State’s defense sways few in redistricting trial

The state of Texas faced a healthy dose of judicial skepticism last weekend as its lawyers laid out final arguments in a trial over whether lawmakers intentionally discriminated against minority voters in enacting current Texas House and congressional district maps.

A three-judge panel peppered lawyers from Texas Attorney General Ken Paxton’s office with questions that suggested they were having trouble swallowing the state’s defense of its maps, premised on the argument that lawmakers were merely following court orders in creating them.

The Legislature adopted the maps in 2013 in an effort to halt further legal challenges that began in 2011.

In the final hours of six days of hearings, U.S. District Judge Xavier Rodriguez said he saw “nothing in the record” to suggest the 2013 Legislature, before approving the boundaries, considered fixing voting rights violations flagged by another federal court identified ahead of time.

He and another district judge, Orlando Garcia, also criticized the state’s unwillingness to offer documents and testimony that might shine a light on lawmakers’ intentions. State lawyers kept such evidence out of court throughout the trial by claiming “legislative privilege,” which allows lawmakers to keep secret their communications on policy along with their “thoughts and mental impressions.”

The plaintiffs “get no documents, because you invoke legislative privilege. They get no testimony because of legislative privilege,” said Rodriguez, an appointee of former President George W. Bush. “How else are they going to get it?”

Rodriguez emerged as the jurist most critical of the state’s position during Saturday’s hearing, although the only judge on the panel who has sided with Texas in previous redistricting rulings, Jerry Smith of the conservative-leaning U.S. Fifth Circuit Court of Appeals, also voiced skepticism.

Over the course of the week, minority rights groups and the state tussled over whether — and how — the state’s political maps should change to fix possible Voting Rights Act violations ahead of the 2018 elections. But the trial also probed a question that’s more consequential in the long term: whether the 2013 Legislature intentionally minimized the political clout of Latino and black Texans in enacting the maps.

Federal courts have already scolded Texas for intentional discrimination in three rulings this year. Another such finding would boost the odds that judges put Texas back onto a list of states that need the federal government’s permission to enact any new voting legislation.

Earlier this year, the three-judge panel overseeing this week’s trial found intentional discrimination in the Texas House and Senate maps Texas lawmakers drew in 2011. But those maps never took effect, as the court temporarily tweaked them during a 2012 election scramble.

In hopes of halting the litigation, the 2013 Texas Legislature made permanent the court-drawn maps that are now in dispute.

Minority rights groups that sued over the maps point out that judges made clear the maps they drew — and lawmakers adopted — applied only to the subsequent elections that were delayed by legal wrangling, and that they did not fully address violations in the boundaries lawmakers drew in 2011.

Rodriguez said as much Saturday in a question to the state: “If this was an interim plan, giving the Legislature an opportunity to fix it, why didn’t you take that opportunity?”

The state’s litany of challengers, including the NAACP and the Mexican American Legislative Caucus, argue the discriminatory nature of the maps adopted in 2011 still “infects” the current maps, and that Texas’ GOP leadership ignored efforts by Democratic state lawmakers to improve Latino and black representation.

Matthew Frederick, the state’s deputy solicitor general, argued Friday that challengers had not found clear evidence of such intent by the 2013 Legislature.

“It’s their burden to prove,” he said. “There is no evidence that the Legislature as a whole, or any individual, had that intent when they adopted the plans.”

Rodriguez cited the the plaintiffs’ larger body of evidence for their allegations, and highlighted the state’s repeated claims of “legislative privilege,” which kept one of its few witnesses, state Rep. Drew Darby, from saying much of substance on the witness stand Friday. The San Angelo Republican chaired the committee that oversaw the creation of the maps in 2013.

“We have no other legislator expressing anything” on intent, Rodriguez said, adding that he could find nothing on the record to support the state’s claim that it analyzed court rulings and studied alternative maps before enacting the current one four years ago.

Frederick said “legislative privilege” claims would also keep the state from offering proof.

“Had it been favorable, I’m sure you would have raised it,” Garcia, a nominee of former President Bill Clinton, responded.

Frederick disagreed, saying “privilege doesn’t imply the nature of the content.”