||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||November 16, 2001|
The Honorable Geoffrey Connor
Acting Secretary of State
P.O. Box 12060
Austin, Texas 78711-2060
Dear Secretary Connor:
This refers to the 2001 redistricting plan for the Texas
House of Representatives, submitted to the Attorney General
pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c.
We received your submission on August 17, 2001; supplemental
information was received through October 12, 2001.
We have considered carefully the information you have
provided, as well as census data, comments and information from
other interested parties, and other information. As discussed
further below, I cannot conclude that the State's burden under
Section 5 has been sustained in this instance. Therefore, on
behalf of the Attorney General, I must object to the 2001
redistricting plan for the Texas House of Representatives.
The 2000 Census indicates that the State has a total
population of 20,851,820, of whom 11.5 percent are African
American and 31.9 percent are Hispanic. The State's voting age
population (VAP) is 14,965,061, of whom 10.9 percent are African
American and 28.6 percent are Hispanic. One of the most
significant changes to the State's demography has been the
increase in the Hispanic population. Between 1990 and 2000, the
Hispanic share of the State's population increased from 26 to
31.9 percent. Statewide, African American population remained
Under the Voting Rights Act, a jurisdiction seeking to
implement a proposed change affecting voting, such as a
redistricting plan, must establish that, in comparison with the
status quo, the change does not "lead to a retrogression" in the
position of minority voters with respect to the "effective
exercise of the electoral franchise." See Beer
v. United States, 425 U.S. 130, 141 (1976).
In addition, the jurisdiction must establish that the change was not
adopted with an intent to retrogress. Reno v. Bossier
Parish School Board, 528 U.S. 320, 340 (2000). Finally, the
submitting authority has the burden of demonstrating that the proposed
change has neither the prohibited purpose nor effect. Id. at 328;
see also Procedures for the Administration of Section 5 (28 C.F.R. 51.52).
The constitutional requirement of one-person, one-vote
mandated that the State reapportion the house districts in light
of the population growth since the last decennial census. We
note that the redistricting plan submitted by the State was
passed by the Legislative Redistricting Board (LRB), which had
assumed reapportionment responsibility under Article III of the
Texas Constitution after the State legislature was unable to
enact a redistricting plan.
The LRB held a series of meetings and hearings, culminating
with a meeting on July 24, 2001, at which it considered new plans
submitted by LRB members. The LRB adopted three amendments
making substantive changes to the plan then under consideration.
These amendments consisted of approximately 14 discrete changes.
The Texas House of Representatives consists of 150 members
elected from single-member districts to two-year terms. Under
the existing plan, there are 57 districts that are combined
majority minority in total population, and 53 are combined
majority minority in voting age population. With regard to those
with a majority minority voting age population, 31 districts have
a majority Hispanic voting age population, seven have a majority
black voting age population, and the remaining 15 districts have
a combined minority majority voting age population. There are 27
districts where a majority of the registered voters have a
An initial issue arises as to the appropriate standard for
determining whether a district is one in which Hispanic voters
can elect a candidate of choice. The State of Texas has
provided, and accepted as a relevant consideration, Spanish-surnamed
registered voter data as well as election return
information and voting age population data from the census. We
agree with the State's assessment, although we also consider
comments from local individuals familiar with the area,
historical election analysis, analysis of local housing trends,
and other information intended to create an accurate picture of
citizenship concerns. Campos v. Houston, 113 F.3d 544,
548 (5th Cir. 1997).
Our examination of the State's plan indicates that it will
lead to a prohibited retrogression in the position of minorities
with respect to their effective exercise of the electoral
franchise by causing a net loss of three districts in which the
minority community would have had the opportunity to elect its
candidate of choice. Although there is an increase in the number
of districts in which Hispanics are a majority of the voting age
population, the number of districts in which the level of Spanish
surnamed registration (SSRV) is more than 50 percent decreases by
two as compared to the benchmark plan. Moreover, we note that in
two additional districts SSRV has been reduced to the extent that
the minority population in those districts can no longer elect a
candidate of choice. In the State's plan these four reductions
are only offset by the addition of a single new majority minority
district - District 80 - leaving a net loss of three.
As described more fully below, when coupled with an analysis
of election returns and other factors, we conclude that minority
voting strength has been unnecessarily reduced in Bexar County,
South Texas, and West Texas. Because retrogression is assessed
on a state-wide basis, the State may remedy this impermissible
retrogression either by restoring three districts from among
these problem areas, by creating three viable new majority
minority districts elsewhere in the State, or by some combination
of these methods.
With regard to the problem areas we have identified, in
Bexar County the 2000 Census data indicated that the county
population constituted 10.4 ideal districts. As a result of the
State's constitutional requirement of assigning a whole number of
districts to the more populous counties, known as the "county
line rule," the State reduced the number of districts in the
county from 11 in the existing plan to 10. Although the State
has admitted that the reduction to 10 would not have precluded it
from maintaining the number of majority Hispanic districts at
seven, it in fact chose to reduce that number to six. Initially,
the State asserted that it had created an additional majority
Hispanic district in Harris County so as to offset the loss of
the Bexar County district and identified District 137 as a
compensating district. Because the State's obligation under
Section 5 is to ensure that the redistricting plan, as a whole,
is not retrogressive, such a course of action is not
impermissible. However, in the supplemental materials that were
provided on October 10, 2001, the State notified us that if any
district should be considered as the replacement, District 80 in
South Texas - not District 137 - should be the one which offsets
the loss of the majority Hispanic district in Bexar County.
