SI- Perez v. Perry Proposed interim plans
You may view the statement of interest in pdf format.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SHANNON PEREZ, et al.,
Plaintiffs,
v.
STATE OF TEXAS, et al.,
Defendants.
MEXICAN AMERICAN LEGISLATIVE
CAUCUS, TEXAS HOUSE OF
REPRESENTATIVES (MALC),
Plaintiff,
v.
STATE OF TEXAS, et al.,
Defendants.
TEXAS LATINO REDISTRICTING TASK
FORCE, et al.,
Plaintiffs,
v.
RICK PERRY,
Defendant.
Civil Action No. 5:11-cv-360
(OLG-JES-XR)
Three-Judge Court
[Lead Case]
Civil Action No. 5:11-cv-361
(OLG-JES-XR)
Three-Judge Court
[Consolidated Case]
Civil Action No. 5:11-cv-490
(OLG-JES-XR)
Three-Judge Court
[Consolidated Case]
MARGARITA V. QUESADA, et al.,
Plaintiffs,
v.
RICK PERRY, et al.,
Defendants.
JOHN T. MORRIS,
Plaintiff,
v.
STATE OF TEXAS, et al.
Defendants.
EDDIE RODRIGUEZ, et al.,
Plaintiffs,
v.
RICK PERRY, et al.
Defendants.
Civil Action No. 5:11-cv-592
(OLG-JES-XR)
Three-Judge Court
[Consolidated Case]
Civil Action No. 5:11-cv-615
(OLG-JES-XR)
Three-Judge Court
[Consolidated Case]
Civil Action No. 5:11-cv-635
(OLG-JES-XR)
Three-Judge Court
[Consolidated Case]
STATEMENT OF INTEREST OF THE UNITED STATES WITH RESPECT TO THE
PROPOSED INTERIM PLANS
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TABLE OF CONTENTS
I. The United States’ Interest .................................................................................................. 1
II. Summary of Argument ....................................................................................................... 1
III. The United States’ Section 5 Challenge to H283 Is Not Insubstantial ............................... 3
A. House District 33 .............................................................................................................. 3
B. House District 35 .............................................................................................................. 4
C. House District 41 .............................................................................................................. 5
D. House District 117 ............................................................................................................ 7
E. House District 149 .......................................................................................................... 10
IV. The United States’ Section 5 Challenge to C185 Is Not Insubstantial ............................. 12
A. Congressional District 23 ............................................................................................... 13
B. Dallas-Fort Worth Area .................................................................................................. 13
C. Districts 9, 18, and 30..................................................................................................... 14
D. Minority Growth ............................................................................................................ 15
V. This Court May Not Waive Preclearance Requirements .................................................. 16
VI. Conclusion ........................................................................................................................ 18
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TABLE OF AUTHORITIES
Cases
Abrams v. Johnson, 521 U.S. 74 (1997) ....................................................................................... 15
Beer v. United States, 425 U.S. 130 (1976) .................................................................................. 18
Busbee v. Smith, 546 F. Supp. 494 (D.D.C 1982)......................................................................... 14
Clark v. Roemer, 500 U.S. 646 (1991) ................................................................................... 16, 17
Georgia v. Ashcroft, 539 U.S. 461 (2003) ...................................................................................... 2
Johnson v. Mortham, 926 F. Supp. 1460 (N.D. Fla. 1996) ........................................................... 17
Johnson v. Mortham, No. TCA 94-40025, 1996 WL 297280 (N.D. Fla. May 31, 1996) ............ 18
Lopez v. Monterey County, 519 U.S. 9 (1996) ............................................................................. 17
LULAC v. Perry, 548 U.S. 399 (2006) ......................................................................................... 13
Perry v. Perez, ___ S. Ct. ___, No. 11-713, 2012 WL 162610 (U.S. Jan. 20, 2012) ..................... 3
Reno v. Bossier Parish Sch. Bd. (Bossier Parish I), 520 U.S. 471 (1997) ................................... 15
Texas v. United States, No. 11-1303, 2011 WL 6440006 (D.D.C. Dec. 22, 2011) ............... passim
Vill.of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) ................................. 6
Statutes
28 U.S.C. § 517 ............................................................................................................................... 1
42 U.S.C. § 1973c ..................................................................................................................... 1, 16
Regulations
28 C.F.R. § 51.18 .................................................................................................................... 17, 18
28 C.F.R. § 51.34 .......................................................................................................................... 18
28 C.F.R. § 51.59 .......................................................................................................................... 14
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I. THE UNITED STATES’ INTEREST
The United States files this Statement of Interest pursuant to 28 U.S.C. § 517, which
authorizes the Attorney General to attend to the interests of the United States in any pending suit.
The United States respectfully submits this brief in response to the Court’s order, entered
February 2, 2012 (ECF No. 598), asking the parties to submit briefs on a variety of issues to
assist the Court in preparing interim redistricting plans. In this particular brief, the United States
is responding to the Court’s questions concerning Section 5 of the Voting Rights Act. Section 5
precludes covered jurisdictions from implementing voting changes without receiving
“preclearance” for those changes. 42 U.S.C. § 1973c. The Attorney General has primary
responsibility for enforcing and administering Section 5. See id. §§ 1973(d), 1973c(a). The
United States thus has a strong interest in ensuring the statute is properly interpreted and applied.
The United States has a particular interest in the redistricting plans at issue in this case. It
currently is defending the related judicial preclearance action filed by the State of Texas in the
District Court for the District of Columbia. See Texas v. United States, No. 11-1303, 2011 WL
6440006 (D.D.C. Dec. 22, 2011). The United States has argued in that action that the State’s
proposed Congressional and State House plans fail to comply with Section 5. See United States’
Post-Trial Brief, ECF No. 203, Texas v. United States, No. 1:11-cv-1303 (D.D.C. filed Feb. 6,
2012) (attached hereto as Exhibit 1) [hereinafter US Trial Br.]. The three-judge court denied the
State’s motion for summary judgment. See Texas v. United States, 2011 WL 6440006, at *1.
