of paying down debt and maintaining the community park. The MUD has no history of discrimination and did not even exist when the Voting Rights Act was reauthorized in 1982. Like all governmental units in Texas, it is subject to Section 5's preclearance requirements.

Since it was created in 1986, the MUD has made eight submissions for preclearance under Section 5. Its last was in early 2004, when it contracted with Travis County to run its elections. The MUD's preclearance requests were granted without objection, and the cost was a few thousand dollars. That wasn't enough for conservative activists, who decided to challenge Section 5.

The Austin MUD, chaired by conservative activist and Ron Paul backer Don Zimmerman, teamed up with Austin lawyer Coleman to challenge the constitutionality of Section 5. Coleman previously had worked with the MUD to sue the city of Austin over utility service charges. Coleman's challenge to the Voting Rights Act was bankrolled by conservative think tank the American Enterprise Institute and its Project on Fair Representation, run by anti-affirmative action Austinite Edward Blum.

"The ideologues who brought this lawsuit took a page from the civil rights book, which is, you take a test case, and you take it all the way," says Nina Perales of the Mexican American Legal Defense and Education Fund. "One case can make a tremendous difference."

At first, many Canyon Creek residents were unaware of the crusade, which was launched with little fanfare. When they found out, some were upset and attempted to get the MUD to drop the suit (someone even offered to pay the district's Section 5 compliance costs). One opponent won election to the MUD board and, after the MUD lost its case in federal district court, proposed in a June 2008 meeting that they not appeal. The board voted 4-1 to appeal, and on Jan. 9 the Supreme Court agreed to hear the case. Conservative activists had accomplished their objective: The Voting Rights Act was once again before the high court-and this time, there might be enough votes to strike Section 5 down.

During oral arguments and in briefs filed over the preceding months, Coleman laid out the MUD's case. Section 5 is more than 40 years old, he argued. The country has changed significantly in the intervening years, and the types of overt racism that existed in the South are a thing of the past. While racism and voting rights violations still occur, the problem is a national one that can be addressed with the nationwide solution elsewhere in the act.

"The record Congress amassed in 2006 does not demonstrate that covered jurisdictions continue to attempt to evade enforcement," Coleman wrote in his brief. "Such voting discrimination as remains is isolated in time and place, neither confined to nor prevalent in covered jurisdictions."

Coleman contended that a political subdivision like the Northwest Austin MUD, which has done nothing wrong and has no history of voting rights violations, shouldn't be presumed to be less trustworthy because of the actions of others in years past. Either it should be able to invoke the bailout provision and free itself from the burdens of preclearance, or Section 5 itself should be ruled an overly broad infringement on the rights of state and local governments using an outdated formula-and struck down as unconstitutional.

Coleman argued that the MUD was a "political subdivision" qualifying for bailout and that the specific language of the law was vague. Joining the MUD with amicus briefs was the usual assortment of conservative legal centers, as well as Georgia Gov. Sonny Perdue, who cited the "dramatic progress" his state has made in voting rights and lamented that Georgia will never be allowed to "take off the Section 5 badge of racism."

During oral arguments, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer showed little sympathy for the MUD's case. Ginsburg asked Coleman about the language of the bailout provision, noting that in 1982 Congress considered and rejected extending the bailout option to "governmental units" like the Austin MUD. She later said that while the days of "blatant, overt racism may be over," more subtle forms of racism still exist. Breyer displayed visible frustration as he pressed Coleman to address the evidence of discrimination Congress had compiled prior to reauthorizing the act in 2006.

Souter, in what was likely his last oral argument before retirement, succinctly summed up Texas' voting-rights record: "We've got I think at the present time a 16-point registration difference on Hispanic and non-Hispanic white voters in Texas. We've got a record of some 600 interpositions by the Justice Department on Section 5 objections over a period of about 20 years. We got a record that about two-thirds of them were based on the Justice Department's view that it was intentional discrimination. We've got something like 600 Section 2 lawsuits over the same period of time. The point that I'm getting at is I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say that they have radically changed to the point that this becomes an unconstitutional Section 5 exercise within Congress's judgment just seems to me to deny the empirical reality."

After the justices were done with Coleman, it was Deputy U.S. Solicitor General Neal Katyal's and the NAACP's Adegbile's turn to argue that the court should defer to Congress' determination that Section 5 is still necessary and uphold the provision for a fifth time. If Congress concluded that voting-rights discrimination was still a problem in the areas covered by Section 5-and concluded that repealing the provision would lead to a backslide in minority gains-then the court should respect that determination, Katyal and Adegbile argued. On the whole, they said, covered jurisdictions actually prefer the preclearance requirement, as it allows them to avoid costly litigation after enacting voting changes. Travis County, in which the Northwest Austin MUD is located, even filed a brief with the court supporting the government's position and emphasizing it has no interest in removing itself from federal oversight.

Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito were quick to pose sharp questions for both lawyers. (The perpetually silent Justice Clarence Thomas can be considered a reliable vote against Section 5.) Roberts, who has previously called racial categorization a "sordid business," wondered if Congress would ever repeal Section 5.

"Obviously no one doubts the history here and that the history was different. But at what point does that history ... stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities? ... I mean, at some point it begins to look like the idea is that this is going to go on forever."

Scalia noted that only 18 political subdivisions-all in Virginia-had exercised the bailout provision to forego preclearance requirements since 1982. "It's obviously quite impracticable for anybody to bail out," he said. And Alito wondered why the Austin MUD shouldn't be eligible for bailout: "If it's the case that there is no discrimination going on, no evasion going on in this little utility district, is there any good reason why they shouldn't be able to bail out?"

The one justice everyone was watching was Kennedy. Three years ago, he had been a surprise author of a ruling that a West Texas congressional district violated Latino voting rights. Given the current makeup of the Court, the side that gets his vote in the UD case likely will prevail. While justices can often be circumspect during oral arguments, Kennedy displayed a nearly one-track mind in repeatedly asking whether Congress had a valid reason to apply Section 5 requirements to one set of states while ignoring others.

"No one questions the validity, the urgency, the essentiality of the Voting Rights Act," he said. "The question is whether or not it should be continued with this differentiation between the states."

Just a few hundred yards from where, 100 days earlier, President Barack Obama took the oath of office, MUD attorney Coleman and the NAACP's Adegbile stood on the steps of the U.S. Supreme Court building after oral arguments, answering reporters' questions about whether Section 5's work is done.

"We don't need a presumption that state and local officials in covered jurisdictions, who are trying day in and day out to act with fairness, cannot be trusted to do what's right," Coleman said. "The record doesn't bear that out, and it's improper to load them up with that scarlet letter."

Adegbile countered: "Congress saw the evidence, saw where the problem was worst and decided to attack it there. This is a special provision for a special problem that reflects our unique history. And we cannot have a decision of this court to step away from that history."

There is a possibility that when the Court issues its decision, expected in June, it could resolve this case by simply expanding the bailout provision, and the Northwest Austin MUD may be able to free itself from preclearance requirements, saving hundreds of dollars a year in compliance costs. Given the skepticism Justice Kennedy displayed during oral arguments, this may be the best-case scenario for supporters of the act.

The goal of the conservative groups that have bankrolled this challenge, however, is nothing short of the repeal of Section 5. If they fail to achieve success here, they'll make another run at the law. Given the current composition of the court, the likelihood of their victory has civil rights advocates openly contemplating a world without the law's "prophylactic" power of preclearance. All legal challenges to voting changes-and controversial measures now under consideration in Texas such as voter ID laws and proof-of-citizenship requirements-would have to be filed after the fact.

"Without Section 5, the 600-plus violations that Section 5 caught and prevented from going into effect would have gone into effect," says NAACP Legal Defense and Education Fund President John Payton. "No Section 5, and we would have seen our democracy transformed by discriminatory changes in voting practices and procedures. It is a checkpoint, and the checkpoint caught those violations before they happened." n

Anthony Zurcher is editor of Supreme Court Debates magazine and lives in the Washington, D.C., area.

[post_title] => Austin MUD v. Voting Rights Act [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => open [post_password] => [post_name] => 3045-austin-mud-v-voting-rights-act-will-conservative-activists-in-a-small-texas-utility-district-take-down-a-key-piece-of-american-civil-rights-law [to_ping] => [pinged] => [post_modified] => 2012-10-26 05:16:58 [post_modified_gmt] => 2012-10-26 05:16:58 [post_content_filtered] => [post_parent] => 0 [guid] => http://www.texasobserver.org/3045-austin-mud-v-voting-rights-act-will-conservative-activists-in-a-small-texas-utility-district-take-down-a-key-piece-of-american-civil-rights-law/ [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [2] => WP_Post Object ( [ID] => 3203 [post_author] => 51 [post_date] => 2008-09-19 00:00:00 [post_date_gmt] => 2008-09-19 00:00:00 [post_content] =>

Nearly eight years ago, President-elect George W. Bush led an exodus of Texans to help fill out the ranks of his administration in Washington. There was Bush's so-called "iron triangle" of advisers: Karen Hughes, Karl Rove, and Joe Allbaugh, known for their tight control over the presidential campaign; longtime friends and associates like Don Evans and Margaret Spellings; and a cadre of other loyalists, of whom Alberto Gonzales, Harriet Miers, Dan Bartlett, and Scott McClellan are a few of the most famous (or in some cases, infamous).

