*1 SWIFT.”); Walker, F.Supp.2d
(“[Thеre TEXAS, Plaintiff, State of indicating that information no] was dis plaintiffs’ financial information v. rely Plaintiffs closed SWIFT. [the] that their financial their own infor America, belief UNITED and STATES Eric disclosed, mation has been but such a be Holder, capacity H. in his official as more, lief, support without cannot stand Attorney States, General of the United added). ing.”) (emphases plaintiffs’ Defendants, allegations literally are rooted in belief and appear as these two fre
suspicion, words quently in Amended the Second Com Davis, Wendy al., et Intervenor- quite plaint. suspicion And belief Defendants. particularized,” far from the “concrete and imminent, ‘conjectural’ “actual or Civil Action No. 11-1303 ” ‘hypothetical’ requirements or of stand (TBG-RMC-BAH). 560,112 ing Lujan, set forth in U.S. Accordingly, plaintiffs S.Ct. 2130. Court, United States District injury have failed to establish an under the District of Columbia. and, such, RFPA have failed to demon Aug. standing bring strate their suit.2 IV. CONCLUSION plaintiffs
Because the have failed to
plead evincing facts a violation of the records,
RFPA as to their own financial concludes that Court defendants’ 12(b)(1)
Rule granted motion must be grounds
does not reach the other for dis
missal Bank asserted of America.3 Having plaintiffs contemporaneously concluded that the have 3. The will issue an Court standing failed to meet the first of the three Order consistent with this Memorandum requirements, the Court need not assess the Opinion. redressability requirements. causation and *4 Colmenero,
Angela David John Veronica Schenck, Frederick, Matthew Hamilton General, Austin, TX, Attorney Office Mortara, Keller, Ashley Bart- Adam K. C. LLP, lit Beck Palenchar & Scott Herman Chicago, IL, Hughes, John M. Bartlit Beck LLP, Denver, Herman Palenchar & Scott CO, for Plaintiff. Sells, Freeman,
Bryan Daniel J. Ja- L. Sitton, nie Michelle Andrea Allison McLeod, Michel, Fund, Inc., Olimpia Antonio, TX, E. Thornton cational San Re- Nobile, Hicks, Department of U.S. Jus- nea Law Russell Offices Max Renea DC, Hicks, tice, Bledsoe, Washington, Gary for Defendant. L. Law Office of Gary Associates, L. Bledsoe and Robert Elias, Devaney, M. Erik Marc Per- John Stephen Notzon, Austin, TX, Jorge Martin Coie, LLP, Posner, Lawyers’ A. kins Mark Castillo, Fried, Frank, Harris, Shriver & Rights, Karen Committee for Civil M. LLP, York, NY, Jacobson New Allison Soares, Fried, Harris, Frank, Shriver & Riggs, Jean Southern Coalition for Social DC, LLP, Washington, Joseph Jacobson Justice, NC, Durham, for Intervenor-De- Hebert, Alexandria, VA, Chad Gerald W. fendants. Dunn, Dunn, Houston, TX, Brazil & Joa- GRIFFITH, Before Circuit Judge, Avila, Avila, Joaquin quin Law Office of G. HOWELL, COLLYER and District Coie, Hamilton, LLP, Kevin J. Perkins Judges. Seattle, Garza, WA, Law Jose Office of Garza, Perales, Karolina Lyz-
Jose Nina J. MEMORANDUM OPINION Bono, nik, Couto, Marisa Rebecca McNeill GRIFFITH, Legal Mexican American Defense & Edu- Judge: Circuit *5 Table of Contents Background.............................................................138
I. Principles Analysis...........................................139 II. 5 of Section A.Retrogression.......................................................139 1. Texas’s Burden of Proof..........................................140 Analysis Methodologies..................................141 2. Election Types a. of Elections ...........................................141 Analysis Sample b. Election Sets................................143 Retrogression Analysis.................................144 3. Statewide 4. Coalition Crossover Districts .................................147 Analysis............................................147 a. 5 Section b. of Standard Proof............................................149 B.Discriminatory Intent...............................................151 Congressional III. Plan......................................................152 A.Retrogression Congressional in the Plan..............................152 Congressional 1. District 27.........................................153 Congressional District 23.........................................154 Retrogression Congressional with New Seats.......................156 B.Discriminatory Congressional Intent in the Plan.......................159 IV. State Senate Plan .......................................................162 A.Retrogression in the Senate Plan.....................................162 B.Discriminatory Intent Plan the Senate .............................163 State V. House Plan........................................................166 A.Retrogression in the State House Plan................................166 Alleged Retrogressive Districts....................................167 a. House District State 33.......................................167 b. State House District 35.......................................167 c. House State District 41.......................................169 d. House District State 117......................................170 e. House District State 149......................................172 26,106, f. House State Districts 144..........................175 Alleged Ability New Districts.....................................175 138
B.Discriminatory House Plan Intent State VI. Conclusion....................... of opposes preclearance reports that since United States Census
The latest redistricting plans congres Texas’s by over for grew Texas of of delegation and the State House increase re- sional dramatic four million. This quarrel no Representatives, new has to create quired legislature the Texas plan to the for Texas Senate. Seven for the four seats added voting districts variety challenges Intervenors raise congressional delegation, U.S. the State’s Const, XIV, collectively all I, 3; encompass plans. three 2,§ id. amend. art. cl. the We conclude that Texas has failed show § boundaries for and draw new any redistricting plans merits to that congressional districts voting state and preclearance.1 one-person, comply with mandate one-vote, Ashcroft, v. 539 U.S. Georgia see Background I. 2,n. 156 L.Ed.2d S.Ct. 19, 2011, filed a July complaint On Texas (2003). declaratory judg seeking in this Court newly redistricting jurisdiction ment that its enacted
Because Texas is a covered Act Voting Rights plans Representa 5 of the U.S. House under section (Plan Plan), 1965(VRA), 1973, Attorney Congressional § tives C185 or U.S.C. (Plan three- of Representatives States or a the Texas House General of United Plan), H283 or and the Texas Sen judge approve, must or House panel this Court Plan) (Plan any redistricting plan comply ate or before it S148 Senate “preclear,” *6 1973e(a). § section 5 of the This has can take effect. Id. Texas with VRA. Court three-judge a properly been convened as preclear chose not to seek administrative court, 2284; 42 § from a U.S.C. U.S.C. ance and instead seeks this Court 28 1973c(a), § under judgment redistricting jurisdiction that its and we took declaratory § 28 “the nor 42 1973c and U.S.C. plans purpose neither have U.S.C. will 1346(a)(2), §§ the denying abridging 2201. After United will have the effect of or an race or and several Intervenors2 filed right the to vote on account of States swers, color, summary judg- moved for [language group].” Id. Texas or voters, sought declaratory judgment representa- state 1. that the individual elected Texas tives, plans comply rights advocacy groups. three two, with section 5 counts The or civil three, complaint. In and four of the its Davis Intervenors are Texas State senators count, sought Texas this Court first also representatives Fort and from districts in the preclearance redistricting plan of for the its Legisla- The Worth area. Mexican American objected party No State Board of Education. tive House of Caucus is caucus in Texas plan, to the either in their written answers or Representatives. Intervenors The Gonzales during held a conference call Court group of and Black Texas parties September With on no Legislative voters. Texas Caucus is The Black opposition and State Board satisfied composed of seventeen members of the Texas plan complies we of Education with section Representatives. House of The Texas Latino Sep- granted preclearance plan for on Redistricting group Hispan- Task Force is a of Order, Entry Minute tember 2011. See organizations redistricting focusing ic on and Sept. registration. voter The Texas State Confer- League ence of and the of NAACP Branches granted has 2. This Court Defendant-Interve- civil United Latin American Citizens are parties, nor to seven each of whom status rights advocacy groups concerned with aspects challenges or all of various some minority voting rights capacities proposed plans in their in Texas. Texas's
139 plans September court, ment for all three on includes evidence in open par taken exhibits, argument on motion ty expert We heard reports, post-trial brief order on November and issued an designated ing, portions of the tran judgment on denying summary November script from the 2 section trial Texas.4 8, 2011, 2011 5402888. Our memoran- WL reviewing After this and carefully record dum opinion followed December considering the arguments parties, all deny preclearance we now Texas and еnter judgment for the defendants. The have redistricting plans same three challenged been under section 2 of the follows, In the discussion that we do not three-judge VRA before district court recount background extensive Western District Texas. Voting Act or Rights of this case. Much of growth State’s and the addition that is contained in opinion our at sum- congressional of four delegation seats to its addition, mary judgment. we do not impossible make it for Texas to conduct many of repeat findings the factual set out elections last using the boundaries appendix opinion. Using approved under 5. Our section denial framework for applying section 5 de- summary Texas’s re judgment motion for our summary scribed in judgment opinion, quired the district court the section legal we first address a series of issues litigation interim maps to draw for the outstanding remain after trial about primaries State’s fast-approaching requires preclearance. what section 5 ensuing general Su election. After the Then, we examine the Congressional, Sen- preme Court see maps, invalidated those ate, House Plans turn. — Perez, -, Perry v. U.S. S.Ct. Principles Analysis II. of Section (2012), 181 L.Ed.2d the court Retrogression A. set, issued a which been second have not Order, challenged. Feb. Per See Texas must show that its redistrict (W.D.Tex. ez Perry, v. No. 11-cv-360 filed ing plans have neither the effect nor the 9, 2011), May No. (Congressional ECF purpose abridging voting Order, Plan map); interim Feb. 1973c(a). rights. § 42 U.S.C. We will Perez, 11-cv-360, No. ECF No. 682 up “purpose” take below in prong sec *7 (House map); Plan 2012 interim Feb. goal tion B. The of prong the “effect” is “to Order, Perry, v. No. Davis 5:11-ev-00788 no voting-procedure changes insure that (W.D.Tex. 9, 2011), May filed 141 ECF No. would made that to a be would lead retro (Senate map). Plan interim gression position of racial minorities with to their Meanwhile, respect effective exercise of expedited discovery, after franchise,” 17-26, the v. this Court trial electoral Beer United January sat for States, 130, 141, arguments January with 425 U.S. 96 47 closing S.Ct. (1976), 2012.3 regardless The voluminous trial record L.Ed.2d 629 of whether pro- arguments. parties' closing Given the unanimous desire to The Court divided trial quickly scheduling ceed to trial but faced with time so that Texas and the United States and equal panel previ- constraints the the Intervenors would have time for from members' argument ously proceedings, judges physi- when all three were scheduled Court the objection adopted cally present. party No an a three raised to trial schedule which all arrangements. judges these during heard evidence the four first days judges of trial and two evidence heard days, judge many the last four with the third review- 4. The record in thou- full this case runs ing evidentiary transcript pages, including the record and sands of over a thousand days. judges by present parties. those All three were for introduced the exhibits 140 multi-factored, quires analysis. “Effec- a functional intended to do so. change
the States, un- Texas v. United F.Supp.2d exercise,” turn, long 831 has been tive (D.D.C.2011). single-factor A in 262-64 only “ability the of include not to derstood proposed test Texas quiry, such the participate politi- to the minority groups sta relying population on racial and ethnic ability elect also the “to process,” cal but alone, precedent is inconsistent with tistics Id. (quoting their to office.” choices provide limited an accurate (1975)). too to In the at 60 H.R.Rep. No. picture on-the-ground realities of of VRA, most recent reauthorization also, e.g., Ashcroft, Id.; see voting power.5 meaning reinforced Congress further (“The 2498 123 S.Ct. abili U.S. stating minority prong by of the effect ty minority of to elect candidate of voters “ability to their candidates of voters’ elect” complex important is but their choice often of appropriate choice measure is determine.”). not do practice We will proposed change be retro- whether repeat the rationale for our conclu here 1973c(b) (stat- § See gressive. U.S.C. sion, instead address additional voting changes ing that section blocks arguments appro raised at trial about the ... minority “ability citizens’ diminish priate retrogres standard to determine preferred of to elect their candidates sion. 1973c(d) choice”), § id. (explaining that the (b) protect ... is to
“purpose of subsection
1. Texas’s Burden of Proof
[minority]
of
citizens to elect
proving
Texas bears the burden of
choice”).
preferred
their
candidates
by
preponderance
of the evidence that
summary judg-
explained
redistricting
retrogress
As we
our
its
are not
plans
City
Grove v. United
that a
Pleasant
opinion, ensuring
proposed
ment
ive.6
States,
462, 469,
plan
gains minority
will not undo the
vot-
479 U.S.
S.Ct.
(1987).
power
deny
ers have achieved in electoral
re- L.Ed.2d 866
Texas does not
Indeed, analysis
developed
presumption may
record
be rebutted
other
the full
65%
factors,
turnout,
made it
test
such as
trial has
more clear that the
voter
indicate
initially proposed
minority
voters.
the district is
effective
Texas
insufficient
whether
an
measure
have
pro-
elect.
districts in the
Several
Significantly,
expert,
the State’s
Dr. John
posed
Alford,
plans show that
statistics
opinion
declined
offer an
on wheth-
rarely gauge
strength
plans
retrogressive,
alone
even
er the enacted
voting
accuracy.
example,
For
power
directly questioned
this Court
him on
when
pro-
point.
analysis
discussion
follows shows that Con-
He
his
testified that
gressional
steps
compli-
District
and House
District
vided
more
first
undertake,
selectively
inquiry
were
drawn to include areas with
cated
Court must
re-
high minority populations
opinion
on the
but low voter turn-
fused to offer
number
out,
excluding
minority,
protected
existing
high
high
5 in the
while
turn-
districts
section
*8
might pass
plans,
out
and stated he was not
areas. Such districts
a retro-
and enacted
gression analysis
offering
question
Texas’s
an answer to the
whether
under
(40%
degree
demographics
Voting Age
plans preserve the
test
Black
the enacted
current
63:21-67:10,
Population
Voting
ability
or
to elect. See Trial
50%
Citizen
of
94:21-96:25,
Age Population as
2012 PM. The State’s
sufficient to establish abili-
status),
ty
they
engineered
produce testimony showing
though
even
were
failure to
the en-
retrogressive
minority voting power.
plans
may
well be
to decrease
The
acted
not
65%
presumption
ability
employ,
of
we
dis-
sufficient for us to find that Texas has not met
status
below,
proof
susceptible to
of
section Neverthe-
cussed further
is less
its burden
under
less,
significantly
we
the
is
problems.
such
Our threshold is
because
find that
trial record
test,
higher
proposed
plans
Texas’s
and
to show that the enacted
can-
than
50%
sufficient
failing
only
only presumptively
precleared,
is
where it is met a district is
not be
this
not the
district,
conclusively
ground
ability
The
for our
not
so.
conclusions.
Instead, relying
is a
at the
the preclear-
that it bears
burden.
measure
heart of
this
analysis
that a
ance
section 5 has left to
Supreme
on the
observation
the
Court’s
Attorney
judiciary.
General or the
is
to select its “own method
state
entitled
Act,”
complying
Voting Rights
of
with
Analysis Methodologies
2. Election
Strickland,
1, 23, 129
Bartlett v.
556 U.S.
reports
have
parties
submitted
(2009)
(plurali-
S.Ct.
whether determining ability “is It benchmark districts benchmark, ability an to elect. plan has minority have suc- whether voters been pro- a used to assess whether cannot be electing preferred at candi- cessful their well, a pro- because posed district does legislative dates to office issue yet any not conducted posed has district Report Ex. Rebuttal district.” Defs.’ district-wide elections. Handley Supplement Expert of Dr. Lisa to analysis examines election Exogenous of Report [hereinafter Dr. John Alford 3 fared minority-preferred candidates how in en- Handley Rep.]. Reb. Candidates or nation- particular in statewide a district particular live in a dis- dogenous elections See, Pl.’s e.g., Direct al elections. local campaigns trict and focus their on Test, Dr. John Alford 5-6 Written voters. Candidates in statewide elections Rep.]. Take Alford [hereinafter likely appeal to make an with a less are example. as an In a presidential election in that district. direct connection voters always almost minority voters state where attenu- Nationwide contests are even more candidates, exogenous prefer Democratic and cam- ated. Local connections direct minority analysis suggests that election then, may minority-pre- paigning, allow ability to in a voters lack an elect bench- endogenous ferred candidate win by John McCain over mark carried district in a the minority-preferred election analy- exogenous Because Barack Obama. not candidate for statewide office could sis elections considers results Engstrom with Dr. and carry. agree We state, all in a such occur across districts Handley. Dr. Given the numerous and bench- analysis comparison allows between into de- difficult-to-quantify go factors Precinct-lev- mark districts. proposed elect, termining ability to the best evidence or national elections el data from statewide is how whether and often minority-preferred candi- can show if actually have elected their candidate date won the benchmark issue, not the position choice to the “reconstituting,” pre- or assembling, exogenous analy- proxy indirect offered pro- into a district’s returns cinct-level sis. posed shape, exogenous election anal- new endogenous analysis argues Texas minority- ysis whether can indicate it is “impracticable” is an tool because have won in the preferred candidate would only for benchmark plans available proposed district as well. provide “common unit of does not exogenous urges to consider Texas us exogenous measurement” available with alone, Post-Trial analysis election see Tex. results. Tex. PosWTrial Br. As we have endogenous Br. we conclude that stated, agree endogenous we elections probative are often more results analysis, well to prospective are not suited Engstrom explained, As Dr. ex- elect. predicting redis- impact but when “not ogenous good are basis elections tricting changes minority voters’ predicting the number elections specific elect, than more information better result in many new districts that will powerful less. We should discount the winning,” preferred candidates en- voting power evidence of con- partly significant because there provide favor of dogenous elections exogenous and textual differences between may single tool that be a less accurate endogenous Defs.’ Ex. Re- elections. gauge. endogenous exogenous When Report Engstrom results, buttal of Dr. Richard 6 analyses yield we will different Rep.]. give Like- to other relevant Engstrom special [hereinafter Reb. attention wise, voting district. Handley Dr. concluded that “the characteristics *10 Analysis analysis Sample argues endogenous Texas b. Election Sets may voting power and overvalue The experts vary widely also in which advantage incumbency undervalue the they sample elections used for their sets. minority-preferred the districts where All similar methodology use a for their repeatedly candidate has been reelected. analysis. exogenous Starting with the disagree premise See id. at 5. We with the plan, boundaries they benchmark that an “not advantage incumbent’s does count the number of the minority- times ability-to-elect inquiry.” bear on the Id. advantage enjoy during preferred incumbents candidate carried district. mi- campaigns reelection is a factor that Reconfiguring regrouping districts voters, any voters, nority like other often precincts as called for in plan, the enacted preferred to help use elect their candidate. analyses their then look many to see how Ability is not simply to elect less real times minority-preferred candidate subsequent because elections are easier to would have carried that district. Out win than the Texas raises the more first. course, comes are determined inputs, specific objection endogenous results analysis whether the an ability shows may misleading in a be district in which to elect turns on variations in the sample closely long- is contested if a status set such chosen, number of elections term plans incumbent to retire. Yet as Id. of time length they span, whether the out, analysis our finding below bears our sample weighted is toward more recent that endogenous particularly elections are contests, and the offices at stake. For probative evidence does not mean that a Alford, example, expert, Texas’s Dr. relies high automatically endogenous score im- on reconstituted election from results a'set plies ability status. Careful consideration of ten weighted statewide elections toward matters, of all especially factors in close years provided by more recent the Texas cases. (the Attorney Office of the General OAG We thus see no reason to exclude all 10). Rep. See Alford Texas argues tbl.2.8 endogenous analy- election data from our give greatest weight we should sis, exogenous nor to weigh data more exogenous they these results because used heavily. Both of data types provide infor- larger set more heavily data and relied mation about whether voters are any on recent elections than or will be did other participate political able to process. expert in the case.9 Tex. Br. Post-Trial contest; testimony The OAG one 10 includes two these facts critical was from the 2004, 2006, 2008; contests each from primary mapdrawer, House Gerardo Interi- and three contests 2010. Dr. Alford's ano, identify he made an effort to His- analysis using includes results all ten of these panic ability districts in the benchmark. Trial contests, using only and also the five most 25:5-26:10, 2012 PM. Both Interi- Rep. recent elections on list. See Alford mapdrawer, Ryan the other ano and main 8-9. Downton, they testified that did not look at analysis the OAG benchmark exogenous on the Texas's reliance OAG 10 until enacted districts their work was essen- analysis position; litigation is a the record is 57:17-25, tially complete. See id. analysis clear that this functional election Perez, AM; 14:51-52, No. 11- played map-drawing role little to no in the cv-360, Sept. 2011. And there no evi- process identify itself. The OAG did not legislators mapdrawers dence that protected which were districts in the bench- proposed any made modifications to the dis- plans many mark how or even benchmark fact, they trict lines when did OAG 10 evi- consult districts existed. performed process. analysis regarding analysis dence that late *11 not are and often do larger sample data set sets small agree that we
Although
accuracy,
short,
we
are
we are uncomfortable
improves
overlap.
generally
10 is
analy-
the OAG
the best
exogenous
persuaded
relying exclusively on the
strength. A
voting
indicator of
to
any single
Our
is
expert.
sis of
solution
may in fact
recent elections
preference for
from all
exogenous
results
consider
Handley, the ex-
Dr.
the results.
distort
10, Dr.
of these sources—the OAG
three
States,
cautions
for
the United
pert
as
Handley,
Engstrom
and Dr.
well
—as
years
to
giving
weight
more
some
against
Congressional Plan
analysis
for the
warns,
so,
would
To do
she
than others.
Ansolabehere,
by
Stephen
Dr.
conducted
to
years
election
skew
atypical
allow
Intervenors,
for
expert
the Gonzales
minority voting pow-
long-term
picture
dispos-
finding
probative
all to be
none
4 n.
This
Handley
Rep.
Reb.
See
er.
itive.
be-
especially appropriate here
caution is
Analysis
Retrogression
3. Statewide
10 elections are
of the OAG
cause three
made
Supreme
As the
Court has
cycle. As the evi-
election
from
clear,
analysis
voting pow
our
shows, 2010
an
in this case
dence
er
the entire
encompass
“must
statewide
year
low Democratic turnout
with
unusual
Ashcroft,
at
plan
several
as a whole.”
539 U.S.
Republicans won
seats
in which
long
had
been held
Democrats.
not con
Section 5 is
recent
two
expert
submitted
section
Texas’s
Ex.
Sup-
See Defs.’
only 2006-2010.
Court,
summary
reports
one
Dr.
Expert Report of
Richard
plemental
first
at trial. His
judgment
another
Engstrom Suppl.
Engstrom [hereinafter
report
any
counted
in which
Eng-
Dr.
Rep.]; Defs.’
Richard
registered Hispanic voters ex-
number of
Analysis: Retrogression
State’s
strom
Age Popu-
or
Voting
ceeded 50% the Black
Eng-
Plan
Adopted
[hereinafter
House
(BVAP)
40% an
lation
exceeded
experts
And all the
in this
strom Chart].
attention to actual
giving
without
Dr.
relatively
sample
case use
small
sets.
Texas,
See
performance.
election
Handley,
example,
elec-
uses
five
rejected
n. 23. After we
F.Supp.2d
Dr. Engstrom
from
tions
test,
changed
Dr.
single-factor
Alford
just
general elections. Hand-
uses
seven
he
report,
in his trial
which uses what
tack
3-4;
ley
Rep.
Engstrom Suppl.
House
analysis.” See
calls a “statewide functional
2;
there
Rep.
Engstrom Chart. Where
if
7. Rather than determine
Rep.
Alford
from which to
many
are so
elections
districts,
Dr.
particular
districts
analysis using
choose—the record contains
changes
approach
latest
examines
Alford’s
ranging
governor
races
railroad
minority voting power
degree
is hard to assess the
commissioner—it
the bench-
any
expert’s
plan. Using
one
data when the
across the entire
merits
*12
“substantial,
ability
ty
play
the
a
if
mark
districts
United States
voters
not deci-
listed,
every
Dr.
in sive,
Alford counted
instance
process.”
role
the electoral
Id. at
car-
minority-preferred candidate
which
480-83,
ried degree with the of influence minority vot- total “wins” in the enacted the number of exert, ability ers but with their to elect meets or the in the plan exceeds number preferred their candidates. See U.S.C. benchmark, Dr. Alford concludes the that 1973e(b) § (stating voting that changes is not at 7-12. plan retrogressive. See id. must not diminish minority citizens’ “abili- ap- his Dr. Alford contrasts statewide ty ... elect preferred to their candidates ap- to calls the proach “binary” what he choice”), 1973c(d) § of id. (defining subsec- every expert of case. proach other the (b)’s purpose tion protecting as ability “the experts Those each indi- examine district [minority] of citizens to elect their pre- vidually, exogenous using results as one choice”). ferred candidates of The House determining when if a is an factor district explained Report the ability They district. id. at See 12-13. amend- compare then number of dis- ability response Georgia ments were v. Ash- map in the benchmark with num- tricts croft, minority which allowed “the commu- plan. in the proposed ber Dr. Alford’s nity’s preferred own choice of candidates method counts election victories across all trumped by political to be deals struck not label a districts does State legislators purporting give ‘influ- “ability” argues ap- or not. Texas this minority community ence’ to the while re- superior technique” the “blunt proach moving community’s ability to elect binary “captures of method because it H.R.Rep. 109-478, candidates.” at No. degree minority strength of voting (2006), 2006 U.S.C.C.A.N. 670. Con- across all relevant districts.” Tex. Post- gress “[permitting decided that these Trial Br. 6. trade-offs is inconsistent the original with Perhaps, approach but this is a variation purpose Id.; and current of Section 5.” see type retrogression analysis on the of S.Rep. 68-72; also id. at at No. Congress rejected when it amended (2006) 18-20 (stating that the amendments Georgia in 2006. In Ashcroft, VRA v. 539 “clarify protects ability [section 5] U.S. S.Ct. L.Ed.2d 428 minority of voters their preferred ‘to elect (2003), ” Supreme Court concluded 19). choice,’ candidates id. Con- solely courts “should not com- focus gress “ability does not view elect” ability minority parative group of a to elect degrees; may up states not add districts in choice,” a candidate of but instead its minority “partial” which ability voters have “totality should consider of the circum- satisfy Instead, to elect to section 5. Con- regarding minority stances” participation gress views status as an on-off 479-80,123 in the electoral process. Id. minority switch: either voters have an Specifically, S.Ct. 2498. the Court con- they elect in or ability to a district do not. cluded that could draw con- maps states Endorsing analysis Dr. Alford’s would taining a combination two different Congress be a return to the approach re- satisfy types districts to section tra- 5: jected Consider, for example, in 2006. districts, majority-minority ditional map benchmark districts. districts,” three “influence which are not districts, districts, minority but rather those which minori- two of the voters elect perform benchmark in six out of ten districts candidates preferred
their times, third, set, perform nine out of ten but in the sample in a elections plan. times in the ten out ten enacted single In all they to win a election. fail allow a analysis Statewide functional would plan, enacted minori- three districts to use six-election “increase” state in four win out ty-preferred candidates even effectiveness to weaken or binary ap- A traditional elections. ten *13 destroy parts in other of ability districts likely conclude that proach would the state. ability two has districts map benchmark (where can elect their can- minority voters significant it that Dr. Al- We also find not), than more often of choice didate point can to no other advocates of his ford districts, ability has no plan the enacted approach well-populated within the field plan Such a just districts. three influence rights redistricting. Statewide voting retrogressive under clearly be would analysis functional is not foreclosed Al- section 5. Yet Dr. version of current amendments, it the 2006 lies out- retrogres- no approach would show ford’s re- accepted among academic norms side total number sion because the See, districting e.g., Engstrom experts. (6 remains the same + 6 electoral victories Rep. (critiquing ap- Reb. 2-6 Dr. Alford’s = benchmark; 4 + 4 + 12 in 4 + 0 proach noting he “not aware = enacted). 12 the Al- any analysis, prior to this one Dr. ford, by any expert completely ig- argues approach Dr. Alford’s
Texas endogenous nores the results of elections results, policy but such deter yields better plan retrogression a in a benchmark belong Congress, to minations 2); analysis,” Handley id. Reb. 2-6 Rep. at event, any Texas In “benefits” courts. (critiquing approach). Dr. Alford’s Texas that the illusory. argues are touts in mi “ignores gradations binary approach Moreover, analysis functional statewide States no nority gives abilities to elect and more to administer would be much difficult improving performance for electoral credit binary ap- the already than fact-intensive stay above or below districts make proach courts would need to because Post-Trial ability-to-elect cutoff.” Tex. a precise more than whether findings even words, Br. In other Texas seeks credit 6.10 ability is or is not an district. district strengthening already-performing for an determine, to for Courts would need exam- from, to say, six out of ten victories ple, the districts with difference between in a giving ten of ten. Yet credit out Dr. effectiveness levels of 60% and 70%. Texas use scenario like this would allow he can make these fine dis- Alford claims to offset a those four “additional” victories per- a electoral tinctions based on district’s Such an four-election decrease elsewhere. of elections formance the limited set a tool approach legal create to dis would Yet as the multitude of that he chose. demonstrates, ability long as as the state mantle districts case there is experts of others. agreed-upon increases effectiveness no method to choose how short, pack necessary it would credit for are give many states elections demon- A ing minority voting strength, into strate much less which districts. stark long period how example plan er be a in which six elections and over would accurate, ing minority voting power but we also in districts that 10. This observation binary approach ways: trending ability that the runs both note status but toward may retrogression analysis, it, a State under yet we have not achieved discuss below strengthening claim credit for not district, respect to HDs and 144. penalized it but neither is reduc-
147
we,
any
support
time.
confidence that
or
over to
the minority’s preferred
We lack
Bartlett,
court,
findings
able to make
at
candidate.”
would be
556
at
U.S.
approach
Dr.
1231. In a
precision
the level of
Alford’s
S.Ct.
coalition
two or
more
requires.
minority groups
together
work
preferred
elect their
Id.
candidate.
We
reject
Finally,
argument
Texas’s
we
summary
judgment
held
that because
refusing
accept
functional
statewide
existing
“coalition
crossover districts
analysis
increase
“substantial
would
provide minority groups
to elect
preclearance by
fur
federalism costs”
candidate,
preferred
they
recog-
must be
ther
the risk of
limiting
flexibility,
state
nized as ability districts in a Section 5
rendering section unconstitutional.11 See
Texas,
analysis of a
plan.”
benchmark
(quoting
Tex. Post-Trial Br. 7
Reno v.
F.Supp.2d at 267-68. Texas asks us to
(Bossier II),
Bossier
Sch. Bd.
Parish
ruling
reconsider our
in light of Bartlett v.
S.Ct.
L.Ed.2d
U.S.
*14
Strickland,
556 U.S.
129 S.Ct.
173
(2000)) (internal
omitted).
quotation marks
(2009)
L.Ed.2d 173
(plurality opinion), and
The constitutional
canon is no
avoidance
Supreme
the
Court’s recent decision in
aid to Texas
we are not faced with
because
—
Perez,
Perry
-,
v.
U.S.
132 S.Ct.
yet permissible interpreta
two competing
(2012).
181
900
Having
L.Ed.2d
con-
tions of section 5. See United States v. X-
parties’ arguments,
sidered the
we reaf-
Video, Inc.,
64, 69,
Citement
513 U.S.
115
firm our conclusion that coalition and
(1994) (describ
S.Ct.
while section
does not demand
alition
“require[s]
and crossover districts
protection
“special
group’s
exacting
more
evidence than would be
right
political
form
coalitions” or “im-
*16
prove
needed to
the
majori
existence of a
on
pose
those who draw election districts a
Texas,
ty-minority
district.”
831
duty
give minority
to
po-
voters the most
F.Supp.2d at 268. The discussion that fol
tential,
potential,
or the
to elect
best
a
explains
lows
the
applied.
test we have
voters,”
by attracting
candidate
crossover
outset,
At
minority
the
group
at
id.
129
5 man-
S.Ct.
section
groups
cohesively
or
vote
in
must
coalition
that
gains
dates
we ensure that “the
thus
districts, just
they
and crossover
as
must
minority
partic-
far achieved in
political
Beer,
protected majority-minority
in
destroyed,”
districts.
ipation [are] not
425 U.S.
Emison,
25, 41,
Growe
See
v.
507 U.S.
113
S.Rep.
at
1357 (quoting
S.Ct.
No.
(1993)
(1975),
122 L.Ed.2d
(noting
at
S.Ct.
1975 U.S.C.C.A.N.
785).
sure,
proving
that
political
To be
a state
cohesion across an
forcing
to
ie.,
“agglomerated political
create
districts
reach
a coali
crossover
would
be-
bloc”—
mandate,
yond
equality
section 2’s
tion-—“is all the more essential” than the
nothing
suggests
prove
single
Bartlett
that courts
need to
cohesion
a
within
eye
turn a
minority
can
blind
towards a district in
If
group).16 minority groups split
suggests
proving
Congressional
16. Texas
that
primary
test
Democratic
results in
a
requires proof
cohesion across
coalition
support
District 25
for a
as
conclusion that
together
primaries,
coalition votes
5).
protected
the district is not
under section
just general
joins
not
elections. The TLRTF
explained
Congres-
As
our
of
discussions
position
post-trial
Texas's
in its
submissions.
sional
and
District 25
House District 149 be-
Response
See TLRTF
to the Ct.'s Order of
low,
reject
argument.
we
this
(relying
Mar.
