Two Latino judges who sit on a federal panel of three released an opinion that finds that Texas state legislators purposefully drew the congressional district map for the Lone Star State in a “rushed and secretive process” that discriminates against Latinos and Democrats. The judges did not issue a remedy for the supposedly racist districting. It is likely that the case will wind up in the U.S. Supreme Court.
In the majority opinion, the judges wrote, “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.” According to the opinion, some of Texas’ 36 congressional districts violate the Constitution or the Voting Rights Act, particularly District 23 represented by Republican Will Hurd, District 27 represented by Republican Blake Farenthold, and District 35 represented by Democrat Lloyd Doggett.
While the March 10 decision nullifies three of the congressional voting districts drawn by the legislature in 2011, it does not establish how the nullified district maps will be redrawn.
Michael Li of the Brennan Center for Justice at the New York University School of Law, according to the Austin American-Statesman, said 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.”
U.S. District Judges Orlando L. Garcia and Xavier Rodriguez charged that “[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 2-1 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 judges in San Antonio found that two of the districts were drawn allegedly to reduce the voting block of Latino voters, many who are illegal immigrants and are unable to vote.
Districts 27 and 23 are represented by Representative Blake Farenthold (R-Corpus Christi) and Rep. Will Hurd (R-Helotes). Regarding District 35, represented by Rep. Lloyd Doggett (D-Austin), the majority considered that state legislators wanted “to unseat” the incumbent Democrat representative by drawing a map that would aid in electing a Latino representative. They opined that the district was drawn to create the “façade of comply[ing]” with the Voting Rights Act. Black residents of Austin were also allegedly split in order to unseat the Democrat incumbent.
Unanimous Supreme Court Decision
The judges based their decision on the Supreme Court's unanimous ruling in 2016 that illegal immigrants must be counted in legislative districts when states draw their maps. Writing for the Court, Justice Ruth Bader Ginsberg said the act of representation belongs to everyone, not just for those who are eligable to vote.
"As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote," she wrote. "Nonvoters have an important stake in many policy debates -- children, their parents, even their grandparents, for example, have a stake in a strong public-education system -- and in receiving constituent services, such as help navigating public-benefits bureaucracies."
The case is known as Evenwel v. Abbott.
Judge Jerry Smith of the U.S. Circuit Court of Appeals for the Fifth Circuit dissented from the finding by Garcia and Rodriguez. He wrote that the court did not have jurisdiction because the case was moot and that court has “a constitutional duty to dismiss.” Smith wrote, “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.” Smith wrote that this second fact “has been pellucidly clear for at least four years,” and 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.” Smith was appointed by Ronald Reagan.
Smith severely criticized attorneys U.S. Department of Justice, writing, “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.” The judge opined that the Justice Department saw redistricting litigation in Texas as “the potential grand prize and lusts for the day when it can reimpose preclearance.”
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. Judge Xavier Rodriguez was nominated by President George W. Bush and previously served as a justice on the Supreme Court of Texas.
Maps at center of battle were never used
Texas Attorney General Ken Paxton said of the court’s finding, “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.” He stated that Texas will prevail in the case.
US Census: Who is an American?
The current redistricting process began after the 2010 U.S. Census. Latinos were responsible for the dramatic population growth in Texas as reflected in the 2010 census, the year before the maps were drawn. Latinos accounted for two out of every three new residents in the state. The census does not differentiate between US citizens and illegal immigrants.
The chairman of the Democratic Party of Texas Gilberto Hinojosa called the decision a “BIG victory for Texans.” In a statement, he said, “Republicans have ensured that the dark days of discrimination in Texas continue to loom, but the sun will soon shine.”
“The court’s decision exposes the Texas Legislature’s illegal effort to dilute the vote of Texas Latinos,” lead counsel on the case Nina Perales, of the Mexican American Legal Defense and Educational Fund, told AP. “Moving forward, the ruling will help protect Latinos from manipulation of district lines in order to reduce their political clout.” The ruling is bound to encourage the Democrats and minority rights group who are calling on a separate federal court to determine that the state voter ID law was also crafted with discriminatory intent.