As the Bush administration enters its final days, more and more of the original Texas troops have been popping up back in the Lone Star State. While they haven't been met with jeers and rotten vegetables, no one's been rolling out the red carpet, either.

Many of Bush's operatives face tough times as they ponder their future employment possibilities. Thanks in no small part to Bush's doings over the past two terms, Washington has become increasingly inhospitable for the Bush team while even the once-friendly confines of Texas pose new challenges for those who head home. For every Karen Hughes who lands a highly paid consulting gig, there's an Alberto Gonzales, who seems condemned to wander the Earth in search of gainful employment.

There's an old saying in Washington that once you get to the nation's capital, you "never go back to Pocatello." The intoxicating brew of power and glory that comes from national politics is too great to give up once it's been tasted. After a presidential administration closes up shop, it's not unusual for many of its people to stick around D.C., where they can capitalize on their experience with the ins and outs of Beltway politics. If the next administration is friendly, chances are there will be jobs aplenty. And many aspire to the role of political pundit (think David Gergen or George Stephanopoulos) or Washington wise man (Ronald Reagan's Attorney General Ed Meese and George H.W. Bush's consigliere James Baker are prime examples).

But now is not a happy time for Republicans on the national scene. Democrats appear likely to expand their majorities in Congress and perhaps win back the presidency, effectively sending thousands of Republicans into the ranks of the unemployed. In years past, think tanks and lobbying firms have served as safe havens for those exiled from power, but even those jobs are scarce these days-thanks, in part, to former Texas Congressman and House Majority Leader Tom DeLay.

Following the Republican takeover of the House of Representatives in 1994, DeLay instituted his "K Street Project," which cut off access in the halls of Congress to lobbying firms unless they donated to conservative causes and hired Republicans to top jobs. The move led to a great purge of Democrats from the lobbying ranks. That served Republicans well in the short run. But like other elements of DeLay's grand "permanent Republican majority" plan, this one has come back to haunt his party. In the past two years, many firms have scrambled to improve their Democratic bona fides, and adding former Republican staffers to the payroll is the last thing on their minds.

"I don't think a lot of people are being hired because they had a Bush connection," said Matthew Dowd, former chief strategist for Bush's 2004 re-election campaign and founding partner of the Austin-based consulting firm ViaNovo. "The House is Democratic, the Senate is Democratic, and the White House is likely to be Democratic. That's not going to be helpful for a Republican who wants to go into the lobby business."

Perhaps it's not surprising that more than a few members of Bush's Texas contingent have been making their ways back home (a list that will eventually include the president himself; Laura Bush is reportedly house-hunting in the Dallas suburbs). Texas, after all, is still Republican country. However, like the rest of the nation, Texans aren't particularly high on Bush right now-and that includes even those in the state's Republican Party.

"My sense of conservatives here in the Republican Party is they're about as sick of Bush as anybody else, but they're not going to make a public spectacle of it," said William Murchison, a political columnist and research fellow at the Institute for Policy Innovation-a Lewisville, Tx.-based libertarian think tank founded by former Congressman Dick Armey. (Full disclosure: Murchison is syndicated by the same company that employs me.) "They're kind of closing ranks because they feel, 'we sent him up there, and we're responsible,' but I think conservatives down here are ready to be shut of the whole Bush phenomenon. They wish he'd go away."

The problem for Bush refugees is that the person holding the levers of power in Texas is Gov. Rick Perry-and Perry and Bush have had a rocky relationship dating back to Bush's time as governor. The friction began when Rove was plotting Bush's 1998 re-election campaign to expand his bipartisan appeal as a prelude to a presidential bid, making moves that often came at the expense of Perry, who was in a tight race for lieutenant governor.

"Perry is now Texas Republican politics," said Wayne Slater, a Dallas Morning News reporter and author of two books on Karl Rove. "He has dominated the landscape of Texas politics for almost a decade. And the Perry people who really own a large part of the Republican infrastructure in Texas are not on particularly good terms with many of the Bush folks, and they will not get the favorable treatment you might expect in Texas."

In fact, only one administration veteran has managed to land a high-profile state gig so far. Albert Hawkins, Bush's former Cabinet secretary, has served as the Texas Commissioner for Health and Human Services since 2003. Other than that, the state cupboard is stocked with Perry people, and there's no indication that they're going to make room for new arrivals.

Alberto Gonzalez mocked by a CODEPINK protester.

"I don't doubt that there will be some [Bush] people who will come back and involve themselves in state affairs," said Will Lutz, managing editor of The Lone Star Report. "There are always people who bounce around between the two of them. But is this going to be some sort of phenomenon? I'm sort of skeptical. When Bush took all of those people to Washington, Perry and [Lt. Gov. David] Dewhurst . . . had to fill those positions with other people. Hiring is a supply and demand thing."

Murchison notes that many of the folks who went to Washington were more loyal to Bush than to the Texas Republican Party or the conservative movement, so many in the state party don't feel a sense of obligation to Bush veterans.

"They were much more Bush people than conservatives," said Royal Masset, a GOP political consultant and former political director for the Texas Republican Party. "They were tough babies; they were good, competent people, but they were more your solid administrative types rather than ideological people."

Even if Perry went out of his way to welcome Bush refugees, there's only so much the state can offer. For someone with national experience, the Texas job pool shrinks considerably. While lower-level jobs may be attractive to some, they will hardly stir the blood of those with experience on the national landscape. Once you've been in the White House, the statehouse looks awfully small and provincial.

Finally, while the Republican Party still dominates the state, there are signs that its grip may be slipping. "Demographics is destiny," said the 19th-century French sociologist Auguste Comte, and in Texas' case that means the state is beginning to tilt back to the center. Many analysts believe that an increasing Latino vote, combined with disillusionment with the Republican Party in white suburbs, will lead to a Democratic resurgence.

The GOP margin in the statehouse is slowly eroding (Democrats hope to recapture the Texas House this year), Sen. John Cornyn continues to poll below 50 percent in his bid for re-election, and Democrats will likely win a good number of down-ballot races this fall. If trends continue, there could be more Republicans fighting over fewer seats in the halls of power. While GOP connections are still a valuable commodity in Texas lobbying shops, think tanks, and law firms, if Texas becomes more Democratic, the employment trends that have made Washington inhospitable for Republicans may be mirrored to a lesser extent in Austin.

"I think we're all kind of cynical to the point that the new generation isn't doing a good job," Masset said. "They're flubbing things up. This is going to be a very bad year for Republicans."

What's a dedicated Bush loyalist to do? There are a number of Texans who appear to be committed bitter-enders. Education Secretary Margaret Spellings-who prior to her Cabinet post spearheaded development of Bush's No Child Left Behind Act as assistant to the president for domestic policy-has said she plans to stick around until January 2009 and perhaps beyond. Also likely to finish out the term with Bush are Assistant Secretary of Commerce Israel Hernandez-better known as the personal secretary responsible for supplying Bush with Altoids when he was governor-and National Security Council spokesman Gordon Johndroe, who worked in the State Department's press office and as press secretary for Laura Bush and the Department of Homeland Security.

Of the already departed, some have managed to escape the Beltway with their reputations intact. Others clearly have been wounded.

"To be a part of the Bush years in Washington is to have been a part of a tarnished experience," Slater said. "And so when you come back, is your value less than it otherwise would have been?"

For Karl Rove, the transition from Washington to his home in Ingram, Texas, (with more than a few trips to his D.C. house and his million-dollar estate in a Florida beach community) has been an easy one. Shortly after his resignation announcement, he landed jobs as a pundit for Fox News and a regular columnist for The Wall Street Journal and Newsweek. There's a book in the offing. He's also been showing up at fundraisers for Texas Republicans, an indication that he retains much of his luster as a political magician.

"Rove is staying active," Masset said. "Karl is such a complete political animal, it is almost inconceivable for me to visualize life for Karl without politics until the guy dies."

Scott McClellan

The Bush staffers may not have been able to govern effectively, but they knew how to craft messages and run campaigns. A few Bush advisers have taken those skills to the corporate world. Last month, Hughes was named global vice chairwoman of Burson-Marsteller, a public relations firm run by Democratic campaign strategist Mark Penn. Her new clients will presumably expect a greater level of success than Hughes achieved in her previous job, "commuting" to Washington and abroad from her home in Austin as the State Department's undersecretary of public diplomacy in charge of improving America's image in the Middle East.