When the State is considered as a whole, however, this
argument is ultimately unpersuasive. While District 80 indeed
adds an additional district in which Hispanic voters in South
Texas will have the opportunity to elect a candidate of their
choice, in two other districts, as discussed below, they lose
this opportunity, resulting in the net loss for Hispanic voters
of one district in South Texas.
In South Texas Hispanic voters will lose the opportunity to
elect their candidate of choice in District 35. The new district
is created from existing Districts 31 and 44 and pairs an
nonminority and a Hispanic incumbent. The Hispanic incumbent
currently represents a district which has a Spanish surname
registration level of 55.6 percent; that level drops to 50.2
percent in the proposed plan while the Hispanic voting age
population decreases from 57.8 to 52.1 percent. Over half (58%)
of the new district's configuration is from the nonminority
incumbent's former district. Our analysis indicates that
District 35 as drawn will preclude Hispanic voters from electing
their candidates of choice.
In addition, in Cameron County District 38 reverts to a
configuration that previously precluded Hispanic residents from
electing a candidate of their choice. The Spanish surnamed
registration level is reduced from 70.8 to 60.7 percent, and the
Hispanic voting age population decreases from 78.7 percent to
69.6 percent. The State removed over 40 percent of the core of
existing District 38, 90 percent of whom are Hispanic persons,
and replaced it with population that is 45 percent nonminority.
While the Hispanic voters in District 38 still remain a majority
of voters in the district, because the area is subject to
polarized voting along racial lines and under the particular
circumstances present in this district, it is doubtful that
Hispanics will be able to elect their candidate of choice.
Finally, the districts adjacent to Districts 35 and 38 have
levels of Spanish surnamed registered voters exceeding 80
percent, and Hispanic voting age population exceeding 90 percent,
both of which are far beyond what is necessary for compliance
with the Voting Rights Act. Thus the reductions in Districts 35
and 38 were avoidable had the State avoided packing Hispanic
voters into the districts adjacent to them. Moreover, overall
the State fragments the core of majority Hispanic districts in
this area, thus affecting member-constituent relations and
existing communities of interest in these districts at a
disproportionately higher rate than it does other districts in
this part of the State. This fragmentation is unnecessary and
disadvantages Hispanic voters by requiring them to establish new
relations with their elected representatives. It also deviates
from the State's traditional redistricting principles in a manner
that exacerbates the retrogression in South Texas.
As for West Texas, Hispanic voters lose the opportunity to
elect their candidate of choice in proposed District 74. The
Spanish surname registration level decreases from 64.5 to 48.7
percent, and the Hispanic voting age population decreases from
73.4 to 57.3 percent. Significantly, the State did not need to
reconfigure existing District 74 because the existing
configuration under the 2000 Census was underpopulated by only
894 persons, a deviation of 0.64 percent. Such unnecessary
population movement supplements our finding in our election
analysis that Hispanic voters in District 74 will suffer a
retrogression in the effective exercise of the electoral
franchise. See Guidance Concerning Redistricting and
Retrogression under Section 5 of the Voting Rights Act, 42 U.S.C.
1973c, 66 Fed. Reg. 5411, 5413 (Jan. 18, 2001).
Under Section 5 of the Voting Rights Act, the submitting
authority has the burden of showing that a submitted change has
neither a discriminatory purpose nor a discriminatory effect.
Georgia v. United States,
411 U.S. 526 (1973); see also Procedures for the Administration
of Section 5 (28 C.F.R. 51.52).
In light of the considerations discussed above, I cannot conclude
that your burden has been sustained in this instance. On behalf
of the Attorney General, I must object to the 2001 redistricting
plan for the Texas House of Representatives. Beyond the specific
discussion above, however, in all other respects we find that the
State has satisfied the burden of proof required by Section 5.
We note that under Section 5 you have the right to seek a
declaratory judgment from the United States District Court for
the District of Columbia that the proposed changes neither have
the purpose nor will have the effect of denying or abridging the
right to vote on account of race, color, or membership in a
language minority group. See 28 C.F.R. 51.44. In addition, you
may request that the Attorney General reconsider the objection.
See 28 C.F.R. 51.45. However, until the objection is withdrawn
or a judgment from the District of Columbia Court is obtained,
the redistricting plan continues to be legally unenforceable.
Clark v. Roemer, 500 U.S.
646 (1991); 28 C.F.R. 51.10.
To enable us to meet our responsibility to enforce the
Voting Rights Act, please inform us of the action the State of
Texas plans to take concerning this matter. If you have any
questions, you should call Mr. Robert Berman (202-307-3718),
Deputy Chief of the Voting Section.
Ralph F. Boyd, Jr.
Assistant Attorney General
Civil Rights Division