ECF No. 219
a track record of success—
candidates
district have
opposing
vote between
their
election,
by definition
there is
general
coin
the realm —it
not
results are the
of
is
choice, and the district is
candidate
no
enough
they simply go along
with the
under section
protected
not
district’s
electoral decisions of some
We must also be satisfied
Anglo voters.17
considers wheth-
inquiry
the first
While
a candidate of
minority
voters have
it is the
voters themselves
minority
er
choice,
is
in a
inquiry
grounded
next
have
to
their
ability
pre
who
elect
minority
5: do
of section
part
different
ferred candidate.
their
“ability
pre-
to elect”
have the
ability
The test to establish this
must be
§
42 U.S.C.
1973c.
candidate? See
ferred
to
rigorous enough
avoid
scenario Tex-
words,
large
the groups
In other
describes:
that section will be inter-
enough, or influential
enough, motivated
to
a
preted
protect any district that elects
their candidate of choice—
enough to elect
Democrat,
This
they
ques-
have
in fact done so?
matter
small its minori-
no
how
many respects
similar to that for
tion is
words,
ty population.
other
minor-
There
majority-minority
districts.
an
ity voters are needed to win
election
clearly
single,
defined metric to de-
is no
prove
they
not in itself
have an
does
a
an
group has
termine when
example
ability to elect. As an extreme
elect,
a
ability to
so
use multi-factored
we
concern,
with a
consider district
90%
determine when a coalition or
approach to
10%
If
Anglo
population.
ability.
district achieves that
crossover
Anglo
splits evenly
vote
Dem-
between
Growe,
507 U.S.
151
93,
together
618,
minorities vote
to
at
2006
Anglos and
U.S.C.C.A.N.
678
a
(stating
Congress “rejects
elect
candidate.
the Su-
holding in
preme Court’s
Reno v. Bossier
both coalition
cross
respect
With
Parish”).
result,
pre-
As a
we
not
may
districts,
“more
require
exacting
over
we
any redistricting plan
clear
enacted with
minority
prove
evidence” to
voters
discriminatory intent.
ability to
we do
have an
elect than
for
Texas,
majority-minority
districts.
Texas
argues
it should not be
Doing
at
so
F.Supp.2d
831
ensures
required to
that it
prove
any dis
lacked
stay
that we
within the boundaries of sec
criminatory purpose.
a
Saddling
state
only
protect
tion 5 and
thosе districts
burden,
with that
so the argument goes,
minority
which
voters have demonstrated
adds too much to the serious federalism
their effectiveness. Yet where that stan
already
costs
imposed
preclearance and
dard is met—where
voters them
could
Congress’
“exceed
enforcement au
haul,
“pull,
selves
and trade” to elect their
thority under the Fifteenth Amendment
candidates,
preferred
Grandy,
De
512 U.S.
and violate
Tenth
Amendment.” Tex.
1020,114
2647—then the district
S.Ct.
Post-Trial
only way
Br. 17-18. The
one in which
have an
voters
abili
problem,
claims,
avoid this
Texas
is to shift
elect,
ty
safeguards
section
app
5’s
the burden of
proof
discriminatory in
ly.18
tent from
onto the
Texas
United States
and the Intervenors.
Id. at
We ac
Discriminatory
B.
Intent
knowledge the substantial federalism costs
In Reno v. Bossier Parish School Board
5,
of section
see Nw. Austin Mun. Util.
(Bossier II),
528 U.S.
120 S.Ct.
Holder,
Dist. No. One v.
557
203-
U.S.
(2000),
145
845
Supreme
L.Ed.2d
(2009)
129 S.Ct.
86 S.Ct.
by a discrimina-
Congress
were motivated
clearance
has
to no evidence
pointed
”). There, the
set
tory purpose....
under
Court
modify this established
intended to
analyzing
a framework for
“whether
forth
standing.
a
discriminatory purpose was
invidious
Moreover,
is not
Texas’s burden
body’s
motivating
government
factor”
is
as
question,
There
no
insurmountable.19
Heights, 429
decisionmaking. Arlington
stated,
previously
Court has
Supreme
555;
266,
also
at
97 S.Ct.
see
Bossier
U.S.
motivation
“assessing
jurisdiction’s
(col-
488-89,
I, 520
that these 27 will no mean that CD in 2006. Ex. Dr. mographic shifts redrawn Defs.’ Lisa for voters. We perform longer Handley, Voting Rights Analy A 5 Section agree. Proposed Congressional Texas sis Handley Cong. Congressional Rep.]. 23 Plan 5 [hereinafter District
2. 2010, year narrow a The one loss was complicated CD has a Texas’s 23 West Seliger described as “a bit that Chairman the In the Su- history under VRA. things an aberration of like the because held as then Court that CD preme influence,” noting Party further Tea constituted, 2. See LULAC violated section if reli election] he “didn’t know [that 126 S.Ct. Perry, 548 U.S. v. (2006). 15:5-7; Seliger Dep. Antonio L.Ed.2d re- able.” San 609 11:15-21, for the the U.S. District Court Trial sponse, also see District of redrew its Eastern Texas AM.20 “opportunity in 2006 be an boundaries experts Texas that none of the counters district,” Hispanic one voters or which clearly benchmark per- found CD opportunity an to elect their would have points forms as district candidates, by sec- preferred required as showing the weak Ex. Defs.’ Trial Tr. 300:13- tion See only three out exogenous elections: of ten 2011, Perez, No. ll-cv-360. Sept. 10 and two out of five victories OAG voters in now find We in Dr. Al- Handley’s victories election set. turned that into dem- opportunity CD 23 tbl.4b; Handley Cong. Rep. Rep. ford elect, ability to but that the 2010 onstrated not tell full But these numbers do redistricting ability away. took that story. Every Dr. Alford con- expert save Benchmark CD 23 has an HCVAP of an ability cluded that benchmark CD 23 is Ex. During Pl.’s at 9. most 58.4%. despite marginal exogenous per- redistricting, mapdrawers recent Handley Dr. en- formance. concluded that legislature acknowledged Texas dogenous probative results more than protected district under the CD 23 was Handley see exogenous See, Antonio e.g., Seliger Dep. San
VRA. 5-6, and, Rep. already we have Cong. as 30:6-15, 13:19-15:11, (testimony of 31:6-16 discussed, agree we that this assessment is Seliger describing his belief Chairman generally accurate. Dr. Ansolabehere’s during redistricting process that CD minority-preferred analysis shows that district); protected Hispanic 23 was won “more candidates the district often (email congressional Ex. Defs.’ 724, Expert not.” Ex. Witness than Defs.’ Doug mapdrawer Davis to National Re- Dr. Report Stephen Ansolabehere 36-37 publican Congressional Committee staffer Rep.]. Ansolabehere And the [hereinafter drawing CD noting VRA concerns when argues larger election 23). TLRTF that a sam- minority-preferred CD 23 elected the endoge- make an informed ple necessary in two out the three set candidate endoge- Republican plurality argues that two candidate won the 20. Texas one of the election, victories, election, special but we should be votes in find this nous gener- eight because six of discounted because it did not occur on result unremarkable day. special were See Br. election candidates Democrats. al election Tex. Post-Trial litigation primary When the election was held five weeks VRA left no time for a runoff later, compet- Hispanic-preferred year, eight all candidate Ciro Rod- and instead candidates day victory. special riguez won a Pl.'s ed in a held the same decisive election Rep. general We see to discount Trial Tr. 66:21- no reason Texas’s election. See 68:9, Rodriguez’s victory. is correct that AM. Texas
155 Flores, four judgment. racially noting When additional that Hispanic voter turnout contests are contested added the OAG in higher areas moved out of the exogenous the district’s success rises to district in in; than areas that were moved out seven of fourteen. See Trial Tr. turnout in some excluded areas was consis- 111:14-113:4, AM; Defs.’ tently 30%, over while turnout in areas results, Exs. 647. These election replaced 25-30%). them was endogenous combined with the elections changes enough were to “nudge” a district above, discussed the fact that CD 23 was ability district, was an barely so, opportunity drawn to be an and to a nonperforming district. See Ansola- contemporary views of redistricting of- Rep. behere (noting that “in a competi- ficials, are enough for us to find that tive one,” district such as this seemingly up potential benchmark CD 23 lived to its difference”). small changes “made a huge as drawn in 2006 and became an Even expert Texas’s testified that CD 23 district. probably “is likely perform less than it But enacted CD 23 is not. Even though was, and so I certainly wouldn’t count and demographics district’s remain rela- don’t haven’t [and] counted the 23rd as tively unchanged actually in- —HCVAP effective newly district creased 0.1% from the benchmark to the adopted plan.” Defs.’ Ex. plan, enacted Pl.’s Ex. at 9—this fact is 1839:2-7, 14, 2011, Perez, Sept. No. 11-cv- Instead, inconclusive. we must look to Thus, an ability CD 23 is factors, including other exogenous elec- benchmark, but would be no longer tions, testimony, and other evidence about plan. enacted changes made in the district. Texas claims that the enacted district exogenous Enacted CD 23’s election re has remained functionally identical to the significantly sults are worse than those in benchmark, but these claims are under- benchmark CD 23. In the OAG mined mapdrawers’ own admissions number of victories decreases from three they tried to make the district more of ten to Handley’s sample one. Dr. Republican consequently, less de- —and the number decreases from two of five to pendable for minority-preferred candi- tbl.4b; Rep. none. Handley Alford dates —without changing the district’s His- 7; Cong. Rep. see also Ansolabehere Rep. panic population mapdrawers levels. The (concluding that the plan enacted “low consciously replaced many of the district’s performance ers the electoral minority- active Hispanic voters with low-turnout preferred candidates in the District to the Hispanic voters in an strengthen effort to point that it likely longer no a minority voting power Anglo CD 23’s citizens. seat”). opportunity Minority voter turn words, In other they sought to reduce out in enacted CD 23 declines. While Hispanic voters’ ability to elect without Hispanic voters accounted for an average making it look anything like CD 23 had of 39% of total votes cast benchmark See, (email changed. e.g., Defs.’ Ex. 304 decade, 23 over past they CD up made Opiela, Eric counsel to Texas House only 36.5% in enacted CD 23.21 Defs.’ Ex. Straus, 5-12; also, Speaker Joe mapdrawer Gerar- e.g., see Defs.’ Ex. 450:19-454:11, 7, 2011, Trial do Interiano In- Sept. urging Per November ez, No. ll-ev-360 (testimony Henry of Dr. teriano to “help pull find metric to Judges Collyer depend Howell do not is a lost district. on voter turnout data to conclude that CD 23 Seliger Kel (testimony AM Population] Total
district’s
considering “voting
status,
23 was drawn
majority
but CD
up to
Hispanic CVAPs
*22
could
ethnicity” to see what
[Registered
patterns and
Surname
Spanish
leave
district”).
lowest,”
Texas’s
change
“to
be done
numbers]
[turnout
Voter]
has re-
that
the district
protestations
valuable
“especially
be
which would
Canseco”);
functionally identical are weakened
mained
incumbent]
23
shoring up [CD
that
(email
mapdrawers’
admissions
responding
by
first
from Interiano
id.
this”);
of
the effectiveness
they
Defs.’
tried to reduce
help
“gladly
he would
then,
(email
power-
more
indicating
Opiela
vote and
739,
at 40
con-
they
late
did. We
fully, by
to Interiano as
evidence
sample maps
provided
a lost
district.
11, 2011,
“improve CD clude that CD 23 is
that would
as June
main-
while
[H]ispanic performance
23’s
Retrogression with New
district”). We
Republican
taining it as
Congressional Seats22
of evidence
an abundance
also received
grew by ap
Texas’s
Texas,
fact,
by
followed
course
decade,
past
4.3 million
proximately
maintain the
techniques to
using various
89%
Approximately
an increase of 20.6%.
Hispanic voting power
semblance of
non-Anglo minor
growth was from
of this
decreasing its effectiveness.
district while
in
65% of the
Hispanics comprise
ities:
(evidence
See,
showing
Defs.’ Ex. 436
e.g.,
13.4%,
crease,
Asian-Ameri
Blacks
600,000
moved into
persons were
that over
Req.
U.S.
for Judicial
cans 10.1%. See
overpopu-
of the district to redress
and out
¶¶ 8, 20, 22,
(citing
24
2000 and
Notice
903,
149,000);
1
Defs.’ Ex.
at
lation of
data).23
a result of this
2010 Census
As
(email
map
that a
of CD 23
noting
draft
increase,
delegation
the U.S.
the Texas
HCVAP,
still at
59%
was “over
1/10
from 32
Representatives grew
House of
performance],”
election
[exogenous
members,
largest growth ever
to 36
an
there must be
commenting
jurisdiction fully
covered
section 5.
enough that low elec-
high
level
HCVAP
Texas,
F.Supp.2d at 257.
See
831
trouble under
would not raise
tion results
ar
and various Intervenors
United States
(email
5);
Ex. 978
comment-
Defs.’
section
at
required to draw
gue that Texas was
of
23 “looks nice
ing
map
that a draft
CD
an
new districts as
abil
least one of these
raises “eoncern[s]
but still
politically,”
See,
Br.
e.g.,
Post-Trial
ity district.
U.S.
Act”);
Rights
Trial
Voting
about
agree.
14-15. We
106:18-108:3,
(testimony
2012 AM
discussed, section
already
As
that he drew the dis-
Ryan Downton
retrogression means that
prohibition
5’s
on
based on
precinct-by-precinct
trict’s lines
as a
plan
statewide
[enacted]
“the entire
popula-
keep Hispanic
results to
election
whole,”
at
123 S.Ct.
Ashcroft, 539 U.S.
maximizing Re-
high while
tion numbers
of dis-
12:2-16,
degree
cannot “increase the
Id.
publican performance);
Req.
Judicial
2010. U.S.
Having
retrogression in the Con-
tween 2000 and
found
¶
(citing
an
Census
gressional Plan because CD 25 was
2000 and 2010
Notice
19
replaced,
eliminated and not
data).
district that was
agree
United States that
We
with the
ques-
Judge Collyer does not reach the further
subject
appropriate
U.S. Census data is
retrogression
proportional
tion of
based
(citing Hollinger
judicial
See id. at
notice.
multiple
representation arising
new con-
Co., 654 F.3d
v. Home State Mut. Ins.
growth
gressional
a sizeable
in mi-
seats and
(5th Cir.2011); City
Arthur v.
Port
572-73
nority population.
States,
F.Supp.
n. 5
United
(D.D.C.1981)).
Likewise,
comprise
of the
minorities
80.4%
voting age population be-
in Texas’s
increase
voters],”24
[minority
against
purposes
crimination
than section
some tools
used
States,
2 analysis
Lockhart v.
460 U.S.
section
City
insights
United
reveal
into the
underlying
VRA, see,
principles
103 S.Ct.
L.Ed.2d 863
e.g.,
(1983).
Texas,
Johnson,
F.Supp.2d
Abrams v.
U.S.
261-62 & 262 n.
(1997),
which are especially helpful
true, allegations the of the United States noted, already As we have CDs and the that Intervenors Texas drew the only and 30 are the Black districts Congressional Plan with discriminatory plans. the benchmark and enacted CD purpose provide grounds deny preclear- 9 is located south incorpo of Houston and argues ance. Texas that intent to discrim- parts rates of Harris and Fort Bend Coun against minority played inate no ties, Houston, CD 18 is located within and plan role in the its decisions were legisla CD 30 is within Dallas. The Texas See, solely by partisan politics. motivated proposed changes ture substantial to these (“Texas e.g., Tex. Posh-Trial Br. 26 though districts even the 2010 data Census adopted Congressional Plan with the population already shows each was incumbents.”). protecting already lawful aim of close to ideal size.30 We have cause, example, experienced equally for other states tion were divided between the State’s equivalent greater growth), districts, or it would have thirty-six congressional each district required been to draw 698,488 dis- would have individuals. Pl.’s Ex. growth tricts. It is the in the number of 35,508 surplus at 2. Benchmark CD 9 has a triggers analysis, growth districts that our people, population. or district's 5.05% population. 22,503 (3.22%), surplus CD 18’s is and CD 7,891 (1.14%). 30’s is Ex. at 28- Defs.’ Census, According to the 2010 Texas's 25,145,561. popula- If this only minority changes challenged are not re- evidence that dis- that these determined by raise serious cоn- they tricts lost their economic centers show- trogressive, Congres- types what motivated ing, example, cerns about for that the same Plan. sional changes Anglo had been districts. made Green, represents A1 who Congressman The United States and the Intervenors surgery” testified “substantial CD convincingly argue Texas does not —and that could not have to his district was done dispute removing district offices —that by accident. The Medical Cen- happened minority ability but not from districts from Astrodome, line, ter, rail and Houston Anglo disparate impact districts a has University “economic en- Baptist —the districts. See U.S. Post-Trial all removed in of the district —were gines” help “provide[] Br. 26. District offices 124:6-20, Jan. plan. enacted Trial meaningful connection between member AM; Ex. Pre- 20, 2012 see also Defs.’ Defs.’ people represented.” and the Test, Alexander Congressman Filed Test, Congressman Pre-Filed Alex- plan The enacted also re- 3^4. Green ander Green Their locations often Repre- where from CD the area moved constituents, placed known to often well had his district sentative Green established freeway public easily accessible be 124:16, 2012 AM. office. way transportation, and serve as Likewise, Congresswoman Sheila Jackson Congress members of to communicate with Lee, represents who CD testified that provide services to their constituents. key plan removed from her id. We are likewise troubled See as her district generators economic as well unchallenged legislature evidence that the 13:13-14:5, 2012 PM. office. Id. guts removed the from the Black economic Eddie Bernice Johnson of Congresswoman ability districts. does not dispute Texas plan also testified that the removed CD 30 Congress’s job of a part member of (home of the the American Center Dallas “bring generators economic will Mavericks), her district arts community,” Removing id. benefit office, her 30. Id. at home CD generators those economic harms the dis- 79:20-81:16, map- PM. The *26 3-4; trict. Id. at Post-Trial Br. 26. U.S. office, district drawers also removed the only explanation Texas offers for Alamo, and Center the Convention pattern (named father), “coincidence.”31 incumbent’s after the from 95:5-19, 25, if 2012 PM. But this was 20, a Hispanic district. Mem. CD coincidence, it striking one indeed. 16, of was Opp. Summ. J. Decl. Charles A. ¶¶ 3-9,11, pure to No. 77. It is difficult believe chance Gonzalez ECF lead to such The State would results. also surgery performed No such on the was that it argues “attempted accommodate fact, Anglo districts incumbents. requests bipartisan unsolicited from a every Anglo Congress member of retained “[wjithout lawmakers,” group her district Trial Tr. 14:12- his or office. members, hearing mapdraw from the 15, 23, Anglo 2012 PM. bound- ers did not where district offices know particular redrawn include aries were located.” Post-Trial Br. 29. were Tex. and, case, country clubs the school in one But we find this hard to believe as well. belonging grandchil- to the incumbent’s 11, mapdrawers are confident that can Mem. J. Exs. We Opp. dren. See Summ. them, only maps No. And Texas never draw but read ECF generators arguments retrogres- 31. Unlike in its about district offices and economic sion, political argued product the removal animus. Texas never joint these congressional the locations of district offices were redistricting proposal improbability not secret. The of these public to view after the start could qualify events alone well as “clear special session, of a legislative and each pattern, unexplainable grounds other provided only seventy-two hours’ notice race,” Arlington Heights, than U.S. public before the sole hearing pro- on the 266, 97 and lead us to S.Ct. infer See, posed plan in each committee. e.g., discriminatory purpose behind the Con- Defs.’ Ex. Decl. of Theodore Ar- S. gressional Plan. 57-59; rington Defs.’ Ex. 366. Minority members of remaining legislature When taken with the the Texas Arling also factors, Heights explanation ton Texas’s raised regarding concerns their exclusion First, becomes weaker still. the historical drafting process and their inabili- background gives grounds us for concern. ty plan to influence the via amendments. decades, In the four last Texas has found See, e.g., Defs.’ Ex. at 1. every
itself in court
redistricting cycle, and
Lastly, procedural and substantive de-
See,
LULAC,
each time it has
e.g.,
lost.
partures from the normal decisionmaking
2594; Vera,
548 U.S.
126 S.Ct.
517 process raise flags. Citing failure to re-
1941;
Upham
U.S.
S.Ct.
v. Seam
lease a redistricting proposal during the
on,
37,102
456 U.S.
S.Ct.
71 L.Ed.2d
regular session, the limited time for re-
Weiser,
(1982);
v.
White
412 U.S.
view, and the failure
provide
counsel
(1973);
93 S.Ct.
We
evi-
[circumstantial]
the eleven must
look to other
journal from
ed in the Senate
dence.”). Here,
no real
Texas has made
majority-minority
representing
senators
Arlington
with the
They alleged
attempt
engage
Davis.
districts and Senator
factors,
though
even
it concedes
Heights
shut out from the
they
fact
were
that the
im-
disparate
Plan has a
just forty-eight
until
that the Senate
process
map-drawing
in
find
pact minority
SD We
map
was introduced
hours before
legislature
that the
deviated from
telling
that the
Plan
it
showed
Senate
Senate
procedures and ex-
discriminatory purpose.”
typical redistricting
“racially
had
minority
process
from the
senators also cluded
voices
Defs.’ Ex.
3. Other
protested that
Seliger to ex-
even as
senators
directly to Chairman
wrote
run
process
being
roughshod.
5 was
One
“disappointment
section
press their
redistricting
expect
experienced
a state that is as
develop the Senate
would
used to
rep-
litigation as Texas to have en-
and the
elected
with VRA
plan”
“exclu[sion] [of]
redistricting process
that
was
minority citizens” from that
sured
its
resentatives of
not,
Although
beyond reproach. That Texas did
Defs.’ Ex.
at 1.
process.
aggrieved by
respond sufficiently
now fails to
to the
statements from the senators
intent,
necessarily
parties’
discriminatory
show that it
evidence of
process
do not
compels
us to conclude that
the Senate
racially discriminatory,
instead
discriminatory pur-
that the Plan was enacted with
merely partisan, they do indicate
redistricting
pose
to SD 10.
majority
during
was aware
as
by the
upset
that several members were
House Plan
V. State
yet chose not to address
irregular process,
Retrogression
in the
their concerns.
A.
State House
Plan
that Texas has not
We conclude
and the Intervenors
The United States
that the Senate Plan was enacted
shown
that
House Plan retro-
argue
the enacted
discriminatory
without
intent.
Senator
by
gresses
voting power
eliminat-
provided
Intervenors
Davis and other
(House
ability
ing еight
districts
Districts
circumstantial evidence of the
credible
149)
(HDs) 26, 33, 35, 41, 106,117, 144, and
type
by
Supreme
Court
called
any others. Texas ac-
creating
without
whole,
which,
Arlington Heights,
as a
indi
in HD
knowledges retrogression
may
improper
cates that an
motive
have
abridge-
the House Plan works no
argues
played
map-drawing process.
a role in the
minority voting rights
any
ment of
evidence,
directly
Rather than
rebut this
maintains that
the other districts. Texas
legislature’s
that
Texas asserts
plan’s
the loss of HD 33 is offset
wholly partisan, untaint
motivations were
provision
many
for at least one and as
agree
of race. We
ed
considerations
ability
new
conclude
three
districts. We
plan
impacts minority
that a
citizens
will
the effect
plan
that the enacted
have
majority
harshly
more
than
citizens is
abridging minority voting rights in four
necessarily at
with section 5. But
odds
33, 35,
ability
Arlington Heights, it
districts —HDs
under the VRA and
any
that Texas did not create
plausi
for Texas to offer a
149—and
enough
is not
ble,
to offset those losses.
explanation
nonracial
is not new
districts
must,
Consequently,
It
at a
we conclude
the enact-
grounded
the record.
minimum,
cannot be
first
respond
plan
precleared.
to evidence
shows
ed
We
motivation,
eight alleged ability
analyze
racial and ethnic
which it has
each
three al-
Arlington Heights,
turning
429 districts before
to the
failed to do. See
(“Absent
leged
offset districts.
U.S. at
The enacted percent HD rates than the voters Somerset 117—HCVAP increases five by comparing registration records approximate to state voter 41. SSVR is metric used registered against Spanish sur- Hispanic voters in a a Census list of common number of given geographic compiled area. The list is names. HD to an en- transplanted Id. at 14:19-17:23. acted 149 was Whispering Winds. tirely county part in a different Similarly, Interiano testified Somerset different way keep demograph- HD 117 as a the state. The new district’s was moved to percent dramatically minority- and ics shift [SSVR] district “above 50 goals majority-Anglo. in the dis- Pl.’s Exs. at 17 maintain other [our] (benchmark 37.6%); 14, at strengthening Representative Anglo John CVAP of trict” — (enacted 77.4%). Anglo There chances at reelection. Id. CVAP Garza’s 107:7-11, is, unsurprisingly, dispute 2012 PM. no that enacted ability only HD 149 is not an district. Our These incidents illustrate Texas’s overall task is to determine whether benchmark in HD 117: Texas tried to draw approach protected HD 149 is a coalition district Hispanic, a district that would look above, under section 5. As discussed we Anglos. According to the ex perform for co- protects have concluded that section 5 perts, that was the result achieved. We alition is clear districts when there evi- ability that HD 117 is a lost conclude among both of the coali- dence cohesion district.42 tion’s and demonstrated electoral members e. House District 149 State Here, success. we conclude this stan- County HD 149 Houston-area Harris dard has been met. alleged coalition composed is an Rep. is the candidate of Vo Asian-American, Black, vot- endoge four choice and has won the last ers. The 2010 Census shows that Harris Handley nous elections in the district. County twenty-four was entitled to dis- Rep. strong House tbl.3. With such re tricts, twenty-five, not its current so HD sults, likely conclude HD we would for elimination. leg- 149 was selected ability 149 is an district were there a sin HD islature chose to draw the home of But gle group the district. Vo, representative, 149’s Hubert into HD discussed, already we must ask we have Rep. be run 137 so that Vo would forced to analyzing more when a claim that a coali HD against Hochberg, repre- Scott 137’s tion has created an district. There sentative, in the next election. Defs.’ Ex. why are four reasons we conclude this Test, Calvert, Rogene evidence endogenous persuasive success is 422:14-22, Perez, Repre- No ll-ev-360. of the coalition’s demonstrated only Hochberg sentatives Vo and are the elect.43 county’s delegation. Democrats First, population demographics give HD 149’s was re- HD Benchmark neighboring potential perform distributed to districts and en- 149 the as a coalition retrogres- Hispanic Repub- 42. Our conclusion that HD 117 is would discount the choice of may sive seem inconsistent with our conclu- licans not an here. The evidence for issue 41, given regarding HD HD sion 117’s mapdrawers HD 41 showed that the excluded percentage points 1.2 HCVAP is below Republican portions map; here it *37 bright significant line. Yet there are 65% they high-turnout portions. shows excluded First, differences between the two districts. Selecting among Hispanic based on eight points higher HD 41’s HCVAP than is political preferences may their not raise a red eight points represents that of HD selecting flag but based on under section significant power. difference in electoral turnout, history regardless voters’ of Second, expert unlike HD where no political preference, of does. willing to conclude that the district lost status, Handley Engstrom both Dr. and Dr. 43. Our conclusion is consistent with Dr. Handley Rep. conclude HD 117 did. House Handley's assessment of the district. See 11; Engstrom Suppl. Rep. Finally, 8-9. our 3, 7, Handley Rep. House finding retrogressive that HD concerns tion, community glue is the Asian- and the Asian combined The district’s district. Ex. holding things together.” Defs.’ Black, is American, Hispanic CVAP Test, Representative Direct of Pre-Filed 13, at 17. This fact has PL’s Ex. 61.3%. Hochberg Rogene 13:12-13. Cаl Scott assessing minority voting limited value vert, an associate the Texas Asian information such as voter without power Initiative, Redistricting testified American statistics, it does cohesion but turnout and Rep. twenty-two year defeated a Vo in the minority groups if the indicate that strength incumbent they likely would together, came tri-ethnic coalition. Defs.’ Ex. district’s candidate, preferred their be able to elect Test, Rogene Pre-Filed Direct Cal any help Anglo from potentially without vert The Asian-American com 11:3-16. crossover voters. “really munity rallied behind Mr. Vo when Second, shows that all three the record candidacy” he announced his and “took a vote cohe- minority groups the district candidacy,” point to the pride lot of Vo’s that the sively. Texas has not contested many Asian-Americans came out to minority communities vote cohe- district’s participated him had “never support who although And sively general elections. in elections.” Id. at 11:8-11. Further racially polar- provide did not parties more, had a chance of he “wouldn’t have analysis or a breakdown of voting ized if from support success he hadn’t received races, the Rep. returns for Vo’s election in District the other communities analysis Hispanic shows that Texas OAG’s 149,” including endorsements both uniformly in HD 149 and Black voters Hispanic political groups, Black and general candidates in elec- prefer the same Asian-American, and Black Hispanic, preferences their consistent- tions and that “all to elect together communities worked of the district’s An- ly diverge from those 11:11-23; Mr. see also Defs.’ Vo.” Id. 26, at Pl.’s Ex. 3557-60. glo voters. See Test, 420:14-17, Trial Tr. of Ro no evidence of Asian- We have statistical (Cal Perez, ll-cv-360, Calvert, No. gene record, voting patterns American vert, Asian- testifying that she has “seen trial, testimony at discussed in office and other can Americans elected to below, broad, cohesive reports more detail due to the fact that didates of our choice mi- Rep. among all three support Vo groups with other to elect we can coalesce within nority especially communities and Defs.’ Ex. people”); those community. the Asian-American Test, Winkler, Perez, 425:18-24, of Sarah Third, anecdotal evi- uncontroverted (local member No. ll-cv-360 school board tripartite that a coalition of dence shows testifying necessary gain that it is Asian-American, Black, Hispanic minority groups three to win support of all 149). consistently elects its candi- communities HD We find this testi office within Rep. Hochberg credible, HD 137’s date of choice. has made no mony and Texas coalition, strength to the dispute testified effort this evidence district- all three of is effective local and concluding “[politically coalition form a coali- wide elections.44 minority] communities [the the Black and communities Although agrees that this testi- the Court play consistently supportive and vital role in mony sufficient to conclude that the district is Judges Collyer and Howell need protected section it differs in its its success. under they leadership Judge because strength the evidence. not reach issue views of the *38 tri-partite arrangement of a testimony Rep. conclude that concludes that the Griffith protection under sec- equals is sufficient for Hochberg and Calvert shows that the Asian- community the coalition and tion 5. American leads
174 support there is little place, a track record the first coalition has
Finally, the in in elections. Texas success, electing Rep. primary Vo 2004 and focus on Texas’s LULAC, The tri-ethnic coali- a point, since. this but every election cites LULAC for elect- sustained success case, has also had only primaries tion 2 talks about section officials, such as school ing other local minority one as a method to determine members. City Council board and Houston choice; says it noth group’s candidate of Test, Pre-Filed Direct Defs.’ groups for two in a ing about the need Although Tex- Rogene 12:11-13:7. Calvert cohesively vote putative coalition to only per- that the district points out 126 S.Ct. primary. See 548 U.S. Handley’s exoge- five of Dr. forms one it does not hold importantly, 2594. More 13; elections, Br. see Tex. Post-Trial nous primary in a is that evidence of cohesion tbl.3, Rep. 7 we do Handley House also identify a candidate of choice. necessary to expert Texas’s persuasive. not find this pri a contested (stating Id. without exogenous election provide general not did “no obvious benchmark” to mary there was district; only expert analysis for this minority-preferred candi determine the she concluded Handley, do so is Dr. date, that the district court could draw results were more endogenous inferences from this multiple reasonable understanding voting pat- important for evidence). The primary-level lack of same Handley House terns the district. See here, no is true where there has been Especially n. 20. when combined Rep. 13 & endogenous primary contested Democratic that the coalition has success with evidence Rep. Vo first won his since when officials, agree local we with electing other two district court seat. Texas also cites elections, Handley endogenous Dr. cohesion, rely primary Rod cases speak particular to the of a which Pataki, 346, 421 riguez F.Supp.2d v. 308 community to coalesce around can- voting (S.D.N.Y.2004); Perry, and Session v. 298 office, for local are the best evi- didates (E.D.Tex.2004), F.Supp.2d district’s success. dence of this coalition represent these cases view. the facts of SD here we have Unlike this issue have Most courts to address among efforts evidence of both concerted the election expressed preference no about candidates preferred coalition to elect its voting level at which cohesion must be extending across pattern and a of success See, e.g., shown. Lewis v. Alamance cycles. multiple election (4th Cir.1996); Cnty., 99 F.3d objection primary Texas’s to this Clements, LULAC, No. v. Council approach argue is to (5th Cir.1993) (en banc); F.2d cohesively in HD vote groups 149 do not Bridgeport Representation Fair Coal. for together agree come primaries and (2d City 26 F.3d Bridgeport, v. on a or third-best candidate second- Cir.1994), remanded on other vacated and general for the election. In Texas’s time grounds, 512 U.S. 115 S.Ct. view, prove an effective coali does (1994). L.Ed.2d 931 Br. 12- tion district. Tex. Post-Trial majority agree We view. 13; (explaining Rep. see also Alford 19-21 general election regularly Courts consider Asian-American, analysis showing that his data to voter cohesion tra- demonstrate Black, and voters in HD 149 do districts, majority-minority ditional with- level). cohesively primary not vote at the any showing that such a out indication agree voting that evidence of shared We cohe- insufficient without evidence of voter preferences primary at the level would be See, primary e.g., as well. coalition, sion working powerful evidence of 30, 58-59, Thornburg Gingles, v. 478 U.S. prove but it is not needed to cohesion. *39 districts, (1986); HDs 26 and L.Ed.2d 25 Old 106 S.Ct. (9th 1113, 1121 that neither is a presented F.3d evidence shows Cooney, v.