Former Counselor to the President Dan Bartlett, who returned to Texas last year, took a job at Public Strategies Inc., the Austin-based PR firm that boasts it can "translate winning campaigns for political candidates into winning campaigns for corporations." The company is home to several former Bush officials, including the president's media adviser, Mark McKinnon.

"Public Strategies is the closest thing to a safe landing spot back home for at least some of the refugees of the Bush years," Slater said. "But they can't be that partisan, and they can't absorb everybody."

Joe Allbaugh, who served as Bush's first director of the Federal Emergency Management Agency, left government work when FEMA was folded into the new Department of Homeland Security in 2003. Since then, he's founded New Bridge Strategies, which helps companies with business interests in the Middle East, and he's started a company Diligence-Iraq, that handles civilian security.

Allbaugh and his wife also run The Allbaugh Co., a consulting-lobbying firm that pulls in millions by helping companies ink homeland-security and disaster-relief contracts. And in proof that irony is not dead, his company has made a tidy profit securing federal funds for businesses looking to clean up the mess created by his handpicked successor at FEMA following Hurricane Katrina. One Allbaugh client, the Shaw Group, won two no-bid, $100 million construction jobs from FEMA and the Army Corp of Engineers. Another Allbaugh client, KBR Inc., received $29.8 million to rebuild damaged Navy bases in the Gulf.

As for Harriet Miers, a contempt of Congress citation last year for refusing to testify about the controversial firing of U.S. attorneys hasn't stopped her from finding employment following her resignation as White House counsel. The woman who was floated as a possible Supreme Court nominee and then unceremoniously shot down by conservatives and liberals alike is back with her longtime employer, the Dallas law firm Locke Lord Bissell & Liddell, where she heads up the litigation and public policy sections.

Another option for administration veterans is to sink their teeth deep into the feeding hand. Scott McClellan, Bush's former press secretary, has followed that course with reckless abandon, using his book, What Happened: Inside the Bush White House and Washington's Culture of Deception, to accuse his former employers of repeated lies, obfuscations, and general skullduggery. If that weren't enough to torpedo his political prospects in Texas, there's also the little issue of his leaving the White House to join his mom Carol Keeton Strayhorn's gubernatorial campaign to unseat Perry two years ago. (Scott's brother Mark, former commissioner of the Food and Drug Administration, still works in Washington as a senior fellow with the Brookings Institution.)

McClellan resigned from his job as a senior vice president at the tech procurement firm Hardhatbid Inc. before starting his book tour. He currently sits on the international advisory council for the communications firm APCO Worldwide Inc. and has told interviewers that he's pondering academia or political punditry.

Dowd, who started his career on the staff of Democratic Sen. Lloyd Bentsen but moved into Republican circles when Bush ran for governor, was one of the first close Bush aides from Texas to go public about his disillusionment with the president in a series of public statements and interviews last year.

Then there is the not-so-sad tale of Alberto Gonzales, the former attorney general who has yet to land a full-time job. Since his forced retirement amid increasingly hostile congressional inquiries into civil rights violations and partisan politicking at the Justice Department, he's been busying himself giving high school graduation speeches (no, seriously-at a private school in the U.S. Virgin Islands) and dodging protests on the rubber-chicken speaking circuit.

At the University of Florida, he was relentlessly heckled by the crowd, and his speech was interrupted by several students taking the stage dressed as Guantanamo Bay detainees. He's also had a part-time job helping in the settlement of a Texas patent case and was last seen penning an op-ed in the Los Angeles Times, where he argued that the key to winning Hispanic support in the coming presidential contest is to understand the community's "desire to succeed."

There is one place, however, where even someone with Gonzales' political baggage might be welcomed-the Bush library and its associated think tank. Rove is said to be leading the charge on planning the content of the library and its efforts to burnish the Bush legacy, going so far as to meet with administrators of other research libraries for ideas. Don Evans is spearheading fundraising for the project, and Hughes and Bartlett are involved.

For Bush and h s former aides, the library is essent al to their efforts to spin the past eight years in the best light possible. Any success they have will only improve their future prospects, dimming the potential of their White House days being seen as a blemish on their resumés.

When previous administrations packed up shop and headed out of town, a few former aides tried to parlay their newfound fame on the national stage into successful bids for elective office. John Connally used a stint as secretary of the Navy under President Kennedy as a springboard to the Texas governorship in 1962. Former Clinton administration Attorney General Janet Reno made an ill-fated run for the Florida governorship in 2002. Rahm Emanuel went from Clinton White House staffer to a seat in Congress from Chicago and has risen to fourth-ranking member of the Democratic leadership.

If any of Bush's Texas crowd wants to make a go of a political career, however, they're going to have to do it in spite of their ties to the administration and not because of them, at least in near term.

"Bush is an anchor," Dowd said. "I don't think you can take your experience in Washington working with the Bush administration and emphasize that on your resumé."

Dowd says he considered a Texas political career as recently as 2004. But given his break from Bush, he says he's not even sure what party's nomination he'd run for-if he did run, explaining his Bush connection would be something he'd have to "figure out." For now, he says he's happy spending time with family on his ranch in Wimberley.

Republican strategist Karl Rove

Meanwhile, a gubernatorial contest in 2010 looms, and while much of the talk has been about whether Perry runs for re-election or Sen. Kay Bailey Hutchison enters the race, a couple of Bush Cabinet secretaries also have been the subject of persistent rumors in connection with the top job in the state or perhaps a Senate vacancy-Don Evans and Margaret Spellings.

Spellings said she's sticking around Washington until her daughter graduates from high school in 2010, but she recently told Texas Monthly's Evan Smith that she eventually wants to get back to her "beloved home state."

"Spellings I've never seen as a political person," said Masset, who worked with her at the Republican State Party offices. "She was a triple-A administrator, but she hasn't run a campaign or done anything like that."

Talk of an Evans try for statewide office is more serious. He returned to Texas in early 2005 and is currently raking in megadollars as chairman of Energy Future Holdings Corp., the company formed following the private equity buyout of energy giant TXU. Evans was named to his position before the sale in an effort to lend credibility to the deal and was visible in his support, sitting behind buyout deal maker Henry Kravis of KKR & Co. during Texas House committee hearings. (Evans declined an interview request for this article.)

"There are all kinds of rumors about whether or not Don Evans is going to run for something," said Lutz of The Lone Star Report. "If he chose to run, he certainly knows enough people here and has maintained enough ties to this state that people would need to take him seriously."

No matter how the 2010 Republican primary ends up, the resulting fracas could set off a round of musical chairs that shakes things up in the state GOP, creating openings for former Bush officials to re-enter the political arena if the climate is right. There's always the chance that no matter how dismal the outlook today, state Republicans could view Bush in a better light by then.

"It is indeed possible, at least in Texas, that associating oneself with George W. Bush in 2010 won't be a bad thing," Murchison said. "You've got to consider the cycle in politics, the ups and downs. They're sick of the whole thing right now, but he might look pretty good in 2010."

Anthony Zurcher is a freelance writer and editor with Creators Syndicate who lives in the Washington, D.C., area.

Investigative reporting for this article was supported, in part, by a grant from the Open Society Institute.

[post_title] => Last Train to Texas [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => open [post_password] => [post_name] => 2846-last-train-to-texas-the-bushies-are-back-in-town [to_ping] => [pinged] => [post_modified] => 2012-10-26 05:10:03 [post_modified_gmt] => 2012-10-26 05:10:03 [post_content_filtered] => [post_parent] => 0 [guid] => http://www.texasobserver.org/2846-last-train-to-texas-the-bushies-are-back-in-town/ [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [3] => WP_Post Object ( [ID] => 3114 [post_author] => 51 [post_date] => 2008-05-16 00:00:00 [post_date_gmt] => 2008-05-16 00:00:00 [post_content] =>

For sheer drama, the battle over a bill requiring Texas voters to show photo identification before casting a ballot at the polls had no equal in last year's legislative session. Shouting matches. Angry walkouts. A gravely ill Democratic senator roused from his sickbed on a moment's notice. Prepare yourself for an encore performance. Last month, a splintered U.S. Supreme Court upheld an Indiana voter ID law considered the nation's most stringent.

Not surprisingly, the Court's ruling in Crawford, et al. v. Marion County Elections Board, et al. has been heralded by voter ID supporters, who were quick to interpret the decision as an endorsement of their policy prescriptions. Within hours of the decision, Lt. Gov. David Dewhurst was pledging a renewed push for passage of the bill that Senate Democrats narrowly blocked last session.

"The U.S. Supreme Court ruling is a victory for democracy in our nation, and I'm pleased the court agreed with the vast majority of Texans who want to protect the sacred American principle of 'one person, one vote,'" Dewhurst said.