Trial in that case has concluded, and the matter awaits decision.
II. SUMMARY OF ARGUMENT
The United States’ brief is intended to assist the Court by identifying the aspects of the
State’s enacted plans for the State House of Representatives and U.S. Congress that the United
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States believes will not have reasonable probability of gaining Section 5 preclearance in the U.S.
District Court for the District of Columbia. In addition, we address whether this Court may
waive preclearance requirements for voting changes that would be needed to implement the
interim plans, and we contend that it may not.
Texas contends that the issues raised by the United States have not established “a
reasonable probability that any aspect of the State’s plans does not comply with Section 5.”
Texas Advisory, ECF No. 605, at 3. The United States has previously argued that the Section 5
court’s ruling on the State’s motion for summary judgment in the declaratory judgment action
demonstrated that the Section 5 concerns were not insubstantial. ECF No. 591. In this brief, the
United States avers that the evidence adduced at the recently concluded trial demonstrates that
there is a reasonable probability that Texas will fail to gain preclearance on both the proposed
House and Congressional redistricting plans.
The proposed State House plan (H283) is retrogressive because only 45 districts provide
minority voters with the ability to elect their candidate of choice, whereas 50 districts provide
minority voters with the ability to elect in the benchmark plan. The Congressional plan (C185)
is retrogressive because the State has failed to prove that the proposed plan “does not increase
the degree of discrimination” against minority voters. See Texas v. United States, 2011 WL
6440006, at *3. The Congressional plan would need to increase by one the number districts in
which minority voters have the ability to elect their candidates of choice in order to avoid
increasing the degree of discrimination from current levels. Because the United States reviews
the plan on a statewide basis, the retrogression in these plans can be cured by creating new
districts anywhere in the State. See Georgia v. Ashcroft, 539 U.S. 461, 479 (2003) (“inquiry
must encompass the entire statewide plan as a whole”).
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However, the proposed redistricting plans for the State House and Congress are also
infected with discriminatory purpose. There are particular districts in which discriminatory
purpose is evident. In H283, these districts include District 41, 117, and the Harris County
districts. In C185, these districts include District 23, districts in the Dallas-Fort Worth area and
Districts 9, 18, and 30 in the Congress. Even if the State were to create new ability districts
elsewhere in the State, those districts drawn with discriminatory intent must specifically be
changed so that the interim plan will not “reflect aspects of the state plan that stand a reasonable
probability of failing to gain § 5 preclearance.” Perry v. Perez, ___ S. Ct. ___, No. 11-713, 2012
WL 162610, at *4 (U.S. Jan. 20, 2012); cf. also Upham v. Seamon, 456 U.S. 37, 43 (1982)
(requiring that a remedial plan institute modifications “necessary to cure any constitutional or
statutory defect”).
III. THE UNITED STATES’ SECTION 5 CHALLENGE TO H283 IS NOT
INSUBSTANTIAL
There is a reasonable probability that Texas will not obtain a declaratory judgment
regarding Plan H283. In particular, Districts 33, 35, 41, 117, and 149 currently provide minority
voters with the ability to elect, and they will not do so in Plan H283, reducing the number of
districts in which minority voters have the ability to elect their preferred candidates of choice
from 50 to 45. In addition, the United States has presented a substantial discriminatory purpose
claim concerning H283; this purpose is most evident in Districts 41 and 117, as well as the
districts within Harris County.
A. House District 33
The United States has presented a substantial Section 5 challenge to House District 33. In
the benchmark plan, House District 33 is located in Nueces County, and all parties to the
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preclearance action agree that Hispanic citizens have the ability to elect candidates of their
choice to the Texas House of Representatives in this district. The proposed plan moves it to
Collin and Rockwall counties, and all parties agree that minorities will not be able to elect
candidates of their choice there. The United States challenges that move as retrogressive in
purpose and effect. See U.S. Trial Br. at 4-5, 29.
Texas asserted that proposed House District 74 offsets that loss. The State contends that
House District 74, which has been represented by Hispanic Democrat Pete Gallego since the
1990s, was not a Hispanic ability district in the benchmark plan but is an ability district in the
proposed plan. Tex. Post-Trial Brief at 13-14, ECF No. 201, Texas v. United States, No. 1:11-
cv-1303 (D.D.C. filed Feb. 6, 2012) [hereinafter Tex. Trial Br.]. The United States presented
substantial evidence at trial, however, that Hispanic citizens already have the ability to elect their
preferred candidates of choice to the Texas House of Representatives in benchmark House
District 74; Hispanic voters’ ability to elect preferred candidates in proposed House District 74
therefore cannot offset the loss of benchmark House District 33. See U.S. Trial Br. at 13; United
States’ Proposed Findings of Fact ¶¶ 76-87, ECF No. 185, Texas v. United States, No. 1:11-cv-
1303 (D.D.C. filed Feb. 3, 2012) (attached hereto as Exhibit 2) [hereinafter U.S. PFOF].
B. House District 35
The United States has presented a substantial Section 5 challenge to House District 35,
which is south of Bexar County. U.S. Trial Br. at 5-6. The United States presented substantial
evidence at trial that Hispanic citizens currently have the ability to elect their preferred
candidates of choice to the Texas House of Representatives in benchmark House District 35.
U.S. PFOF 18-21. Indeed, Hispanic voters elected their preferred candidate to the House in
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2002, 2004, 2006, and 2008, though elections throughout the decade were very close. U.S.
PFOF ¶ 20.
The United States also presented substantial evidence at trial that Hispanic citizens will
not have the ability to elect their preferred candidates of choice in proposed House District 35.
