by Ted Cruz
As he spoke with her, Ted knew that two other planes had already struck the towers at the World Trade Center. He knew that the terrorists who had seized the plane Barbara was on weren’t seeking the land in a safe harbor, but that their objective was likely to crash the plane. Characteristically, the last words Barbara said to Ted on the phone were, “What do we do?”
Always the fighter, Barbara was no doubt preparing to lead the passengers in an assault to try to stop the terrorists. The plane flew into the Pentagon, and Heidi and I lost a friend that day. Ted lost his beloved wife. And the world lost an extraordinary woman, as our country grieved the murder of over 3000 people.
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Three years later, and just a few months into my tenure as Texas solicitor general, the phone rang, and Attorney General Abbott asked a curious question, “Can the speaker of the House in the Texas Legislature order the arrest of House members fleeing the state?” He had just received a call from Speaker Tom Craddick, who had posed that question to him, and Abbott, in turn, asked me.
“I have no idea,” I told my boss, “but I’ll research the question immediately and get you an answer.” It turns out the answer is clear and straightforward: Yes. The Texas Constitution explicitly gives authority to the Speaker to arrest legislators fleeing in an attempt to deny a quorum. To wit, Article III, Section 10 of the Texas Constitution provides, “Two-thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide.” That verbiage, in turn, was taken word-for-word from Article I, Section 5 of the U.S. Constitution, which likewise authorizes congressmen to compel their colleagues to attend debate.
Then-Speaker Craddick asked me these arcane legal questions because the Texas Legislature, in the Spring of 2003, had just taken up the always-contentious issue of congressional redistricting. House Democrats adamantly opposed any redistricting plan because the existing plan overwhelmingly favored the Democratic Party.
As the three-judge federal district court would later describe it, Texas’s recent political history was the “story of the dominance, decline, and eventual eclipse of the Democratic Party as the state’s majority party.” For over a century, from Reconstruction until the 1960s, the Democratic Party dominated the political landscape in Texas. By 1978, Texas was beginning to change. William Clements Jr. was elected the first Republican governor since 1874. Throughout the 1980s and 1990s, under Presidents Reagan and George H. W. Bush, Texas grew steadily more Republican. By 1990, Republicans were earning roughly 47 percent of the statewide vote, while Democrats retained just 51 percent.
Even though statewide voting was nearly even, Democrats maintained a massive majority of congressional representation, winning nineteen of the twenty-seven seats in the 1990 election. Then, in 1991, following the 1990 decennial census, Texas was awarded three additional seats in the U.S. House of Representatives. Democrats controlled both houses of the Texas Legislature, as well as the governorship, and the 1990 congressional redistricting plan—designed in large part by Democratic congressman Martin Frost—has been described as the “shrewdest Democratic gerrymander of the 1990s.”
Southern Democrats have an ugly history when it comes to gerrymandering. For a long time, the path to electing white Democratic members of Congress was clear to map drawers. To do so—for white candidates to dominate the Democratic primary—one must draw districts that have a sufficient (but not too high) number of African-American voters and a sufficient (but not too high) number of Hispanic voters. Voting patterns nationally and in Texas demonstrated that Democratic African-American primary voters were likely to vote for a white Democrat over an Hispanic Democrat. And Hispanic Democratic primary voters would likewise likely vote for a white Democrat over an African-American Democrat. However, once it came to the general election, Hispanic and African-American Democratic primary voters would reliably come together to elect that white Democrat over a Republican opponent. As African-American Democratic Congresswoman Eddie Bernice Johnson testified at trial, Martin Frost’s district “was drawn for an Anglo Democrat.” And, using that cynical strategy, the 1991 redistricting plan locked in Democrats’ temporary statewide advantage for more than a decade.
By 1994, the tide had turned, and in that election Republicans won every statewide race in Texas. Since that time, every election for every one of Texas’s statewide offices has been won by a Republican. By 1998, the Republican advantage in congressional voting statewide was 56 percent to 44 percent, but the Frost gerrymander ensured that Democrats retained the majority of the congressional delegation, seventeen to thirteen, anyway. By 2000, Texas Republicans were winning statewide elections by a margin of 59 percent to 40 percent, but the congressional delegation stubbornly remained seventeen Democrats to thirteen Republicans.
In 2001, thanks to our growing population, Texas received two more congressional seats. The Texas Legislature, charged by the Constitution with the responsibility of drawing the new congressional maps, was deadlocked. Republicans controlled the state Senate, but Democrats still controlled the state House. Because the Legislature could not agree, a federal court redrew the maps in 2001, largely staying consistent with the political determinations that had been made in the 1991 gerrymander. Thus, even though Republicans held all twenty-nine statewide elected offices in Texas, and even though the voters of Texas voted 53 percent to 44 percent in favor of Republicans in the 2002 congressional election, Democrats retained a seventeen to fifteen advantage in the congressional delegation.