Particularly disheartening to many voter ID opponents is that Justice John Paul Stevens-oftentimes the most outspoken liberal voice on the Court-broke ranks with his ideological brethren and wrote the "lead" opinion (no opinion received a majority), which was joined by Chief Justice John Roberts and Justice Anthony Kennedy. Justice Antonin Scalia wrote a concurring opinion for the Court's hardcore conservative faction, joined by Clarence Thomas and Samuel Alito. David Souter issued a strongly worded 30-page dissenting opinion joined by Ruth Bader Ginsburg, while Stephen Breyer authored a more modest dissent.

Stevens' defection may yet prove a positive for voter ID opponents, however, as his opinion was narrowly crafted and almost certainly not the last word on the subject. If Stevens had stuck with the dissenters, a five-to-four decision written by a conservative justice could have been more definitive. In fact, some court-watchers have speculated that Stevens' position may have been a strategic move to prevent Scalia's opinion from garnering a majority.

Both sides of the debate have reason to tread carefully in the upcoming legislative battles. Although the Supreme Court gave Indiana-and any state wishing to follow its lead-the go-ahead to enact stringent voter identification laws, the Court left open the possibility of legal challenges to such measures once their actual effect on the voting public can be assessed. And Stevens paid close attention to the mitigating measures of the Indiana law-such as the availability of free photo ID cards and the ability to cast provisional ballots-raising questions about the constitutionality of voter ID laws in which they are lacking.

"It's a loss, and we're disappointed that the Court upheld what is currently the most restrictive voter ID law in the nation," said Wendy Weiser, deputy director of the Democracy Program at the New York-based Brennan Center for Justice, which filed a friend-of-the-court brief that was cited by several of the court's opinions. "But the Supreme Court has not given a blank check on voter ID laws-even Indiana's."

John Paul Stevens

In his majority opinion, Justice Stevens wrote that the Court must engage in a balancing test to determine the constitutionality of the Indiana law. On one side are the state's interests in modernizing its election system, preventing voter fraud, and increasing voter confidence in the electoral system. On the other are the burdens that the law imposes on specific groups of voters.

Stevens took note of federal legislation such as the Help America Vote Act of 2002, which endorsed photo documents as an effective way of establishing identity. He also cited the 2005 Jimmy Carter-James Baker Commission on Federal Election Reform, an independent study group sponsored by American University, which proposed a national polling-place photo requirement. (The commission also recommended that free identification cards should be readily available and that there be a phase-in time before such a requirement goes into effect.)

Although Stevens conceded that there is no evidence of in-person voting fraud in Indiana, he wrote, "[F]lagrant examples of such fraud in other parts of the country have been documented throughout this nation's history by respected historians and journalists." Critics of the opinion have been quick to point out, however, that the only examples Stevens cited in his supporting footnotes were an 1868 mayoral election in New York City and one recent case in the 2004 Washington gubernatorial election.

Stevens concluded by quoting from the Carter-Baker report that the "electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters."

Stevens then weighed these benefits against the burdens that the Indiana law imposes. After dismissing the difficulties arising from "the vagaries of life," such as loss or theft of photo identification around Election Day, he assessed the challenges confronted by those who do not have state-issued identification, such as the need to obtain required documents like birth certificates (and pay the associated fees) and travel to the motor vehicles department to get photographed.

For those who don't have IDs at the time of voting, obstacles include having to cast a provisional ballot, then travel to the nearest county clerk's office within 10 days in order to fill out an affidavit to explain the reason for a lack of photo ID, such as indigency or religious objections. Such requirements, the Indiana Democratic Party had argued, would create a significant hurdle for those who cannot locate the required documents or do not have the financial means to pay for them or for the trips to the necessary offices.

Stevens surmised, however, that there was insufficient evidence presented in the trial record to "quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." He dismissed much of the evidence that parties such as the Brennan Center attempted to have considered by the Court as "extrarecord, postjudgment studies, the accuracy of which has not been tested in the trial court."

He noted, however, that the Indiana law would not pass muster "if the State required voters to pay a tax or a fee to obtain a new photo identification." And he wrote that the burden on those without identification is lessened because "voters without photo identification may cast provisional ballots that will ultimately be counted."

"The lead opinion said it was reasonable to permit a solution to something that isn't a problem as long as it isn't really burdening anybody," Weiser said. "This leaves open the possibility that if there is better proof of a burden, then the problem ... might take on greater significance."

To see what a true victory for conservative backers of voter ID laws would have been like, one need look no further than Justice Scalia's concurring opinion. Scalia would scrap Justice Stevens' balancing test, and he dismissed the premise that voter-identification laws could impose a burden on certain voters as "irrelevant." He described Indiana's measures that allowed absentee voting and provisional balloting as an "indulgence-not a constitutional imperative." And he warned that by leaving open the possibility of future legal challenges of voter ID laws, the majority opinion was encouraging "constant litigation."

The legal arguments in the Court's case mirrored the debate that took place in the Texas Legislature last year and during hearings on voter fraud held by the House Elections Committee in January-likely to be rehashed when the 81st Legislature revisits the issue next year.

Voter ID laws, according to the bill's opponents, are a solution looking for a problem. Instances of in-person voter fraud are exceptionally rare. And even if some fraud takes place at the polling stations, it is extremely difficult to pull off on a scale large enough to sway an election. The days of truckloads of voters being ferried to polls around town with impunity-the 19th century, Tammany Hall-era New York fraud that Justice Stevens cited-are long since gone. A common concern of bill proponents in Texas is that the lack of a voter ID law permits illegal immigrants to somehow find a way to vote. Anecdotes circulated in support of these claims have been quickly refuted, and the law would do nothing to deter non-citizens who have Texas driver's licenses or other supported photo IDs.

Meanwhile, requiring photo IDs at the polls would make it more difficult for the elderly, the homeless, the disabled, and the urban poor to vote, as they are the least likely to have driver's licenses or other common forms of ID, and they are also the least able to navigate the avenues necessary to get them.

"Texas has a long history of voting discrimination, and that's why there was such a visceral attack on the voter ID proposals by the minority community," said Luis Figueroa, a legislative staff attorney for the Mexican American Legal Defense and Education Fund. "Because of the history of barriers that have been put up in places like Texas, there is concern that this is another attempt to repress minority voting."

Democrats contend that the drive to enact voter ID legislation is, in fact, motivated by the desire for partisan advantage. As former Texas Republican Party political director Royal Masset told the Houston Chronicle last year, a state photo ID law "could cause enough of a drop-off in legitimate Democratic voting to add 3 percent to the Republican vote."

According to Sonia Santana, who focuses on election issues for the Texas ACLU, of particular concern the last time the Legislature debated the bill was the lack of funding for low-cost photo IDs for voters without a license. Another area of concern is the state's history of ignoring provisional ballots-a form of voting that would become much more prevalent if poll-place identification laws are tightened. Currently, only one in four provisional ballots cast in Texas is counted, well below the national average of 70 percent.

"The state of Texas is wasting its time on this," Santana said. "As it is, we've already got a pathetically low turnout. Why put up another barrier when it's just a nonexistent problem? It's fear, hype, and racism."

Republicans counter that in-person voter fraud is difficult to detect, so the extent of the problem is unknown. They argue that the law would inconvenience few voters, although some of their arguments turn statistics on their head. For instance, the bill's supporters cite similar figures for registered voters and licensed drivers as evidence that every voter has a picture ID, despite the fact that licenses are available to non-citizens and those under voting age.

They also point to increased voter turnout in Indiana and Georgia following passage of voter ID bills. Outside the court after oral arguments in January, Indiana Secretary of State Todd Rokita went so far as to claim that Indiana's law helped account for the larger voter turnout in the state in the 2006 elections.

Santana counters, however, that there's no connection. "Obviously, you've got an influx of voters, elections have been tighter and the population in general has been increasing," she said.

If the Texas House passes a new bill and the current split between Republicans and Democrats in the Senate holds up in November-or if Lt. Gov. David Dewhurst decides to label voter ID an "emergency"' issue and allow a simple majority to bring the bill to the floor-Texas will again be poised to enact stringent identification requirements.

"We know there's going to be a big fight in the Lege this session," said Figueroa. "Last year, there were 11 Senate Democrats that forced a block. And we expect our allies will still be there. Nothing's really changed."

The issue could be resolved with a compromise, as some states have done, by allowing voters without photo identification to affirm their identity provisionally before casting their ballots. Or Dewhurst and the Republicans could prevail, in which event a lawsuit will likely follow. For Republicans, that might not matter if a voter ID law helps them stay in power long enough to influence legislative and congressional redistricting in 2011. While the legal hurdles this time around will be higher thanks to the Court's recent decision, any future challenge of a voter ID law-whether in Texas or elsewhere-will be supported by much more research on the effects of such laws on the voting population.