Id. ¶¶ 22-28. Compared to benchmark House District 35, the proposed district decreases
Hispanic population and voter registration percentages. Id. ¶ 25. The proposed district
increases the degree of racially polarized voting. Id. ¶ 26. And it decreases the performance of
Hispanic-preferred candidates in general elections. Id. ¶ 27. In light of those changes, expert
witness Dr. Lisa R. Handley concluded that Hispanic voters will not be able to elect their chosen
candidates to the House from the reconfigured district. U.S. Trial Br. at 6.
C. House District 41
The United States has presented a substantial challenge to House District 41 under both
the purpose and effect prongs of Section 5. See U.S. Trial Br. at 6-9, 23 & n.12. Benchmark
District 41 is located in Hidalgo County, and the parties agree that the District provides minority
voters with the ability to elect their candidates of choice. U.S. PFOF ¶ 34. The evidence
presented at trial does not prove that proposed District 41 provides minority voters with the
ability to elect their candidates of choice.
The performance of proposed District 41 in exogenous elections declines, but the number
and size of split VTDs in the proposed plan prevents an exact measurement of the severity of that
decline. Thirty-one percent of the District’s population resides in these split VTDs, and the
partial precincts include relatively Anglo census blocks and exclude homogenous Hispanic
census blocks. Id. ¶¶ 37, 39. Because political data are collected at the precinct level,
reconstituted election analysis must assume that every census block within a precinct is
6
politically identical. As a result, dividing precincts by a characteristic that correlates with
political preference – as race does in District 41 – introduces substantial error in that analysis.1
Because there is no dispute that the benchmark district is an ability-to-elect district, and because
Texas cannot demonstrate that it remains so in the proposed plan, the challenge to House District
41 under the effect prong of Section 5 is not insubstantial.2
More importantly, Texas has used race as a proxy for partisanship in District 41 and has
drawn the District with the purpose of eliminating minority voters’ ability to elect their candidate
of choice, violating the purpose prong of Section 5. With no partisan data available below the
precinct level, the statistically significant racial skew to the 17 split precincts along the
boundaries of proposed District 41 are “unexplainable on grounds other than race.” Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). The inference that
naturally arises from this persistent pattern is that the map-drawers added Anglo voters to this
district so that Hispanic voters would not be able to elect their candidate of choice. U.S. PFOF
¶¶ 148-149.
The State has failed to rebut the inference of arises from the persistent bias of precinct
splits across the proposed plans. The United States presented the testimony of Jaime Longoria,
assistant county administrator of Hidalgo County, who explained that several Hispanic
1 This is the reason that Dr. Handley could not reach a conclusion on whether District 41 performs in the
proposed plan. Id. ¶ 38.
2 The United States has urged the District of Columbia Court not to apply a presumption that a 65%
voting majority provides minority voters provides the ability to elect their candidates of choice. See U.S.
Trial Br. at 8-9. The United States presented substantial evidence in District 41 that the Hispanic
community of Hidalgo County faces crushing socioeconomic burdens, particularly in the shantytowns
known as colonias. U.S. PFOF ¶ 44. There has also been a history of discrimination. Id. ¶ 123.
Obstacles to political participation for voters in these communities uniquely impair their “‘realistic
opportunity to elect officials of their choice.’” Texas v. United States, 2011 WL 6440006, at *16 n.22
(quoting Ketchum v. Byrne, 740 F.2d 1398, 1410 (7th Cir. 1984)).
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neighborhoods were eliminated from the district via the exclusion of partial precincts. Id. ¶ 149;
see also id. ¶¶ 150-154 (setting out timeline and limited information concerning precinct splits).
This district of plan H283 stands a reasonable probability of failing to gain preclearance.
D. House District 117
The United States has also presented a substantial challenge to House District 117 under
both the purpose and effect prongs of Section 5. See U.S. Trial Br. at 9-10, 20-22. Texas has
eliminated the ability of minority voters to elect candidates of choice in District 117 without
creating a new ability district elsewhere in the State, violating the effects prong of Section 5. It
is undisputed that Hispanic citizens have the ability to elect their preferred candidate of choice in
the benchmark plan. U.S. PFOF ¶ 50. Expert testimony provided by both Texas and the United
States indicated that the proposed district will not provide Hispanic citizens with the ability to
elect preferred candidates. Id. ¶ 60.
The State has asserted that an election analysis is unnecessary in District 117 because
more than 60% of the citizen voting age population of the proposed District is Hispanic. Tex.
Advisory, ECF No. 605, at 9-10. However Texas has misinterpreted the District of Columbia
Court’s finding concerning the so-called 65 Percent Rule. The Court’s opinion denying the
State’s motion for summary judgment observed, “A district with a minority voting majority of
sixty-five percent (or more) essentially guarantees that, despite changes in voter turnout,
registration, and other factors that affect participation at the polls, a cohesive minority group will
be able to elect its candidate of choice.” Texas v. United States, 2011 WL 6440006, at *16
(emphasis added). The Court rule described a voting majority, which suggested that the relevant
measure was citizen voting age population. Moreover, the court did not list differentials in age
distribution as a factor that the required supermajority would take into account. Nevertheless,
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Texas has attempted to cut the voting majority to 60% by assuming that the D.C. Court had
adopted the precise observations made by cases that the Court cited in support of the 65 Percent
Rule. See Tex. Advisory, ECF No. 605 at 10 (citing Texas v. United States, 2011 WL 6440006
at *16 n.22). During closing arguments, the Court corrected this misinterpretation of its prior
opinion.
MR. MORTARA: But split VTDs does not [a]ffect the calculation
of demographic benchmarks like HCVAP. What you see here is
that 14 House District 41 in the adopted plan has an HCVAP of
72.1 15 percent well in excess of the bright line 60 percent
benchmark the Court adopted in footnote 22 of its summary
judgment opinion. Under this Court's bright line, House District
41 is an ability to elect district in the proposed plan as a matter of
law. Therefore, there is no retrogression with respect to this
district. The same is true of House District --
JUDGE HOWELL: We didn't adopt a 60 percent bright line rule.
