dissenting:
For Texas Democrats, 2010 was a perfect storm. The nationwide Republican surge, whether attributable to the Tea Party movement or otherwise, played out on the big screen in Texas, resulting, as the majority recognizes, in a colossal increase in the number of Republicans elected to the Texas House of Representatives and unexpected wins by Republicans in the Texas Congressional delegation. That was timed ideally with the fact that the November election was followed immediately by the results of the 2010 decennial census and redistricting. The 2011 Legislature squeezed every conceivable ounce of advantage from this coincidence, making every possible effort to maximize the number of Republicans to be elected and re-elected in 2012 and beyond.
This litigation followed. The core question is whether the redistricting was lawful as an exercise of political power won in fair biennial elections or,- instead, was in violation of the Voting Rights Act (“VRA”) and the Constitution. At one point in their impressive opinion, the judges in the majority correctly find
that Plaintiffs have failed to prove intentional vote dilution .... Specifically, they have failed to show that mapdraw-ers acted with an intent other than maintaining their Republican districts or that they used race for partisan advantage. Because of the high correlation between race and party, splitting Democrats, eliminating Democratic districts, and shoring up districts for Republican incumbents necessarily affects minorities, but that alone is not intentional vote dilution based on race.
Majority op. at 169. But alas, that announcement is made only in regard to “cracking claims in northeast Dallas County.” Because it more properly should be applied to the entirety of the state House and Congressional redistricting, I respectfully dissent.
Despite its exhaustive and careful examination of the record, the majority commits grave error in its recitation of redistricting law, so its findings of fact based on that misreading do not enjoy the protection of the clearly-erroneous standard. And even under the clearly-erroneous test, the majority’s findings are fatally infected, from start to finish, with the misunderstanding that race, rather than partisan advantage, was the main reason for the Congressional and state house districts drawn in 2011.1
*220Despite its honorable intentions, the majority concocts the most extreme possible reading of the raw record to justify ‘findings that, if. converted to corresponding remedies, will hand these plaintiffs pretty much everything they have sought, causing a wholesale revision in the State House' and Congressional maps. In 2011, I warned that
[t]he judges in the majority, with the purest of intentions, have ... produced a runaway plan that imposes an extreme redistricting scheme for the Texas House-of Representatives, untethered to the applicable caselaw. The practical effect is to award ... a slam-dunk victory for the plaintiffs ... at the expense of the redistricting plan enacted by the Legislature....
Perez v. Perry, 835 F.Supp.2d 209, 218 (W.D. Tex. 2011) (Smith, J,, dissenting). The majority there erred, The Supreme Court promptly and unanimously vacated and remanded. Perry v. Perez, 565 U.S. 388, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012) (per curiam).
In the intervening five years, apparently nothing much has changed in terms of the majority’s view of who wins and loses.2 Granted; there have been extensive proceedings, resulting in a massive record, and the procedural posture is much different from what it was in 2011-12. Nonetheless, the majority’s jaundiced- perspective Of the Texas Legislature and its minions seems fixed. We will see how it fares on ultimate appeal.
In this opinion, I will reiterate that because of mootness, this court is without jurisdiction in regard to the 2011 state House and Congressional plans. I will show how the majority is wrong on the law. And I will demonstrate' that the majority’s factual findings are so' extreme as to defy logic and reason under this record.
I, Mootness deprives this panel of jurisdiction.
In dissenting from the majority’s March 10, 2017, opinion on the 2011 Congressional plan,31 showed that the proceedings for the 2011 Congressional and State House plans are moot under the binding authority of Davis v. Abbott, 781 F.3d 207 (5th Cir.), cert. denied, —— U.S. —, 136 S.Ct. 534, 193 L.Ed.2d 427 (2015). .Nothing has changed to fix that fatal defect. Like all district courts, this court has an obligation to examine its own jurisdiction. This panel should promptly dismiss the 2011 suit for want of jurisdiction. Had' it done so in 2015, when certiorari was denied in Dams, these proceedings would be much further advanced.
II. The majority misreads the applicable law.
Reduced to its barest essentials, the key question of law (assuming this is not moot) is -whether plaintiffs have established that the legislature employed “race for its own sake.”- As recently as March 2017, the Supreme Court .has repeated.that the answer is “no.”
