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Dissent: Court Finding That Texas Map Discriminates Against Hispanics, ‘Fatally Infected With Race’

Two federal judges have ruled that Texas lawmakers drew congressional maps to discriminate against minority voters, especially Hispanics. The dissenting judge countered that the ruling is “fatally infected, from start to finish, with the misunderstanding that race, rather than partisan advantage,” was the intent behind the 2011 maps.

The same dissenting judge, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, dissented from the majority in March when it nullified three congressional maps drawn by the Texas Legislature in 2011 (“Plan C185”). He wrote that the DOJ “viewed Texas redistricting litigation as the potential grand prize and lusts for the day when it can reimpose preclearance.”

This past week, two of the judges on the three-judge panel addressed districts drawn by Texas legislators in 2011 in “Plan H283”. They opined that the maps violated the Voting Rights Act of 1965 (VRA) and the U.S. Constitution because the districts were drawn to “reduce minority voting opportunity statewide, resulting in even less proportional representation for minority voters.”

Chief Judge Orlando Luis Garcia and Judge Xavier Rodriguez of the U.S. District Court for the Western District of Texas charged that the “use of race” in two of the House districts by state elected representatives “turned the VRA on its head.”

The majority and dissenting opinions, 171 pages in length, are to be read with the Court’s separate fact findings, and the Court’s March 10 opinion on Plan C185.

The majority found that the plaintiffs met their burden to prove their vote dilution claims under section 2 of the Voting Rights Act and the Fourteenth Amendment as to: El Paso County (HD 78), Bexar County (HD 117), Nueces County (the elimination of HD 33 and the configuration of HD 32 and HD 34), HD 41 in the Valley, Harris County, western Dallas County (HDs 103, 104, 105) Tarrant County (HD 90, 93), Bell County (HD 54), “and with regard to Plan H283 as a whole.”

The two judges also sustained the racial gerrymandering claim as to HD 117 in Bexar County, but not as to HD 77 and HD 78 in El Paso County. They also found that while the plaintiffs did not prove a statewide violation under one person, one vote claims, they did prove them as to violations in Nueces, Hidalgo, and Bell/Lampasas County districts (HDs 32, 34; 31, 36, 39, 40, 41; and 54 and 55 respectively). The latter required electoral districts to be drawn according to population and to make the districts equivalent in population.

Dissenting Judge Jerry Smith addressed the fundamental issue of jurisdiction saying as in his March 10, 2017, dissenting opinion on the 2011 Plan C185, the judicial proceedings for Plan H283 are moot. “Nothing has changed to fix that fatal defect.” He opined that the panel should “promptly dismiss” the case for lack of jurisdiction.

As reported by Breitbart Texas, the same two judges released an opinion in March accusing Texas legislators of drawing a congressional map in a “rushed and secretive process” that intended to discriminate against Hispanic and Democrat voters. The opinion nullified districts 27 and 23 represented by U.S. Representative Blake Farenthold (R-Corpus Christi) and Rep. Will Hurd (R-Helotes).

District 27 stretches from Corpus Christi to Bastrop County near Austin and Wharton County. District 23 covers southwest Texas along the majority of the state’s border with Mexico and is west of western San Antonio.

The panel also held that legislators intended “to unseat” Rep. Lloyd Doggett (D-Austin) in District 35 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. They also ruled that the Black population in Austin was purposely split to achieve the goal of unseating the Democrat incumbent.

As to the latest finding of the panel, Judge Smith ended his dissent by writing:

“[O]ne thing is certain. Despite its heartfelt efforts, this panel majority has badly overreached in finding that Texas used race, instead of partisan advantage, as the predominant factor in the 2011 redistricting. A finding that racial considerations were ‘dominant and controlling’ defies everything about this record. Is there anything to show that, as to any district whatsoever, ‘race was the criterion that, in the State’s view, could not be compromised’? Nary a word. I respectully dissent. Stay tuned.”

Ending his dissent with “Stay tuned,” the judge nominated by Ronald Reagan foreshadows what will most certainly be a further fight in the courts, including the appellate courts.

This Order on Plan H282, like the Order on Plan C185, raises many questions because it does not set forth how the alleged offending maps will be replaced.

Texas Attorney General Ken Paxton responded to the release of the panel’s latest order saying, “As Fifth Circuit Judge Jerry Smith observed in his dissent, the challenge to the old 2011 maps are not only moot but ‘a finding that racial considerations were dominant and controlling defies everything about this record.”

The Texas AG said that while he respectfully disagreed with the redistricting panel’s 2-1 decision, “we are confident we will ultimately prevail in this case.”

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.

Order on Texas Plan H283 by lanashadwick on Scribd

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