"There are a lot of studies that suggest this is a problem," Weiser said. "The Court acknowledged that there is a body of evidence out there that might be able to substantiate this burden, but it did not come out in this case. So this is not the end of the story on voter ID as a litigation matter."

Anthony Zurcher is a writer living in Washington, D.C. He is an editor with Creators Syndicate and editor-in-chief of Supreme Court Debates magazine.

[post_title] => License to Vote [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => open [post_password] => [post_name] => 2758-license-to-vote [to_ping] => [pinged] => [post_modified] => 2012-10-26 05:08:46 [post_modified_gmt] => 2012-10-26 05:08:46 [post_content_filtered] => [post_parent] => 0 [guid] => http://www.texasobserver.org/2758-license-to-vote/ [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) [4] => WP_Post Object ( [ID] => 2972 [post_author] => 51 [post_date] => 2007-11-02 00:00:00 [post_date_gmt] => 2007-11-02 00:00:00 [post_content] =>

In all likelihood, the state of Texas will eventually kill José Ernesto Medellin. Even the best possible outcome of his recent U.S. Supreme Court case will leave the convicted murderer's fate in the hands of the Texas Criminal Court of Appeals, where many a death row appeal has perished - literally and figuratively.

In the meantime, Medellin - and 53 other Mexican nationals sentenced to death in the United States -have created a judicial train wreck that has ensnarled state, federal, and international courts of law for more than a decade. Medellin's case offers a smorgasbord of meaty issues for constitutional law experts to debate, from states' rights to presidential and Supreme Court powers and the nature of U.S. treaty obligations. It has pitted the United States against Mexico and much of the Western world, Texas against the federal government, and President George W. Bush against erstwhile conservative allies. It has once again set the liberal and conservative factions on the Supreme Court at each others' throats. As if that weren't enough, the outcome of the case could have implications for the protections U.S. citizens can expect when traveling abroad.

Medellin v. Texas provides something for everyone to fear. Some commentators warn ominously of creeping one-world government complete with internationally mandated gay marriage and environmental regulations. Others express alarm over yet more erosion of U.S. credibility on the world stage and the trampling of individual rights on American soil.

It probably all could have been avoided, if the Texas Court of Criminal Appeals didn't have such a stubborn streak.

Jose Medellin

The case began on June 29, 1993, when Medellin was arrested by Houston police who suspected he had taken part in the gang rape and murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena. After two hours in custody and having been informed of his Miranda rights, Medellin gave police a written confession. The following year, he was convicted of capital murder and sentenced to death.

It looked, at least by Texas standards, to be an open and shut capital case. But three years later, a wrinkle emerged. When he was arrested, the 18-year-old Medellin told authorities that, while he had been raised and educated in the United States, he was a Mexican by birth. According to Article 36 of the Vienna Convention on Consular Relations- to which the United States has been a party since 1969 - detained foreigners must be told "without delay" that they have a right to let their consulate know they have been arrested. Medellin did not know of this right, and Houston authorities were either also unaware or unwilling to clue him in.

Medellin contacted Mexican officials in April 1997, and they began providing him with legal assistance. Medellin began raising violations of the Vienna Convention to challenge his conviction and sentence, but the Texas Court of Criminal Appeals ruled against him. In 2001, he appealed in federal court, and once again lost.

While Medellin's case was working its way up the federal court food chain, Mexican officials were becoming exasperated that many states were ignoring the Vienna Convention. Mexican citizens were being jailed across the country with no opportunity to contact a consulate. On behalf of Medellin and 53 other Mexicans on U.S. death rows, the Mexican government filed a complaint in the International Court of Justice - the United Nations' primary judicial body. Both Mexico and the United States were parties to the Vienna Convention's Optional Protocol, which granted the ICJ authority to settle disputes between nations over application of the treaty.

On March 31, 2004, the ICJ issued its opinion in the Case Concerning Avena and Other Mexican Nationals, holding that U.S. courts must review and reconsider the convictions of 52 Mexican nationals (two had already been removed from death row), having examined "the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in the [Vienna] Convention." The ICJ wasn't saying the sentences of Medellin and others should be thrown out. Rather, it was asking U.S. courts to reopen the cases to allow a good-faith examination of whether complying with the treaty might have changed the outcome.

Although it wasn't the first time the international court had heard challenges to U.S. death sentences for foreign nationals, it was the first time the ICJ managed to issue its final judgment before the individuals in question were executed.

Despite the Avena ruling, the U.S. Court of Appeals for the Fifth Circuit upheld Medellin's conviction. The U.S. Supreme Court agreed to hear the appeal.

Before oral arguments took place, however, Bush issued a memorandum to then Attorney General Alberto Gonzales stating that "the United States will discharge its international obligations under the decision of the International Court of Justice ... by having State courts give effect to the decision in accordance with general principles of comity ...."

In light of the president's order, the Supreme Court kicked Medellin's case back to the Texas Court of Criminal Appeals for further consideration based on Avena and the president's memorandum. (The following year, the high court ruled in a case from Oregon that incriminating statements made prior to consular notification were admissible in court and that the Avena decision was not binding on U.S. courts, but it did not address the status of the 52 Mexicans directly involved in the ICJ case.)

Back in the hands of Texas's highest criminal court, the case could have gone quietly away. The Texas judges could have agreed to reconsider the case. They could have concluded that Avena or the presidential memorandum constituted new information that allowed them, under Texas law, to review Medellin's conviction and sentence. In Oklahoma, where two of the affected Mexicans were imprisoned, that's exactly what happened: The state courts reviewed the cases, and the governor commuted the death sentences. After taking another look, the Texas court could even have ruled that the Vienna Convention violations did not prejudice the verdict and sentence, and let Medellin proceed on his way to lethal injection.

"I think it would have been far easier and a better result had they ordered a reconsideration pursuant to the presidential order, because that really doesn't require a change in result," said Ed Swaine, an associate law professor at George Washington University and a former legal advisor to the State Department. "That's what the Supreme Court thought might happen when they remanded previously. I think that would have been easier on everyone concerned."

Instead, in an opinion issued on November 16, 2006, the Texas court unanimously told the ICJ exactly where it could stick its Avena decision. The Texas court would not reconsider anything. Although a majority of the judges couldn't agree on the exact legal reasoning, they also unanimously held that the president should keep his memorandums to himself. Medellin v. Texas was back on the fast track to the U.S. Supreme Court, which accepted the case again on April 30, 2007, and heard oral arguments on October 10.

Donald Donovan, Medellin's attorney, was first to appear before the nine Supreme Court justices, and he plunged straight into international waters. Through the Optional Protocol, Donovan argued, the president and the Senate had committed the United States to heed the ICJ in disputes arising from the Vienna Convention. It was the responsibility of state courts to honor this obligation by reviewing the trial records of the 52 Mexicans named in the Avena decision to determine whether lack of notification harmed their defense. Medellin's case deserved another look, he said, and the Supreme Court should order the Texas Court of Criminal Appeals to give it one.

U.S. Solicitor General Paul Clement followed Donovan to the podium, and he had Donovan's back - albeit conditionally. Clement argued that it was up to the president, and the president alone, to determine whether the United States should heed the ICJ judgment. If the president had decided to buck the international court, Clement said, he'd be standing over on the Texas side.

Finally, R. Ted Cruz, who after over four years as Texas solicitor general is now a seasoned high court veteran, had his turn, arguing that the Supreme Court shouldn't let the ICJ or the president tell it what to do - and nobody should tell the Texas Court of Criminal Appeals how to run its court. If Donovan had his way, the United States would be dangerously ceding its sovereignty. If Clement's arguments prevailed, the president would be given unprecedented power.

And so, with fundamental constitutional issues hanging in the air, the court launched into a roiling discussion on the relative powers of states, the president, and the high court itself. The justices seemed to relish the debate, and in a rare nod to the complexity and import of the case, Chief Justice John Roberts gave Donovan an extra five minutes to answer their questions - and then allowed Clement and Cruz to also go over. In all, arguments ran long by nearly 30 minutes.

As the justices took their seats on the bench, knowledgeable eyes were on Justice Ruth Bader Ginsburg - who the previous year had broken ranks with her liberal brethren and sided with the conservative majority in the Oregon consular notification case - and Justice Anthony Kennedy, the conservative justice most likely to be swayed by arguments for presidential power or respect for international tribunals. While it became clear early on that Ginsburg had likely returned to the fold, Kennedy remained a cipher.

As Donovan began his presentation, Justices Antonin Scalia and Roberts were first out of the gate, peppering the lawyer with questions about the scope of the ICJ's power.

What if the ICJ decided that the Houston police officers who didn't tell Medellin his rights should be sentenced to five years in prison, Roberts asked, getting to the question of just which court rules this land. Wouldn't the U.S. Supreme Court have the power to review that ruling?