We said 65 percent in the text of the opinion.
MR. MORTARA: I’m going to show you on the screen the
opinion.
JUDGE COLLYER: Are you debating with Judge Howell of what
we said in our opinion? Mr. Mortara, please do not do that.
MR. MORTARA: Your Honor, the footnote 22 of the opinion
establishes in the text a 60 percent voting age population number.
It starts with 65 percent population and in the footnote gets down
to 60 percent voting age. As Your Honor knows, there are
substantial citizenship issues with the Hispanic population in Texas
and therefore, a 60 percent Hispanic voting age population is not a
good benchmark.
JUDGE HOWELL: Mr. Mortara, you can stick with your 60
percent interpretation of the opinion, and you can continue with
that throughout your briefing in the case. And we can rest on that.
Tr. at 9:12-10:17 (Jan. 31 a.m.) (attached hereto as Exhibit 3). The Court again reached out to
clarify the applicable metric during the United States’ closing argument:
9
MR. MELLETT: Let me address, it was brought up a couple of
times regarding the 65 percent rule. The, Your Honors, we
respectfully disagree that there should be a bright line rule. And
part of that –
JUDGE HOWELL: Do you agree that it's 65 percent in our
opinion?
MR. MELLETT: No, Your Honor.
JUDGE HOWELL: Do you agree that at least that we said 65
percent?
MR. MELLETT: Yes, we do agree that you said it's 65 percent.
JUDGE HOWELL: Thank you for that.
Id. at 85:18-86:4. Judge Howell made one additional mention of the relevant portion of the
Court’s final opinion to clarify its meaning:
JUDGE HOWELL: Can I just make sure that everybody
understands what we said because we were very careful about this
line in our opinion. And we thought we were clear, a District with
minority voting majority, we didn’t say voting age, we said voting
minority so people in prisons who don't vote don't constitute part
of a voting majority.
Id. at 87:12-18. Because the 63.8% HCVAP concentration in proposed House District 117 falls
below the D.C. Court’s 65% CVAP threshold for a de jure performing district, retrogression
concerns in this District are not insubstantial.
In crafting proposed District 117, the State purposefully eliminated electoral opportunity
while applying a subtle yet discernible methods to maintain a Hispanic population majority.
Because this intentional retrogression violates the purpose prong of Section 5, any interim plan
must redraw this specific district, rather than merely replacing it with a performing district
elsewhere in the State to satisfy retrogression concerns. The precipitous drop in Hispanic turnout
between benchmark District 117 and proposed District 117 is a principal example of the strategy
10
developed by Eric Opiela and Gerardo Interiano when they were both on the staff of House
Speaker Joe Straus. According to Opiela,
It also would be good to calculate Spanish Surname Turnout/Total
Turnout ratio for the 2006-2010 General Elections for all VTDs (I
already have the data for this for 2006-2008 in a spreadsheet, just
need to gather it for every VTD for 2010). . . . These metrics would
be useful in identifying a “nudge factor” by which one can analyze
which Census blocks, when added to a particular district
(especially 50+1 minority majority districts) help pull the district’s
total Hispanic Pop and Hispanic CVAPs up to majority status, but
leave the Spanish Surname [registered voters] and [turnout] the
lowest.
DX 304. Interiano acted upon Opiela’s request and received at least some of the data from the
Texas Legislative Council (TLC). DX 294; DX 197. Interiano was responsible for drawing the
maps in Bexar County, and proposed District 117 was drawn as a “50+1” District with precisely
50.1% SSVR. U.S. PFOF ¶¶ 158-159.3 The result of this strategy is clear: despite marginal
changes in SSVR between benchmark District 117 and proposed District 117, projected Hispanic
turnout falls between 40% and 50%. US PFOF ¶ 163. Dr. Arrington concluded that by focusing
on poor, low turnout Hispanic communities, the map-drawers dramatically and deliberately
diminished the Hispanic community’s ability to elect preferred candidates. DX 320 ¶¶ 26-27.
This district of plan H283 stands a reasonable probability of failing to gain preclearance.
E. House District 149
The United States has presented a substantial Section 5 challenge to House District 149.
U.S. Trial Br. at 10-13, 29-30. In the benchmark plan, House District 149 is located in
southwestern Harris County and has been represented since 2005 by the only Vietnamese
3 When the representative of District 118 sought to recover two impoverished communities that had been
excised from his District, he was told that no change to District 117 would be permitted if it raised SSVR
above 50.1%. U.S. PFOF ¶¶ 158, 160-161.
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American ever to serve in the Texas Legislature, Representative Hubert Vo. U.S. PFOF ¶ 63.
The proposed plan moves the district to Williamson County, where all parties agree minorities
will not be able to elect candidates of their choice. Id. ¶ 75. The United States challenges that
move as retrogressive in effect and discriminatory in purpose.
At trial, the United States presented substantial evidence that a coalition of Asian-
American, African-American, and Hispanic citizens currently have the ability to elect preferred
candidates of choice to the Texas House of Representatives in benchmark House District 149.
These minority groups comprise 61.5% of the district’s citizen voting age population and voted
cohesively to elect their preferred candidate, Representative Vo, in 2004, 2006, 2008, and 2010.
Id. ¶ 69. The United States presented evidence that this coalition has elected other candidates for
local offices, and this coalition includes many facets of life including economic coalitions. Id.
An existing coalition district in which minority voters elect their candidate of choice is protected
under Section 5. See Texas v. United States, 2011 WL 6440006, at *18-19.