As I showed in my recent dissent on the 2011 Congressional maps,4 the elephant in the room is Bethune-Hill v. Virginia Board of Elections, — U.S. -, 137 *221S.Ct. 788, 197 L.Ed.2d 85 (2017). There the Court twice repeats the test, quoting Miller v. Johnson, 515 U.S. 900, 913, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995), that plaintiffs must prove “that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale.” Bethune-Hill, 137 S.Ct. at 798. “[R]ace for its own sake” must be “the overriding reason for choosing one map over others.” Id. at 799. And how do we know whether “race for its own sake” drives a redistricting decision? It occurs when “race was the criterion that, in' the State’s view, could not be compromised.” Id. at 798 (citation omitted).
Under Bethune-Hill, a legislative decision is suspect when it treats a person of color or of a certain ethnicity differently for no reason other than race, based on some reprehensible basis such as perceived inferiority or on a theory that persons are essentially different because of race. Thus, a retailer in the Deep South in 1960 might turn away black customers, regardless of how well they are dressed, how they behave, or how much money they wish to spend, on no basis other than race. Or, in the electoral context, a minority voter, to register, might be required to satisfy extra requirements for the sole reason of race and not because of his or her legal qualifications or how he or she is likely to vote.
To be sure, there is raw “race for the sake of race” in this record, but not from state actors or their witnesses. As the majority’s findings on the 2011 Congressional redistricting state (pages 369-72), Congressman A1 Green, an African-American Democrat, as well as plaintiffs’ expert Dr, Richard Murray, testified to complain that Green’s Houston-area district, CD9, was initially drawn with “a clear African-American plurality, but at the time of redistricting Hispanic total population was beginning to exceed the Black population.” In the 2011 plan, CD9 “gain[ed] heavily Latino and' upscale areas” (which can only be a proxy for “white people”), “which might change the character of the district as an African-American district as the area develops.” (Emphasis added.) Those witnesses said this “could create tension,” and “the addition'of upscale communities' ... [in currently undeveloped plots] will likely produce an influx of Anglos .”
The obvious point is that the potential new Hispanic and Anglo residents were singled out because of “race for its own sake.” Congressman Green, with commendable candor, was sending the message that he did not want more Anglo or Hispanic folks in his district because, being (in his view) different on account of race, they would change the “character” of the district. One shudders to think what the reaction would be if an Anglo legislator had testified that he preferred not to have minority families moving into undeveloped parts of his district because of their “character” or essential “nature.”
“Race for its own sake” was also shown in Dallas. As the majority recounts in its Congressional findings (page 375), CD30 African-American Democrat Congresswoman Eddie Bernice Johnson, also with candor, referred approvingly to Black voters who “want to be able to identify some of the people that look like them, that think like them, that live with them, to represent them.” “[W]hen they see an opportunity to represent themselves with someone who looks like them, that is what they want ....” That is a stark example of “race for its own sake,” but it cannot be attributed to the State defendants or their agents. : ;
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 *222limits 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.”5 Though 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-Hül’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 ease 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, 121 S.Ct. 1452, 149 L.Ed.2d 430 (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. He appropriately quotes (but *223•without approval) the State’s August. 5, 2013, brief in the instant case:
DOJ’s accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican party’s electoral prospects at the expense of the Democrats. It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates.[11]
Professor Hasen seems to acknowledge that, in light of Texas’s argument here, Cromartie means trouble for the instant plaintiffs. “It is not as though the Court in [Cromartie] was unaware of creeping conjoined polarization.”12 “Texas’s argument follows a statement [from] the precursor to [iCromartie]: ‘[A] jurisdiction may engage in constitutional political gerrymandering, even if it happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.’ ”13
At least two other binding precedents are steep barriers to these plaintiffs, given the undeniable fact of conjoined polarization in Texas. The first is the Texas redistricting decision in Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996). In what Professor Hasen calls the “principal opinion,”14 Justice O’Connor boldly stated that “[i]f district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify.” Id. at 968, 116 S.Ct. 1941 (opinion of O’Connor, J.).