Donovan struggled with the hypothetical until Ginsburg and Justice Stephen Breyer stepped in. "Does the ICJ ever issue a judgment of that character?" Ginsburg asked. "If the ICJ were to do something which it had never done, like, say, put everybody in jail for 50 years ... I guess that might violate something basic in our Constitution, in which case we wouldn't enforce it," Breyer noted.

Donovan was asked, Does the federal government, through law or treaty, ever have a role meddling in the procedures states use to run their criminal courts? Scalia didn't seem to think so. Justice David Souter noted that all the federal government was asking Texas to do in the Medellin case was reopen it enough to at least consider the Vienna Convention obligations. No one was trying to tell Texas courts to throw out Medellin's conviction or sentence.

Perhaps the most discouraging development for Medellin came when Kennedy noted the ambiguity of the Avena decision and said he thought Texas had given Medellin "all the hearing that he's entitled to under this judgment ...."

Donovan's arguments ended with Roberts pouncing on his statement that the Supreme Court had the authority to enforce U.S. treaty obligations even if the president didn't agree. "Well, if we have the authority to determine whether the treaty should be complied with in the face of a presidential determination, why don't we have the independent authority to determine whether or not it should be complied with as a matter of federal law without regard to the president's determination?" Roberts asked.

This set the stage for Clement, whose job it was to convince the justices that the president's opinion mattered; in fact, it was the "critical element" in this case.

Scalia questioned whether "the president can make a domestic law by writing a memo to his attorney general." Justice Samuel Alito added, "If we agree with you, would the effect be that the president can take any treaty that is ratified ... and give it force under domestic law?"

Clement laid out the heart of the administration's argument: The president can't displace the Supreme Court. But if the president decides to comply with an international tribunal's judgment, "the role of this court is limited to deciding whether there was jurisdiction to issue that judgment in the first place; and then the secondary role of this court would be to say, does the rule of law embodied by that judgment violate the Constitution?"

Clement concluded by defending the power of the presidential memorandum, even though it was directed to the attorney general and not the states: "Obviously, from the very beginning in this case, we have taken the position in this court that the president's memorandum directs the state courts, in its words, to give effect to the Avena judgment - not decide whether you want to give it effect ... but to give effect to the judgment."

Shortly after Cruz began his oral presentation, Justice Stephen Breyer noted that the Constitution requires treaties the United States enters into to be the "supreme law of the land," which should be binding upon judges in every state - "I guess it means including Texas," he remarked wryly.

Cruz responded that, in this case, the treaty was not "self-executing" because Congress failed to pass supporting legislation to give aggrieved parties legal recourse in U.S. courts. And in any regard, any treaty that "purported to give the authority to make binding adjudications of federal law to any tribunal other than [the Supreme] Court ... would violate Article III of the Constitution."

But what about the 112 treaties and 116 international regulatory entities the United States has joined, Breyer asked. "Is your view [that] all of these thousands - perhaps hundreds, anyway - of treaties are unlawful, and that our promises are not enforceable because there's a constitutional question?"

"In those instances, the bodies in question are not making definitive interpretations of what federal law is," Cruz replied.

"The entire purpose of this adjudication," Cruz continued, "is not to resolve something finally in a court of law, but it is rather a diplomatic measure ...." He compared it to the United States bringing an ICJ case against Iran during the hostage crisis in 1979. "We didn't believe the Ayatollah was going to listen to the ICJ and suddenly let the hostages go ... but it was helpful diplomatically to bring it to the tribunal to then [apply] international pressure."

Later in the arguments, Kennedy posed another hypothetical that could give insight into where he may come down on the case. What if a judge refuses to allow a defendant to contact his consulate, Kennedy asked. Could you order that judge to allow notification? Cruz said no.

"If I thought he did, would I still have to rule against you?" Kennedy responded. Cruz replied that, in this case, there was no evidence of a deliberate violation of the Vienna Convention.

After the arguments, Cruz and Donovan stood before the press on the steps of the Supreme Court and tried to claim the moral high ground.

p>"The president a d the Senate made a basic commitment to this country's most basic values, which is a commitment to the rule of law," Donovan said. "The ICJ delivered a very modest judgment in which it directed the United States to reconsider these judgments. And now the president has said we're going to comply with that judgment. That is actually expressing the will of the American people, because the American people believe, like the president, that a deal's a deal."

He then warned that if the United States disregarded its duties under the Vienna Convention, it could endanger Americans who travel abroad. "The United States doesn't want there to be any question about its own commitment to the rights that it asks other countries to enforce," he said. "The access of American nationals to their consular offices when they're abroad is a very important right - it's a bread and butter way that consular offices protect their nationals."

Meanwhile, Cruz imagined Texas as Horatius at the bridge, fighting to keep meddling globalists at bay. "If the World Court has the ability to trump the Supreme Court of the United States, that will gravely undermine the sovereignty of the American people," he said. "And Texas is committed to vigorously fighting to defend the sovereignty of both Texas and the United States."

Later, Cruz noted that giving the president power to pick and choose which treaties and international judgments to enforce could open the door for "enormous mischief." And although Bush has withdrawn the United States from the Vienna Convention's Optional Protocol, another president could always attempt to rejoin it - or find new international authorities to cite as justification for achieving domestic policy goals. It's just such a possibility that has many conservative legal scholars twitching nervously.

"Whether that is, for example, environmental laws or tort laws or ... marriage laws or adoption laws or death penalty laws, if the president has the authority to write a two-paragraph memorandum to a member of his or her Cabinet and, with a stroke of a pen, set aside state law, that undermines the basic separation of powers that protect the liberties of all citizens," Cruz said.

The high court's decision is expected sometime early next year. If oral arguments are any indication, the court will be closely divided. A win by Texas would allow Medellin's execution, and those of the 14 other affected Mexican citizens on Texas's death row, to proceed. Depending on the legal reasoning behind its ruling, a win by Medellin could greatly expand the scope of presidential power or the domestic reach of U.S. treaties - although few will be shocked if the Texas Court of Criminal Appeals subsequently finds Medellin's conviction and death sentence unaffected by his lack of consular notification.

Regardless of the outcome, the case has made for some strange legal bedfellows. "Many people who are generally in strong favor of presidential authority in foreign affairs don't like the degree to which this intrudes on the authority of the states," said George Washington law professor Swaine. "And many who generally favor international institutions likewise have some qualms about how drastic this kind of remedy would be and how much it opens the door up for presidential authority."

The case has even set Cruz, a former Bush Pioneer fund-raiser, campaign advisor and Justice Department counsel, against his old boss. When asked if this has affected his relationship with the president, Cruz paused and replied, "I've got no comment."

Anthony Zurcher is a writer and editor in Washington, D.C.