Then in 2003, Republicans won the Texas state House. So the Legislature endeavored to take up the task upon which it had deadlocked two years earlier. Their objective was simple: to draw lines that would allow a substantial majority of Texas voters to elect a substantial majority of their congressional delegation. Texas Democratic House members did not want their gerrymander undone, so they fled the state to avoid taking a vote, heading to the small town of Ardmore, Oklahoma. In the press, the fleeing Democrats were dubbed the “killer Ds,” in homage to the “killer bees,” twelve liberal Democratic Texas senators who had busted a quorum in 1979 to prevent a vote on a presidential primary bill that was favorable to then-Republican candidate John Connally.
Their quorum busting worked, and the regular legislative session expired. But Texas Governor Rick Perry would proceed to call three consecutive special sessions to complete the task of redistricting. In the second special session, it was the Senate’s turn to flee, with twelve Democrats absconding to a luxury hotel in Albuquerque, New Mexico (reflecting the differences in the chambers, their accommodations were much fancier than the House members’ more mundane Holiday Inn in Ardmore).
Although arrest warrants were issued for the fleeing legislators, because they had crossed state lines to escape Texas jurisdiction, nobody was arrested. Finally, however, Democratic resistance was worn down, and by the third special session, both houses of the Legislature were able to pass a congressional redistricting bill.
Doing so was a complicated endeavor. My job as solicitor general typically entailed representing the state in court, but part of the job also required me to advise the Legislature on complicated questions of law. Here, Attorney General Abbott asked me to provide the Legislature the best legal advice as to how they could draw the map consistent with federal law.
There are numerous federal constraints on map drawing, the two most significant of which are the Voting Rights Act and the Fifteenth Amendment to the Constitution. Supreme Court case law concerning both is complicated and often contradictory. In ordinary parlance, in an ordinary life, most of us don’t typically divide people into racial categories. In redistricting law, doing so is unfortunately required.
The Supreme Court has interpreted the Voting Rights Act to mandate an almost obsessive focus on race, concentrating African-American voters in districts where they are more likely to elect African-American representati
ves and concentrating Hispanic voters in districts where they are more likely to elect Hispanic representatives. To comply with the Voting Rights Act, legislatures are required to look precisely at the ethnic breakdown of every district. Sophisticated mapping technology enables lines to be drawn block-by-block and house-by-house, with the racial, ethnic, and partisan breakdown of each displayed.
I don’t enjoy redistricting litigation because it is so obsessively focused on racial distinctions, something I find quite distasteful. And to make matters worse, the Supreme Court’s requirements that a legislature must focus on race are contradicted by its constitutional rulings that a legislature can’t focus too much on race. Interpreting the conflicting requirements is no easy task. Moreover, redistricting by its nature entails myriad political determinations. For example, more than a few Texas Republican state representatives wanted to “take out Martin Frost,” because of his role in the previous Democratic gerrymander.
My instructions from General Abbott were to provide legal advice and stay out of the politics. Accordingly, I would do my best to advise whether a particular decision was consistent or inconsistent with federal law or the Constitution. But when decision-making got overtly political, I would get up, excuse myself, and leave the room, telling the representatives, “You’re entitled under the law to make political determinations. I’ll be outside if you have any legal questions for which you might need me.”
Ultimately, the Legislature adopted a map that went from two congressional districts where African-Americans were likely to elect an African-American representative up to three congressional districts where African-Americans were likely to prevail. The map, likewise, went from seven majority-Hispanic districts to eight. The losers in the map were white Democrats, whose districts were redrawn to make their defeat more likely. The result was passionate Democratic opposition to the plan.
When the bill passed, just two Democratic representatives, Ron Wilson and Vilma Luna, voted for the redistricting plan. Representative Wilson was an African-American Democrat from inner-city Houston, and Representative Luna was an Hispanic Democrat from the South Texas town of Alice.
As soon as the map was signed into law, an array of litigants immediately sued, challenging its legality. I spent the next year in and out of trial court, helping lead our trial team and defending the multiple challenges to the map. The principal case was tried before a three-judge federal district court, which consisted of one court of appeals judge and two trial court judges. A three-judge district court is an unusual forum that exists for certain types of redistricting challenges. Two moments from the trial stood out, in particular.
First was when Representative Ron Wilson was testifying at trial, and he explained why he voted in favor of the plan. “It was never a question of if the redistricting bill would pass.” Instead, he said, the question was, “Do you stand on the railroad track and try to stop the train? Or do you try to get some of your people on the train and not get run over?” As Wilson explained, he supported the plan because it was likely to elect three black Democrats to Congress from Texas, instead of merely two.
Wilson’s position enraged many of his Democratic colleagues. And Lee Godfrey, one of the most accomplished trial lawyers in the country, cross-examined him. Godfrey sarcastically noted that Wilson comprised “100 percent of the African American legislators” who had voted in support of the new map. Wilson defiantly explained why he believed that that was the case. “I am the only one who had the ‘things’ big enough to do it,” and he gestured accordingly.
It was a remarkable moment—to see a witness in a federal trial court directly referencing his own genitalia. Even more remarkably, Godfrey took the bait. “I presume the ‘things’ you refer to are not visible?”
Wilson retorted, “You want to see them?”
Godfrey seemed ready to demand production. But the presiding judge wisely directed, “Move on. Move on.”
