At tail end of Texas redistricting trial, judges skeptical of state's defense

SAN ANTONIO — The state of Texas faced a healthy dose of judicial skepticism on Saturday as its lawyers laid out final arguments in a trial over whether lawmakers intentionally discriminated against minority voters in enacting current Texas House and congressional district maps.

A three-judge panel peppered lawyers from Texas Attorney General Ken Paxton's office with questions that suggested they were having trouble swallowing the state’s defense of its maps, premised on the argument that lawmakers were merely following court orders in creating them.

The state Legislature adopted the maps in 2013 in an effort to halt further legal challenges that began in 2011.

In the final hours of six days of hearings, U.S. District Judge Xavier Rodriguez said he saw “nothing in the record” to suggest the 2013 Legislature, before approving the boundaries, considered fixing voting rights violations flagged by another federal court identified ahead of time. 

He and another district judge, Orlando Garcia, also criticized the state’s unwillingness to offer documents and testimony that might shine a light on lawmakers’ intentions. State lawyers kept such evidence out of court throughout the trial by claiming “legislative privilege,” which allows lawmakers to keep secret their communications on policy along with their “thoughts and mental impressions.”

The plaintiffs “get no documents, because you invoke legislative privilege. They get no testimony because of legislative privilege,” said Rodriguez, an appointee of former President George W. Bush. “How else are they going to get it?”

Rodriguez emerged as the jurist most critical of the state’s position during Saturday's hearing, although the only judge on the panel who has sided with Texas in previous redistricting rulings also voiced skepticism. 

Over the course of the week, minority rights groups and the state tussled over whether — and how — the state’s political maps should change to fix possible Voting Rights Act violations ahead of the 2018 elections. But the trial also probed a question that’s more consequential in the long term: whether the 2013 Legislature intentionally minimized the political clout of Latino and black Texans in enacting the maps.

Federal courts have already scolded Texas for intentional discrimination in three rulings this year. Another such finding would boost the odds that judges put Texas back onto a list of states that need the federal government's permission to enact any new voting legislation.  

Earlier this year, the three-judge panel overseeing this week's trial found intentional discrimination in the Texas House and Senate maps Texas lawmakers drew in 2011. But those maps never took effect, as the court temporarily tweaked them during a 2012 election scramble. 

In hopes of halting the litigation, the 2013 Texas Legislature made permanent the court-drawn maps that are now in dispute.

Minority rights groups that sued over the maps point out that judges made clear the maps they drew — and lawmakers adopted — applied only to the subsequent elections that were delayed by legal wrangling, and that they did not fully address violations in the boundaries lawmakers drew in 2011.

Rodriguez said as much Saturday in a question to the state: “If this was an interim plan, giving the Legislature an opportunity to fix it, why didn’t you take that opportunity?”

The state’s litany of challengers, including the NAACP and the Mexican American Legislative Caucus, argue the discriminatory nature of the maps adopted in 2011 still “infects” the current maps, and that Texas’ Republican leadership ignored efforts by Democratic state lawmakers to improve Latino and black representation.

Matthew Frederick, the state's deputy solicitor general, argued Friday that challengers had not found clear evidence of such intent by the 2013 Legislature.

“It’s their burden to prove,” he said. “There is no evidence that the Legislature as a whole, or any individual, had that intent when they adopted the plans.”

Rodriguez cited the the plaintiffs’ larger body of evidence for their allegations, and highlighted the state’s repeated claims of “legislative privilege,” which kept one of its few witnesses, state Rep. Drew Darby, from saying much of substance on the witness stand Friday. The San Angelo Republican chaired the committee that oversaw the creation of the maps in 2013. 

“We have no other legislator expressing anything” on intent, Rodriguez said, adding that he could find nothing on the record to support the state’s claim that it analyzed court rulings and studied alternative maps before enacting the current one four years ago.

Frederick said “legislative privilege” claims would also keep the state from offering proof.

“Had it been favorable, I’m sure you would have raised it,” Garcia, a nominee of former President Bill Clinton, responded.

Frederick disagreed, saying "privilege doesn’t imply the nature of the content.”

In a separate line of arguments, Texas also drew criticism from the panel’s only judge to side with the state in previous rulings: Jerry Smith of the conservative-leaning U.S. Fifth Circuit Court of Appeals. 

The line of arguments regarded the consequences of a separate court’s redistricting ruling that came after the 2012 elections, but before the Legislature formally adopted the San Antonio court’s temporary maps.

A federal court in Washington, D.C., had rejected the state’s 2011 maps, citing a litany of Voting Rights Act violations.

Minority groups argue that decision should have prompted the Legislature to make wholesale boundary changes in 2013, giving more representation to surging minority populations. They say the state’s failure to do so suggests intentional discrimination.

On Saturday, Frederick suggested the Washington ruling was irrelevant to the current proceedings, because a 2013 Supreme Court ruling — Shelby v. Holder, which gutted part of the Voting Rights Act — invalidated the redistricting ruling.

Smith, who was appointed by former President Ronald Reagan, said he disagreed. 

The Shelby ruling makes the question of intentional discrimination consequential. It sprung Texas and other states from a process called “preclearance,” which required them to get the federal government’s signoff — either through the Department of Justice or a court — before enacting new voting laws.

The high court’s decision, however, left open the possibility that federal oversight would resume in if there’s enough fresh evidence of intentional racial discrimination.

Along with the previous redistricting rulings this year, a federal judge in Corpus Christi found such evidence in Texas’ 2011 voter identification law.

Jose Garza, an attorney for the Mexican American Legislative Caucus, said Saturday he wasn’t surprised judges on the panel were skeptical of the state’s defense of its redistricting.

“I think the evidence [of intentional discrimination], contrary to what the state describes, is powerful,” he told reporters. “It’s like the state repeated the mistakes they made in 2011, digging their heels in.” 

Garza also suggested the state’s use of “legislative privilege” may have backfired.

Asked for comment following the trial, Patrick Sweeten, the state’s lead attorney, said: “Extremely happy with it.”

It's not clear when the judges might rule, but they said they wanted to avoid affecting the 2018 elections, which could be pushed back if new maps are not approved in time.