"The proposed Congressional redistricting plan has a retrogressive effect because, compared to the benchmark plan, it decreases the percentage of districts in the Congressional plan in which minority voters have the ability to elect and because under the proposed plan 479,704 fewer Hispanics will reside in districts in which they have an ability to elect a candidate of choice," lawyers with DOJ's Civil Rights Division write. "Both plans were also adopted with a discriminatory purpose, and there are a substantial number of material facts in dispute with regard to both prongs of the Section 5 standard."
Race and ethnicity, the lawyers wrote "were common themes during discussions between the Republican leadership and others, including a United States Congressman and staff. State leaders viewed race as a proxy for party, leading to redistricting decisions and movements of population based solely on the basis of race."
The member of Congress in question is Rep. Lamar Smith (R-TX) -- who as it so happens chairs the House Judiciary Committee, which has primary oversight over DOJ. Smith's emails are cited as an example of officials plotting to protect their electoral interests while taking race into account.
"While the existence of contemporaneous statements of direct racial intent related to current redistricting efforts may be rare, the email exchanges between United States Congressional representatives and staff, and State officials involved in devising the State's plans, provide riveting circumstantial evidence bearing witness to the process discussed above, where data as to race and ethnicity rather than partisan data drove the line drawing for the proposed Congressional plan, and where the State sought to exclude minority representatives from the redistricting process," DOJ lawyers said in reference to emails to and from Smith.
A redistricting expert hired by DOJ, Theodore S. Arrington, contended in a study included in the filing that the emails showed that Republicans and officials conspired to "make sure that no one who might look out for minority voters would be included" and that participants in the emails were aware of the "trade-offs between drawing minority election districts" and GOP prospects.
Justice Department officials said the only way this could be settled is for the facts to come out in court.
"Deviations from procedural and substantive standards, as well as racially-charged contemporaneous statements, also provide significant evidence of a discriminatory purpose," DOJ lawyers argue. "The State has presented little evidence concerning the intent of the proposed plan, but the legislative staff who crafted the map and legislators closely involved in the process have provided conflicting testimony. Assessing the credibility of these witnesses and resolving other disputed factual issues cannot be performed until trial."