Second is LULAC v. Clements, 999 F.2d 831, 854 (5th Cir. 1993) (en banc), in which the Fifth Circuit (by which, as the majority reminds us, we are firmly bound) held that “[Section] 2 is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats.” As Professor Hasen explains, “The court pointed to this fact and the support of minority candidates by party members of each party[15] as a reason for treating race and party as separate categories, even while acknowledging that ‘[minority voters ... have tended to support the Democratic Party.’ ”16 Thus, the Fifth Circuit has recognized facts that constitute conjoined polarization in Texas and has squarely adopted the “race or party” approach as the correct methodology: As Professor Hasen explains, “Since ... Clements, conjoined polarization has only increased in the state.of Texas, rendering the factual premise that race and party can be separated in Texas more dubious.” 17
In summary, in light of conjoined polarization in Texas, the disjunctive “race or *224party” formulation is the proper understanding of the law. If that were not otherwise obvious, it is compelled by Bethune-Hill, Easley v. Cromartie, and LULAC v. Clements. But because the judges in the majority seem not to embrace it, I will discuss the other two approaches briefly.
Moving from “race or party,” Professor Hasen describes the second approach, “party as race,” as “treating] party as a proxy for race, equating proof of discriminatory partisan intent with proof of discriminatory racial intent.”18 We need not dwell for long on this formulation, because “[t]he Fifth Circuit in [LULAC v. Clements] ... rejected the view that partisanship can serve as a proxy for race, viewing partisanship and racial discrimination as two discrete categories.”19 The en banc Fifth Circuit therefore “rejected the argument that ‘the Republican and Democratic Parties are proxies for racial and ethnic groups in Texas’” as well as the notion that “‘“partisan politics” is “racial politics.’ ” ”20 And, as already shown, “ ‘[p]arty as race’ ” [was] denied by the Supreme Court in Hunt v. Cromartie ....”21
That leaves us with the third explication, “party all the time.”22 It deal[s] with the problem of conjoined polarization [by litigating] these cases not as race cases but as party cases, having courts rule that certain partisan actions are themselves illegal. Thus, rather than making partisanship or incumbency protection a defense in cases of racial gerrymandering, vote dilution, or vote denial, such conduct would make out a prima facie case for liability. [23]
For Professor Hasen, this is admittedly not the law and is only one proposal on an articulately advanced wish list: He acknowledges that under his proposal, “[t]he achievement of partisan ends would not be considered a good reason [for legislative action,] as it appears to be in the redistricting context.”24 As a matter of strategy, “it often will be easier and more fruitful to try to attack the partisanship directly, relying on the racial litigation route only as a backstop.”25
There would be no need to prolong this discussion of “party all the time,” which amounts to “direct policing of partisanship,” 26 except that the majority advances it in one discrete respect. In their opinions in both the 2011 Congressional and 2011 House cases, the judges in the majority exude discomfort with the indisputable fact that the 2011 Republican legislative majority took every possible partisan advantage of the super-majority it gained from the 2010 Republican sweep. The question for this panel is whether that exercise of raw political leverage is lawful, under the VRA and Constitution, even if many might see it as unfair or abusive of power. •
I addressed the issue of partisan advantage in my dissent in the 2011 Congres*225sional case. Regarding the Legislature’s overt but unsuccessful attempt to unseat longtime Anglo Democrat Congressman Lloyd Doggett in the Austin area, I noted that “[a]n attempt to dislodge an incumbent political adversary should logically be viewed as a permissible redistricting principle,” because a party’s disadvantaging its political foes, for reasons not related to invidious purposes such as race, is not meaningfully different from the protection of that party’s incumbents. Perez v. Abbott, 2017 WL 962947, at *90, 2017 U.S. Dist. LEXIS 35012, at *274 (Smith, J., dissenting). The majority disagreed, opining that unseating Doggett “ignor[ed] many if not most traditional redistricting principles.” Id. at-, 2017 WL 962947 at *56, 2017 U.S. Dist. LEXIS 35012, at *177 (majority opinion).27
In summary, the judges in the majority engage in a well-meaning and unintended misreading of the law. To be fair,, there, is some residual uncertainty from the Supreme Court’s redistricting pronouncements over the past decades. One thing we can be sure of, however, is that as of March 2017, these plaintiffs must. show that the legislature employed “race for its own sake.” Bethune-Hill, 137 S. Ct at 798. The law forbids “the racial purpose of state, action, not its stark manifestation.” Id. (emphasis added, citation omitted). “Race for its own sake” must be “the overriding reason for choosing one map over others.” Id. at 799.
