U.S. Fifth Circuit Judge Jerry Smith authored the dissent in a case in which the two other judges on the Fifth Circuit panel ruled that three Texas congressional voting districts were illegally drawn in 2011, because Republican state legislators had used race as a motivating factor to define the boundaries. Smith, however, disagreed, saying that since those maps never actually went into effect, the whole case was moot.
He also was rather displeased with the behavior of the U.S. attorneys with the justice department.
Smith described them as arrogant, condescending and engaged in needless witch hunts and fishing expeditions, in search of a "smoking gun" proving Texas legislators were racists. One they never quite seemed to find, Smith wrote.
"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."
Of course, Smith adds, that's just his opinion.
Smith commended both the state and the plaintiffs for exemplary legal arguments and presentation of evidence, but said that while the DOJ obviously exhibited legal zeal, its main problem was lack of professionalism, saying "the DoJ was desperate to find some evidence of overt racism." (And one attorney also chewed gum and rolled her eyes when witnesses said things she disagreed with, Smith contends.)
Smith points to one example in which the justice department painted an otherwise upstanding Legislature staffer as a biased racist after she and others were responsible for what amounted to a mere error, Smith said: The staffer, Clare Dyer, had accidentally excluded Congresswoman Eddie Bernice Johnson from her own majority-African-American district, given the way the lines were drawn. While Smith and the state assert it was an honest mistake, the feds called it discriminatory. "[The DOJ] wasted substantial time at trial looking for the smoking gun by its mean-spirited questioning of Ms. Dyer and other witnesses, certain that they were guilty of rampant bias."
The key in this case: It is legal to draw voting district lines for partisan reasons — for example: to pack in as many Republican voters into one district as possible — but not racial ones. The problem, Smith said, is that the two motivations are sometimes intertwined. Here was Judges Xavier Rodriguez and Orlando Garcia's take on the relationship between the two in this case, involving voting districts
"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," says the ruling.
Texas Attorney General Ken Paxton indicated that Texas may be appealing to the U.S. Supreme Court, saying in a statement:
“We respectfully disagree with the redistricting panel’s majority decision. As Fifth Circuit Judge Jerry Smith observed in his dissent, the challenge to the old 2011 maps - which were never in effect - is moot. The maps currently in use are not the ones adopted by the Texas Legislature in 2011, which are the subject of the court’s opinion. ... There are no lines to redraw. Accordingly, we are confident we will prevail in this case.”