Breaking: Divided District Court Finds Texas Engaged in Intentional Race Discrimination in Drawing TX House Districts

The same three-judge court that recently held that Texas’s congressional redistricting violated the Constitution and the Voting Rights Act in drawing some districts has now issued this new decision and these findings of fact in relation to the challenge to the state house districts.

From the summary of the majority decision:

With regard to the § 2 results claims, the Court finds that remedied claims are moot (specifically in El Paso, Bexar, and Harris Counties). With regard to non-remedied claims, the Court finds that Plaintiffs have either failed to prove a § 2 results claim as to Plan H283 or that such claims are best resolved in the 2013 plan case.

With regard to the intentional vote dilution claims under § 2 and the Fourteenth Amendment, the Court finds that Plaintiffs proved their claims in El Paso County (HD78), Bexar County (HD117), Nueces County (the elimination of HD33 and the configuration of HD32 and HD34), HD41 in the Valley, Harris County, western Dallas County (HD103, HD104, and HD105), Tarrant County (HD90, HD93), Bell County (HD54), and with regard to Plan H283 as a whole.
With regard to the Shaw-type racial gerrymandering claims, the Court finds that only the Task Force alleged such claims, and its claim against HD117 in Bexar County succeeds but its claim against HD77 and HD78 in El Paso County does not.

With regard to the Shaw-type racial gerrymandering claims, the Court finds that only the Task Force alleged such claims, and its claim against HD117 in Bexar County succeeds but its claim against HD77 and HD78 in El Paso County does not.
With regard to the one person, one vote Larios-type claims, the Court finds that Plaintiffs’ statewide claims fail, but they succeed in proving violations in the Nueces County districts (HD32 and HD34), the Hidalgo County districts (HD31, HD36, HD39, HD40, and HD41), and the Bell/Lampasas County districts (HD54 and HD55).

There will have to be further proceedings in regard to the 2013 maps later passed by the Texas legislature.

Judge Jerry Smith of the 5th Circuit, as he did in the congressional case, dissented.  A large part of his dissent is a dialogue with a forthcoming piece of mine on race and party:

Back to the law. The issue is whether the Legislature drew lines for reasons of “race for the sake of race” or, instead, for reasons of politics. The issue is complicated, for example, by whether there are limits to non-racial partisan gerrymandering and by the extent to which, if any, a given record reflects the use of partisanship as a proxy for race. To analyze this crucial issue, I rely, in part, on a new essay by Professor Richard L. Hasen of the University of California, Irvine School of Law, entitled “Race or Party, Party as Race, or Party All the Time: Three Uneasy Approaches to Conjoined Polarization in Redistricting and Voting Cases.” Though 5 Professor Hasen zealously advances his policy preferences as an advocate for more aggressive application of the VRA and Equal Protection Clause, his recitation of the law and his analysis of possible outcomes are resourceful and evenhanded.
Professor Hasen discusses what has been called “conjoined polarization,” defined as “[t]he more consistent alignment of race, party, and ideology since 1965.”6 Importantly, he acknowledges that “legal doctrine has not yet found a comfortable way to deal with it.”7 Indeed, that is the challenge in the instant case. There are significant clues from various Supreme Court decisions, culminating, as I have said, in Bethune-Hill’s reiteration of the “race for its own sake” test. The appeal of this court’s ultimate judgment will give the Supreme Court the opportunity to be more precise in explaining¯with the 2020 decennial census on the horizon¯how much latitude legislatures have to fashion districts for purely political purposes, to take advantage of earned wins at the ballot box, where racial considerations play a part in the process and where (as always) compliance with the VRA and the Constitution is paramount.
Professor Hasen presents three possible approaches that the Supreme Court could adopt: (1) “race or party”; (2) “party as race”; and (3) “party all the time.” Professor Hasen is least fond of the first, although, as I will discuss, that is the exegesis most consonant with Texas’s electoral landscape and, more importantly, is the methodology that the en banc Fifth Circuit has announced without using that nomenclature. For “race or party,” “a court’s task is to decide whether a case is ‘really about race rather than party.”8 As Professor Hasen candidly admits, if the task is to decide whether the legislature acted on the basis of race or party, redistricting plaintiffs “most importantly”9 must confront Easley v. Cromartie, 532 U.S. 234 (2001). Unaware of Professor Hasen’s writings, I nonetheless noted Cromartie’s centrality in my congressional dissent, observing that the Court found no error where “the legislature drew boundaries that, in general, placed more-reliably Democratic voters inside the
district, while placing less-reliable Democratic voters outside the district.”10 That is the situation here, which Professor Hasen recognizes but this panel majority does not….

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