The United States also presented substantial evidence that the change to House District
149 is tainted with racially discriminatory intent. The proposed plan draws Representative Vo
into House District 137, which is represented by a longtime Democratic incumbent,
Representative Scott Hochberg. U.S. PFOF ¶ 167. It contains only a fraction of Representative
Vo’s current constituency. Id. ¶ 169. Anglo legislators told Representative Hochberg that he
would be “comfortable” in proposed House District 137, suggesting that the district had been
drawn to favor him over Representative Vo. Id. Partisan motives would have led to the opposite
result – favoring Representative Vo over Representative Hochberg – because the latter is a more
senior, more powerful, and more influential legislator. Id. ¶ 170. The only apparent explanation
here for targeting a junior member over a senior member is race. Id. ¶ 171.
12
The State’s evidence does not establish that this challenge is insubstantial. The State did
not dispute that Representative Vo was, in fact, the minority-preferred candidate in the four
elections he won. Instead, the State presented evidence that Democratic candidates for statewide
offices rarely win in District 149. 4 The State also offered evidence that there is no coalition in
House District 149 because minority voters do not vote cohesively in Democratic primaries for
statewide offices, but Texas did not address the coalition for local offices. The United States has
argued that Section 5 protection does not depend on cohesion in statewide primary elections.
U.S. Trial Br. at 12-13; see also Gonzales Intervenors’ Bench Brief, ECF No. 169, Texas v.
United States, No. 1:11-cv-1303 (D.D.C. filed Jan. 23, 2012). The State offered no evidence to
rebut the United States’ intent claim on this district. This aspect of plan H283 stands a
reasonable probability of failing to gain preclearance.
IV. THE UNITED STATES’ SECTION 5 CHALLENGE TO C185 IS NOT
INSUBSTANTIAL
The United States has challenged plan C185 under both prongs of Section 5. The United
States claims that the plan is retrogressive because it increases minority underrepresentation by
one district. U.S. Trial Br. at 14-16. The United States also claims that the plan reflects
purposeful discrimination against minority voters; this purpose is most evident in Congressional
District 23, in the Dallas-Fort Worth Metroplex, and in Congressional Districts 9, 18, and 30.
U.S. Trial Br. at 18-30.
4 In its post-trial proposed findings of fact, Texas suggested for the first time that proposed House
District 101 compensates for any retrogression resulting from the elimination of benchmark District 149
as an ability district in Plan H283. ECF No. 186 ¶ 100. As a review of Texas’ proposed findings of fact
makes clear, the State has not produced a scintilla of evidence that proposed House District 101 provides
minority voters with an ability to elect their preferred candidates to the House. Id. ¶¶ 96-100.
13
Texas acknowledges in its advisory that Congressional District 23 and the Dallas-Fort
Worth Metroplex are “fairly at issue.” Tex. Advisory, ECF No. 605 at 13-14. As we explain
below, moreover, all of the United States’ challenges are not insubstantial. These aspects of plan
C185 therefore stand a reasonable probability of failing to gain preclearance.
A. Congressional District 23
Congressional District 23 in the benchmark plan provides Hispanic voters with an ability
to elect their preferred candidates of choice. The district’s very creation in 2006 as a minority
opportunity district to remedy the Section 2 violation found by the Supreme Court in LULAC v.
Perry, 548 U.S. 399, 425-42 (2006), is indicative of its status as a protected district under
Section 5. Furthermore, following that decision, and as the Court had foreseen, the growing and
increasingly active Hispanic community in District 23 succeeded in electing its preferred
candidate to Congress, first in 2006 and again in 2008. See U.S. PFOF ¶ 191.
The United States has stated that in Congressional District 23, there is direct evidence of
discriminatory purpose to keep the Hispanic concentration the same but decrease the ability of
Hispanic voters to elect their candidates of choice by swapping out high turnout Hispanic voters
and replace them with low turnout Hispanic voters. Id. ¶¶ 197, 229-230; U.S. Trial Br. at 20-22.
The map drawers were successful in their efforts; proposed Congressional District 23 clearly
does not provide Hispanic voters with an ability to elect their preferred candidates. U.S. PFOF
¶¶ 198, 236-237. The United States has also identified evidence regarding splitting precincts
based on race in Congressional District 23, which also supports a conclusion that the District was
shaped by a discriminatory purpose. Id. ¶¶ 231-235; U.S. Trial Br. at 22-24.
B. Dallas-Fort Worth Area
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Instead of allowing a minority-controlled Congressional district to emerge naturally
within the compact minority communities in the Dallas-Fort Worth Metroplex, the map-drawers
intentionally divvied up urban, low-income, minority population among four Anglo-controlled
Congressional districts with bizarre shapes – CD6, CD12, CD26, and CD33. Cracking of the
minority population and submersion in Anglo, rural districts is further evidence of discriminatory
purpose. USPFOF ¶¶ 239-256; U.S. Trial Br. at 24-25; see also Busbee v. Smith, 546 F. Supp.
494, 517 (D.D.C 1982) (finding that splitting Black voters in Atlanta among two districts was
probative of racial purpose); see also 28 C.F.R. § 51.59(a)(3)-(4) (packing and cracking minority
populations is probative of discriminatory purpose). Moreover, the boundaries of Congressional
District 26 split 49 precincts, and 38 of these splits are located in a “lightning bolt” in Tarrant
County. U.S. PFOF ¶ 250. The boundary between Congressional District 26 and District 12 at
the eastern boundary of the “lightning bolt” divides minority communities according to race. Id.
The boundary line divides a homogenous Democratic area and could not have been guided by
political data. Id. ¶ 251. Based on this evidence, there is a reasonable probability that these
aspects of the Congressional Plan will not gain Section 5 preclearance.
C. Districts 9, 18, and 30
There is a reasonable probability that Texas will not gain preclearance regarding Districts
9, 18 and 30 because of discriminatory purpose in drawing these districts in Plan C185.