Person Cir.2000). cohesion Additionally, requiring majority-minority district and both are the role of election distorts primary in the currently represented by Anglo Republi- minority groups Although primary. Pl.’s Ex. at 16. Other cans. See at a candidate coalesce around sometimes endoge- about one than scant assertions voters, time, any minority like point Anglo Republi- nous election which the voters, de primary help use other margin narrow can candidate won a and pe We refuse velop preferences. their reputed exogenous success since see like other minority acting for nalize voters Legislative Black Caucus Post-Trial Texas who do not political party in a groups parties Br. have offered no elec- until the race around a candidate coalesce data or reconstituted performance tion See Ala general for the election. is on analysis. cannot make find- election We (‘We re Cnty., 99 F.3d 614-16 mance minority ability based on ings voting of a mi that success ject proposition best, thin record. At the evidence general in a candidate nority-preferred beginning that the districts are may show a weight when is entitled to less election candidates, minority-preferred to favor minority sup far greater candidate prong protects only exist- section 5’s effect primary.... in the port was defeated emerging, ability districts. See ing, not the belief grounded a view is [S]ueh Texas, F.Supp.2d 264-65. mar essentially take their minority voters the candidate go majority- home whenever not a Similarly, bles and HD is primary they prefer most whom an minority represented district and is about prevail, not a belief does Republican. PL’s Ex. at 17. Anglo (citation and do not share.” voters that we Engstrom’s Dr. Handley’s Dr. and Both omitted)). “Pull, quotation marks internal analyses show no victo- exogenous election mi haul, the task of and trade” describes candidates in minority-preferred ries alike, can majority voters nority and 5; Handley Rep. House See this district. may be “candidates didates find that bench- Engstrom Chart. We they “represent if even do choice” ability district. mark HD is not De every minority voter.” perfection Ability Alleged Districts New 1020, 114 Grandy, 512 U.S. at S.Ct. the record establishes persuaded We are legislature that the argues Texas dis- HD 149 is coalition that benchmark new dis many as three created Asian- under section 5. The protected trict tricts, any offset the loss which American, Black, in the enacted eliminated might have been support their together work the district not draw plan But the enacted does plan. candidates, mul- they have a preferred only strength It ability districts. any new HD Benchmark ti-year record of success. in some dis minority voting power ens and Tex- protected 149 is a already achieved the abili that have tricts it without offset- to dismantle as’s decision discussed, already As we have ty to elect. retrogressive, the loss elsewhere ting cannot sal ability districts strengthening Districts f. State House may A state retrogressive plan. vage 26, 106, ability dis of an not offset the elimination minority vot by “packing” additional trict argued have Various Intervenors already performs. ers into 26, 106, also lost and 144 are that HDs actually State calls offsets For two of What the disagree. We ability districts. *40 districts, ability they existing do not Ex. at all parties agree that enacted compensate for the loss of others. district; HD ability 74 is an question is whether benchmark HD 74 is as well. Yet
During litigation, the course of this Tex- that, the rest of the evidence shows as with explanations as has offered three different HDs 90 and demographic district’s plan for how the enacted creates new His- changes only strengthen an already-per- panic ability summary judg- districts. At ment, forming minority district. Texas identified HD 148 in the ability Houston area as new district. Benchmark HD 74 majority-Hispanic, ¶ trial, Mot. Summ. J. 11. At Texas’s chief with an HCVAP of 59.7%. Pl.’s Ex. at witness for the Plan House testified that Representative Gallego, Pete the His- he strengthening per- believed the SSVR panic choice, candidate of represented has centages County’s in HD 148 and Tarrant the district since 1990. Although Texas HD 90 compensated for the loss of HD 33. argues now that benchmark HD 74 is not 11:24-12:6, 2012 PM. district, ability an key players during re- at closing arguments post-trial And and in districting believed it was. See Trial Tr. briefing, appears Texas to abandon these 25:5-22, (Interiano, 2012 PM testi- claims, shifting altogether instead to the fying that he identified HD 74 pro- as a argument new HD enacted 74 in west- tected district at the outset of the redis- ern Texas is a ability new district. Tex. tricting process); 214, 215, Defs.’ Exs. Post-Trial Br. 13-14. (memoranda Legislative from Texas Coun- longer rely Texas’s decision no to attorney cil David Hanna identifying HDs 90 and Although 148 was sound. an district). benchmark HD protected 74 as a initial demographic examination of the With a majority-Hispanic population, twen- data shows that both districts are more ty-two years of success electing the minor- strongly Hispanic in plan,45 the enacted all candidate, ity-preferred apparently lit- experts’ analyses election show that by anyone tle doubt that the district was already ability both are districts. Both protected until litigation pro- late perfect achieved a score under Dr. Hand cess, it seems clear that HD 74 does not ley’s endogenous election analysis, Hand need the new boundaries of the enacted tbl.l, ley Rep. House expert’s and no plan perform minority to for voters. exogenous analysis any change shows be tween the performance of the benchmark In response, points Texas exoge- to the and enacted districts. See Alford Rep. analyses nous election that paint a weaker B; tbl.l, app. Handley Rep. House 11 picture minority success. See Alford tbl.3; Engstrom Increasing Chart. the Rep. 11 (reporting minority tbl.3b victories size of their populations had no elections); in four of the OAG 10 Handley impact on these districts purposes for (one Rep. House 5 tbl.l out of five victo- prong. section 5’s effect ries). (four Engstrom But see Chart out victories). Whether HD seven argues enacted 74 is a new Texas ability call, endogenous district is closer but we conclude it results reflect only the fact 69.4%, is not.46 With an HCVAP of Rep. Pl.’s Gallego has held in HD office proposed 45. The HCVAP in HD 90 agreed increases 46. We note that even if we with Texas 49.7%, to and SSVR 47.9% from 47.2% ability enacted HD 74 is a new 20; 14, PL's Exs. 50.1%. at 20. plan retrogressive the enacted would still be proposed HCVAP in HD 148 increases from because the creation of one new dis- 51.4%, 42.1% and SSVR from 40.0% trict cannot offset the loss of several others. PL's 50.0%. Exs. 13. at 21: 14. at 21. Texas, includes all ity considering to elect rele According over decades. two Texas, F.Supp.2d HD 74 is factors. that is insufficient evidence that vant Br. Tex. 13- Incumbency district. Post-Trial can be a tool that a *41 any voters, community, group like other its power. to enhance electoral uses We persuaded. are not As discussed We to are sensitive Texas’s concern in above, the best endogenous elections are times, could, cumbency advantage give at a mi- ability to a indication of elect. What status, for positive” ability “false but we actually nority community specif- in a does the conclude that best solution is to consid day powerful more ic district on election is whole, record as a to er the not exclude re- stаtewide evidence than reconstituted probative persuaded evidence. We are ability lack thereof —to sults of its —or happened ground that what has on the in sure, a candidate. To be preferred elect two HD 74 for over decades—the consis certainly Rep. Gallego’s success is almost of Rep. Gallego tent reelection attributable, part, in the considerable —reflects reality minority voting But Texas the established advantages incumbency. HD 74 history power. a of en- We thus conclude that is long asks us to discount evi- dogenous providing success without ability plan, an the benchmark incumbency is predominant dence that the attempt Hispanic and that Texas’s to add able to minority community reason the is to the district cannot used be specu- Rep. Gallego. elect We decline to ability the loss of offset districts elsew rationale, this instead late with Texas that here.47
of, example, large Hispanic for a communi- Discriminatory B. Intent base, ty of with a voter interest mobilized House Plan State history of long accounts for the district’s electing Hispanic-preferred the candidate. retrogressive effect of Because minority Texas to show the has failed voters, minority House the State Plan on Gallego community Rep. has reelected Plan we do not reach whether the ability multiple despite lacking times discriminatory purpose. drawn with But elect. con- we note record evidence that causes First, process drawing cern.
Moreover, reject premise we to, Plan showed little attention House incumbency a mark advantage is on, See, the VRA. training or concern for against ability minority com to elect. The 61:1-66:23, 2012 PM. e.g., Trial munity a candidate need not elect different despite And dramatic prove continuing terms to successive Hispanic population in the State’s growth As we in our emphasized to elect. opinion, analyzing primarily abil- that was concentrated three summary judgment post-trial briefing, summary judgment that the lack of election In a in its Tex- footnote more distinct the first 101 as returns to show that two or as advances—for time—HD around a potential Tex. Post- communities will coalesce another offset district. "extremely argues preferred Court candidate makes it diffi- Trial Br. 14 n. 7. It that if this minority voters would protected finds districts under cult to confirm that coalition have, prospec- then to elect” in we enacted HD 101 is indeed have section Texas, F.Supp.2d combined tive coalition district. new coalition district because the conclude, Black, Accordingly, Hispanic, CVAP we will not and Asian-American evidence, groups the district is located in Demo- without 55.5% so, (and around cratic-leaning County pre- new district will coalesce Tarrant in sufficient minority community candidates and turn out sumably, will have same voters). help Anglo to elect them. We stated numbers from crossover areas, Texas failed to create used racial data to draw district lines. geographic any minority ability among districts new The data about which Interiano claimed relatively House districts. small him ignorance split could have allowed (but voting precincts along politi- racial These concerns are exacerbated cal) precisely lines the manner the Unit- process about the evidence we received allege ed States and the Intervenors oc- to enacted HD 117. As detailed led curred. above, mapdrawers modified HD 117 Anglo-preferred that it elect the so would may sup- This and other record evidence yet candidate would look like a port finding discriminatory purpose *42 ability They accom- paper. district enacting the Plan. Although State House by switching plished high-turnout this for issue, minimum, we need reach this at voters, Hispanic hoping low-turnout to full strongly suggests record that the just keep high enough the SSVR level to retrogressive may effect we have found pass chang- muster under the VRA while not have been accidental.
ing
into
that performed
the district
one
VI. Conclusion
Anglo
testimony
voters. This
is concern-
We conclude that Texas has not met its
deliberate,
ing because it shows a
race-
burden to
Congression-
show that the U.S.
manipulate
conscious method to
not simply
but,
al and
House
Democratic
State
Plans will not have a
specifically,
vote
more
effect,
retrogressive
vote.
and that
the U.S.
Congressional and State
Plans
Senate
Finally,
testimony
the incredible
discriminatory pur-
were not enacted with
mapdrawer
lead House
reinforces evidence
pose. Accordingly,
deny
we
Texas declar-
suggesting mapdrawers
cracked VTDs
atory relief.
carry
Texas has failed to
its
along racial
minority voting
lines to dilute
S148,
C185,
burden that Plans
and H283
power. Texas
testimony
made Interiano’s
do not
the purpose
deny-
have
or effect of
the cornerstone of
in
purpose
its case on
ing or abridging
right
to
on ac-
vote
45:22-25,
the House Plan. Trial Tr.
Jan.
race, color,
count of
membership
or
in a
(“[0]ur
17, 2012
[discriminatory pur-
AM
language
group under section 5 of
pose]
largely
credibility
case rests
on the
Voting Rights
Act.
person.
of one
His name is Gerardo Inter-
iano.”).
spent
Interiano
to a
close
thou-
Opinion
by
for the Court filed Circuit
equivalent
sand hours —the
of six months
GRIFFITH,
Judge
in which District
training
comput-
full-time
on the
work—
joins
Judge
Judge
HOWELL
and District
program
er
Texas used for redistricting,
joins
except
COLLYER
all
section III.A.3.
131:3-5, yet
id. at
testified
he did not
Separate opinion for the Court with
function,
program’s help
know about the
respect
retrogression
Congressional
to
in
85:18-25,
PM,
at
id.
or of its
by
Judge
District 25 filed District
capability
display
racial data at the cen-
HOWELL, in which District
level,
93:13-19,
Judge
sus block
at
id.
joins.
COLLYER
2012 PM. As unequivocally demonstrated
trial,
this
readily appar-
information was
Dissenting opinion
respect
with
user,
ent to even a casual
let alone one as
retrogression in Congressional District 25
experienced as Interiano.
See id. OSA-
by
Judge
filed Circuit
GRIFFITH.
IS;
88:5-89:17,
id. at
2012 PM.
implausibility
Appendix
Judges
The
filed District
professed
Interiano’s
HOWELL,
ignorance of these
in
suggests
functions
that COLLYER
which
Texas had something
way
Judge
joins.
to hide in the
it Circuit
GRIFFITH
that was lost
the Benchmark
for the Court
Separate opinion
plan.
the enacted
Congressional
respect
retrogression
HOWELL,
Judge:
District
District
Plan,
In the Benchmark
CD draws
from South
majority
population
Aus-
its
abridg-
Plan
Congressional
The enacted
also
County,
tin in
includes
Travis
their
minorities
elect
es
of Austin. The
seven counties southeast
choice,
thus
be
cannot
candidates of
total
in the district
49.8%
5 of the
As
Section
VRA.
precleared under
and 8.7% Black.
Anglo,
Hispanic,
38.8%
below,
was
among
explained
CD
Anglos
Ex. 11.
constitute 63.1% of
Pl.’s
minorities the abili-
provided
districts
Hispanics make
the CVAP in CD 25 while
of choice
ty to elect their candidates
Id. If
up
Anglos
25.3%
Blacks 9.1%.
Plan,
therefore protect-
and is
Benchmark
25, they
elect
cohesively
voted
CD
could
under
The elimination of
ed
the VRA.
election,
every
preferred
their
candidate
offset,
corresponding
without
beyond
be
the ambit
district would
retrogressive.
in CD
Anglo
of Section
vote
25 is
25 in the
parties agree
All
that CD
however;
many
Anglo
as half of
split,
*43
plan
not an
district.
enacted
is
Hispanics
voters cross over to vote with
however, whether Bench
They disagree,
Blacks
Democratic candidates
and
to elect
protected
mark CD is a
crossover dis
25
(a
greater
percentage
much
crossover
than
States,1
Texas,
and one
trict.
the United
average
approximately
of
the statewide
not;
claim that
it
defendant-intervenor
is
25%).
(Trial
Tr. 1120-
See Defs.’
578
argue
it is.
remaining
intervenors
that
2011).
Perry, Sept.
Perez v.
In
above,
reaffirm
con
we
As discussed
contrast, the
and Black voters of
Hispanic
summary judgment
in our
clusion reached
overwhelmingly
cohesively
25
vote
for
CD
pro
districts are
opinion that crossover
Defs.’ Ex. 724
the Democratic candidates.
that proving
and
tected under Section
(Ansolabehere
Report
Sup-
to the
Rebuttal
exacting
“more
ev
requires
their existence
Alford,
Dr.
At-
plemental Report of
John
prove
than
needed to
idence
would be
3) (“Ansolabehere
Rep.”). For
tach.
Reb.
district,”
majority-minority
existence of a
instance,
congression-
and 2010
the 2008
data,
way of
by
election
with “discrete
elections,
of Black voters cast
al
100%
returns,
to confirm the existence of a vot
Lloyd Doggett,
for
as
Congressman
ballots
v.
ing
power.”
coalition’s electoral
Texas
voters.
An-
Hispanic
did over 80% of
Id.
States,
F.Supp.2d
United
Congressman Doggett,
glo support
(D.D.C.2011).
that
conclude
the rec
We
however,
considerably.
has varied
demonstrates that
ord before the Court
vote,
Anglo
he
53% of the
received
cohesive,
politically
voters are
dropped to 37% in the
Anglo support
but
history of
have a demonstrated
electoral
political
The dominant
2010 election.
Id.
success,
their
effectively
political
exert
by
and
in CD
thus described
some
force
25 is
mi
within the coalition
elects
al-
power
composed
coalition”
of
as a “tri-ethnic
Black and
nority preferred candidates
CD
most all the district’s
half,
37%,
voters,
as little
but
protected ability
up
The district is therefore
argue
dispute
rectly
government
*44
as well as
(stating
CD 25
at 192
that
reading
Supreme
precedent
our
of the
Court
"...
there is evidence that a coalition of
Black,
regarding protected districts
Hispanic,
Anglo
outlined in the
and some
voters con-
Majority Opinion. Majority Op.,
sistently
at 146-51.
minority-preferred
elects
candidates
Nevertheless,
...."),
argues
the dissent
undisputed
that the test
in CD25
it is
that the tri-
"sweeps
we delineate
too
Congressman Dog-
wide because it
ethnic coalition elected
choice,
provides
way
distinguish
gett, minority
no
the
between un-
candidate of
in each
districts,
protected
past
influence
of the
minority
where
three elections.
role,
play
voters
protected
substantial
districts,
crossover
they
in which
have an
3. Given that
and Black voters in
Dissent,
ability to elect.” CD 25
at 191. The
prefer
Benchmark CD 25
the same candidate
"unprotected influence
election,
districts” referenced
general
of choice in the
the Court
dissent, however,
by the
are districts "where
together
purposes
considers these voters
for
minority
may
voters
not be able to elect a
assessing minority voting power.
See Ma-
substantial,
play
candidate of choice
jority Op.,
but can
(stating
goal
at 139-40
that "[t]he
decisive,
process.”
if not
role in the
prong
electoral
the
'effect'
section
[of
5] is ‘to insure
461, 482,
Georgia Ashcroft,
v.
539 U.S.
voting-procedure changes
that no
would be
(2003).
S.Ct.
The record demonstrates that no single
Representative
provided
Dukes
specific
examples
support
of elections to
group
analy-
CD 25’s tri-ethnic coalition
her
is
minority
sis of
groups’ voting power in CD
sufficiently numerous to elect its candidate
25. She recalled the 2008 election for
alone,
together
but
the coalition consistent-
Assessor,
County
Travis
Tax
in which the
ly
general
wins
elections
the district.
supported by
African-American
the coali-
Contrary to
Anglo
the assertion that
Dem-
successfully defeated,
tion
with 74% of the
ocrats control the
evidence shows
vote,
Anglo
an
“progressive
male
Demo-
supported by
that candidates
minority
crat.” Id. at 112. Before the Court
groups within the tri-ethnic coalition are
similar testimony from
Escamilla,
David
the ones who win. Trial Tr.
County
the Travis
Attorney, regarding the
(Dukes).
2012 PM
example,
For
Texas
power of minority
the tri-ethnic
State
Representative
House
Dawnna
(Pre-Filed
coalition. See Defs.’ Ex. 735
Dukes testified that candidates are not
Testimony
Escamilla).
Direct
of David
voters,
able to bypass minority
and candi- Mr. Escamilla
only
not
Represen-
echoed
dates who
obtain endorsements from tative Dukes’ testimony
Anglos
do not
Anglo groups in the tri-ethnic coalition do control the election
outcomes
the tri-
not win elections.
Id. at
(Rep.
Dukes
coalition,
ethnic
provided
but also
the ex-
testifying that “...
in general elections in ample of a race in 2008 in which Anglo
County
you
Travis
if
[]
do not win the
County
Assistant
Attorney
lost
race for a
Hispanic and African-American boxes that
county judgeship despite having “the lion’s
largely
are
located in
portion
the central
share of endorsements
from the local
County,
Travis
you
then
going
to Democratic clubs” because he was “unable
win an
gain significant
election in
County
support
Travis
without
the His-
panic or African
American
progressive
community.”
Anglo Black
Id. at 9-10.
may
communities.
I
not have an Excel
spreadsheet,
I
you
can tell
I
my
know
The
presented
evidence
to the Court
county.”).
regarding
power
voters in
Democratic,”
ply vote
minority group
"must
voters have an
to elect and
lead” a crossover
equal
coalition and that "an
safeguards
section
apply.
5’s
See Johnson v.
voice” in a district’s electoral decisions is not
997, 1020,
Grandy,
De
512 U.S.
114 S.Ct.
Dissent,
enough. CD 25
191-92.
(1994);
voters able pre- to elect their provide the law no basis for the assertion that ferred Supreme candidates. The Court has only minorities are able never to elect their stated that candi- minorities must "lead” a coalition, "leaders,” voting they date of choice if op- rather that when as minori- haul, “pull, posed ties pre- equal participants and trade” to process elect their in the of candidate, ferred the political district is one in building. which coalition primaries Dr. ana persuasive, par in the 43 Ansolabehere coalition is the tri-ethnic lyzed, in Anglo the voters backed the winner ticularly because it is corroborated performed by Stephen Hispanic Dr. voters the analysis primaries; backed expert To assess the relative in primaries; winner Black voters Ansolabehere.6 Id., the tri groups comprising the power primaries. of the winner in 31 backed coalition, Dr. Ansolabehere exam ethnic Attach. 6.8 in groups’ success Democratic ined each testimony support These statistics the County. in Travis primary elections presented to that tri-ethnic the Court the he ana County primaries Travis
the 43 in consistently coalition elects candidates Anglo won lyzed, preferred the candidate that to the primary appeal the Democratic His without from the support once minority voters in the tri-ethnic coalition. Black Ansolabeh panic and communities.7 effectively po- Mr. Escamilla described the On other Rep., Attach. 6. the ere Reb. cooperation the litical cohesion and within hand, minority won preferred candidates coalition, “consistently which tri-ethnic of support elections twelve without produces broad indi- agreement support voters. Id. Texas—as well Anglo While vidual and slates of candidates. candidates that Demo argues Anglo the TLRTF — high frequency agreement of on candi- control the tri-ethnic coalition crats among organizations dates within voters, minority these election drown out also from that Coalition stems the fact the con results belie that conclusion. To more many individuals are members of that trary, Dr. Ansolabehere concludes organizations. than one of the This over- across “[Booking patterns the different lap membership promotes agreement in no group that one group coalitions reveals political slates of candidates.” common is primary process.
dominates the Power Indeed, Defs.’ at 7. the evidence very equally way in such a shared Anglos do not dominate nominating demonstrates groups the racial succeed successfully tri-ethnic coalition preferred percent their candidates Rather, way example, candidates in CD By time.” Id. at 23. elects cohesively voting infra, ing anal- coalition need vote discussed Dr. Ansolabehere’s As level). primary at the comprehensive. find- ysis could be more His voting ings probative are nonetheless expert also noted that vоter turn- 8.A second dissenting dynamics within 25. Our col- CD generally primary is low elections out league believes that some Dr. Ansolabeh- effectively County and CD which Travis "discrepancies,” CD ere’s statistics result minority amplifies preference voters Dissent, colleague’s at 194 n. but our primaries. explained: ”[I]n He Democratic has Ansolabehere’s data deconstruction of Dr. County and CD low-turnout Travis any ex- not been corroborated statistical vote almost exclu- primaries, taking Regardless, account pert. even into election, sively while Democratic undisputed it any alleged "discrepancies,” Anglo majority County, and else- in Travis Dr. Ansolabehere's data indicates 25, splits vote March in CD its where enjoys virtually Congressman Doggett unani- partisan balloting. That means vot- support Black voters and over- mous from ers, combining especially County, in Travis whelming support voters. *47 Anglos who the minority remain in with the of very primary, in de- are effective Democratic only primary results cited These election are termining party.” the of their Mur- nominee 1; power among groups the relative at ray Suppl. Rep., to assess ECF No. Ex. coalition, ("Fewer Anglos comprising voting not to assess also id. fewer see Majori- primaries in the 25th Dis- voting exists. in Democratic whether coalition See vote trict.”). (noting compris- ty Op., groups that at 174-75 prefer- power record shows that the do have views not the coali- tri-ethnic minority of in the tri-ethnic supply ences voters tion nor does it to under- evidence but, only necessary coalition more cut that argument they the intervenors’ analysis, regular- for Section importantly do. The argue minority intervenors that ly prevail the coalition’s selection of repeated voters’ electoral success as well view, noted, In our tri- candidates. as the expert the unrebutted factual testi- ethnic crossover at work in coalition mony regarding equal power-sharing equal power- Benchmark CD 25 reflects among groups tri-eth- comprising the sharing among the of the coali- members nic coalition is sufficient to establish by Anglo rather than tion domination vot- minority Benchmark ability CD 25 is a ers. agree. district. We In addition to and expert the anecdotal Discrediting Minority B. Evidence dynamics evidence of the tri within the Voting Unpersuasive Power is coalition, greater ethnic there is no evi Despite minority the success of voters in power of the minority dence of voters in electing candidates of choice in their 25 than the Congressman CD reelection of CD unrebutted of testimony elected Doggett 2010. In of Anglo 53% officials within supported this and ex- Congressman Doggett’s voters pert corroborating political evidence successful reelection campaign. however, power minority Congressman of voters within the tri- Doggett won re coalition, despite ethnic two receiving arguments election 37% of are assert- support vote Anglo position because ed for minority 100% of Blacks and Hispanics 86% voted for him. voters do not political power Ansola exert Thus, behere Reb. Rep., Attach. Benchmark CD 3.9 not 25 and that district is this withstanding the large majority fact that a not eligible therefore as an protection Anglos against voted minority pre ability district. The United States also candidate, ferred minority position voters effective takes the that Benchmark CD 25 (with ly exerted their political power protected district, is not a but does so on voters) aid of number of Anglo crossover apply the belief that Section 5 does not to elect the candidate of their choice. Anglo voting CD 25 because in the district is not by characterized racial polarization. argues minority Texas success is arguments Each these consider- merits solely due to the partisan makeup of the ation. district, but the 2010 alone election refutes Indeed, conclusion. despite First, Texas’s the TLRTF expert discounts proof, burden Texas no supplies presented evi- evidence Dr. Ansolabehere aside from dence demographic demonstrating statistics to the electoral of mi- success support argument minority its voters nority voters and their within power experts agree 9. Most of the endoge- preferred that such legislative candidates to the office at probative district.”); nous election results are the most issue in at 4 Defs.’ Ex. group evidence of minority (Handley Congressional whether a or mi- Report); Defs.’ Ex. nority (Ansolabehere ability coalition has the to elect Report, Oct. See, 31). candidate of e.g., choice. Defs.’ retrogression proffered While the expert (”[T]he (Handley at 3 Report) disagrees Rebuttal endoge- most Texas with reliance on piece essential determining analysis, information in previously, nous election as noted pro- agreed if a Benchmark district is a district that even he CD 25 Benchmark is a vides voters with the to elect in which minorities have the their candidates of choice is whether elect the candidates of their Trial choice. have electing (Alford). been successful at their 2012 AM *48 voting dynamics pop in the district’s most because this evidence coalition tri-ethnic county significant impact ulous have a County, Travis information from relies on in voting dynamics the rest of the counties that com to all of the opposed minority population’s district. The other plan. in the Benchmark prise CD 25 County in Travis successes therefore of Mar. Resp. to the Ct.’s Order TLRTF’s significant assessing power in its and influ No. at 7.10We acknowl ECF ence within the crossover coalition.11 that, in this experts as with other edge case, Dr. Ansolabehere analysis by Second, Texas, like the TLRTF con- useful data. possible not cover all does that Benchmark is not an tends CD 25 Nonetheless, evidence of the Court finds Anglo domi- district because in performance coalition’s the tri-ethnic in nate the electoral outcomes CD 25. As analysis County probative reveals, of its argument Travis prior discussion wrong. minorities in CD 25 have the abili It factually upon whether is also based choice. ty support to elect the candidates of their faux data. of its view of the matter, only voting power minority one relative versus As an initial there is voters, Anglo the TLRTF cites two differ- within 25 as a endogenous election CD supplied by ent sets of data the OAG: representative the election for a whole: racially polarized voter turnout estimates Congressman Congress, the U.S. which exogenous election results in statewide Doggett has won since the district’s initial primaries. discussing Democratic Prior to Thus, in formation. order measure datasets, reliability of these the Court power effectiveness and of minorities briefly peculiar reviews the manner the tri-ethnic coalition elects Con argu- the TLRTF first its which raised necessarily must gressman Doggett, one ments to the Court. performance look to the of the coalition subdivisions, in Tra political other such as Over three weeks after trial and follow- County. portion of CD 25 that vis ing parties’ proposed submission of the County only com encompasses briefs, Travis not findings post-trial of fact and prises significant majority popula of the in an argued TLRTF for the first time (59.7%), but also contains a “advisory” tion of CD that the should not count Court large majority protected of the district’s Benchmark CD 25 as a (66%). See Pl.’s Ex. 11. The the Demo- Anglo because voters “dominate Internet, Dissent, dissenting colleague at 193-94 10. Our also cites this fo- on the see CD 25 County cus on Travis as weakness indicate that the other six counties whol- n. expert analysis testimony. CD 25 Dis- ly CD 25 vote over- contained in Benchmark sent, at 181-83. (concluding, whelmingly Republican. Id. data, analysis aggregate based on an Texas, party, including presented any 11. No prevailed "the tri-ethnic coalition regarding the tri-ethnic coalition’s evidence twenty hundred and elections three of one performance in the six smaller counties whol- 2010”). This con- held in these counties ly contained in Benchmark CD 25. Our col- majority that at least the of voters in firms league states that we are “mistaken” on this part the tri-ethnic these counties are not point, and writes that received evidence "[w]e coalition, voting do affect the and thus indicating that tri-ethnic coalition was coalition, dynamics within the tri-ethnic CD 25 ineffective in these counties in 2010.” inquiry. It further which is the focus of our Dissent, at 193-94 6. The exhibit to which n. is able to that the tri-ethnic coalition indicates however, cites, 206-page he is a table of elec- endogenous in Bench- prevail elections results, the Demo- tion which indicates that despite mark CD 25 the fact that most in the elections he refer- cratic candidate lost id.; counties do not voters in these six smaller ences. See PL’s Ex. 34. This table and minority preferred colleague candidate. our discovered vote for the election results *49 186 statement, TLRTF’s Inter did not corroborate Advisory of Def. primary.”12
cratic
210,
3;
TLRTF,
at
issue a Minute
No.
see
the Court
to
prompting
ECF
venor
Interve
Resp.
to Gonzales
a
directing
provide
TLRTF
the TLRTF to
also
Order
25, ECF No.
Regarding CD
nors’ Brief
reasoning for and
explication
“fuller
of its
(TLRTF
223,
prior
concedes that
2 n.
at
its conclusion.” Min-
the evidence behind
had
advisory,
this intervenor
to
its
filing
6,Mar.
ute Order dated
to the Court
‘suggested]
previously
“never
Order,
In
to the
response
Court’s
minority ability
a
was not
that CD 25
the first
time that
argued
TLRTF
for
”).
its blanket
support
As
district]!]’
majority
cast a
of votes
Anglos often
Demo
Anglos “dominate”
statement
that
Resp.
TLRTF’s
to the
primary elections.13
25,
TLRTF
primaries
cratic
CD
6, 2012,
219,
Mar.
No.
Ct.’s Order of
ECF
results
exogenous election
cited tables of
agrees
at
The Court
with the remain
general
and
elec
primary
from statewide
intervenors, however,
the data
ing
(2002, 2006,
years
tions
four
support
the TLRTF to
this
presented
2010). Advisory
of Def.
Intervenor
persuasive.14
is not
argument
210,
TLRTF,
(citing
at
n. 10
ECF No.
TLRTF
our dis-
According to the
439-41).
437,
the tables
Defs.’ Exs.
Since
colleague,
turnout esti-
senting
OAG
identify the mi
of election results did not
choice,
in four
the exhibits mates for certain selected elections
nority candidates of
intervenors,
event, exogenous pri-
any
According
the other
when
ers in CD 25.
to
mary
the U.S. District Court in the Western District
election results would not rebut
initially adopted congressional map
of Texas
expert
evidence demonstrat-
testimonial
25,
preserved CD
"defended
TLRTF
ing
in CD
have ful-
Supreme
map
appeal
to the
Texas’s
haul,
"obligation
pull,
filled their
to
trade
Court,
suggesting
the Court that CD
never
political ground”
to find common
and achieve
minority-ability
25 was not
district....”
Georgia Ashcroft,
v.
electoral success.
Resp. of Certain Def. Intervenors to TLRTF’s
481,
(quoting
at
De Gran-
U.S.
123 S.Ct.
Briefing Relating
at
to CD
ECF No.