A second notable moment concerned our expert witness. We had retained a statistician from Oklahoma to analyze the likely effects of the map the Texas Legislature had adopted. The statistician was a nice, affable man, and he wrote a good report. As we were preparing him for trial, I had brought in my old boss, Mike Carvin, to assist with trial preparation. Mike proceeded with a mock cross-examination. Our expert, much to our dismay, on a vigorous cross-exam, seemed perfectly willing to agree to just about anything. Even though his report was carefully reasoned, the statistician’s temperament was such that he just didn’t like to tell a questioner no. Over and over again, Mike and I and other lawyers on the trial team would pose difficult questions to our expert, and over and over again, he seemed to want to please the questioner more than he wanted to answer the question accurately.
We quickly realized that putting our witness on the stand could end very badly. We therefore made a decision to put him on a plane and fly him back to Oklahoma. The next day, we were expected to call our expert witness. The plaintiffs had already concluded their case, and we had begun to present ours. The lead opposing lawyer, Paul Smith, was a veteran Supreme Court advocate, and I could tell he was salivating to cross-examine our expert. However, when the time came to call him, our lead trial lawyer stood and said, “Your honor, the State rests.”
Virtually every Democratic lawyer leapt to his feet, crying out his objection. The bemused presiding judge, Patrick Higginbotham, a longtime veteran of the Fifth Circuit Court of Appeals, looked down, his spectacles perched on the tip of his nose. With a smile, he asked, “You object to the State resting?” Exhaling heavily, the Democratic lawyers took their seats, realizing they could not force us to call to the stand a witness we did not wish to call. Their hopes of making their case through cross-examining our witness were extinguished at that moment.
The three-judge federal district court ultimately upheld the map, and the plaintiffs appealed directly to the U.S. Supreme Court. Unlike ordinary appeals to the Court that go through the process of certiorari, or discretionary review, redistricting cases go on automatic direct appeal to the Court. And the Court, following some procedural delays, set the case for oral argument.
The multiple plaintiffs filed four separate fifty-page briefs at the Supreme Court, raising together eleven different questions presented. In our response brief, a single consolidated brief that ran 123 pages in length (more than double a typical Supreme Court brief), we took all eleven questions presented and reformulated them into five overarching questions. This was an unusual approach, but one that I had begun adopting years earlier as a college debater.
While at Princeton, I spent all four years of college debating on the intercollegiate circuit. The style of debate was parliamentary debate, which is modeled after British Parliament. Each debate was extemporaneous. You found out the topic ten minutes before the round, and a debate round extended for forty minutes.
Judges were ordinary college students, but those who were experienced debaters were taught to record the arguments in a debate on what is called a “flow.” Typically, the debate judge would take a legal-size yellow pad, turn it lengthwise, and divide the pad into six columns. The first speaker in a parliamentary debate, dubbed the prime minister, would lay out the case and present a series of arguments for the position he or she was advancing. Typically, the arguments numbered three, four, or five. In an ordinary debate, the next speaker would then respond to each of those arguments, and the debate judge would draw an arrow from argument one to response one, and likewise for each of the other arguments. The next speaker would then respond to those counter-arguments, and so the arrows would continue across the columns so that the judge could flow how the debate proceeded.
By about my sophomore year, I decided to oppose cases differently. Instead of responding to the arguments presented by the prime minister, when I was in opposition I viewed my task as presenting an affirmative argument as to why the other team was wrong. As a result, flows from our debates looked very different from a typical flow. The judge would have three, four,
or five arguments from the first speaker, and then I would present three or four or five totally different arguments as to why their case was wrong. Not sure where to put them, most judges would simply put them on the lower half of the page—not connected by any arrows to the initial argument, but instead as freestanding arguments.
Inevitably, the second speaker for the other team would get up and respond to each of the arguments I’d laid out, with arrows connecting those arguments. And then my debate partner, roommate, and best friend, David Panton, would continue the argument, extending the arguments I had made, and also making sure to mention a word or two about the initial long-forgotten arguments presented by the first speaker. The effect, in a debate round, is that we would subsume the flow. The prime minister’s speech would be orphaned; we would totally reframe the debate, and thirty-two of the forty minutes in the round would occur on the terrain we wanted.
This was much the same approach that we took in our Supreme Court brief, posing five brand-new questions that encompassed all of the complicated noise of the plaintiffs’ many, many questions, but boiling the case down to its essence so the justices could best understand it. Intricate in detail, this brief remains the most complicated brief, factually and legally, on which I have ever worked.
Typically, Supreme Court arguments began at 10:00 or 11:00 a.m., and they usually extend for an hour. Given the complexity of this case, the Court set the argument for 1:00 p.m. and scheduled it for two hours. Rather than the typical thirty minutes to present our side, I was allocated a full hour, although I ceded ten minutes to the U.S. Department of Justice, which supported the State of Texas. The central claim that the plaintiffs presented was that the U.S. Constitution prohibits an overly partisan gerrymander. There was more than a little irony in the Texas Democratic Party’s presenting this argument after perpetuating for decades some of the most egregious partisan gerrymanders in the country.