In response to my January 3 post, Texas Remarkably Fails to Mention in Amicus Brief Against Voting Rights Act That Court Found It Engaged in Purposeful Racial Discrimination in Voting Last Year, Texas Solicitor General Jonathan Mitchell sends along the following reply (posted with his permission):
Thanks for your interest in the amicus brief that Texas filed with the Supreme Court in Shelby County v. Holder.
Your blog posting expresses surprise at the amicus brief’s lack of discussion of the Texas redistricting litigation and the discriminatory-purpose finding issued by the district court in that case. But as you know, Texas has already filed both a jurisdictional statement and a reply brief with the Supreme Court that explain in great detail why the district court’s discriminatory-purpose finding was mistaken. Indeed, the district court in the redistricting case itself admitted that there was “no direct evidence” of discriminatory purpose, and the analysis in its opinion improperly equated partisan motivations with racially discriminatory motivations. The Justices are well aware of the discriminatory-purpose finding in the redistricting litigation, and they are equally aware of the State’s response to it. Your insinuation that the State’s lawyers are attempting to sweep this under the rug is unwarranted.
Our amicus brief (like most amici briefs filed in the Supreme Court) was narrowly focused: It was written to explain the unique burdens of the preclearance regime and to explain how the Department of Justice has aggravated rather than mitigated these burdens after Northwest Austin. The brief used Texas’s experience with its voter-identification law to illustrate these features of the section 5 regime. Whether those burdens can be justified is a question that Shelby County’s brief and the other amici briefs have capably addressed. It was not necessary to repeat our discussion of the redistricting decision in the Shelby County amicus brief, especially when discriminatory-purpose claims will remain viable in section 2 litigation after section 5 is struck down.