2647).
dy,
VRA it is eliminated as an effectively voters can exercise *53 district, offset, it must be which CD 25 is power pre- their electoral to elect their not. This loss of Benchmark CD 25 as an My colleagues and I ferred candidates. district, ability any without the creation of agree protect every that 5 not section does district, ability new renders the enacted “Anglos district in which and minorities Congressional plan retrogressive. candidate,” together to elect a or vote GRIFFITH, Judge, dissenting Circuit a “that elects Democratic candidate no in respect retrogression to minority population.” matter how small its Congressional District 25: Majority disagree atOp. 150. We over where section 5 draws the line be-
I, too, summary reaffirm our decision at protected tween crossover districts judgment pro- that crossover districts are simply vote nonprotected districts agree tected under section and I ability enacted CD 25 is not an Democratic. district. position pro- ing Congressional
24. The United
that the
States'
is
Patterns in
Texas
Dis-
apply
Perry, Aug.
tections of Section 5 need not
CD
trict Plan
v.
to
Cl85
Perez
presence
Anglo
because
of crossover
ECFNo. 123-1.
presence
voters. The
of these crossover An-
note,
glo
sufficiently protect
my colleagues
voters does not
minori-
1. As
Texas and the Texas
25, but,
fact,
ty
may
Redistricting
argue
voters in CD
in
create a
Latino
Force
Task
ripe target
parts
ability
for
in
actors
other
benchmark CD 25 is not an
addition,
retrogress minority voting power
state to
in
under
the United
section 5.
States
by fracturing
submerg-
expert,
Handley,
argue
CD 25
the district and
and its
Dr.
do not
ing
pieces
protected
its
where
a
areas
race-based vot-
benchmark CD 25 is
district.
In-
Indeed,
deed,
ing
prevalent.
explicitly
remains
the enacted
the United States
noted in its
that,
view,
plan
briefing
County
post-trial
retrogres-
five
divides Travis
into
different
in its
result,
Congressional
districts and
a
"[t]his
is the
sion in the
Plan is based on the
district,
county
in which the
add an
exceeds
failure to
additional
required
[congression-
number
to constitute a
"not on a ... determination that benchmark
county
provides minority
al]
but the
not the
with the
[CD]
is
seat of
any single
Report
preferred
district.” Ansolabehere
to elect
candidates
Minority
Representation
and White
Br. 16 n.
and Vot-
choice.” U.S. Post-Trial
role,
protected
play
a district
substantial
hold that
My colleagues
districts,
they
in which
crossover
have
minority voters “effective
when
protected
ability to elect.
within the
political power
their
ly exert[ ]
this novel re
coalition.” Under
voting
protect
influence and
The line between
elect,”
“ability
they
to
estab
phrasing of
admittedly
ed crossover districts2 is
diffi
dichotomy, testing “whether
a false
lish
Supreme
prece
cult to
But
Court
draw.
political
25 exert
their
minorities
CD
my colleagues
dent —which
do not cite as
coalition,
effectively
the tri-ethnic
power
support
“effectively
for their
exert” test3
just
‘hangers-ori
or are rather
location,
—helps us at least to sketch its
Majority
Anglo voters.” CD 25
choices of
unprotected
25 falls on the
side.
CD
Although my colleagues do
Op. at 181.
Whenever the Court has examined cross
it means
a full definition of what
provide
districts,
Anglo
it has
vot
spoken
over
“effectively
exert[ ]
voters to
mi
providing supplemental support
ers
appears
they
it
political power,”
their
Strickland,
nority
Bartlett v.
voters. See
“hanging
more than
on” as
anything
view
1, 13,
556 U.S.
129 S.Ct.
173 L.Ed.2d
prove
pro
that the district is
sufficient
(2009) (plurality opinion) (defining
But
this overbroad result runs
tected.
mi
crossover district as one which the
headlong into the 2006 amendments to
nority group can “elect the candidate of its
summary judgment,
we noted at
VRA. As
help
choice with
voters who are mem
Texas,
F.Supp.2d
Congress
majority and who cross
bers of the
over
to make clear that sec
amended
VRA
support
minority’s preferred
candi
retrogression prong
tion
did not include
5’s
added));
(emphasis
v.
date”
Voinovich
minor
“influence districts” —ones which
146, 158,
Quilter, 507
113 S.Ct.
U.S.
“substantial,
decisive,
if not
play
(1993)
ities
(describing
a cross
L.Ed.2d
Georgia v.
process,”
role in the electoral
over district as one which
vot
461, 482,
Ashcroft, 539 U.S.
123 S.Ct.
can
“their candidate of choice
ers
elect
*54
(2003);
LaRoque
also
This is the line we must that minor- Because there is no evidence in to have the ty group must lead order 25,1 my analy- stop lead in would ities CD leadership needed to elect. protected. it and find that is sis here in demonstrated a prove ability can be colleagues’ test is assuming my But even consistently variety ways, such as correct, power and that a district which majority of votes for the win casting test, equally satisfy would such is shared elections, ning candidate most coordi evidence the record there is insufficient drives, nating get-out-the-vote or recruit pow- support finding equal electoral It ing First, the lion’s share of candidates. I the anecdotal evi- er. address leadership 25; makes little difference how I regarding then turn to the dence CD is crucial is that minori expert is asserted. What and statistical evidence about the than ty provide margin voters do more turnout and electoral re- district’s voter equal victory simply or have voice sults. a district’s electoral decisions.4 on the My colleagues place weight much testimony showing especially important anecdotal of one Travis Coun-
Such
.of
Dawnna
ty’s
representatives,
State House
a district like CD
where
Dukes,
County Attorney David
comprise only 35% of the Citizen
and Travis
(CVAP).
regarding
Escamilla
the tri-ethnic coalition
Voting Age Population
Although
Black,
County.
I am not confident their
that a coalition of
Travis
there is evidence
First,
testimony
weight.
can bear this
Hispanic,
Anglo
and some
voters consis-
*55
County voting pat-
tently
minority-preferred candidates
evidence about Travis
elects
minori-
showing
adequately
in
that mi-
terns does not
describe
CD
there is none
because,
ty voting power within CD 25
as
nority voters lead the effort. For exam-
below,
they
that
detail
less than
ple,
testimony
presented
no
discussed more
recruiting
County
a critical role in
the candi- half of Travis
is
CD
and
play
(in
25 lies outside
approximately
dates who run in
contrast
40% of CD
CD
trade,”
haul,
"pull,
Grandy,
My colleagues argue
leadership re-
and
De
reads
quires
minority
any
voters "eschew
(emphasis
at
ning Travis without expert analysis Neither do the nor sta support progressive Anglo, from “the tistical data show that a protect CD is Black, Hispanic communities.” Trial My ed district.5 colleagues place much 106:10-18, 2012 PM. Escamilla weight County primary on the Travis elec testified about a candidate who lost analyzed by tion results Dr. Ansolabehere. primary gain because he was “unable to above, But as noted County Travis is not significant support from the or County CD 25. Travis contains 59.7% community.” African American Defs.’ Ex. population, though CD 25’s even it has Test, (66%) Pre-Filed Direct of David Es- larger portion mi district’s My colleagues surely camilla 9-10. nority population. See Pl.’s Ex. at 7. right testimony suppоrt could The remaining 40.3% of CD 25—which Anglos conclusion that do not control Republican figure CD votes Dr. into —does it anything doesn’t tell us more. Ansolabehere’s at calculations all.6 Even matter, preliminary my colleagues assuming As a ocratic had it at least one resident, place eligible minority much faith in Dr. Alford's statement would not also be a protected benchmark CD 25 is a district in which district.” Pl.’s Ex. Pre-Filed Test, ability minorities have an to elect. But we Direct of Dr. John Alford 28-29. And already explained length, Majority Op. have rely we did not on Dr. Alford's similar conces- metric, Dr. Alford uses a metric that deter- sion that SD his was an under ability by degree 39:5-21, mines to elect metric we ability district. Trial Tr. —a emphatically rejected. have There is no rea- 2012 AM. legally son that his assessment should be con- contrast, the smaller counties of Cald- district, yet My clusive for this no other. well, Colorado, Gonzales, Fayette, Hays, and colleagues respond proof that the burden of wholly Lavaca are all contained within CD 25 Texas, only expert credibly opined and "its and are not addressed in either the anecdotal ability ... that Benchmark CD 25 is dis- testimony analysis. My Dr. or Ansolabehere’s Majority Op. trict.” CD 25 at 181 n. 4. But colleagues party, including state that "[n]o Texas did not concede benchmark CD 25's Texas, presented any regarding evidence See, ability e.g., status. Mem. Concern- Pl.’s performance tri-ethnic coalition's in the six ("[Ujnless ing Congressional District at 1 wholly smaller counties contained Bench- ipso all Democratic districts are facto Majority Op. mark CD 25.” CD 25 at 185 n. districts, minority group in no benchmark CD They are mistaken. We received evidence 25 had the to elect candidates of their *56 indicating choice.”). the tri-ethnic coalition was expert That Texas’s uses the word 2010, Repub- in ineffective these counties. "ability” in his assessment of benchmark CD (and tri-ethnic lican candidates won coali- offering legal not mean that he a does lost) status, eighteen tion all elections held within opinion protected properly on its de- fined, Gonzales and Lavaca Counties. PL’s Ex. contrary position. to the State’s As we agreed opinion, 189-92. The tri-ethnic coalition in the Dr. Alford has a differ- Hays County, "ability fared little better in where ent view than that of district” fact, only twenty-two elec- Democrats won one of called for in section 5. In he stated that if tions, County, protected and Caldwell where Democrats "the 25th District is a then any majority only eighteen. it is hard to see how other Dem- won two of Id. 165-68. out of 43 County- majority vast of the time—in 31 half of Travis troubling, over
more prevailing candidate had primaries in but is nonetheless lies outside CD —the Black, An- Hispanic, and support from the analysis. Id. Dr. Ansolabeh cluded importantly, communities. More glo over- and under- set is thus both ere’s data from this evidence is conclusion he drew particu This is inclusive the extreme. very equally” only “[pjower is shared we have been larly problematic because 724, Expert County, in Travis Defs.’ explanation why it is with no provided Dr. Ansolabeh- Report Stephen of Witness about CD to draw conclusions appropriate Ansolabehere ere 105-06 [hereinafter only voting data drawn 25 from way. Rep.], not that minorities lead the together relevant subset of the best, At shows that all members of the this entirel from a different district with voters primary a vital role at the play coalition exacting “more y.7 type This is not the County. taking Even this level Travis necessary prove a crossover evidence” true, power conclusion as evidence that the district’s district. must consider We minority equally shared does not show status, County’s. Travis ability not helm, they at the and thus that voters are County can stand assuming Even Travis ability have an to elect in CD themselves primary data still does in for CD this minority not show that voters themselves my final col piece of evidence Dr. have an to elect the district. only one that leagues marshal —and the report shows that the An- Ansolabehere’s concerns CD 25 as a whole—is also from only pri- one glo-preferred candidate won report Dr. Ansolabehere. His considers mary support without from the by racial the breakdown of votes and eth Black in the contests he communities Lloyd group Representative Dog nic for analyzed, Hispanic- but gett, candidate of choice candidates won twelve Black-preferred taking CD 25. Even Dr. Ansolabehere’s accurate,8 Anglo support. And the calculations as this evidence is elections without subdivisions, State, According Secretary in other such as in Travis Coun- to the Texas twenty-three ty.” Majority Op. lost all elec- tri-ethnic coalition CD 25 at 185. But it is a County tions in Colorado in 2010 and all jump My far from useful to conclusive. col- Fayette. indication, nineteen elections in See Historical leagues give example, why no Results, http:// Sec'y Election analysis State, Tex such an would not include even a www.sos.state.tx.us/elections/historical/index. passing glance at the six “other subdivisions” (official (last 2012) Aug. shtml visited wholly CD 25. contained within Secretary listing website of the Texas of State results). Thus, past the tri-ethnic co- election regression analysis 8. The Dr. Ansolabahere prevailed only three of one hundred alition provides is also not without its flaws. Dr. twenty held in elections these counties VAP, CVAP, in cal- Ansolabehere uses his My colleagues would have us disre- Rep. culations. Ansolabehere attach. 3. The majority gard data "the of voters because 25.3%; HCVAP of CD 25 is its HVAP 34%. part in these counties are not of the tri-ethnic guess significant We are left to if this differ- coalition,” Majority Op. CD 25 at 185 n. 11. citizen and noncitizen ence between we examine But nowhere else do sub- population, highly light relevant factor in set of a district to determine the district’s voting requirements, change citizen would his dynamics voting determine status. To Moreover, there are unex- conclusions. in CD we must examine CD 25. plained discrepancies in Dr. Ansolabehere's Hispanics comprised data. He states that My colleagues Dr. concede that Ansolabeh- 2008, id.., data,” Doggett’s coalition in but his possible 83% ere does not “cover all useful retrogression appears calculation to indicate they argue County that Travis data is *57 93%, figure id. attach. 4. And he "one that useful nonetheless because must neces- sarily performance support Doggett in 2008 look to the of the coalition calculates Black for voters, many and 100% of how Black vot- 25 is a to conclude CD insufficient still ” cal- Dr. Ansolabehere That minorities voted overwhelm- district. ers? crossover won in 2008 with 53% Doggett ingly Rep. Doggett very culates for tells us little vote, Hispanic Anglo 83% of of the their role in the coalition. This data about vote, of the Black vote CD and 100% support story a in which could minorities attach. 3. In he Rep. Ansolabehere it way victory, lead the to could also Doggett won with 37% calculates that story minority tell a voters have which vote, vote, Hispanic 86% of the Anglo equal Anglos, an voice to or even one At Black vote. Id. first and the entire Anglo take the lead in where CD blush, persuasive. this seems With might in- Incomplete data from which we to a little more than one-third support of of “more type fer status is not the vote, Rep. Doggett’s Anglo one-half of the necessary a exacting pro- evidence” to find attributable to victories seem tected district. heavy lifting. But community doing the taking Even Dr. Ansolabehere’s data at analysis begs ques- Dr. Ansolabehere’s I am extreme face value—a limb on which tion, nothing about voter it tells us because for stated ly perch loathe to the reasons element, that crucial turnout. Without try extrapolate it to using above—and to way put analysis to his into there is no missing turnout data9 would indicate Texas, F.Supp.2d at 263 context. See all Anglos average cast an of 81% of (“However, supermajori- when there is no votes in 25 in 2008 and and thus CD analysis must ty in a a Section 5 only cast Absent minorities 19%.10 include beyond mere data to go play that minorities a lead any indication registration, such as voter factors coalition, I cannot con ership role turnout, history, minority voter election (according clude that a district where voting behaviors.” minority/majority reading expert the most favorable testi added)). words, In Dr. other (emphasis only 19% of the mony) minorities cast ques- does not answer the Ansolabehere tion, many Hispanic protected. votes can be “83% and 86% howof Doggett Anglo support Rep. from 53% Id. attach. overestimation 111%. (the only change (at least) was an increase problems other are additional 37% These 11%. Rep. Doggett’s vote share why I am hesitant to find that this reasons 86%, negligible which is and within finding 83% supports that CD 25 is an evidence Thus, error). margin minimum, standard 16% it ability district. At a is not (53% 37%) change Anglo preferences trig- exacting "more evidence.” — Dog- gered change Rep. in votes for 13% (65.82%-52.82%). clear, gett’s This im- vote share I do not think that we should 9. To be view, plies Anglos comprised of the total my 81% engage type of endeavor. In in this cast in 2008 and 2010 number of votes experts in did not the fact that the this case = (13%/16% 81.25%). analysis While this provide information to show sufficient among minority imperfect turnout inquiry. the end I to elect should be —relative turnout, (as groups opposed which to overall analysis only my because col- set out this cite, Majority Op. my colleagues CD at 188 my leagues view that Dr. Ansola- do not share 19) changed data, between elec- n. could have presented, is insufficient. behere’s accomplish we can tions—it is the best correct, provided by data Dr. Ansolabeh- Assuming the limited that Dr. Ansolabehere is above, Dr. conclude that following ere. As discussed I I calculate turnout in the manner. any provide evidence Rep. Doggett Ansolabehere failed to received 65.82% data, prefer regarding and so would gar- turnout Ex. at 10. In he vote. Pl.'s engage stop my analysis I in this there. at 13. This nered Pl.’s 52.82%. data, colleagues my find because change, according calculation to Dr. Ansolabehere’s persuasive. analysis to be exclusively Dr. Ansolabehere’s to the decrease in was due almost *58 2010, vot the OAG data indicates data of Dr. Ansolabehere’s reading This 10%, than Dr. of which is lower er turnout with the OAG consistent largely also is average predic apparent, Ansolabehere’s disc my colleagues turnout statistics voter Id. 19%, absurdly of but not so. tion election, the OAG In the ard.11 that minori data indicates rest OAG com that minorities analysis indicates to 10% of the vote CD ties cast closer voters, almost 18% of prised approximately 25, 24, Ex. at 579-80. This data Pl.’s Dr. composition Ansola exactly the 19% much like the 25 looks indicates CD 24, described before hypothetical Ex. at district we predict. Pl.’s appears behere 159,507 general election when reject on a in the 2006 My colleagues this data based Alford, cast, expert, by actually resulting Texas’s in an error rate single Dr. were comment Majority Op. 8.2%), at during argument. Majority Op. CD 25 at 144 oral with CD 25 of 28.1%). the OAG’s But Dr. Alford addressed 143-44. (calculating an error rate of Addi- concerning voting analysis racially polarized tionally, predicts the "number of this data House, Congress. Trial Tr. 86:12- minority group,” by see PL’s [each] votes cast 87:7, compared 2012 PM. And he my colleagues’ ap- despite Ex. at my of that data than col- different subset contrary. CD 25 parent statements to the ("[I]f Compare leagues id. at 86:19-20 do. Majority Op. at 188 n. 18. you'll quick at the two col- take a look last ” colleagues My state that "there is no testi- added)), (emphasis .... [of data] umns otherwise, mony, expert in the record that or Majority Op. (discussing at 187 with CD 25 which the dissent relies is not as the data on the difference between "estimated turnout % district,” rejected by Dr. flawed as the turnout numbers "actual turnout in district” and % my colleagues But would discard Alford.” Id. at which are the third to last Pl.’s words, (and, columns.). Dr. House OAG data extension and the last In other State data) my Congressional concern is not the same as col- on the Alford’s OAG based Moreover, my leagues'. Alford and col- testimony: in his metric Dr. Alford described leagues concerns about different data raise predicted gap turnout and between critiqued here. He the total than I examine life.” Id. at 143-44. I use that same "real percent turnout calculated "as a estimated only ground gave Dr. Alford as metric—the 85:23-87:7, VAP,” Trial Tr. 2012 PM critique My support his test the data. —to i.e., 358), (discussing Defs.’ Ex. at what colleagues "Texas’s failure to also note that percentage eligible voters in again data indicates to the Court cite to this group voted in an election. probative it little value.” Id. at 188. has my colleagues Neither Alford nor assess skeptical While I am that our assessment of concerning OAG's calculations "distribution in the record should be evidence contained contest,” at of votes in Pl.’s Ex. [a] party particular influenced whether i.e., any given percentage what of votes it, States to cite I note that the United chose minority group. by each election was cast favorably. data See cited the OAG turnout (and my colleagues examine Unlike the data ¶¶ 24, 54, Findings Proposed U.S. of Fact rely any way), this on which I do not 163, 197. analysis accurately predicts actual overall reemphasizing Finally, that even if it bears election, including every given turnout in a enough my colleagues’ concerns were serious identify problemat- my colleagues election entirely, discarding this data to warrant Compare (predict- ic. Pl.’s Ex. 587-88 consequence proper should be to conclude 190,223 general ing votes in the 2010 election analysis not the cast, that Dr. Ansolabehere’s 173,309 actually resulting were when necessary demanding evidence” 9.8%), "more Majority with CD 25 an error rate of prove explained a coalition district. As I have Op. (calculating an rate in 2010 at 144 error above, way provide 43.6%); turnout data is the (predicting Pl.'s Ex. at 587 my colleagues 300,273 the data on which context for general votes were cast in the 2008 282,161 heavily. My attempt provide rely actually so were election when cast, votes missing detract from the data should not resulting rate in in an error (calcu- 6.4%), important fact: Dr. Ansolabehere’s re- Majority Op. at 144 more with CD 25 51.4%); port include this essential informa- lating an rate Pl.'s Ex. does not error 172,695 (predicting that votes were cast tion at all. *59 voters that Anglo up which the made 90% split evenly
of the district their vote just comprise 10% of the I.THE PLAN CONGRESSIONAL votes, providing margin victory. Congressional A. Redistricting Plan, agreed We that such a district would C185 protected. Majority Op. be at 150-51. 1. In three-judge a assuming Even that district court minorities cast 19% of adopted vote, redistricting a plan Dr. for the ap Ansolabehere’s data Texas indicate, congressional delegation. See pears enough this would be LULAC v. Perry, F.Supp.2d influence, to show 716-18 not that bench (E.D.Tex.2006) curiam). (per plan, mark a That CD 25 is district in which known as C is the Benchmark Plan ability voters themselves have an to elect.12 for the purposes of this case. sum, testimony we heard and re- 2. The 2010 Census showed that expert reports ceived minorities are population by 4,293,741, of Texas victory essential to in increased County, Travis 20,851,820 25,145,561 in 2000 to in enough is not to find that CD 25 is a 2010. growth Pl.’s Ex. 75. This protected repre- crossover district. protect To sented a 20.6% increase in CD we must find that the State’s minorities them- population, overall ability selves have 89.2% of the in- to elect in CD 25— growth crease they attributable in the minor- lead the coalition there. It is not ity populations. Notice, Mot. for Judicial enough they provide margin ¶¶ Hispanics ECF No. 18. victory competitive com- Democratic dis- prise 65% of the trict. increase and Blacks com- Most the evidence concerns Tra- ¶¶ 20, prise 13.4%.Id. at County vis alone. No evidence includes data, turnout County in Travis or in the As result of this best, district as a whole. At the evidence growth, Texas was entitled to four new shows that minorities cast no more than Representa- seats the U.S. House of 20% possibly of the votes CD tives, increasing the rep- State’s number of significantly less. If the “more resentatives from 32 to 36 members. This exacting” evidence we require prove the increase required the State to reallocate existence of a coalition it is hard to districts, congressional and necessitated see what Democratic district in Texas drawing maps govern of new district protected. Respectfully, would not be so I congressional elections my dissent from colleagues’ assessment Legislative B. The Process
that benchmark CD 25 is an dis- trict. Hearings a. 2010 Field 4. Anticipating popula- that the State’s APPENDIX TO THE MEMORANDUM growth tion would result additional con- OPINION districts, gressional prior to the FINDINGS OF FACT & CONCLU- session, legislative start the 2011 SIONS OF LAW REGARDING DIS- Redistricting, Texas House Committee on PUTED ABILITY DISTRICTS Committee, Judiciary the Texas House Collyer Howell, District Judges: the Texas Senate Select Committee on Re- & assuming previously 12. Even the 2010 election stated in the context of SD 10 that high proof single proven alone did rise to that level of election does not indicate a (which does), I history do not believe it we have to elect. made clear that Testimony at trial ap- held separately or districting jointly *60 from Tex- minority representatives elected the hearings around 19 field proximately hearings 2010 field as viewed the redistricting process the regarding State 91, Trial Tr. “just or for show.” “sham” congression- Legislature for State Dukes) 19, Dawnna (Rep. 2012 AM Jan. 320, (Rep. at 58-60 Defs.’ plans. al hearings the 2010 field (testifying 17, 86, Tr. 2012 Trial Jan. Arrington); Dr. hearing “just to show that a were a circus 39; Hunter); Pl.’s Ex. (Rep. AM Todd state, it around the but was had been held hearings of the purpose 42. The PL’s Ex. was abso- because there not of substance the formal input before to receive was for lutely nothing before the committee Trial began in 2011. redistricting process on, testify against.”); for or individuals to Hunter); 17, 54, (Rep. AM 2012 Tr. Jan. (Senator Zaffiri- Judith Defs.’ Ex. at (Doug PM Trial Tr. Jan. ni, for de- representative SD Davis). hearings as “a the 2010 field scribing hearings, these the time of 5.At attendance, partic- low] with “low [ sham” yet been data had not official 2010 Census testimony, [and] lack of invited ipation, [ ] released, any legisla of the prepared [mem- nor had State materials for the lack of Redistricting Commit- hear bers of the Senate participating tive committees tee].”); Trial Tr. see also Jan. any public furnished for comment ings (Sen. testifying that the Rodney Ellis AM redistricting Congressional proposed hearings “perfunctory”). were 2010 field 115-16, 17, 2012 AM Trial Tr. Jan. plans. Hunter). addition, Black member Testimony presented (Rep. Committee, Redistricting of the House regarding the need to re hearings at the Veasey, Marc testified that Representative interest, rec minority communities of tain in the Dal- hearings, specifically some field minority population growth ognize metroplex, were held las-Fort Worth with a new metroplex Worth Dallas-Fort minority for voters locations inconvenient minority ability and maintain public transport, have which that did not where minori congressional those districts 8-12, Tr. participation. Trial limited their can ty had been able to elect their (Rep. Veasey). Repre- PM Jan. See, e.g., Trial Tr. 10- didates of choice. Veasey help find loca- sentative offered (Congresswoman 2012 PM Jan. voters, tions convenient for Lee). Nevertheless, these hear Jackson without ultimately picked locations were utility plans limited since no ings were of minority mem- regard to the concerns of to review were available for the witnesses Id. at redistricting committee. bers comment on. Further specific or to offer (“But to, know, trying you when it came more, sponsoring legislative commit know, Ft. you southeast to make sure reports no written summar prepared tees Worth, which, city of Ft. Worth and izing presented the information said, largest concentra- I is the third like any facilitate communication of hearings to African-Americans the state—(cid:127) tion of raised to concerns or recommendations there, hearings do trying place to find legislature who were not members of any me or that no one came to consult with 17,'2012 AM present. Trial Tr. members of the committee. other Hunter).1 they going were to have They just decided (Rep. during hearings, the field only way legislators review the material submitted 1. The by viewing hearings by webcast. Trial presented during hearings or these information Hunter). 114-15, (Rep. any 2012 AM Clerks was to obtain from the Committee hearing Arlington, just, this field including which the Mexican American Legal De- know, you day still to this (“MALDEF”) makes no sense fense and Educational Fund all.”). and Mexican Legislative American Caucus (“MALC”), proposed congressional maps presented 8. No evidence was that the to the House Redistricting Committee. hearings 2010 field addressed the topics of (Ryan AM provided the number of districts that mi- Downton). Members of congres- Texas’s nority citizens the to elect the can- *61 delegation sional also submitted proposals didates of their choice or the minimal num- attempted to meet with legisla- State minority of required ber districts tors to proposed plans. discuss compliance Voting Rights the Act (“VRA”) any under congressional new Special Legislative c. 2011 Session (Texas plan. See generally PL’s Ex. 50 11. The Legislature’s Legislative failure to enact a Redistricting Council Guid- ance, new 2011, congressional plan August during regular dated the stating that prompted session generally courts Governor Rick compared Perry, the of on number 31, May 2011, districts in the order the State plan Legisla- benchmark ture to sit in Special address, and in the Session plan). enacted among things, other legislation relating to Regular Legislative b. 2011 Texas congressional redistricting. Stipula- Joint Session ¶5. tion, day On the special first of this session, 31, 2011, May on Chairman Kel 2011, 9. convening January After the Seliger, chairman of the Senate Redistrict- Legislature Texas faced the task of enact Committee, ing and Chairman Burt Solo- ing redistricting maps for the State House mons, chairman of Hоuse (“State Redistricting Representatives House”), State Committee, publicly C125, released which Senate, Representatives and U.S. House of was the first congressional redistricting in response population growth to the in the plan proposed publicly by leadership the 59-60, 18, state. Trial Tr. Jan. 2012 AM Legislature. the State (Downton). Defs.’ Ex. 366. regular The session of the Legislature Texas ran January 12. Hispanic and Black members the 30, through May Stipulation, 2011. Joint State House were map- not included the ¶¶ 177, No. congressional ECF 3^1. No drawing process for C125. State Represen redistricting plan publicly was released tative Marc Veasey, a Black member of Redistricting Committees of either the Committee, the House Redistricting testi Senate, State House or State nor any were fied that no representative state hearings concerning held a congressional any input proposed congres had into the plan during regular session.2 Defs.’ redistricting sional map before it was ¶¶ 509, 29-32; Ex. at Stipulation, Joint 4- public. (Veasey made Defs.’ Ex. 335 Dep. 5. 25-27, 19, 2011); Aug. at see also Trial Tr. Dukes) 91-93, 19, During 10. the Legislature’s regular (Rep. 2012 PM session, only (testifying informal proposed discussions were she first saw the held concerning congressional congressional 9, redis- map Friday, on June tricting release).3 plan. advocacy Interested groups, well after its legislative redistricting The focus of the Legislative ef- been determined Texas Re- districting Board. during forts this was session on the State (Downton). 2012 AM which, plans, House and Senate if not enact- session, during regular ed would have Representative explain why did Dukes map she first saw the on June 9 when the map publicly May released on 73, 81, Trial previous years. May afternoon In the late (Chairman AM, Defs.’ Ex. Seliger); House and Senate noticed the State experts indicated hearings Less than 48 at 2. These outside on C125.