III. The correct law applied to these facts.
It is on this explanation of “race .for its own sake,” issued by the Supreme Court just a few weeks ago, that the majority fatally stumbles. The majority is right only if the State sought, as its ultimate end, not to exploit partisan advantage but, instead, to disadvantage voters (either in part or in whole) because they were members, of a racial or ethnic class and were, for that reason, inherently unworthy of equal treatment under the law. By that approach, the State would be treating members of a minority as having a certain identifiable “character,” possibly creating “tension,” as shown above by the testimony for CD9. By the same notion, per the record quoted above for CD30, if the State had used “race for its own sake,” it would have assigned voters together with “people that look like them that think like them, that live with them,” instead of doing its best to ascertain voters’ political affiliation in order to maintain numerical political hegemony.
The main flaw in the majority’s reasoning is that it defies logical explanation. *226First, the record is absolutely devoid of indication that the Legislature treated race qua race; instead, it is replete with examples (possibly hundreds of them) of decisions made, and actions taken, to advance the Republican majority, whether in a quest to retain power for its own sake or to advance policy goals favored by one party and opposed by the other.
Every crime requires a motive. No reason is advanced as to why or how it would have made sense for the legislative majority to disadvantage minority voters because they were minority voters, as the law requires the plaintiffs to show. Nothing in this record reflects partisanship as a proxy for race. If it did, that would mean that the legislators cared less about Republican strength than about racial disparagement—that, in fact, in the 2011 Texas Legislature, political considerations played second fiddle to racial division: The stated objective was partisan power, but the real and secret goal was subjugation of minorities. It is indeed possible to imagine a world—maybe the Deep South in the 1920s—in which the main guidance for legislative action was racial hatred or prejudice. But to their credit, these private plaintiffs make no such claim, nor do my distinguished colleagues in the majority believe it. This is not “race for the sake of race.”
The majority may predictably respond that I have it backwards: that the issue is not whether political party was a proxy for race, but the flipside: whether race was a proxy for partisanship.28 That is to say, the plaintiffs and the majority seem to take the position that even assuming that the ultimate purpose was the non-invidious goal of maintaining partisan strength, race was often used in. drawing lines, in the knowledge that the result of a given boundary change would likely be an increase in Republican electability. Thus, the majority posits that, for example, “turning on racial shading” in the computerized redistricting program is seldom or never acceptable, because race is the hidden reason a particular change (such as breaking a precinct) is made, and though the real and stated goal is purely partisan, the voters left in or out of the precinct are being so treated because of some stereotypical characteristic that is calculated to equate with political party.
The difficulty with this reverse-proxy construct is that it is still not “race for the sake of race.” The correct construct is dictated by Cromartie, in which such “precinct swapping,” 532 U.S. at 257, 121 S.Ct. 1452, was center stage. The test is whether the Legislature’s decision “is unexplainable on grounds other than race.” Id. at 242, 121 S.Ct. 1452 (citations omitted). “Caution is especially appropriate in this case, where the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are highly correlated.” Id.
Importantly, in Cromartie the Court approved of a precinct split that “plac[ed] the more heavily African-American segment [of the precinct] within [the challenged district].” Id. at 248, 121 S.Ct. 1452. The Court accepted, with apparent approval, the testimony of a state expert “that African-Americans are more reliable Democrats than whites.” Id. at 262, 121 S.Ct. 1452. And in Bethune-Hill, the Court most recently reminds us that instead of focusing on a minuscule change at a precinct boundary, “[t]he ultimate object of the inquiry ... is the legislature’s predominant motive for the design of the district as a whole .... [A]ny explanation for a particular portion of the lines, moreover, must take account of the districtwide context.” Bethune-Hill, 137 S.Ct. at 800.
