[EL] Breaking: Texas redistricting ruling

Sat Mar 11 12:50:17 PST 2017

> /" ... One of the Department’s lawyers even exhibited her contempt for 
> Texas and its representatives and her 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."/

Am I alone in feeling this part of Judge Smith's dissent triggers a 
sexism alarm?

On 3/10/2017 8:07 PM, Rick Hasen wrote:
>
> *Breaking: District Court, Splitting 2-1, Finds Some Texas 
> Congressional Districts Violate Voting Rights Act or Constitution 
> <http://electionlawblog.org/?p=91545>*
>
> Posted on March 10, 2017 8:03 pm 
> <http://electionlawblog.org/?p=91545> by *Rick Hasen* 
> <http://electionlawblog.org/?author=3>
>
> The long awaited lengthy opinion on the congressional plan, with a 
> dissent by Judge Smith, is here 
> <http://electionlawblog.org/wp-content/uploads/Perez-congress-opinion-3-10-2017.pdf>. 
> The numerous findings of fact and conclusions of law are here 
> <http://electionlawblog.org/wp-content/uploads/Perez-finding-of-fact-3-10-2017.pdf>. 
> (The court has not released findings yet on the state House 
> challenge). If this stands at the Supreme Court it could lead to the 
> creation of more Texas minority opportunity districts.
>
> I will have a fuller analysis once I have read all these pages. But 
> for now, here’s a taste.
>
> From the majority opinion:
>
> /Plaintiffs have established a § 2 violation, both in terms of intent 
> and effect, in South/West Texas. Plaintiffs have shown that seven 
> compact majority-HCVAP districts could and should be drawn there that 
> would substantially address the § 2 rights of Hispanic voters in 
> South/West Texas, including Nueces County. Defendants’ decision to 
> place Nueces County Hispanic voters in an Anglo district had the 
> effect and was intended to dilute their opportunity to elect their 
> candidate of choice./
>
> /Meanwhile, race predominated in the drawing of CD35, and Defendants’ 
> decision to place majority- in Travis County was not to comply with 
> the VRA but to minimize the number of Democrat districts in the plan 
> overall. Plaintiffs have established a Shaw-type equal protection 
> violation with regard to CD35. Plaintiffs also establish a Shaw-type 
> equal protection violation with regard to CD23. In addition, 
> Defendants’ manipulation of Latino voter turnout and cohesion in CD23 
> denied Latino voters equal opportunity and had the intent and effect 
> of diluting Latino voter opportunity. Nueces County Hispanics and 
> Hispanic voters in CD23 have proved their § 2 results and intentional 
> vote dilution claims. The configurations of CD23, CD27, and CD35 in 
> Plan C185 are therefore invalid./
>
> /Plaintiffs fail to proffer a demonstration plan accompanied by 
> sufficient evidence to demonstrate that additional compact minority 
> districts could be drawn in DFW or Houston, taking into account 
> traditional redistricting principles and communities of interest. 
> However, they are not precluded from raising § 2 results claims with 
> regard to Plan C235 during the trial on that plan. Plaintiffs have 
> proved intentional vote dilution through packing and cracking in DFW 
> and also establish a Shaw-type racial gerrymandering claim with regard 
> to CD26, but not CD6. However, they fail to prove intentional vote 
> dilution in the Houston area, and fail to prove that mapdrawers acted 
> with racially discriminatory purpose when drawing the districts 
> represented by the African-American Congresspersons./
>
> Judge Smith dissented, believing that the case is moot. But he 
> reserved his sharpest words for the U.S. Department of Justice’s 
> intervention in this case:
>
> /And then there is the United States, appearing through attorneys from 
> the Department of Justice. I have no criticism of their knowledge of 
> the law, and their zeal is, to say the least, more than adequate. But 
> they entered these proceedings with arrogance and condescension. One 
> of the Department’s lawyers even exhibited her contempt for Texas and 
> its representatives and her 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./
>
> /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 oppression, obviously presuming that 
> plaintiffs’ counsel were not up to the task. The Department of Justice 
> moreover views Texas redistricting litigation as the potential grand 
> prize and lusts for the day when it can reimpose preclearance via 
> Section 3(c)./
>
> /Of course, these are just personal impressions based on demeanor and 
> attitude. More objectively verifiable are the witch hunts and fishing 
> expeditions that the DoJ conducted in pursuit of its goals. I give two 
> examples…./
>
> /The DoJ wholly failed, but not for lack of trying. There was, and is, 
> no smoking gun in this record, nor has the United States shown that 
> the State hid or failed to disclose one. The DoJ’s scheme to build a 
> record on which to urge opt-in relief via Section 3(c) has initially 
> failed. Of course, if this court is deemed to have jurisdiction, the 
> judges will consider any remaining claims pressed by any party, 
> including Section 3(c) claims, as appropriate./
>
> /The Department of Justice has overplayed its hand and, in the 
> process, has lost credibility. The wound is self-inflicted. The grand 
> theory on which its intervention was mainly based—that invidious 
> racial motives infect and predominate in the drawing of the 2011 
> district lines—has crashed and burned./
>
> hare 
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91545&title=Breaking%3A%20District%20Court%2C%20Splitting%202-1%2C%20Finds%20Some%20Texas%20Congressional%20Districts%20Violate%20Voting%20Rights%20Act%20or%20Constitution>
>
> Posted in redistricting <http://electionlawblog.org/?cat=6>, Voting 
> Rights Act <http://electionlawblog.org/?cat=15>
>
> -- 
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org <http://electionlawblog.org/>
>
>
>
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-- 
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com

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