[post_title] => Sticking Point [post_excerpt] => [post_status] => publish [comment_status] => open [ping_status] => open [post_password] => [post_name] => 2619-sticking-point-international-treaty-obligations-are-keeping-jos%ef%bf%bd%ef%bf%bd_%ef%bf%bd%ef%bf%bd_-medellin-off-the-death-house-gurney [to_ping] => [pinged] => [post_modified] => 2012-10-26 05:06:22 [post_modified_gmt] => 2012-10-26 05:06:22 [post_content_filtered] => [post_parent] => 0 [guid] => http://www.texasobserver.org/2619-sticking-point-international-treaty-obligations-are-keeping-jos%ef%bf%bd%ef%bf%bd_%ef%bf%bd%ef%bf%bd_-medellin-off-the-death-house-gurney/ [menu_order] => 0 [post_type] => post [post_mime_type] => [comment_count] => 0 [filter] => raw ) ) [post] => WP_Post Object ( [ID] => 6048 [post_author] => 51 [post_date] => 2012-04-24 19:40:00 [post_date_gmt] => 2012-04-24 19:40:00 [post_content] => It's the first full day of last October's values voters summit in Washington, D.C., and Ted Cruz is electrifying his audience. Dressed in a dark suit and with a wireless mic attached to his gold tie, the former Texas solicitor general paces the stage in a ballroom at the Omni Shoreham Hotel like a cross between Atticus Finch and Tony Robbins. Cruz, who is running for the Republican nomination to replace Kay Bailey Hutchison in the U.S. Senate, knows what the crowd of religious and social conservatives wants, and he gives it to them. Pious references to our Founding Fathers? Of course. Embracing the legacy of Ronald Reagan? Definitely. Dire warnings about the “gay rights agenda,” “Obamacare” and “government planners”? Yes, yes and yes. Hyperbolic attacks on the current president? Check. “Barack Obama is the most radical president this nation has ever had,” he intones. Each applause line is punctuated by a huge smile and a curt nod, as he waits for the audience to respond. On occasion, his voice booms. “The American people are rising up, and together we are going to retake our nation!” At other times, he drops to an earnest stage whisper. “A big part of the reason Barack Obama got elected is because Republicans had lost their way. ... We’ve got to stand up together and defend religious liberty. ... The United States has enjoyed the greatest prosperity in the history of the world because free enterprise works.” By the time the 15-minute speech ends, the audience is shouting “Yes, we can!” as Cruz asks whether the Republican Party can retake the U.S. Senate and defeat Obama in 2012. They send him off with a standing ovation. Performances like this have made Cruz, the 40-year-old Ivy League-educated son of a Cuban immigrant, a darling of the national conservative movement—and potentially a major force in Texas Republican politics over the next decade. In June of last year, Washington Post columnist George Will wrote that Cruz’s story—his Hispanic background, academic pedigree and conservative legal track record—is “as good as it gets.” He’s won the support of the anti-tax Club for Growth, former House Majority Leader Dick Armey’s tea party-inspired FreedomWorks, and Erick Erickson, founder of the influential conservative blog RedState. He’s also received the endorsement of arch-conservative U.S. Sen. Jim DeMint of South Carolina, as well as those of tea party favorites Mike Lee of Utah, Rand Paul of Kentucky, and Pat Toomey of Pennsylvania. Former U.S. attorney general and Republican Party elder statesman Ed Meese is Cruz’s national campaign chair. A few days after his October speech in Washington, Cruz appeared on the cover of The National Review, which called him “the next great conservative hope.” “I think he’s very Reaganesque,” said Ryan Hecker, a former tea party leader in Houston and current chief operating officer of FreedomWorks’ super-PAC, FreedomWorks for America, which has been organizing on Cruz’s behalf. “He’s not an establishment Republican, even by Texas standards. We’re looking at someone who has the potential to be one of the great conservative leaders of our time.” But first he has to win an election. That could prove difficult for Cruz. His main opponent for the Republican Senate nomination is the state’s lieutenant governor, David Dewhurst, who doesn’t excite the party’s grassroots activists, but does have political power, statewide name recognition and lots of money, from both a bulging campaign account and an estimated $200 million personal fortune. To pull off the upset, Cruz has tried to identify himself as the conservative choice, campaigning on tea party and evangelical support, and portraying Dewhurst as the sort of unprincipled moderate that led Republicans astray in the 2006 and 2008 elections. Club for Growth has picked up on this theme, running anti-Dewhurst television ads that label the lieutenant governor as a tax-raising “moderate” who is “wrong for Texas.” But no matter how much buzz surrounds Cruz on the national level, he still must translate it into on-the-ground support among Texas Republican primary voters. “How many votes does The National Review have in Texas?” said former Texas Republican state chairman and current Texas Workforce Commission Chair Tom Pauken. “That’s nice, but I don’t know that it necessarily is the arbiter of conservatism. I think conservatives are going to be very fragmented in this race, just like they are in the Republican presidential primary race, and that doesn’t work to his advantage here.” In fact, Cruz is a somewhat unlikely candidate to carry the tea party banner. Since leaving his job as solicitor general, he has worked in Houston as a high-priced corporate lawyer, and his Princeton and Harvard degrees and prestigious federal court clerkships aren’t credentials that usually excite grassroots conservatives. Yet polls show him to be Dewhurst’s most formidable opponent, and the primary contest is shaping up to be the latest test of tea party strength in Texas. Perhaps most important, Cruz could become the highest-profile Hispanic to win a nomination from a Texas Republican Party that has struggled to support Hispanic candidates and appeal to the state’s fastest-growing demographic segment. His potential seems limitless, if he can live up to the hype.   Cruz has never held elected office. He’s basing his campaign on his litigating experience and his life story. That story begins with Cruz’s father, who, as Cruz often says in his stump speeches, was imprisoned and tortured in Cuba and eventually left that country for a better life in the United States. Cruz cites his father as a source of inspiration, who taught him to value the freedom and opportunity that America offers. What Cruz usually leaves out is that Rafael Cruz was a rebel who fought on the same side as Fidel Castro against right-wing dictator Fulgencio Batista, and it was in a Batista prison that the 17-year-old Rafael Cruz was tortured. Cruz received a student visa from Cuba in 1957—a year before Castro’s rise to power—and immigrated to the United States. Rafael enrolled at the University of Texas, paying his way by washing dishes. Unlike Florida’s U.S. Sen. Marco Rubio, Cruz has never falsely claimed his father fled from Castro, but his vagueness on the stump has led some to make that assumption. At the Values Voter Summit, for instance, conservative activist Kelly Shackelford introduced Cruz by saying his father had “escaped Fidel Castro.” When asked about this by The Dallas Morning News, Cruz emphasized that he had explained his father’s full story “many, many times”—although the paper could find no recent instances in public speeches. (The Cruz campaign didn’t respond to interview requests for this article.) Cruz’s parents met at the University of Texas, and after graduating they started a small oil industry-related business. Ted Cruz—whose full name is Rafael Edward Cruz—was born in 1971 in Calgary, Canada, where his parents were working at the time. Cruz’s family later returned to Texas. In 1988, Cruz entered Princeton University, where he competed as a debater, winning numerous awards. Then it was on to Harvard Law, where he graduated magna cum laude in 1995, having served as primary editor of the Harvard Law Review and executive editor of the Harvard Journal of Law & Public Policy. His first legal clerkship was with Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals, considered one of the leading conservative minds in the country. His second clerkship was with then-Chief Justice William Rehnquist, making Cruz the first Hispanic Supreme Court clerk and the first minority to clerk for a chief justice. His relationship with Rehnquist grew so close that he would serve as a pallbearer at Rehnquist’s funeral in 2005. After a brief stint at a Washington law firm, Cruz hitched his wagon to George W. Bush. He moved to Austin to serve as a legal expert on the 2000 presidential campaign, where he met his wife, Heidi Nelson. After Bush’s election, the couple returned to Washington, where Cruz worked at the Justice Department and then the Federal Trade Commission, while Nelson joined the U.S. Trade Representative’s office, and later the Treasury Department and National Security Council. But it wasn’t until Cruz returned to Texas yet again that he really made a name for himself. In 2003, Texas Attorney General Greg Abbott nominated Ted Cruz to become the third solicitor general in state history. The office is a relatively recent creation, formed as a division within the attorney general’s office in 1999 to oversee civil and criminal appeals involving the state. The office also handles any friend-of-the-court (amicus) briefs the state may file in cases to which it is not directly a party. During his five years working for the state, Cruz kept busy. His office produced 70 U.S. Supreme Court briefs, and he personally participated in oral arguments before the high court eight times. Cruz developed a reputation as a top-flight litigator, winning the Best Brief Award from the National Association of Attorneys General for five consecutive years. “Ted Cruz is one of the finest appellate attorneys in the United States,” said Edward Burbach, who worked alongside Cruz in the attorney general’s office as deputy attorney general for litigation. “He’s clearly a very brilliant individual.” Without a legislative record to run on, Cruz has made his work as solicitor general on a series of high-profile legal battles a central part of his campaign. His website lists them as part of his “proven record,” and during speeches he rattles off their names and the conservative principles he championed. In some, such as those involving challenges to late-term abortion, the words “under God” in the Pledge of Allegiance, the District of Columbia’s handgun ban, and the constitutionality of religious symbols on federal land, Cruz’s involvement was limited to organizing and serving as counsel of record for one of any number of amicus briefs presented to the Supreme Court. In the 2005 case Van Orden v. Perry, which dealt with the constitutionality of the Ten Commandments monument on the grounds of the Texas Capitol, Cruz was counsel of record, but Attorney General Abbott argued before the high court. Other times Cruz had a leading role, serving as counsel of record and participating in oral arguments. He represented the state in challenges to Texas’ 2003 redistricting—challenges alleging that Republican-drawn congressional maps infringe on minority voting rights and amount to unconstitutional political gerrymandering—that reached the Supreme Court in 2006. In a 2008 case involving Louisiana’s death penalty for child