*227In Cromartie, “the [Democrat-dominated] legislature drew boundaries that, in general, placed more-reliably Democratic voters inside the district, while placing less-reliable Democratic voters outside the district.” Cromartie, 532 U.S. at 252, 121 S.Ct. 1452. The three-judge district court, agreeing with plaintiffs’ expert, declared that “race is the predominant factor.” Id. at 249, 121 S.Ct. 1452. “But this statement of the conclusion is no stronger than the evidence that underlies it.” Id. “Concluding] that the District Court’s ... findings are clearly erroneous,” the Supreme Court reversed. Id. at 258, 121 S.Ct. 1452. The same should obtain here.
IV. The majority’s flawed reasoning.
Paced with its perceived .task of deciding whether race predominated in the 2011 Legislature’s redistricting decisions, the majority embarks, as I have said, on an impressive recitation of the record. But it gives inadequate nod to legitimate political aims and traditional redistricting principles and, instead, rests much of its decree on finding that various state witnesses presented testimony that it calls “not credible.” 29
The seriousness of the majority’s implied allegation cannot be overstated. In its impressively detailed explanation, it weaves a complex, widespread conspiracy of scheming and plotting, by various legislators and staff,, carefully designed to obscure the alleged race-based motive in an effort to achieve their objectives and—by necessary implication—-intentionally30 to deprive minority citizens of their political and civil rights.31
A representative example, though by far riot the only one, is the majority’s critique of the redistricting of House districts touching Nueces County. Here is the plot that the majority uncovered:
Because Nueces County was less than 50% SSVR, it was mathematically impossible to draw two SSVR-majority districts within the County. However, mapdrawers knew that SSVR was typically lower, than HCVAP, that Nueces County had been over 50% HCVAP in 2000, and that Hispanic population had increased while Anglo population had declined, meaning they had every reason to believe that the HCVAP of Nueces County was over 50% even without more recent HCVAP data.
Moreover, Defendants’ assertion that HCVAP data was not available is simply -untrue. The HCVAP data was available to mapdrawers by April .21, 2011, before the map went to the floor, and would have ■ shown that Nueces County HCVAP was over 50% .... Nevertheless, Interiano ... and other[s] ... continued to focus solely on SSVR .... [M]apdrawers did not explore whether to include more than two districts in Nueces County .... The ... facts' ... concerning the decision to eliminate HD33 in Nueces County demonstrate intentional vote dilution. ... Mapdraw-ers intentionally did not consider wheth'er § 2 required two districts in Nueces County, and used a false reliance on SSVR and the County Line Rule to justify their refusal to maintain two Latino opportunity districts-in Nueces County. *228Further, they knew that HCVAP was the proper measure for a Latino opportunity district and had HCVAP data available before the map went to the floor, but insisted on using SSVR as the measure because SSVR was lower (and lower than ,50%) and it allowed them to argue that mathematically, two SSVR-majority districts could, not be drawn. Although Nueces County was majority HCVAP and had been since at least 2000, they refused to consider whether two HCVAP-majority districts could be drawn wholly within the County. In addition, [they] steadfastly refused to consider whether the County Line Rule might have to yield to. maintain two Latino opportunity districts in the area ... [They] attempted to use § 5 as a shield "for their failure to attempt compliance ,,., Mapdrawers chose two districts that were already performing reliably for Latino voters despite being under 50% SSVR ... and raised their SSVR over 50% .... Mapdrawers and redistricting leadership relied in bad faith on a 50% SSVR standard .... ‘ [M]apdraw-ers acted in bad faith to thwart such claims by artificially inflating the number of HCVAP-majority districts .... [T]hey intentionally used [race] to un-demine Latino voting opportunity. [M]apdrawers were likely using race to assign population [using ten precinct splits]. [They] intentionally packed Hispanic voters into HD32 to minimize their number and influence in HD34 and protect Hunter. [T]hey targeted low turnout .minority areas and intentionally drew out potential Hispanic rivals .,., again to protect the Anglo incumbent ,.. [and] intentionally overpopulated HD32 (and underpopulated ... HD34), without a legitimate justification.