Substantial evidence was presented at trial that the map drawers had removed economic engines
from Districts 9, 18, and 30 (e.g., hospitals, manufacturing hubs, and the Superdome). They had
similarly drawn the Congress members’ district offices out of each of their districts and had
drawn Representative Johnson’s home from her district. U.S. Trial Br. at 26; see also NAACP
Proposed Findings of Fact ¶¶ 190-194, 198-200, 230, ECF No. 181, Texas v. United States, No.
15
1:11-cv-360 (D.D.C. filed Feb. 3, 2012); NAACP Post-Trial Brief at 4-12, ECF No. 198. Texas
v. United States, No. 1:11-cv-360 (D.D.C. filed Feb. 6, 2012). There was no hint of comparable
treatment of Anglo members of Congress. NAACP Proposed Findings of Fact ¶¶ 212-213.
When asked to explain this disparate treatment, map-drawer Gerardo Interiano testified
implausibly that it was all merely a “coincidence.” Tr. at 95:3-95:19 (Jan. 25 p.m.) (attached
hereto as Exhibit 4).
D. Minority Growth
The United States discusses its retrogression challenge at length in its post-trial brief, see
U.S. Trial Br. 14-16, and we incorporate that discussion here. We explain that, under the
standard set forth in the memorandum opinion denying the State’s motion for summary
judgment, Plan C185 is retrogressive because it “increase[s] the degree of discrimination against
a minority population.” Texas v. United States, 2011 WL 6440006, at *3 (citing City of Lockhart
v. United States, 460 U.S. 125, 134-35 (1983)); accord Reno v. Bossier Parish Sch. Bd. (Bossier
I), 520 U.S. 471, 479 (1997) .
This challenge is not insubstantial. The three-judge court in the District of Columbia
denied the State’s motion for summary judgment on that issue and specifically rejected the
State’s reliance on Abrams v. Johnson, 521 U.S. 74, 97 (1997). See Texas v. United States, 2011
WL 6440006, at *20 (explaining that where the number of legislative seats has increased,
Abrams “does not hold that the failure to draw new minority districts can never be
retrogressive”). As a result, any interim plan must account for the United States’ challenge. To
do so, the 36-district interim plan must increase the number of minority ability districts by one
16
district. If this Court finds that there are 10 minority ability districts in the benchmark plan, the
interim plan must have 11.5 The new district may be anywhere in the State.6
V. THIS COURT MAY NOT WAIVE PRECLEARANCE REQUIREMENTS
The Court has also requested an advisory regarding whether it may waive the
preclearance requirements for “the voting changes that would need to be submitted to the
Department of Justice by the counties after new interims plans are issued in this case.” ECF No.
598. The United States contends that this Court does not have the authority to waive the
preclearance requirements, where there is no emergency that would justify such a decision. In
addition, administrative preclearance is available on an expedited basis, which would allow
jurisdictions to obtain preclearance in a timely manner.
Section 5 requires covered States to obtain judicial or administrative preclearance before
enforcing a voting change. 42 U.S.C. § 1973c(a). “A voting change in a covered jurisdiction
‘will not be effective as law until and unless cleared’ pursuant to one of these two methods.”
Clark v. Roemer, 500 U.S. 646, 662 (1991) (quoting Connor v. Waller, 421 U.S. 656, 656 (1975)
(per curiam)). “Failure to obtain either judicial or administrative preclearance ‘renders the
change unenforceable.’” Id. (quoting Hathorn v. Lovorn, 457 U.S. 255, 269 (1982)).
5 The United States does not count Congressional District 25 among the 10 minority ability districts in the
benchmark plan.
6 The 2010 Census showed that Texas’s population had increased by nearly 4.3 million people since 2000.
U.S. Request for Judicial Notice ¶ 8, ECF No. 180, United States v. Texas, 1:11-cv-360 (D.D.C. filed Feb.
3, 2012) (attached hereto as Exhibit 5). Explosive growth among the State’s minority population
accounted for approximately 90% of that increase. Id. ¶¶ 8, 18. As a result of this growth, Texas was
entitled to four new Congressional seats, but minority voters did not receive the ability to elect a
candidate of choice in one of the new districts. Failure to create any new seats in which minority voters
would have the ability to elect their preferred candidates of choice, as a reflection of the State’s explosive
minority growth, is also substantial evidence of a discriminatory purpose. See U.S. Trial Br. at 24.
17
Not only is a covered jurisdiction barred from enforcing its unprecleared plan, but a
federal court may not order that jurisdiction to hold elections in which unprecleared voting
changes will be implemented. See, e.g., Clark, 500 U.S. at 654 (“§ 5’s prohibition against
implementation of unprecleared changes required the District Court to enjoin the election”);
Lopez v. Monterey County, 519 U.S. 9, 22 (1996) (holding that it was error for district court to
“order elections under that system before it had been precleared”). In both Clark and Lopez, the
Court declined to decide whether there could ever be a circumstance in which a court may “allow
an election for an unprecleared seat to go forward” but observed that “extreme circumstances
might be present if a seat’s unprecleared status is not drawn to the attention of the State until the
eve of the election and there are equitable principles that justify allowing the election to
proceed.” Clark, 500 U.S. at 654; Lopez, 519 U.S. at 21 (quoting Clark, 500 U.S. at 654). In
neither of those cases did the court find such an exigency, and no greater emergency exists here.
