2017-03-16 / Opinion

Texas districts discriminate, court rules

Dave McNeely

Three Texas congressional districts re-drawn by the Legislature in 2011 intentionally discriminated against minorities, a federal appellate court ruled Friday, March 10.

Two of the three judges on the panel in San Antonio ruled that the Republican-dominated Legislature six years ago drew districts that “packed” minorities in a district to weaken their clout in adjoining districts, or “cracked” them, dividing minorities among several districts to dilute their impact in any of them.

The three cited districts are:

• 23, a sprawling West Texas district – Texas’ largest – along the Rio Grande from San Antonio to El Paso, represented by Republican Will Hurd of Helotes;

• 27, represented by Republican Blake Farenthold of Corpus Christi, stretching from the Coastal Bend north to southern Bastrop County; and

• 35, represented by Democrat Lloyd Doggett of Austin, runs from North Austin to South San Antonio.

The two district judges in the majority – Orlando Garcia and Xavier Rodriguez – found unconvincing the state’s argument that the maps were drawn based on politics, not race.

The pair noted that in re-drawing a map to add the four new districts due to population growth in the 2010 census, the map-drawers split Democratic-leaning Travis County into five districts.

Four of the resulting districts are represented by Republicans. They reach, respectively, to Tomball, 30 miles northwest of Houston; to Waco and Bryan; to Burleson, 15 miles south of Fort Worth; and to just north of San Antonio.

And in an apparent effort to get rid of the veteran Doggett – first elected in 1994 – the map-drawers loaded the Austin-to-San Antonio district with Hispanics, and split an African-American community in Austin, trying to have Doggett replaced by a freshman Latino.

The two judges wrote that the “‘rushed and secretive process” that shut out Democrats and minority advocates “suggests” the map-drawers “were only creating a facade” of complying with the Voting Rights Act.

“The political motive does not excuse or negate that use of race; rather, the use of race is ultimately problematic for precisely that reason — because of their political motive, they intentionally drew a district based on race in a location where such use of race was not justified by a compelling state interest,” the judges wrote.

Garcia, who served as a Democrat in the Texas House of Representatives, was appointed to his judgeship by Democratic President Bill Clinton.

Rodriguez, a former Republican member of the Texas Supreme Court appointed in 2001 by Gov. Rick Perry, but beaten in the 2002 Republican primary by Steven Wayne Smith, was named to the federal bench in 2003 by Republican President George W. Bush.

The third and dissenting judge, 5th Circuit Court of Appeals Justice Jerry Smith, was appointed to the bench by Republican President Ronald Reagan.

In a stinging dissent, Smith wrote that the federal Justice Department, which intervened in the redistricting case “on the grand theory. . . that invidious racial motives infect and predominate in the drawing of the 2011 district lines – has crashed and burned. I respectfully dissent from the (majority’s) refusal to dismiss for want of jurisdiction.”

The majority judges “miss the forest for the trees,” Smith wrote. “Texas redistricting in 2011 was essentially about politics, not race. All sides concede that — whether it is a good thing or not — Texas has a strong correlation between race and party,” Smith wrote.

In other words, Hispanic and African American voters tend to lean Democratic – often heavily.

“It naturally follows that actions taken to disadvantage Democrats will disproportionately affect non-Anglo voters, regardless of the intent,” Smith wrote.

The case exists in a jumbled and confusing environment, because the whole redistricting effort has been surrounded by a Republican political takeover of the Texas Legislature; a Supreme Court decision in 2013 that undercut the previous Voting Rights Act requirement that redistricting maps in Texas and some other states with racist histories obtain “pre-clearance” from the U.S. Department of Justice; and another court’s decision that involved re-drawing some Dallas-area districts.

The two-judge majority did not offer an alternate districting plan for the three districts, and the ripple effect on other adjacent districts that would result from boundary changes.

It will be surprising if the state does not appeal to the Supreme Court, which itself is in a confusing situation -- with a seat still vacant on the nine-member body since the death of Justice Antonin Scalia just over a year ago.

And, the filing deadline for 2018 congressional races is less than a year away. And state legislators elected then, and in 2020, will be re-drawing congressional districts in 2021, after the 2020 census.

The saga continues.

Contact McNeely at davemcneely111@gmail.com or (512) 458-2963.

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