Barbara had seen Heidi and me together in Tallahassee quite a bit. She thought we were quite the pair, and she was catching a ride on the plane to get back to their home in D.C. Barbara, for much of the trip, was chiding me aggressively, saying, “Ted, you have got to ask Heidi to marry you.” As was her wont, she did not do so timidly. There was no middle ground. She asked me, didn’t I have the courage to man up and ask her to marry me? What was I afraid of? Did I want to be a bachelor forever?
What Barbara didn’t know, which I told her subsequently, is that I had already asked Heidi’s father, that I had already purchased the ring, and that I was just waiting for the recount to end so that I could pop the question. But I kept all of that to myself, not wanting to blow the surprise to Heidi.
Barbara, tragically, was killed on September 11, 2001. She was on the plane that flew into the Pentagon. Her husband, Ted, was then serving as the U.S. solicitor general. As the plane was in the air, she called him from her cellphone and, remarkably, connected with him twice for two one-minute calls. Barbara had been supposed to fly out the day before, but she delayed her departure by a day so she could remain with Ted for his birthday dinner the previous evening. Ted’s birthday was that day, September 11.
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.
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