[T]he Court finds that redistricters intentionally diluted Latino voting strength by eliminating HD33 in Nueces County. Mapdrawers’ use of race in HD90 and HD148 to “offset” this loss was not to comply with the VRA but to intentionally • dilute Latino voting strength by (1) allowing redistricting leadership to claim that 'they were complying with § 5 despite eliminating HD33 and "creating no new ability districts; (2) thwarting arguments that § 2 might require additional opportunity districts by artificially inflating .the number of Latino-majority districts in the plan; and (3) racially gerrymandering.and utilizing population deviations to further dilute the Latino vote in the remaining two Nueces County, districts.
Majority opinion at' 150-54 (some paragraph breaks omitted). Indeed, this complex conspiracy for Nueces County alone, affecting districts spanning hundreds of miles from Corpus Christi to Dallas/Fort Worth, would make Bernie Madoff proud.
To the contrary,- however, if ever traditional districting principles should be respected—as countless Supreme Court decisions say they must—it is in Nueces County. As the majority admits, the County Line Rule and Nueces County are a perfect fit. Because the county proportionally lost population in relation to the rest of the state, it no longer qualifies for 2-plus districts but, by simple math, is entitled to 2.03 representatives. ‘ That is as close as it gets. The Legislature accordingly assigned Nueces County exactly two whole seats, and HD33 was sent packing to North Texas,
The only remaining question should be where, within the county, to draw the line between the . two- so as to comply with one-person-one vote. The majority goes well beyorid that by complaining of the removal of HD33 and other ills. An ultimate decision to return CD33 to Nueces County *229would violate the most perfect fit of that rule in the entire state and would require, at the remedy stage, changes in myriad districts between Nueces County and the new HD33.
And that is just Nueces County. The same apparent perspective—that legislative leaders and staff plotted tirelessly, throughout the legislative session, to obscure the facts and violate the law—infects most of the majority’s fulsome explanation.
V. Summary.
The law is, in some respects, unsure. For example, the Supreme Court will need to resolve the circuit split on whether to require coalition districts. And it will have opportunity to tackle the issue of partisan gerrymandering and to explain the limits, if any, to the exercise of partisan advantage. More refinement is needed to inform legislatures how to deal with the Scylla and Charybdis of meeting the requirements of Section 2 of the VRA without undermining equal protection or unduly violating traditional redistricting principles. And some higher court will need to tell this panel whether the 2011 proceedings are moot.
Despite these uncertainties, one thing is certain: Despite its heartfelt efforts, this panel majority has badly overreached in finding that Texas used race, instead of partisan advantage, as the predominant factor in the 2011 redistricting. A finding that racial considerations were “dominant and controlling”32 defies everything about this record.
Is there anything to show that, as to any district whatsoever, “race was the criterion that, in the State’s view, could not be compromised”'?33 Nary a word. I respectfully dissent.
Stay tuned.
. The exception is Part IV of the majority opinion, regarding the one-person-one-vote claims based on population deviation, with which I concur. As die majority convincingly demonstrates, in the redistricting process the State erred in assuming, without support in the law, that the ten-percent test offers an *220unassailable safe haven. I also agree with the ruling on standing, -
.The majority's enthusiasm for the plaintiffs’ case is shown by the fact that, in at least one instance, it even invents a claim that • the plaintiffs missed—what it believes is "a clear Shaw-type racial gerrymandering claim." Majority op. at 164 n.46.
. See Perez v. Abbott, 2017 WL 962947; at *79-86, 2017 U.S. Dlst. LEXIS 35012, at *243-263 (W,D, Tex, Mar.. 10, 2017) (Smith, J., dissenting).
. See id. at -, 2017 WL 962947, at *87-89, 2017 U.S. Dist. LEXIS 35012, at *266⅛70 (Smith, 37; dissenting).
. Legal Studies Research Paper Series No. 2017-18, preliminary draft, Feb. 6, 2017, forthcoming in William & Mary Law Review (2018) (symposium), abstract available at https://ssrn.com/abstract=2912403.