rapists, the Supreme Court granted Cruz the rare privilege of participating in oral arguments as a representative of Texas and other states that had filed an amicus brief in support of the law. Although the U.S. solicitor general is often invited to take part in suits in which the federal government has an interest, the involvement of other amici is unusual. Louisiana and Cruz ended up losing the case in a 5-4 decision. Cruz claims he’s proudest of the 2008 case Medellìn v. Texas. He cited the case by name during his closing statement at the January 12 GOP Senate candidates’ debate in Austin. It’s easy to understand why. The case featured a United Nations court, federal government intrusion on state power and a Texas favorite: the death penalty. The case involved Jose Medellín, a Mexican citizen on death row for the rape and murder of two teenage girls in Houston, and 50 other similarly situated Mexican nationals who had not been informed of their right to seek legal assistance from the Mexican government following their arrests. Mexico had challenged the convictions before the International Court of Justice, which ruled that the United States had violated the Vienna Convention on Consular Relations and that the cases should be reopened. The Bush administration attempted to force a recalcitrant Texas appeals court to reconsider Medellín’s case in light of the international court’s decision and U.S. treaty obligations. Cruz countered that neither the international tribunal nor the federal government could tell Texas courts what to do. By a vote of 6-3, the Supreme Court agreed—and Jose Medellín was executed on August 5, 2008. Although Cruz is quick to take credit for Medellín and other Texas victories in the high court, a source familiar with the role of Texas solicitor general emphasized that “the attorney general has final say on all important issues.” The Dewhurst campaign has echoed this, with Dewhurst adviser Dave Carney telling the Austin American-Statesman in March, “The facts are clear: Ted Cruz never made a single decision on which cases to take before the Supreme Court. Those important decisions were solely at the discretion of Attorney General Greg Abbott.” On the campaign trail, Cruz doesn’t spend much time talking about what he’s done since leaving the solicitor general’s office. In May 2008, he joined the Houston office of the international law firm Morgan Lewis, where as a partner he earned $1.2 million in 2009 and $1.7 million in 2010, representing a laundry list of deep-pocketed corporate interests. He served as counsel for drug manufacturer Pfizer in a lawsuit brought by public hospitals and community health centers. He represented the U.S. Chamber of Commerce in a challenge to the Obama administration’s Gulf Coast drilling restrictions, a student loan company challenging a court’s dismissal of a bankrupt student’s debt, and an insurance company attempting to avoid paying a plaintiff’s legal bills after a disability suit was settled out of court. In 2010, when it looked like his former boss Greg Abbott was going to be a candidate for lieutenant governor, and as the top statewide Republicans played political musical chairs, Cruz began eyeing a run for Texas attorney general. His campaign committee amassed $1.3 million, including donations of $250,000 from PayPal co-founder Peter Thiel, $100,000 from San Antonio businessman David Spencer, $50,000 from Paulson & Co. hedge fund Managing Director Michael Waldorf, $35,000 from construction magnate and Republican mega-donor Bob Perry, and $25,000 from Paul Mitchell hair products co-founder John Paul DeJoria. When Kay Bailey Hutchison decided to retain her Senate seat, and everyone stayed put, Cruz pulled out of the race for AG rather than challenge Abbott. In 2011, Cruz made his ninth appearance before the U.S. Supreme Court, winning a case for a French fryer manufacturer that had sued a Chinese company for stealing its technology. Another patent case, however, has come back to haunt him. In November 2010, Cruz signed on to represent Chinese tire manufacturer Shandong Linglong. The company was appealing a $26 million jury verdict awarded to Florida businessman Jordan Fishman, who alleged that the Chinese company was violating his patent by using blueprints stolen by one of Fishman’s former employees. The legal issues in the case—the applicability of U.S. copyright law to actions taking place wholly on foreign soil—have taken a back seat to intimations that Cruz is siding with a Chinese company against an American businessman. For a candidate who bases so much of his campaign on being on the “right” side of high-profile legal cases, such an alignment could prove damaging.   Thanks to Gov. Rick Perry’s quixotic presidential campaign attracting most of the state’s political attention, as well as the uncertainty surrounding the exact date of the primary due to the ongoing legal battle over redistricting, the Senate campaign got off to a slow start. As things heat up, however, ahead of the May 29 primary, it appears that the race is shaping up to be a battle between Dewhurst and Cruz, although former Dallas mayor Tom Leppert could self-finance his way into being a factor. In the March 31 Federal Election Commission filings, Cruz reported having spent $1.9 million with $3.2 million cash on hand, compared to Dewhurst’s $4.4 million spent with $3.2 million in the bank (including a $2 million personal loan to his campaign) and Leppert’s $2.2 million spent with $4.1 million on hand (which includes a $3.6 million personal loan). Former SMU football star and ESPN analyst Craig James has raised about $1 million and spent almost half. The polling data is scattered, but generally shows Dewhurst with a lead eroded by steadily growing support for Cruz. A February UT/Texas Tribune poll had the lieutenant governor at 38 percent and Cruz at 27, with the rest of the pack in single digits. A January 17 Public Policy Polling survey had the lieutenant governor at 36 percent and Cruz at 18, with 31 percent undecided—putting Cruz 11 points closer to the lead than he had been in a September PPP poll. Given the significant advantages that Dewhurst has, Cruz’s best hope may be that Dewhurst stays below 50 percent, forcing a head-to-head runoff battle. “If I were running somebody’s campaign in this race, my goal would be to get into a runoff with Dewhurst and hope that, with the lighter turnout, Dewhurst’s resources will have less of an impact,” said former Republican Party state chairman Pauken. For Cruz to pull off a win, he’s going to have to overcome a number of obstacles. First and foremost, of course, is money. Cruz is up against two candidates with large personal fortunes. And while nearly $3 million in the bank is a respectable sum for Cruz, campaigning statewide in Texas isn’t cheap. (In 2008, Sen. John Cornyn spent more than $18 million on his re-election campaign.) “I’ve heard that Cruz is having trouble raising money because the Dewhurst people have kind of defensively locked down sources of big Republican money,” said James Henson, director of the Texas Politics Project at the University of Texas. “I think they’re right to sense a certain softness in Dewhurst, but Dewhurst is kind of the Mitt Romney of the Texas race. There may be faint enthusiasm, but he has a lot of assets, and he is the establishment candidate.” Another major hurdle is name recognition. In the January PPP poll, Dewhurst had 60 percent name recognition, with Leppert at 36 percent and Cruz at 29 percent. Of note, however, is that among the 29 percent who had heard of Cruz, he led Dewhurst 34 percent to 31 percent, which could indicate that the more Republican voters hear of him, the more they like him over the lieutenant governor. His opponents likely will try to damage Cruz’s standing with tea party Republicans, who are nearly as distrustful of big corporations as they are of big government. The Dewhurst campaign has been quick to point out that Cruz’s law firm partners have given hundreds of thousands of dollars to Democratic candidates. Cruz’s wife is a vice president at Goldman Sachs and former member of the Council on Foreign Relations (which Cruz had, at one point, called a “pernicious nest of snakes”). Cruz’s efforts have not been helped by what one political operative familiar with the campaign called the candidate’s sense of arrogance, which has filtered down to his staff. He said that Cruz’s lawyerly rhetoric may have helped him connect with national Republicans, but the candidate Cruz has lacked charisma in press-the-flesh situations, and sometimes comes across as overly academic, which hasn’t played well with Texas Republican primary voters. There’s also the possibility that a segment of the Republican primary electorate will be reluctant to vote for a Hispanic candidate. In 2010, then-Texas Railroad Commission Chairman Victor Carrillo was soundly defeated in the Republican primary by little-known accountant David Porter, 61 percent to 39 percent, despite outspending his opponent by a 20-to-1 margin. In a post-election email to supporters, Carrillo blamed his loss on anti-Latino bias among Republican voters. “Given the choice between ‘Porter’ and ‘Carrillo,’” he wrote, “unfortunately, the Hispanic surname was a serious setback from which I could never recover ... .” The phenomenon also appeared nine years earlier, when Perry-appointed Texas Supreme Court Justice Xavier Rodriguez was defeated by a lesser-known white opponent, despite outspending his opponent $558,000 to $9,500. “Clearly a lot of people look back and think that the Victor Carillo factor is lurking out there,” said Henson, who co-directs the UT/Texas Tribune poll. “We’ve had a couple of races where this seems to be the case, where a Hispanic surname seems to have a negative effect on GOP voting. The anecdotal evidence is suggestive.” Texas GOP consultant Craig Murphy said he thinks that Cruz has enough resources to prevent a repeat of the Carillo effect, however. “The only time that a Hispanic surname hurts a Republican candidate is when you’re an unknown,” he said. “If you stay in the race where the candidate has enough money to advertise, then the problem disappears.” With several million in the bank and outside support, Cruz has the resources—which means his race will be closely watched for signs of anti-Hispanic voting patterns in the Republican electorate. If Cruz performs at or above expectations, he should be well positioned for future races, even if his underdog bid to defeat Dewhurst falls short. “I know that attorney general is ultimately his goal,” said the source familiar with the Cruz campaign. “It’s his dream ticket. I think he sees the Senate race as his path to where he needs to be.” A Dewhurst victory means there’s still a possibility that Abbott could try for lieutenant governor in 2014, putting Cruz back where he was in 2010, eying a race for attorney general—only with better name recognition, a more extensive fundraising network, and the experience of having already run a statewide campaign. Losing the Senate race, Ted Cruz could still win in the end. And if he proves a Hispanic candidate can win the support of Republican primary voters, Texas Democrats could be facing a landscape-shifting adversary for years to come.   Correction: The original version of this story incorrectly reported that Republican Sen. Marco Rubio (Florida) has endorsed Ted Cruz. Rubio hasn't endorsed Cruz. The Observer regrets the error. 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