The Attorney General’s regulations regarding Section 5 make it clear that “changes
affecting voting for which approval by a Federal court is required, or that are ordered by a
Federal court, are exempt from section 5 review only where the Federal court prepared the
change and the change has not been subsequently adopted or modified by the relevant
governmental body.” 28 C.F.R. § 51.18(a). Voting changes such as polling place and precinct
changes would be determined by the counties and not the court, and therefore, would require
preclearance. See id. § 51.18(b).7
7 The district court in Johnson v. Mortham, 926 F. Supp. 1460 (N.D. Fla. 1996), did not permit a covered
jurisdiction to forgo preclearance. In that case, the court, having found one Florida congressional district
unconstitutional, directed the Florida Legislature to revise the district boundaries by a date certain. The
court explained that it would review the plan for compliance with Section 5 and – if satisfied – order the
plan into effect without preclearance. See id. at 1494. The court never did so, however. After the
Legislature enacted a new plan, the Attorney General precleared it, and then the district court found the
18
The Section 5 Procedures also note that emergency interim use does not insulate a
jurisdiction from obtaining preclearance for a practice on a permanent basis: “In emergencies. A
Federal court’s authorization of the emergency interim use without preclearance of a voting
change does not exempt from section 5 review any use of that practice not explicitly authorized
by the court.” 28 C.F. R. § 51.18(d). The United States is unaware of any situation in which
§ 51.18(d) has been invoked by a court to authorize a jurisdiction not to obtain preclearance.
The United States also contends that there is no emergency situation that would justify
the use of the regulation. First, any emergency situation would be created by the court itself.
The court has already moved the primary, and it is within the court’s authority to set a primary
date that would allow for enough time so that the preclearance process can be followed. Second,
even if the court adhered to an April primary date, there is still enough time for jurisdictions to
submit their voting changes for preclearance. Jurisdictions would be able to request expedited
review of their Section 5 submission, and jurisdictions often can receive a response in
significantly less than 60 days. See 28 C.F.R. § 51.34.
VI. CONCLUSION
In order to address the United States’ substantial retrogression claims, an interim House
plan must maintain 50 districts in which minority voters have the ability to elect their candidates
of choice, and an interim Congressional plan must include 11 such districts. See Beer v. United
States, 425 U.S. 130, 141 (1976). The specific districts infected with a discriminatory purpose
must be drawn in the interim map.
Date: February 10, 2012
constitutional violation remedied. See Johnson v. Mortham, No. TCA 94-40025, 1996 WL 297280, at *1
(N.D. Fla. May 31, 1996).
19
Respectfully submitted,
ROBERT PITMAN THOMAS E. PEREZ
United States Attorney Assistant Attorney General
Western District of Texas Civil Rights Division
/s/ Timothy F. Mellett
T. CHRISTIAN HERREN, JR.
TIMOTHY F. MELLETT
BRYAN SELLS
JAYE ALLISON SITTON
DANIEL J. FREEMAN
Attorneys
Voting Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Telephone: (202) 353-0099
Facsimile: (202) 307-3961
1
CERTIFICATE OF SERVICE
I hereby certify that on February 10, 2012, I served a true and correct copy of the foregoing
via the Court’s ECF system on the following counsel of record:
David R. Richards
Richards Rodriguez & Skeith, LLP
816 Congress, Suite 1200
Austin , TX 78701
(512) 476-0005
davidr@rrsfirm.com
Richard E. Grey III
Gray & Becker, P.C.
900 West Avenue, Suite 300
Austin, TX 78701
(512) 482-0061
Rick.gray@graybecker.com
Counsel for Perez Plaintiffs
Luis Roberto Vera, Jr.
Law Offices of Luis Roberto Vera, Jr. &
Associates
1325 Riverview Towers
111 Soledad
San Antonio, TX 78205
(210) 225-3300
lrvlaw@sbcglobal.net
George Joseph Korbel
Texas Rio Grande Legal Aid, Inc.
1111 North Main
San Antonio, TX 78213
210-212-3600
korbellaw@hotmail.com
Counsel for Plaintiff League of United Latin
American Citizens
Nina Perales
Marisa Bono
Rebecca McNeill Couto
Mexican American Legal Defense
and Education Fund
110 Broadway, Suite 300
San Antonio, TX 78205
(210) 224-5476
nperales@maldef.org
mbono@maldef.org
rcouto@maldef.org
Nicolas Espiritu
634 S. Spring Street, 11th Floor
Los Angeles, CA 90014
Phone: (213)629-2512/ (213)629-0266
nespiritu@maldef.org
Mark Anthony Sanchez
Robert W. Wilson
Gale, Wilson & Sanchez, PLLC
115 East Travis Street, Ste. 1900
San Antonio, TX 78205
masanchez@gws-law.com
rwwilson@gws-law.com
(213) 629-2512
Counsel for Plaintiff Latino Redistricting
Task Force
2
Rolando L. Rios
Law Offices of Rolando L. Rios
115 E Travis Street, Suite 1645
San Antonio, TX 78205
(210) 222-2102
rrios@rolandorioslaw.com
Counsel for Plaintiff Henry Cuellar
Jose Garza
Law Office of Jose Garza
7414 Robin Rest Dr.
San Antonio, TX 78209
(210) 392-2856
garzpalm@aol.com
Mark W. Kiehne
Ricardo G. Cedillo
Davis, Cedillo & Mendoza
755 Mulberry Ave., Suite 500
San Antonio, TX 78212
(210) 822-6666
mkiehne@lawdcm.com
rcedillo@lawdcm.com
Joaquin G. Avila
P.O. Box 33687
Seattle, WA 98133
(206) 724-3731
jgavotingrights@gmail.com
Cynthia B. Jones
Jones Legal Group, LLC
904 12th Ave E.