public later, have they opportunity a.m. on June did not 9:00 hours Redistricting congressional Committee held redis- proposed House review the hearing proposed on the it only public presented before was tricting plan its 2; Capitol hearing. at the State Austin. Ex. plan Committee Defs.’ 3, 2011, day, Friday, June following at 1. Morrison Defs.’ Ex. Professor its Redistricting Committee held process quite Senate that “this has been testified C125, hearing on also State past from what we’ve seen different Ex. in Austin. Defs.’ at 59 Capitol [n]obody opportunity ... has had the Dr. Defs.’ Ex. (Rep. Arrington); study way it been done it the has Timeline); Redistricting (Congressional past.” explained Id. He further Defs.’ at 39. procedure differed from the one followed *62 when the committee’s staff “went 2003 3, At the 2011 Redis- 14. June Senate ... spent all state sixteen hours over the hearing, tricting Committee twenty place, in another. We sat one of of complained members the Committee experts down ... we visited. We hired to congressional being excluded from the re- fact, analysis.” In retrogression do Id. Ex. 1. districting process. Defs.’ shows, presented trial for ex- evidence Zaffirini, a Specifically, Senator Judith ample, to the prior passage of con- SD and representing Senator gressional redistricting plan in the West, Royce rep- a Black Senator Senator Redistricting pub- Committees held seven resenting complained pro- SD that the lic and the hearings, committee substitute too cess was rushed and stated that nei- hearings. bill was the focus six of those they public adequate nor the had time ther Defs.’ Ex. 300. study map the or proposed meaningfully to participate. Id. Senator West stated: hearing, 16.At the June the record, purposes “For the I did not Redistricting Senate Committee Outside any input map the 125. I never have into Experts cautioned Members about the map you published 125 before it.” Id. saw compliance care for required the Similarly, Senator Zaffirini told Chairman VRA, testifying they “furnished the every redistricting “I’ve Seliger: been on committee an advisement to take [the DOJ I my election committee since them all very Guidelines] read say that had input must I have never less Indeed, Ex. carefully.” Defs.’ Chair- any map drawing into the until this respon- man testified that the sole Seliger Id. session.” sibility of these outside counsel was “to vet the drew maps as we them and to inform Experts retained the Senate Re- anyone me else the or committee Baylor Committee districting Univer- they legal were or not.” Trial Tr. whether University sity’s School of Law and the (Chairman Seliger). 2012 AM School, Law Texas Professors David written Guinn, Morrison, pre-filed testimony, his direct Mike Heath Robert (“Senate Seliger Chairman claimed that he relied on Redistricting Committee Outside if experts these to “inform me the demo- Experts”), echoed concerns about the lack graphies, performance, any or other attrib- opportunity public scrutiny of C125 con- comparison redistricting processes proposed to ute of a district would raise Voting Rights (Rep. Arrington); cerns under Act.” Pl.’s at 59 of Dr. the Defs.’ ¶ Representative Dukes, Pre-filed Testi- Ex. (Seliger Direct who is experts mony). contrary, Committee, To the these not on House Redistricting Redistricting testified before Senate testified that she first the proposed saw they Congressional Committee that did not Plan on “provide[] June 2011. Trial guidance 91-93, Dukes). to Jopinion (Rep. verbal or written or [ PM regarding pro- day, the committee whether That passed same State House [the posed plans compli- Congressional requiring Calendar Rule any were] amendments ance with 5” because were to they proposed map “prior Section filed be Monday.” not asked to do so. Defs.’ Ex. at 3. Id. effectively gave any This representative days two prepare 6, 2011, Monday im- On June proposed submit alterations the con- mediately following Friday hearing, gressional map. Representative Dukes full proposed Senate considered the through testified that she worked (the congressional redistricting plan, C185 proposed weekend on amendment and Plan”). “Congressional On the floor map, new Chairman Solomons tabled Senate, Zaffirini Senator asked Chairman her amendment and it was never consid- Seliger “any minority if [were] Members ered. Trial Tr. 2012 AM developing” redistricting involved in Dukes). (Rep. Representative State maps under Seli- consideration. Chairman Dukes further every testified that Demo- ger bluntly I recall.” responded, “[n]ot that *63 cratic proposal amend was C185 tabled. (Texas Deck, 77, Devaney ECF No. Ex. 9 Id. Journal, 6, 2011, State at A- Senate June 12). 15, 2011, Seliger Chairman also dur- 19. June admitted On State the House ing passed the floor that the Redis- proposed Congressional debate Senate the Plan tricting 93^47-3,4 Experts by Committee Outside he a vote incorporating after Congressional hired had not seen the Plan minor Stipulation, amendments. Joint ¶¶ until it All was released committee and that 16-17. Democratic members of the experts these outside had not voted against passage evaluated State House of SB4. plan compliance Journal, 15, 2011, the for with VRA. the Texas State House June Nevertheless, 1. Defs.’ Ex. 568 at the Sen- at 421. State The Senate concurred with passed proposed ate Congressional pro the the State House to the amendments (“SB4”) 6, 20, Plan in 4 posed Congressional Senate Bill on June Plan on June 2011, by 2011 a party-line reported vote of 18-12. Joint SB4 was enrolled аnd on ¶¶ 16-17,19. Stipulation, 20, signed June 2011. SB4 was then 2011, 22, the State Senate on June and the SB4, Following passage 18. 24, State House on June Joint Stip leadership gave State House notice ¶ 2011, ulation, 24, 16. On June SB4 con Redistricting House Committee would taining proposed congressional map, meet to consider the Senate Bill at 9:00 C185, transmitted to Rick was Governor 2011, 9, 9, a.m. on June On June Perry, signed it three who into law weeks Redistricting House met Committee later, 18, July 2011. Id. Plan, proposed Congressional consider the passed legislative process it out Committee without under which The taking any public comments. Plan Congressional public, Defs.’ was made Representatives “present.” 4. Three voted Solomons, under Chairman Burt rapid. enacted was
considered hearings public Congressional the two timing of of the principal drafter Redistricting Commit- House and Senate 18, 44-45, AM Plan. Tr. Trial Jan. span of 48 and tees the short within 17, (Downton); Tr. PM Trial Jan. re- hours, public after first respectively, (Interiano). was primarily Mr. Downton severely Plan Congressional lease responsible “zeroing-out”5 for districts mean- opportunity circumscribed required popu make them conform to the comment, includ- ingful scrutiny and public allocating lation and for Texas’s four size and their elected ing by citizens In Gerardo congressional new districts. (Rep. Defs.’ Ex. 58-60 officials. teriano, of the State Speaker counsel 18, 2012 Arrington); Dr. Trial Jan. Straus, he House Joe also testified that Veasey). by Repre- Outreach (Rep. PM Downton periodically helped Mr. with Hunter, Chair of the House sentative Todd congressional map to zero-out Committee, congressional to the Judiciary Trial Tr. deviations. Washing- during a 2010 visit to delegation (Interiano); PM Trial Tr. ton, D.C., by Congresswoman Sheila (Downton); 2012 AM Congressman Lee Gene Jackson (Interiano). 2012 PM 2011, ap- Solomons in Green to Chairman greet” been “meet and ses- pear to have release the 2010 Upon Census no dis- sions minimal to substantive with February data on Mr. Downton planned by changes cussion about he were testified that learned “there represent- legislators to the districts Texas population growth three areas where the Congress. Members of ed region outpaced per significantly growth ¶ (Chairman Pre- Seliger PL’s Ex. regions, the rest of the state. Those three ¶ Testimony); Filed Direct PL’s Ex. being the first north Texas around central (Chairman Solomons Pre-Filed Direct metroplex. The the Dallas-Fort Worth Testimony) (stating meetings that the *64 around being second the suburban areas Congressman Congresswoman Green Texas, in County Harris kind of Southeast “more of a ‘meet and Jackson Lee were run being and the 1-35 corridor third the pro- greet,’ congresspersons neither the ning Aus through from San Antonio north spe- any requesting vided me with details 18, 61-62, AM tin.” Trial Tr. Jan. 2012 districts”). changes cific to their (Downton).6 Mr. Downton believed that Mapdrawers’ of the Redistrict- C. View congressional the four new seats allotted
ing Process Texas, go “one had in each of those to to in the had regions [Texas] fourth one Downton, Ryan general 21. the counsel flexibility.” on some Id. at 62. Redistricting to the House Committee 698,- congressional Congressional must with- the 36 is 5. districts be drawn districts Texas ¶ Stipulations, person of ideal Con- 488. Joint in one the district size. gressional be “zeroed districts therefore must although meaning later by mapdrawer, out” the the 6. Mr. Downton clarified that County population popu- the "Dallas itself relative required must deviate from lost 91-92, County the on by person. at most Trial Tr. to rest of the Tarrant lation one Stated 18, (Downton); AM Colin Denton on Trial Tr. the west and counties Jan. 62, 25, (Interiano). gained population.” on the the north Trial Tr. Jan. PM Based 18, (Downton). Census, AM for each of Jan. ideal map-draw to 25. The assignment Attorney 28. Prior Office of General (the “OAG”)performed Downton was ing responsibilities, racially Mr. polarized actively voting analysis sought aware of the VRA and the Benchmark and en- acted districts. educate on its Trial PL’s requirements. himself (Downton). Tr. To Jan. AM performed 26. The OAG also reconsti- end, this Downton consulted with the Mr. analyses tuted election that estimated (“TLC”), in Legislative Texas Council7 percentage specific what of a racial or lawyer cluding a named David Hanna. language-minority group voted for certain See id. at Mr. Downton testified that primary general candidates chosen compliance par he the VRA on viewed with analyses elections. PL’s Ex. 27. These enough importance getting votes (the general were based ten elections get passed, map testimony 10”) Giberson, “OAG selected Todd (Downton 778A credible. Defs.’ Ex. employee Legal the OAG’s Technical 2011). Dep. 62, Aug. Division, Support they because “ra- were elections,” cially i.e., contested ones during 24.Mr. Downton testified running involved candidates he dis map-drawing process identified against each a minority other or candidate protected by tricts VRA Bench running against a non-minority candidate. mark If Plan “based on Census level. 16, 20-21, Dep. Giberson Oct. they 50%, they were above then were His panic majority Trial Tr. districts.” Interiano, 27. Mr. who assisted (Downton). AM specific Plan, drawing Congressional confirmed demographic statistics that Mr. Downton initial any understanding of protected Voting relied were upon Hispanic Citizen districts the Benchmark Plan was made (“HCVAP”) Age Population and Spanish solely looking popu- at the demographic (“SSVR”). Registration Surname Voter lation statistics of the district. Trial Tr. (Downton Dep. Aug. Defs.’ Ex. (Interiano). 778A 26-27, 47-48, 17, 2012 PM 12, 2011); 2012 AM mapdrawers He testified did not (Downton). If these statistics were above analyses look at election result for the mark, 50% he believed district was Benchmark help Plan identify protected protected under the VRA. Defs.’ Ex. 577 until they already districts had submitted (Trial Perry, Perez v. civil action draft redistricting plans the OAG. Id. (W.D.Tex. 2011)). Sept. no. SA:11-360 Mr. Downton was also clear that did not he alone, Based on data Mr. Census Downton factor State’s reconstituted election *65 (CDs 15, 20, 16, analysis identified seven districts into his of whether determination 29) 23, 27, protected majority 28 and was a district Hispanic districts district the Plan provided Hispan protected Benchmark that and therefore a district the (Down- ic ability citizens the to elect their candi Benchmark Plan. Defs.’ Ex. 778A 2011). 18, 22-23, 12, 63-65, dates of Dep. Aug. choice.8 Trial Tr. Jan. ton his (Downton) view, performance partic- 2012 AM was political not contrast, argued summary agency legislative By judg- 7. The the at TLC is within Texas government any voting age branch the Texas with a Black State ment that district nonpartisan, provides ability support technical or more is an dis- 40% Legislature. Supp. services each trict. PL's Mem. in of Mot. for Summ. to member 8-9, J., 41, Dep. Archer Oct. No. at ECF. 204 actually view, Congressional Plan a district his the at If
ularly relevant. Id. pro- of over own standard number of districts that mapdrawers’ met the increases the SSVR, he classified ability in HCVAP and the to then- 50% elect Hispanics vide regardless as an district 67-68, the district Tr. choice. Trial Jan. candidate of minority candi- it elected the of whether (Downton). 18, 2012 AM times, or 1 out of 3 out of 10 date choice and Interiano 29. Messrs. Downton 24-25; 577 at Defs.’ Ex. Id. times. they did testified that not look both (Trial Perry, Sept. Perez v. Tr. analyses perform- election or reconstituted (Downton)). testified Mr. Interiano also completing Congressional the prior ance to information, including demographic Plan, legal thоugh they both received even Age Population Voting that, compliance, reliance advice for VRA (“HVAP”), SSVR, must be HCVAP solely demographic on data is insufficient if a is a to determine considered protected dis- to measure the number of Defs.’ Ex. Hispanic “opportunity” district. benchmark or enacted (Trial tricts in the the Perry, Sept. v. Tr. Perez (Interiano)). 1451-52, Perry, Hanna advised Trial Tr. Perez v. plan. Mr. however, if (Interiano); even mapdrawers, the Tr. Sept. Trial (Downton). over based district were a 51% threshold AM data, per- it upon demographic might the reliance mapdrawers’ 30. While minority population. the See form for solely data assess demographic on to (when 305; Defs.’ Ex. Defs.’ at 5 erroneous, their su- compliance was VRA editing preclearance sub- Texas’s informal negligent responsi- of their periors were DOJ, com- Mr. Hanna mission to The bilities under the VRA. Chairmen demographic mented that benchmarks Redistricting Committees testified “phony”). were mapdrawers on they relied ignored 28.Mr. Downton Mr. Hanna’s “legal,” map ensure that identifying minority advice about independent effort ensure made little Relying solely demographic districts. protected. districts were minority popula- identify statistics to did not utilize the Chairman Solomons elect, ability to Mr. testi- tion’s Downton Redistricting Committee Outside Senate drawing Congressional fied that when Experts hired to evaluate whether Plan, demographic keep he tried Congressional complied Plan with the “at then- protected numbers of districts Seliger he VRA. Neither nor Chairman benchmark levels.” of mi- specific ever asked for number (Downton). Congres- 2012 AM a mini- nority ability required, districts compliant with legally sional Plan was mum, congressional ensure that VRA, opinion, dis- in his because seven map complied with the VRA. Trial tricts in Central Texas have South and (Chairman Seliger); AM (Trial *66 over 50% HCVAP. Defs.’ Ex. 577 (Chair- 65-67, 20, 2012 PM 9, 950, Perry, Tr. v. 2011 Sept. Perez not testifying man Solomons he did (Downton)). asserted, Mr. how- Downton identify protected know or the number of ever, elec- that based on the reconstituted Plan districts in the Benchmark because Congres- after analysis tion conducted the staff). OAG, by made his to the in that determination was sional Plan was submitted Congressional newly adopted plan, D. Districts at Issue but it does remain a district.”) added). majority (emphases Congressional a. District 23 23 in Congressional 34. CD the Plan is Plan, In the Benchmark CD 23 is an longer no district. incorporates based Texas and West Crockett, Dimmit, Brewster, Culberson, Demographic i. and Election Result Edwards, Davis, Hudspeth, Kinney, Jeff Congression- Data Benchmark Medina, Pecos, Reeves, Maverick, Presido, al District 23 Terrel, Verde, Uvalde, Val and Zavala has Texas identified CD 23 as a counties, Bexar, portions as well as of El Hispanic ability district in the Benchmark. Paso, 11, counties. PL’s at Sutton Ex. J., See Supp. PL’s Mem. Mot. Summ. ECF areas, metropolitan 5-6. terms of CD 41, 6. In Plan, No. the Benchmark CD the Benchmark Plan includes 23 has overall Hispanic population an of Pass, Eagle cities of Del Rio and as well as 66.4%, 58.4%, an HCVAP of and an SSVR County areas of Bexar that fall outside 11, of 52.6%. PL’s Ex. According to city San Antonio’s limits. This district was election analysis, Hispanic OAG’s citi- 2006, drawn in following the Supreme in Benchmark zens CD 23 elected their ruling Court’s v. Perry, LULAC candidate choice in out of three ten U.S. District Court for the Eastern Dis- elections. Defs.’ Ex. 390. The Texas La- remedy trict of in order Texas to (“TLRTF”) Redistricting tino Task Force State’s Section 2 violation of of the VRA argues that the OAG 10 does accurate- provide Hispanics opportunity to ly the ability reflect to Hispanics per- elect candidates of their choice. Ex. Defs.’ form in the district. If four additional Flores); at 5 Dr. Ex. (Rep. of Defs.’ examined, racially contested elections are (Trial Tr. Perry, Sept. Perez v. candidate of choice wins in 7 (Flores)). 111-13, out of 14 elections. Trial Tr. statistics, demographic 32. Based on (Downton); 2012 AM Defs.’ Ex. 647. Hispanics majority popu- are a clear Moreover, Dr. an Engstrom, Richard ex- lation in the Benchmark CD and en- by TLRTF, pert emphasizes offered dogenous election results indicate that the to from 2006 candidate choice district a Hispanic often elected candidate of Hispanics endogenous won two of three choice, not every even if See time. elections Benchmark CD 23. Defs.’ Ex. ¶ 35. (Trial Tr. Perry, Sept. Perez v. infra 7, 2011) (Engstrom). only expert proffered 33. The by Texas retrogression disagrees the issue of 36. Mr. Interiano that prior testified with Texas is no and concludes CD 23 redrawing CD he never made deter- longer an district. Ex. Defs.’ 581 mination pro- as whether CD 23 was a (Trial Perez v. Perry, Sept. tected Plan. Tri- district Benchmark 2011) (Dr. testifying: Alford “I think (Interiano). don’t al Tr. 2012 PM any that the likely perform 23rd is more Seliger, however, Chairman testified that it I it probably was. think less Hispan- the Benchmark Plan is a CD 23 likely was, than I perform it so ic “opportunity” district and was drawn to certainly count all wouldn’t and don’t—in Hispanic “opportunity” be a discussion, I haven’t (Seliger Dep. counted court. Defs.’ 2011). witness, 23rd Sept. expert district in the The State’s effective *67 206 Alford, similarly Hispanic testified that since candidate of choice in a
Dr. 2006, it elected Seliger the creation of CD 23 that wanted Chairman testified he candidate in Hispanic-preferred make for change to CD to it safer (Alford 121, Dep. Defs.’ Ex. 964 14; 2008. Congressman Id. at Trial Canseco. 2011). 2, (Chairman Sept. 24, 11, 2012 AM Seli- Jan. Indeed, ger). pos- he that it was testified represented by currently CD 23 Congressman sible that Canseco would Canseco, a His- Congressman Francisco reconfig- if lose 2012 CD 23 were not 406, Ex. at 7. panic Republican. Defs.’ way. Ex. (Seliger ured some Defs.’ elected to Congressman Canseco was first 1, 11-12, 15, 2011); Dep. Sept. Trial Tr. election, in office in the 2010 which he (Chairman 24, 2012 AM Seliger). Jan. D. Rodriguez, a defeated incumbent Ciro Notwithstanding improve his desire to Democrat, by 74,853 a vote Hispanic to Congressman perform- Canseco’s electoral 67,348, 32, to 44.44%. Ex. at or 49.39% Pl.’s ance, Seliger Chairman testified that he Voting in the 2010 election was racial- stressed to staff that CD 23 needed to ly polarized, with vot- Hispanics 84.7% 728, Hispanic remain a district. Defs.’ Ex. 776 Rodriguez. for Defs.’ Ex. ing Mr. 2011). 13, 30, 37, 1, (Seliger 15, (Rep. Engstrom). Hispan- Dep. Sept. of Dr. While overwhelmingly Rodri- He supported Legislature legal- ics Mr. believed was guez, ly required he received 18.1% of votes cast build a district to elect by non-Hispanics. Id. Hispanic candidate of choice CD 23. Id. 31; 14-16, 24, Trial Tr. Jan. 2012 AM presented 38. The evidence demon- (Chairman Seliger). fur- Seliger Chairman Congressman strates that Canseco won a ther testified if he had understood for close election CD 23 2010. With Congressman was not the Canseco election, during regards to this others candidate, Hispanic preferred he was Seliger Chairman testified “the taking steps to for make CD 23 safer was a of an election bit aberration Canseco, Congressman that would have Tea influ- things Party because of like the regarding created a concern in his mind I if it ence and didn’t know was reliable.” compliance with the VRA. Trial Tr. Dep. Sept. Defs.’ Ex. 776 (Seliger (Chairman Seliger). 2012 AM 2011); Trial Tr. AM (Chairman Seliger). Congressman ii. Plan to Protect Although Seliger ac- Chairman Canseco may that the 2010 knowledged election 40.The Senate Redistricting Commit- “reliable,” be he expressed his belief that attempted tee staff draw a district safe Congressman preferred was Canseco Congressman Canseco’s reelection but Hispanics in CD Defs.’ candidate challenge. found this to be a difficult 1, 2011); (Seliger Dep. Ex. 776 Sept. Seliger Chairman stated: “in order (Chairman 2012 AM keep just it opportunity district we Seliger). He conceded his belief is it piece together couldn’t where it served any upon analysis not based to determine Canseco; Congressman we wanted Congressman whether Canseco was fact if we And could. then came [the House] candidate of choice. Defs.’ 2011). up design thought with their and we it Ex. 776 was (Seliger Dep. Sept. Furthermore, (Seliger despite good.” Dep. his Defs.’ stated belief that 1, 2011). Congressman Hispanic Sept. Canseco *68 mapdrawers 41. The in the State Select Committee on Redistricting, “check House, Interiano, Messrs. Downton and on the latest Canseco version.” Defs.’ Ex. goals” testified that there were “two responded 978. Mr. Davis that “[i]t looks drawing regard to when the enact CD politically. nice We’re still concerned map: strengthen ed “to maintain or the Voting Rights about the Act.” Mr. Davis Hispanic strengthen nature of 23 and also continued that going “[w]e’re to have to [Republican nature of Trial Tr. 23.” our put legal best minds on the 23rd.” Id. (Mr. 80, Downton); 18, Jan. 2012 AM Trial During the map-drawing process, 47, 17, (Interiano); Tr. 2012 PM Jan. legislative staffers understood that draw (Trial 1454-55, Defs.’ Ex. 579 Tr. Perez v. ing a map protect Congressman Canse 12, (Interiano)); Perry, Sept. Defs.’ co while maintaining the benchmark demo (Interiano 102, 2, Ex. Dep. Aug. 779A graphic statistics would require careful 2011). acknowledged, Mr. Interiano how uses of demographic As early statistics. ever, any analysis that he never conducted redistricting process as November Congressman to determine if Canseco is 2010, Eric Opiela9 sent an email to Mr. Hispanic preferred candidate Interiano, explaining that “certain data (Trial Benchmark CD Defs.’ Ex. 579 would be useful a identifying nudge 1456, 12, Tr. v. Perry, Sept. Perez factor analyze which one can which (Interiano (Interiano)); Defs.’ Ex. 779A blocks, census particular when added to a 86-87, 2, Dep. Aug. 2011); district, especially 50-plus-l majority-mi (Interiano). Jan. PM Mr. Down districts, nority help pull the districts total ton conceded he knew when he was Hispanic pop[ulation] Hispanic and the drawing that Congressman CD 23 Canseco up majority status, CVAP but leave the Hispanic not the candidate choice. Spanish registered surnamed voters and (Trial Defs.’ Ex. 577 Tr. Perez v. turnout the lowest. This is valu especially (Downton)); Perry, Sept. Defs.’ in shoring up able Canseco and Farent (Downton Ex. Dep. Aug. 778A 304; 52-53, hold.” Tr. Defs.’ Trial 2011). He nonetheless drew CD 23 to (Interiano). Jan. 2012 PM According “giv[e] Mr. his chance to C[a]nseco best be Interiano, import to Mr. of this No re-elected while maintaining and increas demograph vember 2010 email was to use ing the ... ... Hispanic voting age, total data, HVAP, ic such as HCVAP voting age, Spanish citizen SSVR, to draw district that featured registration.” surname Trial voter Tr. voters, Spanish lower turnout of surname (Downton). 2012 AM leaving while the HCVAP at the bench mapdrawers 42. The aware that were mark level. Trial Tr. 2012 PM because Congressman Canseco was not the (Interiano). choice, increasing candidate Opiela Mr. was not an outsider to performance Congressman CD 23’s for process redistricting played role problematic. Canseco would be For exam- manner which districts were 13, 2011, ple, April staffer Mr. Downton drawn. testified he National Republican Congressional Com- mittee, Padilla, during Mr. requested Opiela Lee in an communicated with email Davis, that Doug drawing Congressional Director Plan Senate Trial, ing political Speaker 9. Mr. Interiano testified that at time of work for Straus. email, (Interiano). Opiela colleague Eric was his do- 2012 PM *69 SSVR, lar Mr. that he “speaking was Downton testified latter understood precinct Congressmen greater select the with the Republican would on behalf of the at exception Repre- percentage Republican votes. Id. from Texas with not, however, 104, 18, any Tr. 109. He did have data Trial Jan. sentative Barton.” 56, 17, (Downton); precinct in a were showing Tr. Jan. which voters 2012 Trial AM (Interiano). Indeed, at 108. Hispanic Republican. Mr. Down- both and Id. 2012 PM sought protect Congress- he Mr. to acknowledged incorporated Downton ton by in- prospects into man reelection Opiela’s ideas the Con- Canseco’s some of Mr. 104, 18, 23 vot- cluding precincts Tr. Jan. in CD those gressional Plan. Trial (Downton). Opiela gave ed for John McCain in the 2008 2012 Mr. also Senator AM election, he rec- during though Interiano the redis- Presidential even pointers to Mr. ognized possibility precincts In after Mr. these tricting process. particular, Anglo in Mr. Interiano the No- voted for Senator McCain because Opiela informed preferred at 2010 email that data available voters Senator McCain vember higher Hispanic at could used lower turned out rates than the block level be (Tri- 109-10; at Defs.’ Spanish of voters with voters. Id. Ex. 577 district’s turnout 956, 9, Perry, al Perez 2011 raising Hispanic Sept. its total Tr. v. surnames while (Downton (Downton)); Ex. 778A Opiela Messrs. Interiano Defs.’ population, 2011). 76-77, 12, Dep. Aug. Mr. data at block level Downton requested SSVR 820; testified, however, “never Defs.’ Ex. Defs.’ Ex. that he looked from the TLC. 89, for Trial Tr. any map.” turnout data (Downton). 18, AM Jan. 2012 Congressional iii. Alterations to Congressional 23 in the District overpopulation 47. To address the Plan 149,000 approximately people, CD 23 600,000 mapdrawers moved over residents 2010 indicated that CD 45. The Census Ex. 575 and out of district. Defs.’ 149,000 by overpopulated was about (Trial 450, 7, Perry, Tr. Sept. Perez v. (Trial Tr. Ex. 575 Per- people. Defs.’ (Flores)); Congres- Defs.’ Ex. 436. The (Flores)); Sept. v. Defs.’ Perry, ez 33,000 peo- approximately sional Plan adds Ex. 436. Mr. Downton testified CD ple traditionally Anglo along counties from very through- 23 was “a sensitive district” Id. Benchmark CD 23’s northern border. redistricting process “[i]t out because 448; at 1. Defs.’ Ex. Chairman previously court drawn district. We why did not know Seliger testified that he wanted to make sure we maintained the these counties were added to CD some of HCVAP level of District 23.” SSVR and counterparts it was done his (Downton). because Trial AM House, that no the State but stated above, also As noted Mr. Downton wanted to deter- study was done these counties improve performance the district’s Republican primary if the mine Congressman Id. at Canseco. candidate. support would 46. Mr. Downton testified that while Dep. Sept. Ex. 776 (Seliger Defs.’ Congressional 23 in Plan drawing CD 2011); 2012 AM precincts by he shaded election results (Seliger). moved out of CD 23 based precincts adding population performance. Trial Tr. Instead on their election (Downton). Anglo part counties the northern of CD AM 23-—north of Pecos river —Chairman choosing precincts between two simi- Seliger population parts try testified that the excess of the map bring it back up. in CD 23 could have been addressed So it was kind of a ripple constant between 20, 23, simply moving CD 23 down toward the 35 and to a lesser extent and it *70 Mexico, border the extending 15, with without might be and other coming districts (Seliger district northward. Defs.’ Ex. 776 County try get into Bexar to to of all that 38, 1, 2011); 20-21, Dep. Trial Tr. Sept. In work.” Id. order to increase the 24, Jan. AM (Seliger). 2012 Chairman Seli- HCVAP and CD SSVR of 23 to benchmark ger acknowledged that if CD 23 were levels, Mr. Downton testified that he al- border, pulled closer to down the boundary tered the 16 between CD and voters would the outcome” of “determine[ ] near El County, CD 23 Paso and made the election in 776 CD 23. Defs.’ Ex. changes region” thе “southern of CD 23. 38, 2011); 1, (Seliger Dep. Sept. Specifically, Id. at 81-83. Mr. Downton 20-21, 24, (Seliger). 2012 Mr. AM split County testified he Maverick similarly Downton testified that because the southern end of enacted 23 CD and adjacent CD 23 lies to the border with half of County moved into enacted CD Mexico, Mexico and New it is mathemati- in order to raise enacted CD 23’s cally possible to achieve the ideal popula- this, level. did part, HCVAP He in be- precincts tion in removing CD 23 from split cause he did not want to Webb Coun- the part northern and western of the dis- ty, previous litigation given a regarding (Downton 85, trict. Ex. Dep. Defs.’ 778A split County of Webb v. Perry. LULAC 2011). 12, Aug. Id. at 83-84. 49. adding population addition to Splitting County iv. The of Maverick 23, Anglo from north counties to the of CD 300,000 people over County Plan, Bexar were 51. In the Benchmark Maverick 60,000 moved and of, County, populous city, out about individuals and its Eagle most County Pass, in Bexar entirely were moved into are CD contained in CD 23. (Trial 485, 428, Defs.’ Ex. Tr. v. Ex. Congressional Perez Defs.’ at 4. The 7, (Flores)); Perry, Plan, however, Sept. Defs.’ Ex. half Maverick moves of from County splitting city CD Id.; Eagle Pass CD 23 between and CD 50. At same time that he attributed (Trial 1; Ex. Defs.’ Defs.’ Ex. 575 furthering shifts CD 23 as Perry, Tr. Perez v. Sept. goal making safer for (Flores)); Defs.’ Ex. at 1. Canseco, Congressman Mr. Downton also changes County testified that made Maverick along were to CD is located County requests among in Bexar to accommodate the Mexican border is by State Jose Representative “poorest Menendez counties in United States.” (Saucedo). and Congressman Charles Gonzales for Trial Tr. 2012 PM County CD 20 CD congressional Judge County, new for Maverick County Saucedo, district in the Bexar area. Trial David testified that their despite (Downton). 78-79, Tr. poverty, 2012 AM Maverick relative “the citizens of requests These have elector- respect County CD 23 been educated on the area, according process. They’re the San Antonio to Mr. al aware of fact of Downton, “dropped 23 the investments that made [CD] HCVAP They’re level” re- [of] below Court district. aware the fact [drawn] quired changes money “other 23 in other that’s candidates to run [CD] invested Defs.’ 26,248 Hispanic. 95.5% peo- is And Maverick—the
