Ger­ry­man­der­ing by Tex. law­mak­ers aimed to hurt mi­nori­ties, judges say

The Washington Post Sunday - - POLITICS & THE NATION - BY ROBERT BARNES robert.barnes@wash­post.com

A panel of fed­eral judges has ruled that Texas’s Repub­li­can-led leg­is­la­ture ger­ry­man­dered some of the state’s con­gres­sional dis­tricts to stunt the grow­ing in­flu­ence of mi­nor­ity vot­ers.

The 2-to-1 de­ci­sion — years in the mak­ing — was is­sued Fri­day night. It in­val­i­dated three con­gres­sional dis­tricts in south and west Texas and in the Austin area. Al­though a rem­edy was not pre­scribed, re­draw­ing the dis­tricts will prob­a­bly aid Latino and Demo­cratic vot­ers.

The chal­lenge to the dis­tricts was sup­ported by the Obama ad­min­is­tra­tion’s Jus­tice Depart­ment lawyers. The dis­sent­ing judge is­sued an acidic at­tack on their work, say­ing they painted state of­fi­cials “as a bunch of back­woods hay­seed big­ots.”

The con­gres­sional re­dis­trict­ing plan was drawn by the leg­is­la­ture in 2011, the same year that then-Gov. Rick Perry (R) signed a voter ID law that a fed­eral ap­peals court ul­ti­mately found dis­crim­i­nates against mi­nori­ties. A district court is now con­sid­er­ing whether that ef­fect was in­ten­tional.

The com­bi­na­tion of rul­ings could lead to Texas be­ing re­quired to have elec­tion changes ap­proved in ad­vance by fed­eral of­fi­cials. It and other states, most of them in the South, were freed from that re­quire­ment by a Supreme Court de­ci­sion in 2013.

The two judges who ruled for chal­lengers in the re­dis­trict­ing case Fri­day said the maps and the voter ID law were en­acted against a back­drop in the Austin capi­tol of “strong racial ten­sion and heated de­bate about Lati­nos, Span­ish-speak­ing peo­ple, un­doc­u­mented im­mi­grants and sanc­tu­ary cities.”

All three judges agreed that the leg­is­la­ture packed mi­nori­ties into some dis­tricts and splin­tered them among oth­ers to di­lute their power. But the ju­rists dis­agreed about whether that was sim­ply par­ti­san ger­ry­man­der­ing, which the Supreme Court has tol­er­ated, or racial dis­crim­i­na­tion, which is for­bid­den.

U.S. District Judges Xavier Ro­driguez and Or­lando Gar­cia said it was the lat­ter. “The record in­di­cates not just a hos­til­ity to­ward Demo­crat dis­tricts, but a hos­til­ity to mi­nor­ity dis­tricts, and a will­ing­ness to use race for par­ti­san ad­van­tage,” they wrote.

Dis­sent­ing Judge Jerry E. Smith of the U.S. Court of Ap­peals for the 5th Cir­cuit said pre­vi­ous rul­ings over years of lit­i­ga­tion made the case moot. But if he were de­cid­ing the case on the mer­its, he wrote, “Texas re­dis­trict­ing in 2011 was es­sen­tially about pol­i­tics, not race.”

The le­gal bat­tle over the dis­tricts has raged for years, and a trial on the suit ended in Au­gust 2014. Fri­day’s de­ci­sion fea­tured a nearly 450-page factfind­ing re­port and a nearly 200page opin­ion. The con­gres­sional dis­tricts voided by the panel are rep­re­sented by Demo­crat Lloyd Doggett and Repub­li­cans Will Hurd and Blake Far­en­thold.

Judge Smith crit­i­cized the “ar­ro­gance and con­de­scen­sion” of the Jus­tice Depart­ment lawyers, who he said came to Texas on a “witch hunt.”

“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,” Smith wrote. “And the DoJ lawyers saw them­selves as an ex­pe­di­tionary land­ing party ar­riv­ing here, just in time, to res­cue the state from op­pres­sion, ob­vi­ously pre­sum­ing that plain­tiffs’ coun­sel were not up to the task.”

Smith was par­tic­u­larly in­censed by one un­named lawyer, say­ing she showed “dis­dain for th­ese pro­ceed­ings by reg­u­larly rolling her eyes at state wit­nesses’ an­swers that she did not like, and she amused her­self by chew­ing gum while court was in ses­sion.”

The re­marks were sim­i­lar to those of an­other Texas fed­eral judge, An­drew Ha­nen, who last year lam­basted Jus­tice Depart­ment lawyers for al­legedly ly­ing to him in a high-pro­file im­mi­gra­tion case and threat­ened them with ethics train­ing.

Con­ser­va­tive judges in the state may no longer have to tol­er­ate the ag­gres­sive fed­eral po­si­tion on Texas vot­ing changes.

Last month, un­der new At­tor­ney Gen­eral Jeff Ses­sions, the depart­ment said it was chang­ing its long-held po­si­tion that the voter ID law was in­ten­tion­ally writ­ten to di­lute mi­nor­ity power.

If Texas ap­peals the re­dis­trict­ing de­ci­sion, it will go di­rectly to the Supreme Court.

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