Seattle, WA 98102
(206) 972-4943
jones.cynthiab@gmail.com
Counsel for Plaintiff Mexican American
Legislative Caucus
Gerald H. Goldstein
Donald H. Flanary, III
Goldstein, Goldstein and Hilley
310 S. St. Mary’s Street, 29th Floor
San Antonio, TX 78205
(210) 226-1463
ggandh@aol.com
donflanary@hotmail.com
Paul M. Smith
Michael B. DeSanctis
Jessica Ring Amunson
Caroline D. Lopez
Jenner & Block LLP
1099 New York Ave., NW
Washington, DC 20001
(202) 639-6000
psmith@jenner.Com
mdesanctis@jenner.Com
jamunson@jenner.Com
clopez@jenner.com
J. Gerald Hebert
191 Somervelle St. # 405
Alexandria, VA 22304
(703) 628-4673
hebert@voterlaw.com
Jesse Gaines
P.O. Box 50093
Fort Worth, TX 76105
(817) 714-9988
Counsel for Plaintiff Jamaal R. Smith
3
Gary L. Bledsoe
Law Office of Gary L. Bledsoe
316 W. 12th Street, Suite 307
Austin, TX 78701
512-322-9992
garybledsoe@sbcglobal.net
Victor L. Goode
NAACP
4805 Mt. Hope Drive
Baltimore, MD 21215
(410) 580-5120
vgoode@naacpnet.org
Robert Notzon
1507 Nueces Street
Austin, TX 78701
(512) 474-7563
robert@notzonlaw.com
Anita Sue Earls
Allison Jean Riggs
Southern Coalition for Social Justice
1415 West Highway 54, Suite 101
Durham, NC 27707
(919) 323-3380
allison@southerncoalition.org
anita@southerncoalition.org
Counsel for Texas State Conference of
NAACP Braches
John T. Morris
5703 Caldicote St.
Humble, TX 77346
(281) 852-6388
johnmorris1939@hotmail.com
Pro Se
Karen M. Kennard
2803 Clearview Drive
Austin, TX 78703
(512) 974-2177
karen.kennard@ci.austin.tx.us
Max Renea Hicks
101 West Sixth Street, Suite 504
Austin, TX 78701
(512) 480-8231
rhicks@renea-hicks.com
Manuel Escobar, Jr.
201 W. Poplar
San Antonio, TX 78212
(210) 212-5592
escobarm1@aol.com
Abha Khanna
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099
(206) 359-8312
akhanna@perkinscoie.com
Marc Erik Elias
Perkins Coie LLP
700 Thirteenth Street N.W., Suite 600
Washington, DC 20005
(202) 434-1609
melias@perkinscoie.com
S. Abraham Kuczaj, III
Stephen E. McConnico
Sam Johnson
Scott Douglass & McConnico, LLP
600 Congress Avenue, 15th Floor
Austin, TX 78701
(512) 495-6300
akuczaj@scottdoug.com
smcconnico@scottdoug.com
sjohnson@scottdoug.com
David Escamilla
Travis County Asst. Attorney
P.O. Box 1748
Austin, TX 78767
(512)854-9416
david.escamilla@co.travis.tx.us
Counsel for Plaintiffs City of Austin et al.
4
Chad W. Dunn
K. Scott Brazil
Brazil & Dunn
4201 FM 1960 West, Suite 530
Houston, TX 77068
(281) 580-6310
chad@brazilanddunn.com
scott@brazilanddunn.com
Counsel for Plaintiff-Intervenors Texas
Democratic Party and Boyd Richie
John K. Tanner
John Tanner Law Office
3743 Military Rd. NW
Washington, DC 20015
(202) 503-7696
Counsel for Plaintiff-Intervenor Texas
Legislative Black Caucus
Donna Garcia Davidson
P.O. Box 12131
Austin, TX 78711
(512) 775-7625
donna@dgdlawfirm.com
Frank M. Reilly
Potts & Reilly, L.L.P.
P.O. Box 4037
Horseshoe Bay, TX 78657
(512) 469-7474
reilly@pottsreilly.com
Counsel for Defendant Steve Munisteri
James A. Babb
1308 Piney Woods
Friendswood, TX 77546
Pro Se
David Schenck
Matthew Frederick
Angela V. Colmenero
Ana M. Jordan
David Mattax
Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, TX 78711
(512) 936-1342
david.schenck@oag.state.tx.us
matthew.frederick@oag.state.tx.us
angela.colmenero@oag.state.tx.us
ana.jordan@oag.state.tx.us
david.mattax@oag.state.tx.us
Counsel for Defendants State of Texas and
Rick Perry
Ned Bennet Sandlin
Texas Municipal League
1821 Rutherford Lane, Suite 400
Austin, TX 78754
(512) 231-7400
bennett@tml.org
Counsel for Movant Texas Municipal
League
5
Hector De Leon
Benjamin S. De Leon
De Leon & Washburn, P.C.
901 S. Mopac, Suite 230
Austin, TX 78746
(512) 478-5308
hdeleon@dwlawtx.com
bdeleon@dwlawtx.com
Eric Christopher Opiela
Eric Opiela PLLC
1122 Colorado St., Suite 2301
Austin, TX 78701
(512) 791-6336
eopiela@ericopiela.com
Christopher K. Gober
Gober Hilgers Pllc
3101 Cedar Springs Rd., Suite 1050
Dallas, TX 75201
(214) 842-6829
cgober@goberhilgers.com
James Edwin Trainor, III
Beirne, Maynard & Parsons, L.L.P
401 W. 15th Street, Suite 845
Austin, TX 78701
(512) 623-6700
ttrainor@bmpllp.com
JOSEPH M. NIXON
Beirne Maynard & Parsons LLP
1300 Post Oak Blvd., Suite 2500
Houston, TX 77056
(713) 871-6809
jnixon@bmpllp.com
Counsel for Plaintiff-Intervenor Joe Barton
and Movants Francisco Canseco et al.
CLARKSON F. BROWN
Bexar County District Attorney’s Office,
101 W Nueva, Suite 5049
San Antonio, TX 78205
(210) 335-2150
clarkb@bexar.org
Counsel for Amicus Curiae Bexar County
/s/ Daniel J. Freeman
DANIEL J. FREEMAN
Attorney, Voting Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 305-4143
daniel.freeman@usdoj.gov