in that district. 391, at 1012. County understand ple Maverick margin a larger have you actually can he re- testified that 55. Mr. Downton like community one Maverick come [from] County portions Maverick moved in all of the San you would County than County Maverick does CD 23 because represented by that is portion Antonio voting good Republican. record of have given a has congressman. So that what (Trial v. Perez Ex. 577 Defs.’ community like community, midsized (Downton)); Defs.’ Sept. Perry, Judge ours, Id. at 118. (Downton more influence.” Aug. Dep. Ex. 778A *71 the that Maver- 2011). election, further Saucedo testified general In 2010 Ciro the community united and County is ick of His- Rodriguez, the candidate of choice out, ... vote for one go we of vote in Maver- panics, “[w]hen we won 80.29 % the some of finally County Congressman and seen Canseco won candidate we’ve ick and 393, the Defs.’ Ex. fighting only about. We’re 15.64 % of vote. change come universities, Republican Primary Elec- fighting at In the 2010 four-year for we’re tion, Congressman Canseco received climes, things that don’t exist for veterans County. % of the vote in Maverick in 23.07 actually exist County in Maverick that for Judge at 4. Saucedo testified Id. communities outside Maverick smaller County has years ten Maverick past the Id. at 115. County.” 14,000 12,000 to voters turned out about splits Plan Mav- Congressional 53. The elections, 8,000 to and presidential County in half enacted CD erick between elections, 9,000 they in other 428, 4; Ex. at Defs.’ 28. Defs.’ 23 and CD heavily Hispanic-preferred for the vote trial, 340, testimony During Ex. at 1. his at (Trial 771, Ex. Tr. candidate. Defs.’ 576 he could not remember how Mr. Downton (Saucedo)); 8, Perry, Sept. v. 2011 Perez “a County, believed split Maverick (Trial 681, Ex. Tr. Perez v. Defs.’ 576 it the ... it was large of follows road part (Korbel)). 8, Perry, Sept. Splitting 2011 just cutting county half.” essentially according to Sau- County, Judge Maverick (Downton). 18, 85, 2012 AM difference cedo, in an elec- could make however, conceded, Mr. Downton later (Trial 771, v. 576 Tr. Perez tion. Defs.’ Ex. County in the split of Maverick (Saucedo)). Perry, Sept. 2011 just not road plan does follow one enacted precinct in at three and also resulted least Ability Hispanic Elect Citizens’ v. (Trial 114; at Defs.’ Ex. 575 Tr. cuts. Id. Congressional District 23 (Flores)). Sept. Perry, Perez v. Plan Enacted Downton indicated that he was Mr. Plan, Congressional In the CD city Eagle that he cut the aware an Hispanic, is 67.8% HCVAP split he Pass in half when Maverick Coun- Ex. of 54.8%. Pl.’s 58.5% an SSVR (Down- AM ty. Tr. Trial slightly Congressional Plan The ton). event, any he dis- appeared increases CD 23’s 0.01% HCVAP decision, stating impact count of this by 2.2% over the Benchmark. its SSVR roughly (Trial that “there’s thousand 454-55, his belief Tr. Perez See Defs.’ Ex. 575 change (Dr. stating that live there. So it didn’t people Perry, v. Flores Sept. City Id. number though the nature of either district.” that “even SSVR op- Hispanic I consider it a actually higher don’t Eagle Pass has a district all. I think that a not portunity political performance consider par- very (Trial Hispanic ticularly candidate would find it diffi- relevant. Defs.’ Ex. 577 get configura- cult to elected Sept. 9, new Perez v. Perry, 11; tion.”)); (Downton)). Ex. 12. PL’s Ex. PL’s classify He would a district as majority-minority district if it elected the 57. The evidence demonstrates minority candidate of choice three out of mapdrawers sought ensure ten times or one out of ten times because performance of Hispanic overall candidates any he believes “that district where the May of choice would decrease. On Hispanic voting age citizen population ex- Downton, Davis, Messrs. and Interi- percent, is, definition, ceeds 50 it exchange regarding ano had email Id.; opportunity district.” Defs.’ Attorney analysis election OAG’s results (Downton Dep. 778A Aug. Plan, Congressional for the in which Mr. 2011). Notwithstanding position Texas’s asked, “Any guidance your Interiano before this Court that CD is an ability you any 23. Have been able to make both in the Benchmark changes that we all discussed?” Mr. plan, enacted Downton Mr. does not view over responded, Downton “Have it 59 % *72 it as such. He he testified that believed HCVAP, but at has still There to be 1/10. an ability CD 23 “was not elect level it some of HCVAP where doesn’t ... before or afterward. perform- It was what make difference the election results ing in of before, three out ten elections and Hispanic are. It is the more than other afterward, of one ten in so neither case districts____” two San Antonio based it performing.” was Trial Tr. Jan. email, Defs.’ Ex. 1. In map- this (Downton). 2012 AM The Chairmen of the drawers referenced OAG’sreconstitut- Committees, however, Redistricting testi- analysis, ed election which indicated that fied Seliger otherwise. Chairman testified by Hispanics candidates supported that no told him one had that CD 23 in the dropped winning out three of ten Congressional Plan predicted was to elect Plan, in elections the Benchmark to one preferred candidate in 65; out of ten in enacted CD Ex. 23. PL’s one out of ten elections. Defs.’ Ex. 776 Ex. Defs.’ 390. 1, 2011); (Seliger Dep. Sept. Trial Tr. 58. Mr. Interiano that enact- conceded 13-14, (Seliger). Jan. AM Chair- perform CD a minority ed 23 does not as man similarly Solomons testified he (Interiano Defs.’ Ex. district. 779A it problematic would consider if a new 2011). 96-97, Dep. Aug. David Hanna congressional plan were to reduce the Jeffrey Archer from the TLC ex- by number of wins candidate pressed concern CD 23 not “real- was in by of chоice three or more a VRA ly proposed map.” effective in the Defs.’ protected He it district. stated that would Ex. 288. of goal changes The CD 23 if problem also be a the number of wins was, fact, to make the district safer for plan went from three the base down to Canseco, Congressman who not the is His- change one and would necessitate a to the choice. panic candidate of (Trial Ex. 580 plan. Defs.’ Downton, however, (Solomons)). expressed 59. Mr. Perry, Sept. Perez v. performance little concern about the of He CD further testified that if election In proceedings analysis 23. before the U.S. Dis- of reduces number wins for trict Court for the District minority preferred Western of one out candidates Texas, ten, Mr. Downton testified that he did it his get of would attention that it Black, Hispanic, of A tri-ethnic coalition legislative understanding
was his Anglo together voters work and cross-over then- that as a basis of using council in the area Democratic candidates elect PM Trial Tr. analysis. encompasses.10 that CD 25 Id. 85. (Solomons). tri-ethnic coali- 64. The success this Hispanic voters to The 60. support Anglos of some depends tion choice is lost them candidate of elect for Democratic candidates. enacted CD (Dukes). 19, 2012 PM Congressional District b. Minority i. Election Performance Plan, CD 25 Benchmark Anglos Despite fact that com- from south population 59.7% of its draws CVAP, “the candidate prise 63.1% incorpo- County, and also Austin Travis Hispanics preferred Blacks CD[in Austin, includ- rates counties southeast every con- has won Benchmark] Caldwell, Gonzales, Colorado, ing Fayette, Defs.’ gressional election decade.” counties, por- as Hays, and Lavaca well (Ansolabehere Rep at 5 Reb. Ex. 11. Bastrop County. Pl.’s tions of 16, 2012); PL’s Ex. 11. configured the Bench- The District as areas 66. Elected officials from encom- Black, Hispanic, mark Plan is 38.8% 8.7% at trial passed by CD 25 testified about voting age citizen Anglo. and 49.8% The tri-ethnic coalition and effectiveness (“CVAP”) Hispanic, 25.3% voters within role Black, Anglo. 63.1% Id. at 9.1% tes- Representative coalition. State Dukes in the District is 20.4%. Id. at SSVR *73 by supported tified that the tri- candidates statistics, by above 10. As reflected the the who in ethnic coalition are ones win voting age citizen the combined County. Trial Tr. Travis Jan. Anglos and consti- population totals 34.4% (Dukes). not PM Candidates are in majority tute a of voters the district. voters, bypass minority those able to and currently represented 62. CD is only Anglo obtain from who endorsements Lloyd Doggett. Defs.’ Ex. Congressman groups in the tri-ethnic coalition do not win 802; Trial 2012 PM Tr. Jan. in Id. County. elections Travis (Dukes). Doggett won the Congressman (“[I]n in County Travis general [ ] elections in special for CD 25 December election Afri- you Hispanic if not the and do win in 2008 and 2010. and was reelected largely can-American boxes are locat- Congressman candi- Doggett the County, Travis portion ed the central you choice of voters in CD 25. an going date of then are not to win election (Dukes). County progressive without the 2012 PM Travis tions, especially co- Labor Representative testified that this the Central Counsel Dukes unions, "multiple organi- up police [sic] alition includes democratic made labor association, working fighters, together, is the Black Demo- fire all zations. There Austin Democrats, crats, very get and work hard Tejano the Mexican- the candidates Democrats, they go lesbian-gay, will out and American or endorsements because Democrats, community, through Aus- and there's the Central work the literature Stonewall rare, you Progressives, University very there’s the Demo- create a slate. It is if have tin crats, you help support that Democrats that coalition's successful Northwest northeast, goes winning.” and 2012 PM and the list on and on Trial on, (Dukes). coupled organiza- and labeled [sic] Anglo[,] communities. extends north to County. black Tarrant Com- spreadsheet, I may not have Excel pared configuration, its Benchmark CD my county.”). I can I As an you tell know plan enacted loses population example, Representative Dukes testified from south Austin five counties and Spears, Wells an African- Nelda gains eleven counties. CD 25 in enact- coalition, supported by the suc- American plan longer incorporates ed no Bastrop, Anglo “progres- cessfully defeated an male Caldwell, Colorado, Gonzales, Fayette, sive with 74% of the Democrat” vote. Id. counties, Lavaca Bosque, and now includes at 112. Burnet, Hamilton, Coryell, Hill, Johnson, Lampasas, counties, and Somervell as well Representative addition to Bell, Erath, portions of Tarrant Dukes, Escamilla, the David Travis Coun Compare counties. Pl.’s Ex. 11 with PL’s ty provided Attorney, unrebutted written Ex. 12. testimony political coop cohesion and eration in tri-ethnic coalition “consis 69. State House Representative Dawn- tently produces agreement sup broad na Dukes Congressional testified that the port individual candidates and slates Plan “takes the historical African-Ameri- agree The high frequency candidates. community can by segre- that was forced organiza ment among on candidates central gation into Austin and moved it tions within the Coalition also stems majority into a Republican many the fact that individuals are mem runs west....” Trial Tr. organizations. bers of more than one of the (Dukes). PM overlap This in membership promotes 70. CD 25 the Benchmark Plan was agreement political on common slates of overpopulated by 115,893 voters, or 735, at He pro candidates.” Defs.’ Ex. 16.59%, and needed to shed excess election, example
vided the of the 2008 population. PL’s Ex. 11. Compared Anglo County Attorney which an Assistant Benchmark, CD enacted 25 retained lost a for a county judgeship despite race 126,507 original District’s vot- having lion’s “the share endorsements ers, 489,434, 392,869 voting lost and added from the local Democratic clubs” because *74 (Anso- 724, age persons. Defs.’ Ex. tbl.C.2 gain significant support he was “unable to 2011). 21, sum, only labehere Oct. In Rep. Hispanic from the or African American 28% of voters in 25 the enacted CD community.” Id. at 9-10.11 from the Benchmark at 39. district. Id. Congressional ii. in District 25 Plan, Congressional 71. In the CD 25 Congressional Plan Anglo, Hispanic, is 70.3% 17.3% and 8.3% Black. Ex. 12. PL’s The CVAP is 78.2% plan, sig- 68. In the CD 25 is enacted Anglo, Hispanic, and Black. 10.3% 8.1% nificantly altered. While CD 25 short, In voting age popula- Id. the citizen Benchmark extended southeast of Travis County, Hispanics by 25 in tion of was cut than plan CD the enacted takes a more County population by smaller from Travis and half and of Blacks reduced half a was countywide 11. of Mr. Escamilla stated since 2002 mi- elections from which this infor- draw, nority prevailed county- candidates have in 34 mation is which useful- undermines the County, wide of whom elections Travis evaluating ness of this evidence in Hispanic. were and Black 16 were Defs.’ Ex. of voters in the district. 735, provide did at 8. He the total number votes, 50,226 or Ortiz, who received of population while the point, percentage 32, per- PL’s Ex. at 13. by fifteen 47.11%. increased over Anglos was addition, Anglo centage In points. Seliger recognized 74. Chairman to CD in the new areas added population the His- Congressman Farenthold was not racial cohesion high levels of “shows 27. of choice in CD Defs.’ panic candidate and polarization” “85% Whites 20, 1, 2011); Dеp. Sept. (Seliger Ex. 776 for the same candi- new vote 16-17, 24, (Seliger). Trial Tr. 2012 AM (Ansola- 724, at 35-36 Defs.’ Ex. date.” inability Mr. Despite their to reelect Ortiz 2011). 21, In contrast Rep. Oct. behere citizens Benchmark Hispanic the small new areas added CD their candidate of choice to CD 27 elected remains from the old district area that Representa- House United States can- minority-preferred for the votes 60% 2008. Defs.’ Ex. tives in 2006 and to Dr. An- According Id. 39. didates. (Handley Congress Rep.). at 5 solabehere, plan in the enacted no CD 25 CD 27 According expert, to Texas’s living in the longer provides minorities from the of its cre- “performed” had time ability to elect their candidates district the years until the thirty ation for close of choice. Id. (Trial Defs.’ Ex. 581 Tr. 2010 election. 1870-71, Perry, Sept. Perez v. Congressional District c. (Alford)). Indeed, Seliger Chairman testi- Congressional District i. fied 27 in Benchmark Plan is that CD Plan Benchmark “clearly opportunity an district.” Defs.’ Plan, 27 is 25-26, 1, 2011); In the Benchmark CD (Seliger Dep. Sept. Ex. 776 Texas, in- located in southeastern (Seliger). Trial Tr. 2012 AM cities of Christi and Corpus cludes the similarly Chairman Solomons understood Brownsville, Kle- Kenedy, counties protected 27 was under VRA. CD Nueces, Willacy, por- (Solomons as well as berg, Dep. Aug. Defs.’ Ex. 777 and San Patricio coun- 2011). tions Cameron (Trial 11; Defs.’ Ex. 575 ties. PL’s Ex. Congressional ii. 27 in the District (Flores)); Sept. Perry, Perez v. Congressional Plan Based 2010 demo- Defs.’ Ex. 818. data, CD 27 the Benchmark had graphic data, According to 2010 Census CD 73.2%, an total Plan overpopu- 27 in the Benchmark 69.2%, 63.8%, HCVAP of HVAP of 43,000 lated about people. of 61.1%. PL’s Ex. 11. an SSVR (Downton); 2012 AM PL’s Ex. Plan, Congressional CD 27 is recon- represented currently 73. CD 27 is *75 north, figured keeping city and moved Farenthold, Anglo Congressman Blake an adding Corpus of Christi and the cities of Republican. Congressman Farenthold has Victoria, Wharton, Bay City, but elimi- and 2010, 27 since when representing been CD the district. Mr. nating Brownsville from twenty-seven year he defeated incumbent acknowledged 27 in Downton that CD Ortiz, Hispanic a Democrat. PL’s Solomon 27 in the 32, 24, Benchmark Plan CD Con- 13; 16, Tr. 2012 Ex. Trial Jan. (Chairman gressional very Plan are different districts. elec- Seliger). AM In the 2010 Defs,’ (Trial 971, Ex. Tr. Perez v. tion, 577 Farenthold defeated Congressman (Downton)); 9, Sept. 2011 Defs.’ by only Perry, 775 and received Mr. Ortiz votes (Downton 47.84%, 48, Aug. 31, votes, Dep. Ex. 51,001 compared or to Mr. 778B 2011). County Plan Congressional removes 80. Nueces has a population of 340,223 and an of Kenedy, Kleberg, counties of HCVAP 54.6%. PL’s Ex. the southern 11; 746B, 883, Exs. Defs.’ 391. In the Willacy, and Cameron from the Plan, Benchmark Nueces Aransas, Calhoun, County voters Jackson, La- and adds constitute over 50% of the total registered vaca, Victoria, Matagorda, Refugio, 27, in voters of CD while the Congression- counties, parts of Bas- as well Wharton Plan, they 119-20, al do not. Trial Tr. Caldwell, trop, and Gonzales counties. 18, (Downton); 2012 AM Defs.’ Pl.’s Ex. 12. (Downton 54-55, 31, 2011). 778B Dep. Aug. 77. Downton be- Mr. testified he According Interiano, to Mr. a goal CD 27 district protected lieved that was a Congressional Plan was to allow in by the the Benchmark but no VRA County to anchor a congressional Nueces longer majority Hispanic district in said, That district. Mr. Interiano testified Congressional Plan. Defs.’ Ex. 778A that he did not what portion know of CD (Downton 2011); 32-33, 12, Dep. Aug. 27 voters were in Nueces County under (Downton 54, Aug. 778B Dep. Defs.’ Ex. (Trial the Benchmark Plan. Defs.’ Ex. 579 31, 2011). Similarly, expert, Dr. Texas’s 1461-62, 12, Tr. Perry, Perez v. Sept. Alford, 27 in testified CD the Con- (Interiano)); (Interiano Defs.’ Ex. 779A gressional Plan in flipped, “has almost ex- 2011). Dep. Aug. actly way flipped previ- the same 23 was 82. Mr. Downton conceded that be- ously, so it is CD 27 this time is Benchmark cause CD was overpopulat- flipped being majority Anglo into ... only 43,000 individuals, by ed about if it (Trial district.” Defs.’ Ex. 581 Tr. 1829— simply had been goal the State’s main- (Alford)). Perry, Perez Sept. v. tain he CD would have had to remove Plan, Congressional In the CD precincts. Trial few 49.5%, has a total of (Downton). AM Mr. Downton 45.1%, 41.1%, an HVAP HCVAP of further testified that CD was redrawn 2; and an SSVR 36.8%. Defs.’ Ex. give Congressman Farenthold a better compared Defs.’ Ex. at 1. When chance reelection. This could been have Plan, by Benchmark the HVAP decreases Congressional by accomplished Plan 24.4%, 22.6%, SSVR decreases and the out a carving portion small of Nueces HCVAP decreases 22.7% CD enacted County containing the home incumbent’s moving into portion a northern 27 no in- longer While enacted CD district, leaving County the bulk Nueces Texas, cludes counties South Nueces in a Texas South district. Defs.’ Ex. 778B (Downton 2011). County Dep. Aug. district. remains Nueces County thus no longer is included in the similarly 83. Chairman Seliger testified configuration South and West Texas conceptually possible that it is Con- to take Hispanic ability districts. Trial Tr. gressman neighborhood, Farenthold’s (Downton). 2012 AM Mr. Down- along which located Gulf Drive in is Shore that, ton County testified Nueces effective- Christi, Corpus it with pair counties ly a different district the Congres- *76 the him a north make safer than in sional Plan the Benchmark Plan. County the of Nueces leaving remainder (Downton 49, Defs.’ 778B Dep. Aug. Ex. the south to district runs Cameron 2011). 31, County. (Seliger Dep. Defs.’ Ex. 27- 776
216 24, elect 2011); 19, ability their candidates 1, Tr. Jan. citizens 28, Trial Sept. (Chairman of choice. Seliger). AM Mr. Downton testified 84. Discriminatory Purpose in the E. Con- rejected pro and considered mapdrawers gressional Plan County’s Hispan posals to include Nueces Minority Disparate Impact a. configura the South Texas ic Congresspersons Trial Tr. congressional tion of districts. (Downton). 103-04, 18, This 2012 AM Jan. Congressional i. District 9 choice. large part political was in decision Plan, CD 9 is 86. In the Benchmark Downton, According he Id. to Mr. incorporates of Houston and located south County north into CD moved Nueces Fort Harris and Bend counties. parts of delega County “the part because Cameron Black provides Pl.’s Ex. 11. This district had in the House and Senate tion Hispanic and citizens elect they have a preference expressed of the candidate them choice. County anchored Cameron District data, demographic on 2010 87. Based county that their would without Nueces so and 42.4% Hispanic. CD 9 is 36.7% Black point anchor and could control be the sole 36.3%, a BVAP of The district has County dele the election.” Cameron 19.1%, and an of 16.2%. HCVAP of SSVR Lucio, gation included State Senator Eddie 11, 4, A1 Congressman PL’s Ex. 10-11. Lucio, III, Jr., Eddie Representative State represented CD 9 since 2005. Green has Oliveira, Representative Renee and State Plan, 9 has a In the Benchmark CD ful all Mr. Downton who are Democrats. 35,508 Defs.’ surplus people, or 5.05%. representatives’ requests these filled 347, Ex. at 28. this district was While 34, a new creating enacted CD district a small required percentage to shed intended to an offset for the loss was be Congressman Green testified population, 18, 71, Tr. 2012 AM CD 27.12 Trial Jan. surgery” had “substantial that his district (Downton); 18, Trial Tr. 124-25, it. Trial Tr. done to (Trial (Downton); Defs.’ Ex. 575 Tr. AM Green). Primarily (Congressman AM 485-86, Sept. Perry, Perez v. Clarke, communities, such Hiram Black as (Trial (Flores)); Ex. Defs.’ district, along his were removed from (Downton)); Sept. v. Perry, Perez line, engines,” such the rail “economic as (Downton 31-32, 66, Dep. Ex. 778A Defs.’ Baptist University, Houston Medical 2011). Aug. Center, the Astrodome. The removal Congressional configured substantially 85. As of these areas decreased Plan, political power of the citizens his dis- provide CD 27 does not 79%, Specifically, CD 34 has an HVAP of 12. CD of four new districts created in one Plan, 71.7%, Congressional in south- is located an HCVAP of an SSVR 71.9%. Texas, Witt, Goliad, Bee, 885; De east includes Defs.’ PL's Ex. at 9. Chairman Wells, Kleberg, Kenedy, Willacy and Jim Seliger that he CD 34 be- testified created counties, portions Hi- as Cameron well required to create a cause he felt he dalgo County, Gon- County, San Patricio Texas, particularly Hispanic district in South parties County. at 1. All zales Pl.’s Ex. (Seli- after loss of CD Defs.' Ex. 776 agree proposed provides Hispanic CD 34 2011); ger Dep. Sept. living to elect citizens (Chairman Seliger). 2012 AM 726, at candidates of their choice. Defs.' Ex. *77 721, 4; at Trial Tr. 124- trict. Defs.’ and she was never contacted to discuss 20, 25, (Congressman changes Jan. 2012 AM to CD 18. Id.
Green). 92. Based on 2010 demographics, CD removing key In addition to land- the Benchmark over-populated by 22,503 Congressional 3.22%, marks from his people, or which thus re- Congressman Plan removes quired only Green’s dis- changes minor to reach the Congressman trict office. 347, Green testified ideal size. Defs.’ Ex. at 29 provides Nonetheless, the “district office a mean- (Murray Rep.). in the Con- ingful Plan, connection gressional between a member and key district’s economic people represented. Our district generators, office Congresswoman as well as is in a location that my is well-known to Jackson Lee’s district office are removed. constituents present 13-14, (Con- and has been its Trial Tr. Jan. 2012 PM 2006; location it easy Lee). since has access to gresswoman Jackson Congress- major transit, freeways, many mass of woman Jackson Lee testified that her dis- important activity centers business trict office has been in the same location Congressional within the Ninth time, District for a lengthy period of having been Center, such the Texas Medical previous VA used representatives two hospital, complex. and the Astrodome of CD including Congresswom- former properties Other similar in the area have an Barbara Jordan. Consequently, con- removed; surgically been this couldn’t stituents in the district know where the have done been accident.” Defs.’ Ex. office go is and there to seek services. Id. 4 (Congressman office, Green Pre-filed removing addition to her district Direct Testimony). Congressional splits Plan also the his- area, toric Ward-MacGregor Third an im- Congressional
ii. District 18 portant community Houston and home to many of Houston’s African-American lead- Plan, In the Benchmark CD 18 is ers. This area has been in CD 18 located in since Houston and within Harris the district’s creation in 1972. County. Defs.’ Ex. Pl.’s Ex. 11. Based on 2010 de- (Trial Perry, Perez v. data, Sept. mographic CD 18 in the Benchmark 12-13, 2011 (Murray)); Black, Plan Hispanic, is 43.5% 37.6% Lee). (Congresswoman PM Jackson Anglo. 15.8% The district has BVAP of 46.4%, 22.3%, an HCVAP of and an SSVR Congressional iii. District 30 Congresswoman 18.4%. Id. at 9-10. represented Plan, Sheila Jackson Lee has CD 18 In the Benchmark CD 30 is since 1995. located in County. Dallas within Dallas PL’s Ex. 11. Congresswoman Jackson Lee testi- fied that during redistricting pro- data, the 2011 94. Based on 2010 demographic cess, Black, she traveled to Texas to meet currently with CD 30 is 42.4% 39.7% the Chairmen of the Hispanic, House and Senate Anglo. and 16.7% The district Committees, Redistricting 42.5%, and went to a has a BVAP HCVAP of public 19.8%, redistricting hearing urge state and an SSVR 14.6%.PL’s Ex. lawmakers respect communities of in- Congresswoman 9-10. Since terest in CD 18. Trial Tr. Eddie Bernice Johnson has represented Lee). 2012 PM (Congresswoman 67, 69, Jackson CD 30. Trial Tr. 2012 PM however, Johnson). requests, These were (Congresswoman unheeded *78 Anglo Comparative 7,891 Treatment of only v. CD 30 has Benchmark 95. Congresspersons 1.14%, population, or over the ideal people changes minor required thus Congressper- all three Black 99. While size. Pl.’s population ideal reach the Congressman Gonzalez sons and fact, changes significant Despite offices removed from had their district 30, including the addi- were made CD districts, and Con- re-configured their artificially which large prison, of a tion her home gresswoman Johnson even had in the enact- Black inflated the removed, had Anglo Congressperson no 81, Jan. 2012 PM Trial Tr. ed district. her district office or home removed his or Johnson); Defs.’ Ex. 579 (Congresswoman a result of the from his or her district as (Trial Perry, Sept. Perez v. Trial Tr. re-districting process. Jan. Johnson)). (Congresswoman (Congresswoman 2012 PM Jackson (Con- Lee); Trial Tr. 2012 PM Congressional Plan removes 96. The Johnson). gresswoman Congresswoman John- from the district and even her own son’s district office minority Congresspersons 100. While 2012 PM home. key had landmarks in their districts re- Johnson). Congress- (Congresswoman moved, mapdrawers accommodated re- that the removal woman Johnson testified in- Anglo Congresspersons to quests from a significant her office would be country clubs and clude their districts community her constit- loss to her because Deck, Devaney grandchildren’s schools. it familiar with her office and uents are example, mapdrawers Exs. 19-21. For en- easily accessible. Id. 79-80. Congresswoman Kay Anglo sured that originally had been Granger, whose office In to her district office and addition district, had her office drawn out of her home, Congressional Plan removes plan. final adoption restored before district, in- from the generators economic Deck, 63, Aug. Devaney (Opiela Dep. Ex. 5 Congresswoman John- cluding areas that id., 22, 2011); Anglo Congress- Ex. 17. improve, such as the son has worked to May Kenny requested man Marchant Center, Maver- American where the Dallas 31, 2011, drawn to that his district lines be transportation areas for the play, icks grandchil- to include his cross street Tri- park, and the arts district. downtown Id., Mapdrawers school. Ex. 18. dren’s (Congresswom- al Tr. 2012 PM request. Anglo Con- accommodated that Johnson). gressman requested Lamar Smith on June Congressional iv. District 8, 2011, that lines be drawn to his district precinct include a with the San Antonio Hispanic Congressman Charlie Id., Country Republi- Ex. 19. The Club. represents Gonzalez CD 20. the Con- granted request. leadership can also Plan, office is re- gressional his district Deck, Ex. Devaney plan 20. The enacted also moved CD cultural key removes economic and land- to the removal of dis- regard 101. With dis- Congressman offices, marks from Gonzalez’s trict Mr. Interiano testified trict, the Alamo and the Conven- including mapdrawers did not have the address- Congressman any congressional tion Center named after district offices es Deck, redrawing congres- Devaney they father. Ex. 16 when were Gonzalez’s (Deck Gonzales, that it map. Mr. Interiano stated Congressman Charles sional ¶¶ 3-9,11). just Con- “coincidence” *79 congressional their offices re- gresspersons Congressional had district 95, 25, Trial Tr. 2012 PM Plan minority moved. Jan. does not reflect the growth (Interiano). The finds that this tes- in Court the Dallas-Fort Worth metroplex. Tri- 13, 18, al timony is not credible. Tr. Jan. 2012 PM (Rep. Veasey); ¶¶ 320, Defs.’ Ex. (Arrington 148-52 Rep.). Congressional Configuration b. Congressional urban, The Plan divides in Districts North Texas minority in population the Dallas-Fort metroplex among Anglo-con- Worth four Plan, 102. In the Benchmark nine con- congressional districts, 6, trolled CD CD gressional converge districts in the Dallas- 12, 26, CD and new CD 33. Trial Tr. 16- 818, metroplex. Fort Defs.’ Ex. Worth 17, 18, Jan. 2012 PM (Rep. Veasey); Defs.’ districts, 1. nine Of these CD 30 the ¶¶ 320, Ex. (Arrington 148-152 327, Rep.); district. Defs.’ 677-80, 683-84; 75, Defs.’ Exs. (Handley Congress Rep.). 18, (Congresswoman PM John- metroplex 103. The Dallas-Fort Worth testifying son that the Congressional Plan Texas, spread is located in north and is has been configured to break “solid Afri- across Dallas and Tarrant counties. Be- can-American and growth up Latino in non-Anglo 2000 and popu- tween one, two, three, four, five or six different 28%, County lation in Dallas ac- grew districts”). 100% counting population for county. growth During the same 106. To rebut claims that minorities in period, Anglo population declined the Dallas-Fort metroplex Worth were ei- (Supp. Rep. 20%. Defs.’ Ex. at 5-6 ther Anglo-dominated fractured into dis- Saenz). Rogelio non-Anglo population packed tricts or into CD Mr. Downton testified, County grew Tarrant 12 times faster it was difficult to draw Anglo population, accounting than the the Dallas-Fort Worth population growth 89% of the metroplex significant part” there. Id. because “a data, According to 2010 population growth census Blacks and the was either non-citi- zen, Hispanics now account for a combined 55% under or Trial “assimilated.” (Downton). voting age population Dallas 2012 AM County voting age popula- and 37% of the Republican congressional 107. The del- County. tion in Tarrant Mot. for Judicial egation, through Congressman Lamar ¶¶ Notice, ECF No. MALDEF, Smith, Representa- MALC and significant Veasey
104. Due population presented tive all Mr. Downton counties, Texas, growth in Dallas and Tarrant “concepts” the with for North but Mr. Congressional Plan allocates CD one of Downton stated that none of these groups newly apportioned congression- provided the State’s him with a proposed map during controlled, al Anglo regular special districts will be to the or session. Trial Tr. (Downton). the area. Ex. 12. Pl.’s The Dallas-Fort 2012 AM metroplex will thus have ten con- Worth testimony 108. Mr. Downton’s on this gressional converge districts the area early April issue is not accurate. In Plan, Congressional but CD 30 re- Smith, Congressman Lamar on behalf of a only minority ability mains the district majority Republican congres- of the Texas among them. Id. con- delegation, sional distributed draft Despite significant popu- gressional map Republican leaders of growth, Legislature, lation and the addition of another the Texas as well as Lieu- predominantly communities that are Defs.’ Ex. come and Governor. tenant Governor minority. map created Smith’s Congressman Act district in the Voting Rights new “one newly 33 is one of the State’s CD alia, area,” which, inter Dallas-Ft. Worth congressional districts. apportioned in Texas growth “reflects Plan, in- Congressional this district *80 Id. the last decade.” over County parts of cludes all of Parker and are County, predomi- both of which Wise Veasey testified Representative ar- nantly comprised Anglo, suburban through pa- the local he heard when popu- Anglos up eas. make 85.3% Congressman Lamar Smith per County portion in and the lation Parker delega- congressional Republican and the County included in CD 33 is 78.7% Wise map with another proposed tion had Pl.’s Ex. 12. In addition to those Anglo. in north minority congressional areas, Tarrant Anglo CD 33 cuts into Texas, approached in addition to CD he County’s County to include Tarrant fast- it. and asked to see Chairman Solomons Represen- growing populations. responded that there Chairman Solomons Veasey tative testified that enacted CD 33 map. Representative Veasey was no such “goes around southwest—underneath subsequently that he learned testified unincorporated Ft. in the southeast Worth had, fact, in seen Con- Chairman Solomons then into Ar- County, Tarrant moves proposed map. Trial gressman Smith’s lington, heavily Anglo part into the of Ar- (Rep. Veasey). 2012 PM Tr. Jan. lington, picks up and then the fast minori- ty growth area in southeast Tarrant 6, 12, Congressional i. Districts County, Arlington Arlington- —southeast Tr. Grand Prairie area.” Trial in Benchmark Plan is 110. CD 6 (Rep. Veasey). 2012 PM heavily Anglo counties of anchored Ellis and Navarro and reaches into both Congressional ii. District 26 in- County County and Tarrant Dallas Plan 26 in the Benchmark 113. CD heavily Hispanic neighborhoods clude Cooke, Dallas, Denton, and parts covers County Dallas and areas of Tarrant Coun- Ex. 11. Bench- Tarrant counties. Pl.’s growing Hispanic and ty rapidly mark CD 26 is anchored in Denton Coun- Black areas. Trial Tr. population into the center ty, and then reaches south (Rep. Veasey); Defs.’ Ex. 819 2012 PM County long peninsula-like in a of Tarrant a com- at 1. CD 6 the Benchmark has 363,872 strip, incorporating individuals. 38.6%, Hispanic Black and CVAP of bined 26 in The benchmark CD minority population with most of County Anglo, Tarrant is 45.5% 24.4% County. Defs.’ Ex. at 2. Dallas Black, Hispanic. and 26.5% Pl.’s Ex. 12. in the Benchmark is based CD 12 Plan, 114. In Congressional CD County, Tarrant com- in northern which is Dallas, counties: parts covers of three Anglo affluent prised of communities. Denton, Tarrant, with most of Denton incorporates southeast Fort district also County within the district. Pl.’s Worth, community. is a Black which County of Denton in CD portion 7. The Id.; Fort Worth is situated south of Southeast Anglo. 26 is 67.1% Trial (Rep. Veasey). Interstate 30 and east of Interstate 35 and PM CD 26 also County inner-city, portion includes a small of Dallas up is made of several low-in- individuals, are 43.9% containing 841 who Enacted CD 26 12, at 7. In addition to Anglo. PL’s Ex. 115. The “lightning bolt” into Tarrant County County Dallas these Denton County significant divides two areas, Plan Congressional CD 26 communities interest Tarrant Coun- County down the center of Tarrant runs ty Side and South Fort Worth— —North “lightning shape bolt” exaggerated an and moves these areas to CD a district 147,815individuals, 65.2% of whom capture represented by Anglo Republican Con- Id.; Hispanic. Defs.’ Ex. 75. gresswoman Kay Granger. North Side urban, low-income, majority
community in Fort Worth. South Fort urban, low-income, is another Worth ma- jority Hispanic community in Fort Worth. *81 Trial Tr. (Rep. PM Veas- ey); 98-99, Trial Tr. 2012 PM (Jiminez). boundary
116. The between enacted CD and enacted CD in Tarrant County eastern boundary of the —the “hghtning bolt”—divides commu- 630; nities according to race. Defs.’ Ex. PL’s Ex. 133. “lightning running bolt”
through County Tarrant in the Congres sional Plan splits contains 38 of voter tabu (“VTD”).13 lation districts Defs.’ Ex. at 10-11. The purpose split behind the Hispanic populations VTDs was to move split into enacted CD 26 and the non- Hispanic population out of the district. 74-82, Defs.’ Ex. 185-88. Mr. map Downton testified that he drew the keep Hispanic population together, even he though also testified that these Hispanic may not populations want be submerged County. into Denton Defs.’ (Downton Dep. Aug. Ex. 778A 2011). explain
118. In an effort configu- “lightning ration of the bolt” in the Con- Plan, gressional Mr. Downton testified “lightning running bolt” same, precisely parties voting precincts. 13. While not agree essentially that VTDs are the same as Hispanic pre- a careful effort to include County Tarrant went County to Denton placing cincts and in CD 26 while changes blocks iterations and through “multiple precincts African American and blocks by people various raised based on concerns difficulty retaining Trinity Any CD throughout process.” (Downton). in CD12 was caused the State Vision According AM placing higher priority separating a Downton, “lightning bolt” went to Mr. from each oth- Hispanic black and into Fort Worth because further down er.” Id. split that we had were raised “concerns City of Fort Hispanic population Packing iii. of Minorities into Con- ... north- group a
Worth between gressional District 30 put Fort which we had ern side of Worth to the presented Evidence Court group down the southern 26 and Congressional demonstrates that the Plan in 12. put Fort that we had part of Worth large part of Dallas concentrates Coun- rectify that concern we reached So ty’s minority population into enacted CD ... ... two Fort down further Enacted has a of 45.6% CD 30 BVAP communities which we Worth %, and an HVAP of 40.3 which increases interest, community were told shared minority voting age popula- the combined put Initially them in 26. when we did we tion from the Benchmark district 4.8%. *82 that, down, coming a cleaner it looked little 859, Compare Defs.’ Ex. at with Defs.’ doing but in that we had taken out down- 858, at 2. [Trinity Vision] town Fort and thе Worth project Congressman out of District 12. II. PLAN STATE SENATE really Granger expressed concern she 121. There are 31 seats the State needed those areas in her District.... Senators serve terms of four Senate. change Then we made an additional over years. Representative Veasey’s request pri-
