Two federal judges have released an opinion that accuses Lone Star State legislators of drawing a congressional map in a “rushed and secretive process” that intended to discriminate against Hispanic and Democrat voters. The only problem says the dissenting jurist–the panel could not legally issue the decision because the Fifth Circuit made clear that after Texas repealed the 2011 plan, “the case became moot and eliminated the district’s jurisdiction.”
The 2-1 decision nullifies three of the congressional voting districts drawn by the Texas Legislature in 2011. The order does not set forth how the nullified district maps will be redrawn, but the opinion creates more uncertainty.
Redistricting counsel at the Brennan Center for Justice at the New York University School of Law, Michael Li, was reported by the Austin American-Statesman to say that the “ruling has the potential to create more districts with larger populations of Latino voters and probably more Democratic districts, which would be good for Democrats in Texas and also nationally.”
The federal government’s attorneys hoped this lawsuit would once again force Texas back into preclearance.
U.S. District Judges Orlando L. Garcia and Xavier Rodriguez charged, “[T]he rushed and secretive process suggests that Defendants did want to avoid scrutiny of whether their efforts in fact complied with the VRA [Voting Rights Act] or were intended to do so, or whether they were creating a façade of compliance.”
The majority wrote that in “the sequence of events leading up to the challenged decision, the Texas Legislature enacted its 2011 redistricting plans in the context of strong racial tension and heated debate about Latinos, Spanish-speaking people, undocumented immigration and sanctuary cities, and the contentious voter ID law.”
They held that two of the districts were drawn to diminish the voting block of Hispanic voters. These districts, 27 and 23, are represented by U.S. Representative Blake Farenthold (R-Corpus Christi) and Rep. Will Hurd (R-Helotes). District 27 is in the coastal area stretching from Corpus Christi to Bastrop County near Austin and then Wharton County approximately an hour’s drive from Houston. District 23 covers southwest Texas along the majority of the state’s border with Mexico and is west of western San Antonio.
As to District 35 represented by Rep. Lloyd Doggett (D-Austin), the majority opined, legislators intended “to unseat” the incumbent Democrat representative by drawing a map that would help a Hispanic representative be elected. They wrote the district was drawn to create the “façade of comply[ing]” with the Voting Rights Act. The Black population in Austin was also purposely split to achieve the goal of unseating the Democrat incumbent.
Judge Garcia was nominated to the federal bench by President Bill Clinton in 1993 and served in the Texas House of Representatives as a Democrat. It was Judge Garcia who overturned the Texas Constitution’s prohibition against same-sex marriage in early 2014. Judge Xavier Rodriguez was nominated by President George W. Bush and previously served as a justice on the Supreme Court of Texas. Judge Jerry Smith of the U.S. Circuit Court of Appeals for the Fifth Circuit wrote the dissent. President Ronald Reagan nominated Smith.
Judge Smith wrote in his dissent that the court did not have jurisdiction because the case was moot. He said the court has “a constitutional duty to dismiss.” He added, “this court should not be issuing an advisory opinion on a matter that is moot.”
“To sum up: six years later, we are still enveloped in litigation over plans that have never been used and will never be implemented.” He says this second fact “has been pellucidly clear for at least four years.” He added that the Fifth Circuit decision is “undeniably binding on this panel” because it concludes that another case which was “identical in all relevant respects to this one was moot.”
Assuming for the sake of argument that the issues before the court were not moot, the well-respected judge also dissented on the merits. While he disagreed with “a good number of their ultimate conclusions,” he added, “no one can reasonably question the integrity and dedication that underlie each statement and every decision.”
Writing that he had “saved the worst for last,” Judge Smith lambasted the lawyers for the U.S. Department of Justice. He wrote:
It was obvious, from the start, that the DOJ attorneys viewed state officials and the legislative majority and their staffs as a bunch of backwoods hayseed bigots who bemoan the abolition of the poll tax and pine for the days of literacy tests and lynchings. And the DOJ lawyers saw themselves as an expeditionary landing party arriving here, just in time, to rescue the state from the oppression, obviously presuming that plaintiffs’ counsel were not up to the task.
Smith wrote that the DOJ “viewed Texas redistricting litigation as the potential grand prize and lusts for the day when it can reimpose preclearance.”
Former Department of Justice attorney and Public Interest Legal Foundation President J. Christian Adams echoed Judge Smith’s sentiments in a statement to Breitbart Texas.
“Judge Smith saw what we’ve been saying for years – Voting Section lawyers have become ideological crusaders that don’t even know how to behave in a courtroom.” Adams added: “Justice Department lawyers should behave like Justice Department lawyers, not leftist zealots who think Texans are ‘hayseed bigots’ in the words of the court. This explains why they have been so obsessed with Texas.”
Texans have waited in anticipation for the ruling in this legal fight over Texas’ congressional maps. Shannon Perez, et al. v. (Governor) Greg Abbott, et al. involves a legion of lawyers and plaintiffs, two trials involving hundreds of hours of testimony, and a voluminous record. The last hearing in the case on the issue was in the late summer of 2014. The defendants include the State of Texas, and in their official capacities – the governor, lieutenant governor, speaker of the Texas House, the secretary of state, and the chairman of the Republican Party of Texas.
The lawyer for the State of Texas, Attorney General Ken Paxton said this of the 2-1 opinion in the Texas redistricting case:
We respectfully disagree with the redistricting panel’s majority decision. As Fifth Circuit Judge Jerry Smith observed in his dissent, the challenge to the old 2011 maps – which were never in effect – is moot. The maps currently in use are not the ones adopted by the Texas Legislature in 2011, which are the subject of the court’s opinion. The Legislature adopted the court-drawn 2012 maps in 2013. The court was under a direct order from the Supreme Court to draw lawful districts. The adoption of those maps in 2013 mooted any issue with the 2011 maps. There are no lines to redraw.
Texas Attorney General Paxton added, “Accordingly, we are confident we will prevail in this case.”
The redistricting process began after the 2010 U.S. Census. The next redistricting episode will occur after the 2020 Census is complete.
Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.
Shannon Perez v. Greg Abbott March 10 2017 Redistricting Order by lanashadwick on Scribd
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