. Hasen, text accompanying note 5 (quoting Bruce E. Cain & Emily R. Zhang, Blurred. Lines: Conjoined Polarization and Voting Rights, 77 Ohio State L.J. 867, 869 (2016)).
. Id., text accompanying notes 6-7.
. Id., text accompanying notes 7-8.
. Id., text accompanying note 36,
. Perez, 2017 WL 962947, at *87, 2017 U.S. Dist. LEXIS 35012, at *270 (Smith, J„ dissenting) (quoting Cromartie, 532 U.S. at 252, 121 S.Ct. 1452). Although Cromartie is a racial-gerrymandering case, it nonetheless squarely addresses the choice of “race or party” in redistricting.
. Hasen, text accompanying note 88 (quoting State’s brief at 19).
. Id., text accompanying note 37.
. Id., text accompanying note 89 (quoting Hunt v. Cromartie, 526 U.S. 541, 551, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999)).
. Id. note 37.
. Importantly, several of the districts most hotly disputed in the Texas 2011 redistricting litigation are districts in which the Republicans, in recent elections, have nominated and supported minority candidates. Examples are African-American Republican Congressman Will Hurd in CD23; Hispanic- Republican Congressman Francisco Conseco in CD23; Hispanic Republican Representative Aaron Peña in HD41; Hispanic Republican Jose Al-iseda in HD35, and Hispanic-Republican Representative John Garza iri HD117.
. Hasen, -text accompanying note 74 (quoting LULAC v. Clements, 999 F.2d at 854).
. Id., text accompanying note 75.
. Id., text accompanying note 9.
. Id,, text accompanying note 90.
. Id., text accompanying note 71 (quoting LULAC v. Clements, 999 F.2d at 860).
. Id., text accompanying note 125.
. It strikes me that “party all the time” might be a good recruiting slogan for a college fraternity. But I digress.
. Hasen, text accompanying note 135.
. Id., text accompanying note 143 (citation and internal quotation marks omitted). In fairness, I need to add that because of issues regarding judicial manageability, Professor Hasen is "ambivalent” on the efficacy of “party all the time” in redistricting, as distinguished from, e.g., registration and voter ID cases. Id. text accompanying note 147.
. Hasen, text accompanying notes 152-153,
. Hasen, text accompanying notes 148-149.
. At least one blogger was alarmed at my suggestion that legislative majorities should be allowed to treat adversaries as adversaries:
Litigants should challenge -the notion that "incumbency protection” includes an interest in "incumbency advantage.” Holding otherwise quickly leads to a perverse and startling result. In his Perez dissent, for'example, Judge Smith argued that a staters interest in "incumbency protection” implies an interest [in] "incumbency advantage” and, therefore, a constitutional interest in "punishment of enemies [quoting the dissenting passage described above].” Voting rights advocates should forcefully challenge this line of reasoning. This "blood sport republic” logic is fundamentally incompatible with a constitutional framework that demands—at a minimum—a rational basis for state action. The "partisan advantage defense”, should not shield racial sorting, and Cromartie (and its progeny) should not be extended to condone illegitimate uses of political data.”
G. Michael Parsons, Is Bethune-Hill a Major Voting Rights Victory or the Next Northwest Austin?, available at https://moderndemocracy blog.com/2017/03/30/is-bethune-hill-a-maior-voting-rights-victory-or-the-next-northwestaustin/. Mr. Parsons, a private attorney/blogger, at least agrees with me that “[i]f anything, Bethune[-HillJ took a step backwards” for redistricting plaintiffs. Id. n,15.
. E.g., Majority Op, at 210 ("race as a proxy for partisanship”).
.The majority says “not credible” twenty-seven times (in its Congressional and House opinions and findings/conclusions), an astonishing- number of times for a court to find that key witnesses misrepresented material facts under oath. And it finds what it calls "bad faith” nine times.
. The majority uses the word "intentionally” approximately one hundred times in the Congressional and House opinions and findings/conclusions.
. In its description of the allegedly nefarious enterprise, the majority uses forms of the word "manipulate” about forty-five times.
. Miller v. Johnson, 515 U.S. at 913, 115 S.Ct. 2475.
. Bethune-Hill, 137 S.Ct. at 798.