marily community put the black we had 24, 2001, July following 122. On to that to 12 and 26 and he asked us move Legislature failure of the Texas State that as well.” so we did Id. 68-69. redistricting plan enact a for the State Senate, Legislative Redistricting the Texas jagged 119.The assertion adopted plan Board to redistrict all 31 edges “lightning bolt” were due to plan precleared by Senate seats. This Congresswoman Granger’s request keep 15, the DOJ on October 2001. This is the Trinity Project in CD is Vision (the Benchmark Plan State Senate by disputed other evidence the record. Plan”) purposes “Benchmark for the Specifically, County Tarrant Commissioner this case. memorandum, in a Roy Brooks stated dat- 15, 2011, September ed to the DOJ: Redistricting maps for the State “Frankly, you being are not told the House passed and State Senate must be truth.... I have no doubt that the State during general legislative session. Trinity to remain in wants Vision CD Otherwise, maps by Leg- are drawn However, using project explain Redistricting desig- islative Board is racially discriminatory map excuse their is by nated statute and consists of the State’s Governor, flatly Speaker dishonest.” Defs.’ Ex. 113. Mr. Lieutenant House, General, Attorney Comptroller, Brooks further stated that contorted “[t]he Trinity lines south of the Vision site reflect and Land Commissioner. 17, 2011, Zaffirini, May the State Senate 130. Senator Judith Hispan-
124. On ic who served on the containing Redistricting Bill a new Senate passed Senate Committee in 2011 and who had been plan for the State Senate redistricting through several Census, past redistricting Senate on the 2010 and the Gover- based cycles, said that (the hearings the field were “a signed it into law on June nor par- sham” because of low attendance and Plan”). This is the Plan for “State Senate ticipation, testimony, lack of invited seeking preclearance. which Texas prepared lack of materials for members of represented 125. SD 10 is Senator Redistricting Committee. Defs.’ Ex. Wendy Davis the Benchmark Plan and (Zaffirini 7-8, 2012). Dep. Jan. Sen- Plan configuration its the State Senate Rodney similarly ator Ellis testified that only challenge to the is the State Senate these hearings very had limited attendance Plan before the Court. “fairly perfunctory.” and were Jan. 2012 AM. Both Senators’ Redistricting A. Pro- State Senate testimony is credited this Court. cess Seliger Doug 131. Chairman Davis Davis, Doug the director for the met with Senator Davis March 2011 and Redistricting, on Senate Select Committee her changes asked what she would like principle mapdrawer was the for the State made to SD 10. Trial Tr. Senate Plan. Trial Tr. (Sen. Davis). AM She told them that the (D. Davis). PM urban of Fort Arlington cores Worth and September 127. In the Senate “very important” were to the District and Redistricting Committee held seven field important that she felt “it was keep hearings input across the State to “receive wholly contained within Tarrant public” redistricting. from the Trial County.” Id. (D. Davis). 2012 PM *83 2011, During late April 132. draft re- Redistricting hearings for districting were maps viewing available Plan in “population State Senate were held adjacent in a room to the State Senate State, centers” around the but none was floor, only by but invitation. Those sena- County by held in Tarrant the Senate Re- tors who were invited to look would leave 17, districting Committee. Trial Tr. Jan. the floor of the State Senate with Chair- (D. Davis). 18, 2012 AM Seliger man and Mr. Davis to review the proposals provide draft comments on 129. The State House Committee on (Sen. 39, 20, Trial Tr. 2012 them. Jan. AM Redistricting only hearing held the in Tar- Davis). County Arlington, rant which has the being largest city
dubious distinction of Ellis testified that 133. Senator sena- public the United States that lacks both “minority who districts” represented tors service, 8, 18, rail Trial Tr. bus and Jan. redistricting process. left were out (Rep. Veasey), 2012 PM and therefore is (Sen. Ellis). 95, 20, Trial Tr. Jan. AM fully private not accessible without trans- Anglo Zaffirini testified that sena- Senator discussed, portation. Rep. Veasey spe- As had for their plans tors access view cifically public hearing asked that a be districts and the overall State Senate Plan in Fort and offered to locate held Worth Ex. minority senators did not. Defs.’ (Zaffirini 2012). site, 29-30, 6, appropriate request Dep. but his was Jan. redistricting in 2011 ignored. Id. at 8-10. She characterized the passed plans and most exclu- Neither of these the commit- as the “least collaborative Ex. experienced. again ever Defs.’ tee vote. Senator Davis offered sive” she had (Decl. 134, of Judith Rep. app. Lichtman the floor of the amendments on State Sen- ¶ 3). Zaffirini, ate, “party in a line” but was defeated (D. Trial. Tr. 2012 AM vote. Jan. Throughout April May, Sena- Davis). constantly Davis and tor Davis asked Mr. Seliger map for her Chairman see redistricting 137. The formal Senate 38-39, 42, Trial Tr. Jan. district. May process began on and the bill (Sen. Davis). not AM Senator Davis was passed May was to the State House on any May and it not until shown drafts days later. Defs.’ Ex. six for the she saw her district passed redistricting plan State Senate 42; Ex. 128. On first time. Id. Defs.’ Only a roll call of 29-2. vote Senators date, Senator Davis sent a letter to against Davis and Ellis voted it. Seliger, expressing Chairman concern 11, 2011, Wednesday, May 138. On minority voting rights badly were under- day public hearing before the on the State Plan and that mined the State Senate Plan, Hanna an attorney Senate David excluding process, her from the as the TLC, responded to an email from Ka- minority commu- representative of several Davis, rina the Senate Parliamentarian nities, contributed to this result. Defs.’ (and wife), Doug copy Davis’s with a Ex. 128. inquired Mr. Davis. Ms. Davis had about explained 135. Mr. that he Davis did “pre-doing report,” the committee Defs.’ her show Senator Davis how but Mr. Hanna advised “No bueno print- was re-drawn because “we were not good]. RedAppl stamps every- time [no ing maps giving them to members.” thing assigns plan. Doing when it it (D. Davis); 2012 PM Thursday paper would create trail contrary, see also id. at 173. On the going some amendments were not to be Seliger provid- Chairman admitted that he at all. Don’t think good considered this is maps rep- ed to three other senators who preclearance.” idea for Id. majority-Anglo resent districts. Trial Tr. Although Seliger Chairman testi- (Chairman 67-68, 2012 AM Seli- fied he never knew about the Davis- ger); (Dep. see also Defs.’ Ex. 646 of Sen. email, Hanna agree he did that he knew on 2012). Jane Nelson *84 11, May 2011 that none of Senator Davis’s appeared 136. Senator Davis the proposed amendments to the State Senate 12, May 2011 Senate Select Committee on 70-71, 24, Plan Trial Tr. pass. would Jan. Redistricting hearing testify against (Chairman Seliger). 2012 AM 9-10, 18, State Senate Plan. Trial Tr. Jan. (D. Davis). 2012 AM Because Senator B. Senate District 10 Davis not a member of the Commit- 140. 10 in the Benchmark a geo- SD tee, in propose she could not amendments graphically compact district located entire- sponsored Committee. Senator Zaffirini ly County that within Tarrant includes amendments on her behalf. Trial. Tr. Worth, of Fort most Texas. Davis). (Sen. 43^5, Jan. 2012 AM reported 141. The 2010 Census designed These amendments were Black, “strengthen[ the African and SD 10’s is 19.2% 28.9% ] American (ie., Latino makeup Hispanic, ap- Id. 45. 4.9% other minorities [SD 10].” minorities) Richie). An- and 47.6% Senator Davis corroborated this proximately 53% However, at 5. glo. testimony Defs.’ and is credited this Court. Black an 18.3% Citizen Census showed primary op- 146. Senator Davis had no (“BCVAP”), 15.1% Voting Age Population ran ponent against Anglo Republi- HCVAP, Voting Age Citizen 62.7% White incumbent, Brimer, can Kim in Senator (“WCVAP”),and a 2.6% Asian- Population in general election 2008. Senator in voting age population American citizen Davis testified that Senator Brimer was district. PL’s Ex. at 8. “incredibly well funded” and had “the en- Democrat, an Terri Anglo 142. In every dorsement of mayor police and the Moore, Attorney in ran for District Tar- unions, mayors appearing and fire and had County rant lost with close to 50% of in television commercials with him endors- vote. Trial Tr. Jan. 2012 PM 67-68, ing him.” Trial Tr. Jan. Veasey). caught This election result (Rep. (Sen. Davis). AM Representa- attention of State House 147. Senator Davis won the election to Veasey, Marc who studied the 2006 tive by approximately in 2008 State Senate results to see whether Black and election 7,100 288,000 of the in votes cast SD 10. voters could elect a candidate of Hispanic 147,832 Davis Senator received votes Representative Veasey in 10. choice SD (49.91%); former Senator Brimer received that “when African-American concluded 140,737 (47.52%); together communities came Hispanic votes and Libertarian win, they a coalition to ... could win Party candidate Richard Cross received 10.” Id. Senate District (2.56%). 7,591 PL’s Ex. at 4. Thereafter, a coalition of Black Alford, expert 148. Dr. Texas’s wit- in Hispanic community leaders SD ness, calculated that Senator Davis was Davis, Wendy Anglo deep with visited vote, elected 99.6% of the Black 85.3% minority support serving who was then vote, and 25.8% of the Council, City and asked Fort Worth 32-33, Anglo Trial Tr. vote. 10 in her to run for the State Senate SD (Alford). AM Trial Tr. 2012 AM finds that the election Court (Sen. Davis). Davis in 2008 demonstrated a Senator campaign, her Senator During Blacks, three-way coalition of successful “spent great going deal of time Davis Hispanics Anglos and some cross-over neighborhood Hispanic] into [Black however, Since, there has no SD 10. been meetings, knocking doors those [on] Davis to win reelec- occasion Senator attending communities and churches and tion, and no evidence of the coalition’s speaking congregations to church those elections, con- success other Court communities.” to elect cludes that the of minorities (Sen. Davis). AM insuffi- candidates of choice SD 10 has *85 According to the 145. Chairman history protection to afford it as a cient Party, Boyd Ri- Texas State Democratic purposes Benchmark district for chie, “there was a concerted effort to build redistricting in 2011. African-Ameri- support from and mobilize Nonetheless, the Court concludes Hispanic can and voters and to have them purposeful record demonstrates Wendy support unite in their electoral for (Deck re-drawing in the of SD Boyd Ex. at 3 discrimination Davis.” Defs.’ Dismantling District a of Senate and enacted SD has 61.3% C. WCVAP WCVAP). Minority Coalition Anglo population and a 72.3%
10’s 153. The ideal district size for senate Benchmark is com- 10 in the 151. SD 811,147 district in the State Senate Plan is all the traditional and prised of almost Trial Tr. individuals. neighborhoods of Tar- growing (D. Davis). PM The 2010 Census showed Worth, around Fort County rant Benchmark SD 10 to have a Hispanic historic Northside including the 834,265, 23,118 which is more than the area, area, growing Southside ideal number for a senate district Texas. 21-22, 138, 657; Trial Tr. Defs.’ Exs. 151, at popula- Defs.’ Ex. 5. The additional (D. Davis), the predomi- AM 10, however, tion Benchmark SD is well Fort nantly Black areas Southeast accepted within populations deviation Worth, Hill, and Everman. Defs.’ Forest redistricting in the State Senate Plan 136, 657; Exs. by the State and there is no evidence this Davis). (D. 2012 AM “over-population” played any part in re- drawing the district. See PL’s Ex. 35 at apart areas were broken 152. These Anglo-controlled into districts placed Plan, specifically enact- Senate State maps 154. The below show Benchmark 141; ed 12 and 22. Defs.’ PL’s SDs SD and enacted SD 10 and the sur- districts, 12, 9, (showing Ex. 16 that enacted SD has rounding particularly SDs Anglo population 61% 75.5% and
Benchmark SD 10 *86 Benchmark SD 10 Enacted SD A of the area closer examination (below) clarifies the crack- of Fort Worth minority communities from SD
ing of the excerpt Plan. An
10 in the State Senate Fort map depicting above is below areas, surrounding and its which
Worth loop shape. enclosed within the represents which Interstate
loop, Highway Texas State
intersected
running east to west and Interstate 35 south, create four
running north to which loop.
quadrants within the *87 that share into three other districts
few, interests with the any, if common minority coalition. The existing District’s community in Fort African American rural 22— ‘exported’ is into District Worth District that stretches Anglo-controlled an [County]. Falls 120 miles south to over com- Ft. North Side Hispanic Worth munity placed Anglo is suburban Dis- County, while the trict based in Denton Hispanic population growing South side majority An- reconfigured remains in the Ex. District 10.” Defs.’ 3. glo Lichtman, expert an 160. Dr. Alan J. Intervenors, for the Davis echoed witness legislature, report: “[The] [S]tate in his 10[,] cracked dismantling benchmark SD Enacted SD geographically politically cohesive quadrant lies 156. the southeast Arican concentrated Latino and American Fort community Black Southeast large placed communities and members of those Worth, “the core urban com- described as they in districts in which have communities Worth,” Trial Tr. munity Fort Jan. candidates of their opportunity no elect Davis). (Sen. Fort 2012 AM Southeast effectively po- participate choice or continues south of Interstate 820 Worth ¶ process.” litical Defs.’ predominantly minority where it remains (“Lichtman Rep.”). community. Exs. 136. This Defs.’ 53,000 persons are moved 161. Over from Benchmark SD 10 into area is moved 10 into 12 in the State Senate from SD SD 22 in the Senate Plan. enacted SD State Plan, Hispanic or of whom 89.5% Id. Black, though even Benchmark SD is quadrant the northwest 157. Within 200,- by more than already over-populated community known as the “north side Likewise, Defs.’ Ex. at 2. people. 28-29, community,” Trial Tr. Latino 104,703 10 to persons are moved SD (Sen. Davis); AM Defs.’ Ex. Hispanic which are either SD 78.2% out of SD 10 into enacted which is moved or Black. Id. Plan. Id. at 42. 12 in the State Senate SD that he Overall, Doug Davis admitted of enacted examination in a knew that it is drawn bow-tie that the areas he cut out of SD 10 SD 10 shows many of the shape in order to exclude Trial Tr. neighborhoods. were in Tarrant (D. Davis). urban communities 18, 2012 PM Chair- in Benchmark SD 10. County that are Seliger man also admitted he knew Defs.’ Ex. many neighborhoods being 10, including Everman moved out of SD Rodney explained Ellis 159. Senator Hills, minority neighbor- and Forest were to the “The demolition of a letter DOJ: 2012 AM 10 was achieved crack- hoods. District [Senate] (Chairman African American and ing Seliger). *88 PLAN changes I. HOUSE attribute the STATE Mapdrawers stating that one partisanship, 10 to
to SD
(the
167. There are 150 Members
drawing the State Senate
goals
the
“Members”)
House,
who run
State
Republican voting
the
to increase
Plan was
every
years.
for office
two
There are
144,
Tr.
Trial
strength in four districts.
currently
Republican
Members and 49
Davis).
(D.
161,
17,
133,
SD
2012 PM
Trial Tr.
Jan.
Jan.
Democratic Members.
(Interiano).
17, 2012 AM
Id. at 160.
one of those districts.
was
pro-
168. The Texas
Constitution
State
majority Anglo
a
164. SD 10 is
Legislature
every
vides that its
will meet
Anglo popu-
Plan. The
in the State Senate
years.
Legislature
two
is sworn
on
of the enacted district’s
lation is 54.5%
Tuesday
every
the second
odd-num-
Bench-
higher than the
population, 6.9%
year
days,
bered
and meets for 140
unless
14.6%,
mark;
a
Black
is
the
special
a
session is called
the Governor.
Benchmark; and
from the
4.6% decrease
the Legislature
The committees within
25.9%, a
is
3%
Hispanic population
and,
until
typically
appointed
February
not
Pl.’s Ex.
from the Benchmark.
decrease
therefore, legislation
usually
is
consid-
16,
Furthermore,
15,
4;
at
Pl.’s Ex.
at
mid-February,
general
until
ered
when the
increases to 69.5% of
the WCVAP
legisla-
Actual
legislative
begins.
session
voting age popula-
citizen
enacted district’s
pas-
tive
and their
consideration
bills
Benchmark;
tion,
higher from the
6.8%
sage
place
takes
Febru-
primarily
between
13.6%,
in enacted SD
HCVAP
ary
May
legislative year.
of a
Trial
Benchmark;
1.5% lower than
(Hunter).
17, 2012
AM
12.8%,
5.5% lower than
BCVAP is
approximately
days
There are
70 to 80
Benchmark;
legisla-
citi-
a regular
and the Asian-American
that are available within
a
pass
tive session to
bill
State
increases
voting population
zen
CVAP
Trial Tr.
Jan
2012 PM
House.
8;
Ex.
PL’s
from .1% to 2.7%. Pl.’s
(Chairman Solomons).
at 9.
Ex. 16
28, 2001,
169. On November
a three-
pre-
In
the State of Texas
adopted redistricting
judge district court
10 could become a district
dicted
SD
v.
plan for the State House
Balderas
minority community
grow
would
where the
Texas,
6:01-cv-158,
No.
man Solomons had never before chaired a help and to disagreements. mediate Trial committee, redistricting PL’s Ex. at 1 18, (Downton). Tr. Jan 2012 AM (Pre-filed Testimony of Chairman Burt Speaking on the floor of the State Solomons), background and had “no in re- House, Chairman Solomons told the Mem- districting.” Trial Tr. Jan. in early bers 2011 that he wanted the (Chairman Solomons). PM redistricting process to abe member-driv- Speaker give Straus did not process, en which meant that he wanted any specific Chairman Solomons instruc- the Members to draw their own districts. prepare map tions other than to PL’s 148 at 3. supported would be within the State result, 181. As a redistricting was 63-64, Dep. House. Straus Oct. large measure left to the State House spent 175. Chairman Solomons no time without, Members as far as the record learning anything about the or VRA Tex- reveals, any instruction on or attention to thereunder, obligations as’s and was en- obligations State’s under the or VRA tirely legislative reliant on staff members history its of discrimination in voting. The Downton, (Ryan Interiano, Gerardo and process promoted Members’ self-interest TLC) throughout and the OAG Republicans preferred reelection—with redistricting process. 65-66, Trial Tr. Jan. Republican majority House —ahead (Chairman Solomons). 20, 2012 PM of all redistricting. other considerations for ¶¶ See, 240, 249, e.g., 176. Mr. principal Interiano was the infra mapdrawer for the State House Plan. Trial 182. Chairman Solomons never ad- 127-32, (Interiano). 2011 AM dressed, knew, contemporaneously or even provided 177. Members Mr. protected Interiano the number of districts proposed maps their districts and the VRA under the Benchmark Plan. (Solo- 1473-74, redistricting. Trial Tr. Perez 2012 PM (Interiano); mons). any Perry, Sept. v. Trial no evidence There is (Interiano). any better informed. Tr. 2012 AM legislator other Solo- relied on Chairman Straus Speaker County greatly Line Rule 186. The him that to assure and staff mons Plan. It stems shaped the State House compliant with the Plan was House State Article 3 of the Texas Section 2011. Like- Oct. Dep. VRA. Straus Constitution, provides which State in the State Senate wise, Seliger Chairman be apportioned State House districts must from Chairman Solo- on assurances relied within ac- nearly may counties “as be” *90 complied Plan that the State House mons cording “to the most recent United States 24, 33-34, Trial Tr. Jan. the VRA. with Ill, § art. 26. The Census.” Const., Tex. (Chairman Seliger). 2012 AM popula- first divided the total mapdrawers concerning the VRA issues 183. When into 150 districts and then tion of the State Downton arose, Mr. Mr. Interiano and/or appropriate number of dis- assigned any necessary deci- usually make would county. They interpreted to each tricts sion, political to the leader- they went County Line Rule to mean that as 99, Trial Tr. Jan. critical issues. ship on must be many possible whole districts as (“[I]n (Interiano) vast 25, 2012 PM county any and that sur- drawn within drawing, the process of majority of the wholly joined must be with plus population [W]hen made the staff.... decision was surpluses whole other counties or with not comfort- a decision that we were it was counties to form a district. from other take making[,] [it] [Chair- we would able (Interi- 17, 143-45, 2012 AM Trial Tr. Jan. Straus].”). Speaker man Solomons and ano); County to the PL’s 9. Adherence explanation was the offered Line Rule Principles Redistricting B. ability districts. the elimination of requirement of Texas law It is a 17, (Interiano); 147, Trial Tr. Jan. 2012 PM House live the State candidate E(a). § see infra running for from which s/he House proposed all State 187. Where 2012 AM Trial Tr. Jan. election. projected to be county in a were districts (Interiano). requirement resulted This lines, county wholly contained within districts, such as strangely-shaped new drew State House Members the affected (known be- as the “Transformer” HD changes did any maps their own because abrupt angles) which lines cause of its House Plan. the rest of the State not affect the home drawn to include carefully were to the “dropped-in” were Those counties Aaron Pena and ex- Representative 46-47, map. Trial Tr. redistricting overall Representative Veronica clude the home (Downton). Paso, El 18, 2012 AM Jan. that the two incumbents would Gonzales so Travis, Tarrant, Denton, Bexar, Dallas, against each other. Id. have to run not Nueces, treated Harris were Counties population of Based on the State’s pro- Id. at 48. drop-in counties. dis- 25,145,561 State House people counties, smoothly for some cess worked equalized population perfectly tricts with in others. but was more difficult 167,637 residents. would each contain he Interiano testified 188. Mr. A total percent at 15. ten Pl.’s Ex. 35 data to determine used and SSVR 167,000 HCVAP individu- deviation complied Plan House that the State acceptable district was per State House als 138-39, adopted principle Trial Jan. VRA. districts with (Interiano). AM Hispanic ability SSVR above 50.1% were See, e.g., districts under the VRA. PL’s Ex. Mr. 189. Neither Interiano nor Mr. (email between Mr. Hanna and In-Mr. Downton even looked the OAG election teriano discussing the number of districts analyses basically until the work was done. 50%); with an over SSVR Trial Tr. 1451-52, Perry, Trial Tr. v. Sept. Perez (Interiano); 2012 AM Trial Tr. 66- (Interiano); (Interiano). 2012 PM (Downton). 2012 AM There is no testimo- ny analyses prompted any that the OAG 192. Although agreed Mr. Interiano changes in the State House Plan after that it possible would have been to draw actually Messrs. Interiano and Downton another Hispanic ability14 district looked at them. map, he did not do so because “this awas identify map
190. The OAG did not or member-driven we [and] ana- were lyze going asking districts which voters had be [members] make changes to elect a candidate of choice. unless we believed that it was Dep. Using required by Giberson Oct. Voting Rights any Act or *91 a 17, test 50.1% or more for an other law.” Trial Tr. Jan. 2012 PM (Interiano). both Mr. Interiano and Mr. Hanna Hispanic ability identified 29 districts C. Data Maps Available to Draw the Plan, thought the Benchmark number increased to 30 in the State House 193. Mr. Interiano testified that he Plan because the SSVR of HDs 90 and 148 spent close to one thousand hours learning 25-26, 32, increased. See Trial Tr. Jan. RedAppl the program software used for (Interiano); 2012 PM id. at Jan. redistricting even any before census re (Interiano); 2012 AM PL’s Ex. 6. sults were available. Trial Tr. Jan. (Interiano). 2012 AM He also attended trial, upon testimony Based the major several conferences and read cases the does not persua- Court find credible or on redistricting. Id. at 130. representations by sive David Hanna counsel that elec- Jeffery analysis tion was an Archer of the important tool to de- TLC contributed asked, proposed legal 134-35, but, termine whether advice when State House id. at record, districts would according assure voters the to the frequently were ability to elect. It ignored.15 is clear that Texas 14. Mr. point, Interiano testified that another His- we felt comfortable that the fact—with panic opportunity district could have map, been legal map.”). that it was a A minor- discussing drawn. retrogres- Because he was ity opportunity meaningful district is under testifying sion the Court he finds that was VRA, Section 2 of the which is concerned possibility Hispanic of an additional abili- with whether op- "voters have less ty district. Trial Tr. Jan. 2012 PM portunity than other members of the elector- (Interiano) ("Q. you agreed And also with me ate representatives to ... elect of their possible that it retrogres- was to have avoided 1973(b). § choice.” 42 U.S.C. plan by creating sion in house [the] a Latino prepared 15. Mr. Hanna various state, memoranda Opportunity District elsewhere in the during redistricting process you noted but did not do that? A. That's correct. problems Section developing map. with the being And that was due to the fact that this 6, 2011); circumstances, (April See PL's Ex. 3 map many member-driven Pl.’s Ex. 4 —in 10, 2011); 20, 2011). delegation bought (April (April map they us a Pl.’s where memos, agreed going had all Mr. Interiano reviewed it—we were not all of these be 175-78, (Interi- asking changes them to make Trial Tr. to it unless we Jan. 2012 AM ano), required by believed Voting although significant that it was he identified no Rights any changes Act or other law. But at this or actions he took as a result. function that 196. Mr. Interiano testified he has a RedAppl percentage shading RedAppl to indicate the used functions on to indi- map shades (Black) voting or racial (Hispanic) group racial or ethnic population ethnic cate in a certain voter tabulation population age early process, he did not very (“VTD”). here, Re As relevant Hispanic use this function to shade this data disaggregates further dAppl voting age population at the census block variations of vot a user to view the allow level; instead, only examined he population total age population or ing voting age population at the VTD level. level ethnicity or at the census block
race (Interi- 86-87, Trial Tr. 2012 PM Jan. also al shading. RedAppl through color ano). that he not He further testified did to view variances SSVR16 lows user RedAppl know that software could shading, but through color between VTDs shading pop- for different racial even show variances SSVR between does not show Trial ulations at the census block level. particular within a VTD. census blocks (Interiano) (“I 17; 2012 PM (Interiano). 25, 2012 PM Trial Tr. it at bloc I did not [sic]. never did information, ie. Similarly, per election as I possible, know that it was even testi- a cer that voted for centage I my depositions. fied in several of did not election, in a prior tain candidate it, to do possible know that it was at the level of a VTD. available I possible certainly it because (Korbel). 19, 2012 AM never used bloc racial [sic] never tried and Mr. Interiano testified that shading.”). against split- specific policy has no State testimony This is not credible and ting drawing when new electoral VTDs *92 by this As demon- accepted is not Court. 63-64, 25, PM Jan. maps. Trial trial, popula- strated at when racial/ethnic (Interiano). result, split a were As VTDs RedAppl, drop- a shading tion is used Hidalgo HD 41 in readily in districts like option to gives menu the user down County. Splitting reduces VTDs demographic in that be- show variances language lack of voting, as confusion and 88-89, Trial Tr. Jan. tween census blocks. minority voters not to skills causes some (Interiano). 25, After one thou- 2012 PM 61-62, AM vote. training experience, sand hours of (Korbel) (“[I]t im- disproportionate has a Mr. Interiano would be Court is confident minority, great a number pact because functionality in the software of this aware transportation minority voters don’t have drop-down menu. and saw the ..., to example, don’t read aren’t able for Furthermore, it clear Mr. Inter- 198. about newspaper notices in the read these data to using census block iano knew it a changes polling place results in confusion.”). could identify demographics of voters deal of great The voter is how- sponse has been received. Mapdrawers the State House used non- for SSVR, voter for vot- ever considered to be active suspense respect instead data with Secretary of State's ing purposes.” Texas registration data. Trial. Tr. of total voter (Interiano). Re- Registration Public Information Ac- Voter 2012 AM Form, http//www.sos.state.tx.us/ quest Secretary web- cording the Texas of State’s (last site, Aug. elections/forms/pi.pdf, visited suspense voter is a voter known "[a] 2012). judicial takes notice of ad- The Court address or outdated have an incorrect all SSVR numbers refer- information and county a form dress. The has sent voter address, non-suspense for 2010. numbers no re- enced a new current to obtain were April hearings 17. No outside Austin maximizing Republican goal advance the the mi- conducted. by suppressing strength electoral discussed, in previously nority vote. As a provide The House Rules Opiela, Eric counsel early December advance day posting three-to-five rule for Straus, suggested to Mr. Inter- Speaker hearings. The notice for the notice of might data voting iano that posted HI April hearing 15th on the 13 was minorities who between permit distinctions 13, 2011, which resulted less April on heavily and those who do turn out to vote days’ Dep. 83- than two notice. Solomons information, not; suggested, such he 85, Aug. 2011. David Hanna advised be drawn that would retain districts could tight, hearing schedule was too actually minority population but large ignored. Defs.’ Ex. but his caution was a much smaller number include 971, at 2. Ex. Interiano voters. Defs.’ 304. Mr. 18, 2011, Monday, April it was 202. On on demographic tried to information obtain the House that announced on the floor of census blocks but learned that the level of meet Redistricting Committee would “Spanish data on Surname VR/Total Tuesday, April 19. Defs.’ Hispanic Population” was available. Defs.’ met, Redistricting it the House When Although he obtained the data Ex. 197. known as H153 passed plan Committee Opiela, it to Interiano and sent Mr. Mr. out of Committee. opened insisted that he never the files given 203. State House Members were containing information on a census SSVR (the Monday, April Monday until Dep. block level. Interiano weekend) any to file after Easter amend- districts, 2012. Given the results some ments to the bill. Trial Tr. Perez v. low-voting minori- such as CD where (Turner). Perry, Sept. politically-active ties were substituted for severely 204. The rushed schedule minorities, the Court does not credit this hampered of citizens to attend testimony. hearings legisla- on the and of the two bill addition, the fact that HD objections proposed or prepare tors to Benchmark was crafted *93 Ex. amendments. See Defs.’ 738 at 19 splits
with 17 VTD the State House (Rep. Hochberg Pre-filed Direct Testimo- Plan, Ex. at and the Defs.’ ny). splits reasons for all of these was not 28, 2011, the Thursday, April 205. On further to dis- explained leads Court passed engrossed House an version State testimony. credit this H283, plan, by in House Bill 150 (Interiano). 17, 2012 AM vote of 92-54-3. Hearings, Procedures, Passage D. changes 206. No were made to State House Plan the State Senate. first proposal put 200. The statewide ¶ (Seliger Pl.’s Ex. Pre-filed Testi- forth the Chairman of the State House Thus, mony). Legislature when the Texas Committee, Redistricting as Plan known 23, 2011, passed May House Bill 150 on H113, Wednesday, April was released on adopted House Plan that was was State hearing public 2011. Notice of a on the one drawn the State House. day, plan provided public on that Austin, hearings immediately, signed held 207. The House Bill were Governor Texas, Sunday, into law on Friday, April 15 and June Ability Anglo. Defs.’ Ex. at Hispanic Dis- tions are Alleged Lost E. (Abel Testimony). Herrero Pre-filed Direct tricts represented HD 34 is 210. Benchmark County House District & a. Nueces Scott, Anglo an by Representative Connie up It made of both urban Republican. County of Nueces and is a and rural areas contained three Benchmark 208. The Hispanic The majority Hispanic district. 32, 33, County: districts Nueces House choice won four out of the candidate of only district not HD 32 was the and 34. in HD 34. past endogenous five elections HD was county. in the fully contained (Handley Ex. at 5 House Re- Defs.’ County in the State from Nueces dropped Hispanic district where vot- port). It is a the dis- demographics House Plan. have the to elect candidate ers part of Nueces containing some tricts in the Benchmark. their choice Plan are as the Benchmark County under HD represented 211. Benchmark 33 is follows: Torres, Hispanic Raul by Representative Benchmark HD HCVAP SSYR up It of the historic Republican. is made 33.2% HD 32_35.3% Ex. Corpus core of Christi. Defs.’ 54.3% HD 33_60.4% ma- Hispanic ordinarily voters are 53.8% HD 34_58.2% in Benchmark HD 33. Id. jority of voters where at 9-10. It is a district Pl.’s ability to elect have the His- longer provides and it no Benchmark represented HD is 209. Benchmark to elect the State panic voters Hunter, Anglo by Representative Todd Plan. House in Nueces only partially It is Republican. Aransas, San
County and also includes demographics voting 212. The counties. The ma- HD 33 are as Patricio and Calhoun Benchmark and enacted general in HD 32 in elec- follows: jority of voters WCVAP SSYR HCVAP BCVAP YAP17 CYAP HD 33_Pod. 97,255 109,257 148,929 55.3% 4.5% 33.5% 60.4%
Benchmark 109,865 172,135 6.5% 5.9% 81.2% 8.5% Enacted 119.518 13,14. Pl.’s Exs. *94 in
