SAN ANTONIO — Texas' defense of its electoral maps suffered a setback Friday when a state witness couldn't defend lawmakers' intentions for much of his testimony.
A three-judge panel is considering whether state lawmakers intentionally discriminated against minorities during a special legislative session in 2013, when they redrew the 2011 maps that the panel ruled discriminatory earlier this year.
The plaintiffs in the case — which include minority lawmakers and civil rights organizations — say many of the problems with the 2011 congressional and statehouse maps carried over to the 2013 versions.
Rep. Drew Darby, R-San Angelo, was the chairman of the House Select Committee on Redistricting in 2013. He invoked legislative privilege for more than 20 minutes Friday during the plaintiffs' cross-examination.
Legislative privilege, according to the Texas Constitution, protects lawmakers from having to explain their decision process. It prevents them from being called into court to explain every law they pass. But it is used with caution because once invoked, a lawmaker can't choose to answer any questions on the legislative process.
Nina Perales, a lawyer for the Mexican American Legal Defense and Education Fund, which represents a group of Latino lawmakers in the case, asked whether Darby evaluated amendments to the congressional maps based on racial polarization and whether the maps complied with the federal Voting Rights Act.
She asked whether he analyzed the gains of Latino voting power in certain districts and whether court rulings that previously found discriminatory issues with the maps influenced changes made during the 2013 special session. Perales also posed a question about whether an incumbent had proposed changes to his district to preserve his seat.
But because Darby had invoked legislative privilege and could not testify, it effectively ceded ground to Perales, who laid out her argument unchallenged through her line of questioning.
"The fact that he doesn't testify about his reasons means that the state has no evidence to counter our evidence," Perales told The Dallas Morning News.
The state's lead attorney, Patrick Sweeten, repeatedly advised Darby to invoke legislative privilege during the line of questioning. At one point, U.S. District Judge Xavier Rodriguez, who sits on the three-judge panel hearing the case, reprimanded Sweeten for his interjections.
"Legislative privilege is something the individual asserts for himself, and you keep instructing him," Rodriguez said.
Eventually, lead Judge Orlando Garcia called for a recess so the state's attorneys could consult with Darby on how to execute legislative privilege. Sweeten declined to comment.
State attorneys had presented Darby as a witness to counter the plaintiffs' arguments that the crafting of the 2013 maps neglected legislative procedure and excluded minority lawmakers.
Darby testified that he had adopted an idea from Rep. Chris Turner, D-Arlington, to hold "field meetings" across the state to gather public input on the maps and that the committee considered maps by minority lawmakers, including Dallas-area Reps. Rafael Anchia and Yvonne Davis.
But Darby's unwillingness to discuss the legislative process left gaping holes in the state's arguments and hurt much of the groundwork attorneys had laid earlier in the day and week. In addition to arguments on whether the state's congressional maps discriminate based on race, the court also considered whether Texas' statehouse maps contain the same problems.
In her questioning of Darby, Perales circled back to arguments about the statehouse maps made earlier in the week. Darby was unable to rebuke any challenges to the arguments or testify in their favor.
Earlier Friday, the state had advanced its case that the discriminatory effects of the maps were a result of the complexity of the map-drawing process and not intentional racial bias.
John Alford, a political science professor at Rice University who testified for the state, said the case was "the most complex redistricting contest I've ever been involved in."
"I don't think there's ever been a more exhaustive attempt to draw maps ... for a state than the ones drawn here," Alford said.
A central issue in the case is whether state lawmakers drew the maps to purposefully limit the number of districts where minorities could elect the candidates of their choice. The plaintiffs argue that lawmakers could have drawn more districts with large African-American or Hispanic populations.
If these groups were the majority in their districts, they could more easily elect their candidates, the plaintiffs argued.
The plaintiffs drew up multiple congressional maps that combine the African-American and Hispanic populations in several congressional districts to create "majority-minority" districts.
State attorneys argued Friday that such districts would not remedy the issue because Hispanics and African Americans often vote for different candidates in primary elections. Therefore, the state argued, the plaintiffs' solutions could dilute the voting strength of one group for the sake of creating majority-minority districts.
But using Alford's testimony, the plaintiffs showed that Hispanics and African Americans had voted together in general elections for the Democratic candidate and that they could make political decisions based on shared racial experiences. The plaintiffs cited District 33 in Fort Worth, where Hispanics and African Americans elected U.S. Rep. Marc Veasey in 2014.
The weeklong trial will wrap up Saturday, when U.S. Rep. Will Hurd is expected to testify for the state. Both parties will then answer closing questions from the three judges.
