Beneath the surface, this year's key elections in Texas are all about race. The top of the Democratic ticket has been called a racial "dream team": If Tony Sanchez and Ron Kirk win in November, they will be the state's first Hispanic governor and African-American senator, respectively. Down ballot, Republican supreme court appointees Dale Wainwright and Wallace Jefferson are bidding to become the first African Americans elected to the Texas high court.
Race has even become a factor in a hotly contested supreme court race between two whites, a Republican man and a Democratic woman. In the Republican primary in March, Austin solo practitioner Steven Wayne Smith dumbfounded the state GOP by beating party favorite and appointed incumbent Xavier Rodriguez, 54 percent to 46 percent. Pundits decried the anti-Hispanic bias of the Republican electorate, but the voters' prejudice seems ideological, not racial. Other minority judges won Republican primaries, and Hispanic Republicans hold statewide office. The fact is, Rodriguez spent $558,000, called himself a moderate, and lost; Smith spent just $9,500, called himself a conservative, and won.
It's Smith's record on affirmative action, not his ethnicity, that gives his candidacy salience. In the early 1990s Steve Smith filed a lawsuit against the University of Texas law school on behalf of white applicants who argued they had been denied entry because the school used affirmative action to bolster minority enrollment. Smith won the case, Hopwood v. Texas, which was decided in the 5th U.S. Circuit Court of Appeals and let stand by the U.S. Supreme Court. The case ended racial preferences in state university admissions. In this year's primary campaign, Smith trumpeted his role in the Hopwood decision, which is extraordinarily popular among conservatives. His campaign manager, David Rogers, was one of the Hopwood plaintiffs. The attorney who led the university's defense, meanwhile, Harry Reasoner, supported Rodriguez in the primary and now supports Smith's Democratic opponent.
"Racial preferences is just an issue that resonates with Texas voters," says Rogers.
But as November nears, the Smith campaign has barely more cash than it spent on the primary and is short of endorsements. Groups such as Texans for Lawsuit Reform and others that normally endorse Republicans are supporting Smith's opponent, Margaret Mirabal, a respected judge on the state appeals court in Houston. Sources close to Smith feel the state GOP hasn't really warmed to him for a variety of reasons. Although the party claims to support all Republicans with equal enthusiasm, that hasn't translated into help for Smith.
Until early September, the issue of affirmative action remained under the radar. Then Smith dropped a bombshell. He was suing Margaret Mirabal, her campaign, and her manager for libel. In the suit, Smith alleges that Mirabal's campaign circulated an e-mail that called Smith a "racist" and a "bigot." He says the incident hurt his standing with Hispanics. Mirabal dismissed the lawsuit as "frivolous . . . an election-year stunt," and denied the charge. She thinks he is libeling her.
The e-mail came from Austin attorney Marci Morrison, a former classmate of Smith's at the UT law school who disagrees with Smith on affirmative action. Just after the March primary, she e-mailed Margaret Mirabal about a conversation she'd had with Smith. She gathered he had filed Hopwood out of "bitterness" for not receiving "special treatment" like "the blacks, Mexicans, and Jews."
"I was stunned and told him that he sounded like a Nazi," Morrison wrote. "Not only do I not believe that Steve is qualified for a position on the Supreme Court, but I also believe him to be a racist and a bigot."
Mirabal admits she forwarded the e-mail to one person, who made some inquiries about Morrison in Austin. But with 14 years of experience on the bench, Mirabal prefers the high road on the campaign trail. "I do not like to run a negative campaign," she insists.
One way or another, the message quickly spread in political circles, although the media reported it only after Smith brought it up at a debate.
One local Republican activist who was sent the e-mail, Virginia Hermosa, is an Austin attorney and chairman of the Republican National Hispanic Assembly chapter in Travis County. The e-mail, forwarded to her by a friend, upset her. It came originally from someone she identified as a "former court of appeals justice" and apparently had been forwarded many times over.
"As a [Hispanic] community, we tend to be very passionate," she said. Hispanic Republicans approached her with concerns about Smith's candidacy, and she felt any allegation of racism was worth investigating.
Hermosa investigated and came up empty. She met Smith and was impressed by another civil rights case on his resume: In the early 1990s, he had represented a friend of hers, a Hispanic Democratic state senator, in a redistricting lawsuit.
"I will vote for him come November," she concluded. Regarding his stance on affirmative action, Hermosa noted, "The majority of Republicans are against affirmative action. . . . We should be comfortable with someone who holds that position."
Steve Smith has a different version of his exchange with Marci Morrison, which he says occurred in 1999 or 2000, long after Hopwood was decided. Morrison expressed her displeasure with his position, and he in turn laid out his argument against affirmative action. He may have said something like "the blacks who were admitted scored lower on the SAT," which he thinks she misrepresented in her e-mail.
"I think this was a way to get back at me for filing the Hopwood case," he said.
Whatever the truth about that encounter, Smith points to his record of defending minorities and women. In addition to Hermosa's friend, he successfully represented black plaintiffs against his hometown school district near Fort Worth who claimed that at-large elections left them underrepresented on the school board. The case resulted in single-member districts and a greater voice for blacks. He has also represented plaintiffs in age- and sex-discrimination cases.
"If you're going to take a stand [against] racial preferences, you've got a special responsibility to ensure that our laws on equal opportunity are enforced," Smith says. "You can't be against racial preferences unless you make sure that the race, age, and sex discrimination that does exist is prosecuted."
Margaret Mirabal will not say whether she agrees with the Hopwood decision--a coyness she defends as proper in a judicial candidate--but it is clear that she's content to make hay off the smear. When asked by the Houston Chronicle whether she thinks Smith is a racist, Mirabal replied, "I have no clue."
Beth Henary is an editorial assistant at The Weekly Standard.