213.Hispanic voters were successful in four of candidate of choice electing their Torres, current Raul Representative in endogenous elections past five Ex. 726 at HD Defs.’ 33. representative Rep., Handley HD House Benchmark 6, Supp. Rep.). (Engstrom n. 5 election, Representative at 5. of choice won 214.Hispanic candidates Ortiz, candidate of Solomon exogenous elections vote, at least 50% of the choice, but lost to won 47.5% of the voting age population. represents 17. VAP
experts analyzed 34, in this case in Bench- junior Benchmark HD are the Re- Handley mark HD Rep. publican House at 5 members of the County Nueces (five elections); delegation and paired out of five Defs.’ Ex. are under the State (four Chart”) 34, House Plan in HD while (“Engstrom Representa- out of seven (“Al- tive Todd elections); 175, 11, Hunter is drawn into enacted Pl.’s Ex. at tbl.3b 122, HD (six County. 32 Nueces Trial Tr. elections). Rep.”) ford out of ten 17, Hunter). (Rep. Jan. 2012 AM According to the 2010 American 218. Mr. recognized Hanna that draw estimates, Community Survey 1-year ing County two districts in may Nueces County Nueces voting-age had citizen yield have to to the He VRA. wrote on 238,102 population of persons, including 20, April 2011: “While there are two 50% 91,467 (38.4%) 133,084 Anglos Hispan- plus county SSVR districts within the cur (55.9%). whole, persons however, ic aAs rently may performing constitute His County Nueces an had SSVR below 50%. panic districts, they significantly are both 9, 17, Trial Tr. Jan. 2012 PM. It was underpopulated remaining [sic] and the allotted 2.03 districts based upon the people County predominant Nueces County Line Rule in the State House Plan. ly Anglo. county likely line rule re 147, 17, (Interiano). Jan. 2012 AM quires two wholly districts to be contained The State calculated this number divid- County within Nueces surplus with no ing County’s population 340,233 Nueces out; coming however this would have to (167,637). the ideal district size PL’s yield to Voting Rights the federal Act if it 35, at 19. can be shown retrogression could be avoid 216. Messrs. Hanna and Interiano de- by splitting ed county.” PL’s Ex. cided that County Nueces “needed to have 1. He further advised that splitting the only two districts and two districts” the Hispanic population in half only would re State House Plan. Trial Tr. Jan. sult in two districts with SSVRs under (Interiano). 2012 PM They informed 50% which unlikely perform were Hunter, Chairman Todd represents who “Hispanic districts of choice.” Id. In keep HD and the rest of County the Nueces ing County Rule, with the Line it was not delegation of this fact. HD Id. a His- possible to draw two districts that an had panic Benchmark, in SSVR of above 50% in County Nueces was chosen for elimination. therefore one district was drawn with Legislative staff drew SSVR of one district above 50%.18 Trial Tr. (Interiano). 2012 AM was a “Latino Democratic” district likely one that “would Republican be 219. Mr. Hanna did not know if the (Hanna and not Latino.” Defs.’ Ex. 742 loss of a district that “performed” for His- 2012). Dep. The core of panic County voters Nueces was madе Benchmark HD 33 is moved into enacted up somewhere else the State House HD 34. Defs.’ Ex. Repre- 13-14. (Hanna Plan. Defs.’ Ex. 742 Dep. Torres, sentative Raul 12, 2012). current incum- Mr. Interiano testified that he bent in Benchmark HD Represen- felt that the loss of HD 33 would be ac- Scott, tative Connie the current incumbent counted for through the increase in SSVR *95 County 18. (Chairman The Line Rule was broken in Jan 2012 PM Solo- County comply Henderson with the mons). federal one-person requirement. one-vote
237 HD elections in enacted 33. ogenous HDs 90 148. Under in enacted 9; at Handley Rep. Rep House at Alford Benchmark, had of these districts neither 11, tbl.3b; Engstrom Chart. 50%, Trial Tr. an above SSVR (Interiano), although each was 2012 PM District b. House § F. fact district. See infra 222. HD 35 is located in Benchmark Plan, only House Atascosa, 220. In the State southern Texas contains Karnes, Goliad, Bee, Oak, and County, Live HDs and 34 remain Nueces HD loses McMullen counties. Enacted following demo- with see PL’s Karnes, Goliad, counties of and Jim graphics: ~ gains It San Patricio and Duvall Wells. Enacted HD HCVAP SSVR counties. HD 32_44.2%_36.6% 223. Benchmark HD 35 is HD 34_64,6%_60.1% ability to Hispanic voters have the where whether elect. It cannot be determined PL’s Ex. at voters have the to elect in HD in the Plan. State House up area that makes Bench- 221. The County mark HD is relocated to Dallas voting demographics 224. The for the Minority pre- House Plan. the State HD are as Benchmark and enacted in ex- have no success follows: ferred candidates SSVR CVAP HCVAP BCVAP WCVAP
HD VAP 35_Pop. 107,735 151,882 113,190 5.3% 38.8% 55.3% Benchmark 54.6% 172,482 127,314 121,925 4.2% 53.4% 52.5% 42.0% Enacted 13,14. PL’s Exs. of choice
225. The candidate five elec- endogenous won last four of may approximate- choice win candidates of Handley HD tions in Benchmark analyzed or fewer of the elections ly half representa- Rep., at 5. The current House Handley experts in case. See by the Aliseda, HD tive of Benchmark 35 is Jose (two elections); at 5 of five Rep. House out running Republican, who is not Hispanic (five out of ten Rep. at tbl.3 Alford Representative for Aliseda re-election. (two elections); out of Engstrom Chart who beat for- representative freshman elections). exogenous election seven Gonzales, a Representative mer Yvonne respect to experts vary results Democrat, Trial to win the seat in 2010. minority voting measurement of their (Chairman PM Solo- Jan 35, making in enacted HD these strength mons). was not Representative Aliseda evaluating Hispanic choice of voters. the candidate of results inconclusive Handley Rep., House in enact- minority voting power change Handley Report at 5 HD House ed exogenous results 226. The election (one elections); Rep. Alford out of five HD 35 Benchmark show *96 (four elections); Eng- Representative out of ten House who defeated David tbl.3 (three elections). Liebowitz, Democrat, Anglo very strom Chart out seven a margin in Representative close Representative Aliseda wanted is not Hispanic Garza candidate of HD proposed draw a 35 that was more Handley choice. Rep. House at 34. The Republican in the State House Plan. Trial choice, Hispanic Representa- candidate of (Aliseda). PM He Liebowitz, tive won 48.1% of the vote in proposed large portion himself 34; at Engstrom Supp. Rep. 2010. Id. at map for this but he did not receive every proposed. area he Id. He worked Mr. map Interiano on the and relied 232. HD which lost some area to regarding on Mr. Interiano’s advice Plan, HD the State House is cur- manner which the district needed to be rently represented by Representative Jose 111, 113, drawn. Id. at 118. He under- Farias, Hispanic Democrat. that, VRA, stood due to the he needed to exogenous 233. The election results for
keep Hispanic population in HD at Benchmark HD 117 show that Hispanic percentages. current at Id. citizens are successful in electing their can- didate of choice at least 50% of the time. c. House District 117 (five Rep., See Alford at tbl.3b out of elections); Handley ten Rep., House at 5 228. Both the Benchmark and enacted (three elections); out of five Engstrom wholly HD 117 are located within Bexar (four Supp. Rep., at 6 out of seven elec- County. HD 117 shares its eastern border tions). HD exogenous enacted with HD both the Benchmark and results show that minority effectiveness in State House Plans. such elections will drop; particular, Dr. 229. HD a Hispanic ability 117 is dis- Handley’s Alford and Dr. analyses both Benchmark, trict in the vot- show decreases of exoge- at least 30% in ers lose the to elect in this district nous election results in the enacted dis- in the State House Plan. (two Rep., trict. Alford tbl.3 out of elections); ten Handley Rep., House at 11 230. The Hispanic candidate of choice (one elections); out of five Eng- see also won three out of five of the endoge- last (three Supp. Rep., strom at 8-9 out nous elections in Benchmark HD 117. elections). Defs.’ Ex. seven (Handley Rep.). House currently voting 231. HD 117 is 234. The represented demographics Garza, John a Hispanic Republican and Benchmark and enacted HD 117 are as representative freshman in the State follows: HD YAP CYAP HCVAP BCVAP 117_Pop. WCVAP SSVR 220,360 155,490 106,595 Benchmark 58.8% 6.1% 32.3% 50.8% 171,249 116,261 71,395 Enacted 63.8% 4.6% 29.4% 50.1%
239 13,14. Pl.’s Exs. County Delegation, Bexar
235. The and three seven Democrats up made identify areas wanted any specific that he as a to decide how Republicans, met whole 33, in his id. at then said that he 105, Trial Tr. County. to redistrict Antonio, Port keep he wanted to San (Interiano). Representa- 25, PM2012 Jan. Antonio, at and University of Texas San Villarreal, Democrat, Hispanic tive Mike Lackland Air Force Base in his district. McClendon, a Ruth Representative and at Id. 34-35. Democrat, process. led the Defs.’ Black aware Representative Garza was 2011). (Garza 25, 19, Dep. Ex. Oct. 363 minority representation had to be meetings at present Mr. Interiano HD 117. maintained in Defs.’ delegation how to discussed where (Garza 19, 2011). 26, Oct. He was Dep. 28; map. Trial Tr. draw the new Id. by Representa- advised both the OAG and (Interiano). 105, 25, 2012 PM Jan. tive that he not move his Villarreal could the pro- Mr. Interiano described district northward and that he had to con- County as drawing map cess the Bexar Hispanic to certain keep tinue indicators proposed all of the Members one where voting strength the same as in the Bench- Representative their Vil- ideal district Rep- In his deposition, mark district. Id. larreal, together in a put the districts who identify resentative could not those Garza requests map showed where over- indicators, 51, although id. at con- specific negotiated to lapped. The Members then told temporaneously Representative he specific would parts determine who receive had to Farias that he have SSVR 25, 107, Trial Jan. map. Tr. Tr. 14- 50.1% his enacted district. Trial (Interiano). Farias). 15, 24, PM Nine out of ten Members (Rep. 2012 PM Jan. County delegation ap- from the Bexar decided to mapdrawers 240. The thus County. Trial proved the districts for minimizing the maintain levels while SSVR (Interiano). 25, 105, Tr. 2012 PM Jan. Representa so Hispanic actual vote Representative agree. Farias did Garza, re Republican, tive could be this issue elected. Part of the attention to goal drawing 237. Mr. Interiano’s email from keep its is revealed a March HD 117 was to SSVR enacted to Mr. Interiano Representative Trial Villarreal above 50%. Tr. (Interiano). stating the 27 a chart Rep- containing “[o]f AM Mr. Interiano told Garza, majority had a keep needed to VTD’s won resentative Garza that he Defs.’ Ex. at 3. his “main- SSRV.”19 district above 50% SSVR goals tain in the district.” Trial other [his] goal, accomplish In order (Interiano). 2012 PM Whisper- the communities Somerset Representa- ing were moved from said that he Winds Representative Garza Representative much tive Farias’s district did not have control rural, mi- is a map for Garza’s district. Somerset agreed on the Bexar delegation voter nority community Hispanic with low basis. Defs.’ Ex. County on a consensus 2011). (Garza Dep. 39- (Garza Ex. 363 turnout. Defs.’ Dep. He Oct. 2011). Winds Whispering Oct. wanted move said that he his community northward, largely, An- another where area was more Republican. low voter turnout. glo more Id. 30-31. (Farias). PM he did not 2012
And while he testified that Voters). (Spanish Registered may also to as SSRV Surname 19. SSVR be referred *98 17, Somerset Whispering Whispering 242. Both and and Winds. Trial Tr. Jan. 24, very poor communities that 2012 PM. Representative Winds are Garza re- quality poor poor housing. have water fused to make the trade. Id. at 16-18. 25, 5, result, 2012. As a Dep. Farias Jan. Representative 247. Farias also visited paid Farias atten- Representative special Straus, Mr. Speaker Interiano and of these tion to the needs communities and unsuccessfully, in keep his effort to Whis- actively improve was to both. working pering Winds and his Somerset district. (Farias). 9-11, 24, Trial. Tr. Jan. 2012 PM 14, 24, Tr. (Rep. Trial Jan. PM Fari- He continue very concerned he as). represent Trial Tr. 7- both communities. ultimately Representative 248. Farias Farias). 8, 24, PM (Rep. Jan. offered amendment the floor of the Representative 243. Despite Farias’s House to Whispering State allow Winds to strong objections, Winds Whispering stay exchange moving in his district in 117, Repre- Somerset were drawn into HD the area around Air Lackland Force Base 8, 23, sentative district. Tr. Garza’s Trial Representative Garza’s district. Trial Farias). 24, (Rep. Jan. 2012 PM 17, 24, Farias); Tr. Jan. PM (Rep. 323, Representative Defs.’ at 36.
244. Representative pro- Villarreal said he Garza would leave Amendment posed taking Whispering Somerset and 17, to the will of Trial Tr. the House. Jan. Representative Winds out of Farias’s dis- Farias). 24, (Rep. 2012 PM trict, Trial (Rep. Jan. 2012 PM Farias), at behest of Speaker Straus to During 249. the House discussion of Representative ensure Garza’s reelection. amendment, Representative Rep- Farias’s Dep. Farias Jan. 2012. expressed resentative Aliseda concerns re- garding “Republi- what it would do to the
245. Mr. Interiano admitted Representative can numbers” of Garza’s “political numbers” of Representative new district. Defs.’ Ex. at 36. Garza’s benchmark district meant Representative Garza reelect- could not be Representative Farias 250. was unsuc- ed if were Somerset not included his in passing cessful his amendment and the district in the State House Plan. order Whispering communities of Somerset and “demographic maintain [ie. SSVR] are HD 117 in the State Winds House reelection, political numbers” for his Som- Plan. necessary erset was a addition. Trial Tr. (Interiano). d. House District 41 2012 AM Gonzales, Representative Representative Because Farias’s Veronica
goal keep Democrat, Hispanic currently represents was to communities Som- Whispering erset HD Hidalgo County. Winds in HD he Benchmark 41 in Representative Pena, asked Representative Hispanic Garza to take South Aaron Independent San Republican, currently represents Antonio School District Bench- (“ISD”) exchange 40, immediately adjacent from HD for al- HD mark to HD lowing and Whispering Hidalgo County. Representative Somerset Winds to 41 in remain in district. is a his Pena five-term incumbent who Farias). PM (Rep. Notably, political affiliation from Democrat switched South very high Republican San Antonio ISD had a at the end of 2010. Trial Tr. (Interiano). voter compared turnout as to Somerset 2012 AM experts analyzed over 50% of HD 41 elections the enacted Both Benchmark (four Handley Rep., House at 5 time. ability districts. elections); Rep., Alford out five Hispan- HD In Benchmark (seven elections); ten tbl.3 wins out of in five of choice was elected ic candidate (five elec- Engstrom Chart out seven endogenous elec- past five out of tions). Handley Rep., at 4. Further- House tions. *99 41, demographics 254.The of Benchmark more, HD in Benchmark HD 41 follows: exogenous and enacted are as of wins the candidate choice Pop. HCVAP BCVAP WCVAP SSVR CVAP HD VAP 125,055 86,940 185,892 77.5% 0.9% 20.2% 69.2% Benchmark 0,9% 79,770 160,238 111,689 72.1% 25.3% 64.6% Enacted 13,14. house to be moved Representative Pena’s Exs. Pl.’s 41, heavily HD and to cut out into enacted American According to 255. [mapdrawers] Democratic areas “because estimates, Community 1-year Hi- Survey increase Republican [sic] wanted to County, voting- had a citizen dalgo Texas Trial Tr. performance that district.” 363,615 persons, includ- age population 168, 17, (Interiano); Jan. 2012 AM Defs.’ 309,690 (13.2%), 48,087 Anglos ing 2011). (Pena 160-61, Dep. Oct. Ex. 785 (85.2%). Hispanics however, Many specifically were not splits, pro- of the Mr. Interiano drew all explained. Over 31% Hidalgo posed State House districts into the district HD 41 was drawn enacted Perry, v. County. Trial Tr. Perez Handley Report, House split VTDs. (Interiano). 12, 2011 He first drew Sept. at 9. 1476-77, objective of HD id. at with the Representative chances boosting Pena’s Ability Hispanic Districts F. New Trial Tr. for reelection. Ability Alleged Hispanic Dis- a. New (Interiano). AM tricts he Mr. Interiano knew when drew i. Districts 90 & House HD it have be a enacted 41 that would specifically it testified was 259. Mr. Interiano majority-Hispanic district because part made inup of HD was that the loss a district that impossible draw in enacted HDs 90 by the increased SSVR Hidalgo in Cameron or majority-minority PM Trial 2012 and 148. counties. (Interiano). (Interiano). Both these districts PM in the Benchmark Hispanic ability districts drawing map process Plan. remain so the State House 17 VTDs. split HD Mr. Interiano for Farrar, a Representative Jessica were cut at 76-77. VTDs Defs.’ Democrat, Bench- incumbents, represents allow pairing in order to avoid Democrat, mark HD located in County. Harris represents Benchmark HD County. located Tarrant Burnam, Representative Lon Anglo voting 261.The demographics Benchmark and HD enacted 148 are as follows: Pop. HD 148 VAP CVAP HCVAP BCVAP WCVAP SSVR 140,946 10,0% 109,647 79,785 40,0% Benchmark 42.1% 45.4% 175,324 126,854 86,715 Enacted 51.4% 9.4% 37.0% 50.0% 13,14. *100 Pl.’s Exs. 5; in this case. Engstrom Id. at Chart. These change results do not in the enacted 262.In Benchmark HD the His- State House Handley Plan. Rep., House panic candidate of choice won five out of 11; Engstrom Chart. five of past endogenous elections. Handley House Rep. at 5. The Hispanic 263.The voting demographics for candidate of choice also won all of the Benchmark and enacted HD 90 are as exogenous elections the experts analyzed follows: HD 90_Pop. VAP CVAP HCVAP BCVAP WCVAP SSVR 141,349 97,594 62,045
Benchmark 47.9% 12.6% 37.2% 47.2% 159,428 105,582 67,570 Enacted 49.7% 15.6% 32.5% 50.1% 13,14. PL’s Exs. Instead, HD 33. appears it that HDs 90 and 148 were drawn with SSVRs at or In Benchmark HD Hispan- above 50% the State House Plan at the ic candidate of choice won five out of five request of MALDEF. Trial. Tr. past endogenous Handley elections. (Interiano). 2012 PM Figueroa Luis Rep. House at 5. In Benchmark HD MALDEF testified at a Redistricting the Hispanic candidate of choice also won Hearing Committee requested all of exogenous elections experts change.20 Id. Id.; analyzed. Engstrom Chart. These 266.Mr. Interiano never determined results change do not in the State House whether HDs 90 and 148 are Hispanic Plan. Handley 11; Rep., House Eng- ability districts in the Benchmark. Defs.’ strom Chart. (Interiano Ex. 779A 1, 151-53, Dep. Vol. 265. Other than Mr. Interiano’s testi 2011). Aug. However, he decided that trial, mony at there nois evidence that the both districts ability districts in the decision to increase the SSVR these two State House Plan because their SSVR in- districts was intended to offset the loss of creased above 50%. Id. at 153. 20. MALDEF wrote to Chairman Solomons raising so that their SSVR in the State House 27, 2011, April stating that it considered HDs Plan would not create new districts. 90 and 148 to be Benchmark districts Dels.’ Ex. at 2. Verde, Terrell, Pecos, Brewster, Presidio, he explained that Mr. Interiano Davis, Ward, Reeves, Loving, analysis of HD 90 Culber- do election Jeff not did son, HD 74 Hudspeth. ten out Enacted com- going perform was because “[i]t Culberson, Loving, ten ten, Hudspeth, ten out of Jeff performed it bines district, Presidio, Brewster, Pecos, Davis, Reeves, it a Democrat [sic] because Terrell, Verde, that was Kinney it was a district not because Val Maverick the candidate choice always electing counties. community.” Trial. Tr. Latino HD is a Hispanic 270. Benchmark (Interiano). Similarly, PM ability district. of HD 148 to analysis did no Mr. Interiano it was or would become
determine whether represented HD 271. Benchmark 74 is at 32. Hispanic ability district. Id. by Representative Gallego, Hispan- Pete Democrat, represented who has this dis- ic some of his 268. Mr. Interiano based Representative Gallego is trict since 1991. HD 90’s effective- of enacted assessment running for 23 in 2012 and Congress CD politics. Mr. voters on ness plan he does run for reelection would Hispanic voters Interiano believed It Pl.’s un- the State House. preferred able to their candidate be elect has contested that he been candidate rep- sitting HD 90 because the in enacted of choice of voters. Burnam, in- resentative, opposed the Lon in this while crease SSVR 272. Mr. Interiano he be- testified it. Trial. Tr. supported MALDEF a Hispanic opportu- that HD 74 was lieved *101 (Interiano). 17, 2012 PM Jan. nity district in the Benchmark. (Interiano). 25, Jan. 2012 PM ii. House District 74 demographics The for Benchmark encompasses HD 74 273. 269. Benchmark Uvalde, Edwards, 74 are and enacted HD as follows: counties of Val VAP CVAP HCVAP BCVAP WCVAP SSVR 74_Pop. HD 104,522 85,920 59.7% 1.8% 36.7% 58.1% Benchmark 143.566 86,210 162,357 115,236 27.2% 69.6% 69.4% 1.5% Enacted map. a Plan it was Member-driven Pl.’s Exs. 14. because result, did not add a if the Members As exogenous 274. election results of districts, ask he would not them such Benchmark HD experts in case for changes. He felt comfortable with make vary respect to their measurement he believes that this decision because Rep. minority voting strength. Alford legal House Plan is under the VRA. State in four (reporting minority victories (Interiano). PM Tr. Trial Jan. elections); at 5 Handley Rep. House of ten However, it Interiano did admit that Mr. (one elections); Engstrom out of five n was majority- possible to draw another elections). (four of seven Chart out classify would Hispanic which he “opportunity” Southern as an district Additional His- iii. Failure to Draw Valley. in the Rio Grande Texas Ability panic Districts State, the State 276.In this area thought 275. Interiano Mr. maintain two Plan continues to House County did need be an additional there not House districts Cameron State northward spills population excess in the State House its Hispanic ability district Willacy into a district shared with of that fact. Trial. Tr. (Chairman Solomons).
Kennedy Counties. PL’s Ex. at 1. It 2012 PM also four Hidalgo maintains districts in Though population is available to County spills its population excess to- potential a Hispanic draw opportunity new County wards Starr form another dis- district, the State did choose to do that trict. Id. argue any does it po- nor other new pos Mr. Interiano was tential opportunity/ability testified it district drawn in population sible to use excess House from Camer State Plan. Hidalgo major counties to create 281. There are new Hispanic ability no ity Hispanic the State House districts House State Plan. Plan likely have performed would as a Hispanic “opportunity”21 district. Trial H. Lost Coalition District: Dis- House (Interiano). 2012 PM trict 149 drawn, If such a district were then 282. Benchmark HD 149 is in Harris ripple effect would have a county caused County, but is County eliminated from the line split in northern portion in the State House Plan. map around County. Nueces The TLRTF HD 149 is a district where a coali- submitted such proposal. Trial Tr. 39- Asian-American, Black, tion and His- (Interiano). 2012 PM Due to panic voters have the to elect and County violation of the Line Rule that County its elimination from Harris would populations result if the from the State House Plan leads to the of a loss two spilled districts were towards each minority ability district. other, another majority-Hispanie district was not created this area in the State Vo, 284. Hubert a Vietnamese-Ameri- House Plan. Id. at. 40. Democrat, can representative is the Benchmark HD 149. Mr. Vo was elected 279. Chairman Solomons was aware 2004 and is the Vietnamese-Ameri- that there was excess in both *102 can in the State House. Counties, Cameron Hidalgo and but testi- fied that he never realized district voting demographics 285. The could have been created using popu- these HD Benchmark and enacted 149 are as lations because his staff did him not advise follows: Pop. HD 149 VAP CVAP HCVAP BCVAP WCVAP Asian
__CVAP 169,836 123,771 90,245 Benchmark 19.0% 26.1% 37.6% 16.2% 164,376 116,361 98,445 Enacted 12.9% 4.4% 77.4% 3.8% 13,14. PL’s Exs. general, 287.In a review of election from results the OAG shows that His- 286.Benchmark HD 149 contains the community Alief, a large panic Asian-Ameri- and Black uniformly prefer voters can in the Houston area. Defs.’ different from in Anglo candidates 736, Ex. at (Rogene Calvert Pre- HD in general elections and that vot- filed Testimony). instance, district, 21. In this the potential ability Court cannot make a portion because this finding discussing that Mr. testimony Interiano was of his is unclear. HD one this Enacted 137 contains VTD in district. racially polarized ing is 26, Representative previously repre- Vo Ex. at 3557-60. Pl.’s Represen- Ex. 20. Defs.’ at sented. Asian-Americans, Hispanics, and 288. Hochberg understands enacted tative in of HD 149 often work the area Blacks give to him a to HD 137 was drawn chance in local support candidates together Representative the not Vo. Id. win candidates Asian-American elections and 21. at to school successfully been elected have City Houston in Alief and to the
boards The num 292. decision decrease Ex. at 12. Defs.’ Council. County ber of districts Harris was Black, Dividing Hispanic, upon In based 2010 census data. particular, 289. togeth- 4,092,459by communities came County’s population Asian-American Harris Vo. Representative (167,637) to elect help yielded er ideal size Ex. at 11. Mr. Vo received Defs.’ County.22 for Pl.’s 24.4126 districts Tejano from the Democrats endorsements 20; Ex. Trial candidacy his the African Coalition for (Interiano). AM Hochberg, the Representative in 2004. Id. minority commu- 293. Members from HD representative Democratic regarded the decision to eliminate this nity Blacks, Hispanics, testified detrimental minority ability district as HD form a coalition in Asian-Americans strength. voting interests community Asian-American Texas Asian American Re- Leaders coalition. Defs.’ acting glue Initiative, MALDEF, districting and the had Representative Vo has Ex. at 13. sent NAACP Houston Chairman Solo- working very base of volunteers diverse a letter the elimination of protesting mons including Asian-Ameri- campaigns, his letter that the highlighted HD can, Hispanic, and African-American vol- up the com- House Plan would break State 13; unteers. Id. at Defs.’ munity of Alief. Defs.’ Ex. 632. interest would have been suc- 290. Mr. Vo not 294. Mr. Hanna of the TLC concluded if he for election hаd cessful his bid either 24 or 25 districts would be support all of received County, Harris but he permissible in 736, at in HD Defs.’ Ex. communities to draw districts thought choice Asian-American particular, “absolutely defensible.” County Harris great pride taken a deal of community has (Hanna Dep. Ex. 742 Defs.’ many Representative Vo’s election and 2012). out to vote for Asian-Americans turned *103 participated who not before
him had had Initially, Solomons 295. Chairman elections. Id. that floor of the State House stated the in the enacted would 25 districts there be County went from 291. Because Harris 43, 19, Tr. Jan. map. Trial County Harris to 24 in the in the Benchmark 25 districts 738, (Coleman); Ex. at 15. PM Defs.’ Plan, district was House one fewer State Representative Wayne told Mr. Interiano Har- HD 149 is eliminated from available. Smith, Repre- and Republican, an Anglo County Representative Scott Hoch- ris Thompson, Black Senfronia are in sentative berg Representative paired Vo County, to draw from Harris House Plan. Democratic HD 137 the State enacted Tr. upon "advice of counsel." Trial de- the testified that he based 22. Chairman Solomons 13, (Chairman 1567, Sept. Perry, v. 24 not districts cided that there would be Perez Solomons). County Plan State House in Harris County Dep. that both 24 to Mr. maps Woolley for Harris had showed Interiano. 17, 148, 13, 17, and 25 Trial Tr. Jan. districts. 2011. Democratic of Oct. members (Interiano). generally 2012 AM It was County delegation objected the Harris Representative understood that Smith the decision to decrease the number in Har- redistricting would lead the effort 150, County. Trial districts Harris 738, County. ris Ex. Defs.’ 15. (Interiano). 17, 2012 Speaker Jan. AM Woolley’s ultimately map was the basis 2011, 296. March April Between way County that Harris was drawn Representative and Representative Smith 19, House Trial Tr. State Plan. Jan. Thompson worked with the Harris whole (Coleman). 2012 PM County delegation map. on a 25-member (Cole- 46-48, Jan. 2012 PM Mr. Mr. that 299. Hanna told Interiano man). that composed he felt a coalition district 297. groups Chairman Solomons later told three different be would Smith, however, Representative 30-31, novel. Trial Tr. Jan. 2012 PM (Interiano). County map Harris would have 24 Nonetheless, thought he Representative districts. Smith then drew Representative both Hochberg’s Rep- County 24-district version of the Harris po- resentative Vo’s fell districts “into [a] map Representative that merged Vo and tential coalition district situation.” Defs.’ Representative Hochberg’s districts. (Hanna 2012). Ex. Dep. Jan. 22-23, 37, 38, Dep. Smith Oct. 2011. Indeed, Mr. Hanna advised Mr. Interiano Mr. Interiano provided instruction to the February cutting via email on 2011 that delegation on which districts be elim- could County Harris down to seats would lead inated. He “If testified: the courts would Republicans being paired to two because have found or find do that coalition dis- all Democratic seats constituted protected by Voting Rights trict[s] “minority” seats. Defs.’ Act, then we believed that the district estimation, 300. Mr. nei- Interiano’s going likely protected by most be 149) (HD Representative ther district Vo’s Voting Act Rights was Scott Hoch- Representative Hochberg’s nor district berg’s result, district. As a in- ... we (HD 137) could be classified as a coalition County structed the Harris ... delegation understanding district within his that the demographics of that 46-47, term. Interiano Dep. Vo, was the combination of Hochberg and However, he realized there was a chance closely needed to more Mr. [sic] assemble might that Benchmark HD 137 be protect- Hochberg’s district rather than Mr. Vo’s.” ed is majority-minority because (Interi- Trial. Tr. 2012 AM upon based of two ano). groups whereas Benchmark HD 149 is ma- Representative Smith sent the 24r- jority-minority upon based the combina- district version of the map Speaker pro tion of three minority groups. Trial Tr. House, tem of Woolley. the State Beverly 30-31, (Interiano). 2012 PM Smith Dep. Speaker Oct. Woolley separately map worked on a *104 Disputed I. Districts Other districts, had which presented she a. House District 26 the State Redistricting House Committee. (Cole- 301. Benchmark HD 26 is 2012 PM located
man). Republican County represented by All of the Fort Bend and is members of County Howard, delegation Anglo Harris off on Charlie an signed Republican. Speaker Woolley’s map, which she then HD Enacted 26 is also located in Fort voting demographics enact- 302. to share County continues Bend 26HD are as follows: ed and benchmark HD 149. Benchmark border SSVR Pop. Asian WCVAP HCVAP BCVAP VAP CVAP 26HD __CVAP_ 22,2% 108,536 133,838 180,729 53.5% 9.7% 10.5% 12.6% Benchmark 86,950 117,247 160,091 10.3% 57.3% 11.6% 10.6% 19.6% Enacted Anderson, Rodney Anglo an resentative 13,14. Pl.’s Exs. HD is relocated Republican. Enacted analysis regarding No election County. out Dallas to the Court. this district was offered demographics of Bench- 305.The voter District 106 b. House mark enacted HD follows: located HD is 304. Benchmark by Rep- County represented and is Dallas BCVAP WCVAP SSVR CVAP HCVAP VAP 106_Pop, HD 110,146 81,165 159,716 12.8% 52.0% 23.6% 29.0%
Benchmark 110,568 74,515 161,947 80.1% 7.6% 8.8% 6.5% Enacted 13,14. PL’s Exs. al., Plaintiffs, et Charles E. LARSEN analysis was offered 306. No election v. this district. regarding Court NAVY UNITED STATES al., et Defendants. District 144
c. House (RC). Action No. 02-2005 Civil currently House District Court, District States United Republican and is by Anglo represented District Columbia. in terms of minority-majority district not a Aug. PL’s Ex. 13. voting age population. citizen Minority preferred do candidates in this dis- endogenous win elections (zero Handley Report, at trict. House elections); Engstrom Chart
out of five elections).
(zero five out of notes does "not mi- 1. The United States does not protected 25 is a dis- nority ability that benchmark CD have the elect their voters Dissent, trict,” govern- n. CD at 190 preferred explained in CD candidate that, view, position underlying for this is apply ment’s rationale 5 does in its Section not protection upon view of the voting pres- based a restricted racially polarized is because not which, by provided as discussed Anglo Section due crossover ent to the number dissent, While, infra, reject. we colleague cor- votes. our See, e.g., Anglo crossover voters. Trial this cohesively general coalition votes 84-86, (Dukes); PM An- elections, and that the coalition has had Rep., solabehere Reb. Attach. 3. electing considerable success in minorities’ example, candidates of choice.3 For de if To determine a crossover dis spite the fact Anglos comprise 63.1% protected trict under Section voting age population, citizen “the Court must assess whether (1) (2) preferred candidate Hispan Blacks and cohesively successfully vote elect their ics CD has won preferred every Congression [in 25] candidate effec tively exerting political power their within al election this decade.” Ansolabehere voting coalition.2 5; Indeed, Rep., Reb. Ex. 11. PL’s Texas’s expert agreed own that Bench parties dispute do minori mark CD 25 is a ties in which minori Anglo CD combine with some coalition,” voters to form “tri-ethnic ties have the to elect the candidates Although dissenting colleague (b) (d) our Congress charac- added subsections terizes this test as "novel” and "divorced section which make clear that the section Supreme precedent,” Court inquiry CD 25 Dis- proposed should focus on whether the sent, the test we change outline above purpose is no 'has the of or will have the application any prece- more novel than the diminishing effect any citizens facts, unique fully dent to a set of com- of the United States on account of race or ports panel's summary conclusion at preferred color ... to elect their candidates of judgment 1973c(b)”). that crossover and § coalition dis- choice.’ 42 U.S.C. As dis- VRA, below, protected by tricts are Section dissenting 5 of the colleague cussed and our Texas, concedes, F.Supp.2d Dissent,