Texas Redistricting Litigation Set for July Trial

The panel of judges presiding over the Texas redistricting case has ordered the Lone Star State to a redistricting trial on July 10. The trial will be over plans passed in June 2013. The trial is being expedited because of the 2018 election deadlines.

Two of the judges presiding over the case have ruled that Texas representatives drew maps in 2011 in a discriminatory fashion.

The dissenting judge on the panel has accused the U.S. Department of Justice (DOJ) of having “viewed Texas redistricting litigation as the potential grand prize and lusts for the day when it can reimpose preclearance.”

On March 10, U.S. District Judges Orlando L. Garcia and Xavier Rodriguez opined that legislators drew the 2011 “Plan C185” maps in a “rushed and secretive process” that discriminated against Hispanic and Democratic voters. 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.”

The 2-1 decision nullified three of the congressional voting districts drawn by the Texas Legislature in 2011 – CD 23, 27 and 35 held by U.S. Representatives Will Hurd (R-Helotes), Blake Farenthold (R-Corpus Christi), and Lloyd Doggett (D-Austin) respectively.

The dissenting judge, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, wrote that the panel erred in not dismissing the original suit because the issue was moot.

On Tuesday, the court amended the March 10 order on Plan C185 to clarify a few issues that the court has not decided.

In his dissent about the ruling on Plan C185, the Reagan-nominated Judge Smith concluded:

“To sum up: Six years later, we are still enveloped in litigation over plans that have never been used and will never be implemented. That second fact—that these plans will not trouble any voter—has been pellucidly clear for at least four years. In addition, we confront a Fifth Circuit case —undeniably binding on this panel—that concludes, as a necessary part of its reasoning, that a case identical in all relevant respects to this one was moot.”

Judge Smith suggested to his colleagues that “we should move on to review the 2013 plans and, as to the 2011 maps, accept the Fifth Circuit’s mandate—in a decision that reversed this very panel in this very redistricting controversy—instead of trying to keep the case on life support.” In issuing a scheduling order this week to proceed with the 2013 plans, the court is apparently complying with that part of Judge Smith’s suggestion.

The parties attended a status conference on April 27, and a scheduling order was issued Monday setting the case for trial on the 2013 plans. The order states:

“After hearing from counsel on various issues and taking their concerns into consideration, the Court finds that the case should proceed expeditiously to trial on the merits. The Court is aware of the condensed schedule that must be implemented in light of the 2018 election deadlines, and expects counsel and the parties to work diligently to meet the deadlines contained herein.”

The order mandates that the attorneys in the case:

“[T]ake immediate steps to confer and determine which facts and/or issues can be stipulated. To the extent the parties can stipulate to parties’ residences and standing, incumbents’ home and office addresses, the legislative record, election data, ACS data, racially polarized voting, or other facts and issues upon which experts will rely in forming their opinions, they should attempt to enter such stipulations in advance of the deadline for expert disclosures.”

The court warns the lawyers that additional fact discovery “will be extremely limited.” The court also ordered that all dispositive motions (which includes the motion to dismiss filed by the State) “have been resolved, and the deadline for dispositive motions will not be re-opened.”

The named defendants in the lawsuit, Shannon Perez, et al. v. (Governor) Greg Abbott, et al., 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.

In an April 20 ruling addressing another 2011 enactment, “Plan H283,” the two federal judges found that these congressional maps were drawn to discriminate against minority voters, especially Hispanics. Judge Smith dissented once again writing that the ruling was “fatally infected, from start to finish, with the misunderstanding that race, rather than partisan advantage” was the legislator’s intent.

As reported by Breitbart Texas, the judges in reviewing Plan H283, ruled in favor for the plaintiffs’ vote dilution claims under Section 2 of the Voting Rights Act and the Fourteenth Amendment for: 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.” They also sustained the racial gerrymandering claim for HD 117 in Bexar County, and 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).

Dissenting Judge Jerry Smith addressed the fundamental issue of jurisdiction saying as in his March 10 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.

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.


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