Victory for Civil Rights Redistricting Case in Texas

The Editor: Highlights of Texas v US Redistricting Case August 31

from Bernardo Eureste

 

The Editor:  This is a limited analysis regarding the case that came down yesterday regarding the State of Texa v. the United States involving redistricting in Texas.  See related story here as well.

Texas was trying to argue that state sovereingty in the 10th Amendment trumped voting rights granted under the 15th amendment, that Congress's had overreached with the Voting Rights Act, that Texas' standard to prove a negative, that the Texas redistricting plan did not discriminate against minority voters.  The tone of the case comes down to discrimination, the intent to discriminate when Texas drew up its redistricting maps.  The redistricting maps were in the works even before the Texas Legislative session started.  The goal for the Republican led House of Representatives and the senate was to wire the districts early on, leave no room for debate, short circuit the legislative vetting process, allow no changes to the plan and get it going come what may.  Minority Congressional district offices were purposefully drawn outside of the new configured minority Congressional districts.  Curcial evidence were emails that became part of the record where the Republican legislators and staff were communicating their intents to create redistricting plans that discriminated against Texas minorities.

 

The bigh questing for now is what happens with the districts that were drawn up by the San Antonio federal district court?

VI. Conclusion

"We conclude that Texas has not met its burden to show that the U.S. Congressional and State House Plans will not have a retrogressive effect, and that the U.S. Congressional and State Senate Plans were not enacted with discriminatory purpose. Accordingly, we deny Texas declaratory relief. Texas has failed to carry its burden that Plans C185, S148, and H283 do not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group under section 5 of the Voting Rights Act. " page 72

Quips from the Opinion


I. Background

 

"On July 19, 2011, Texas filed a complaint in this Court seeking a declaratory judgment that its newly enacted redistricting plans for the U.S. House of Representatives (Plan C185 or Congressional Plan), the Texas House of Representatives (Plan H283 or House Plan), and the Texas Senate (Plan S148 or Senate Plan) comply with section 5 of the VRA.  This Court has been properly convened as a three-judge court, 28 U.S.C. § 2284; 42 U.S.C. § 1973c(a), and we took jurisdiction under 42 U.S.C. § 1973c and 28 U.S.C. §§ 1346(a)(2), 2201. After the United St filed answers, Texas moved for summary judgment for all three plans on September 14, 2011. We heard argument on the motion on November 2, 2011, and issued an order denying summary judgment on November 8, 2011. Our memorandum opinion followed on December 22, 2011."  pages 3-4

 

"The same three redistricting plans have been challenged under section 2 of the VRA before a three-judge district court in the Western District of Texas. The State’s population growth and the addition of four seats to its congressional delegation make it impossible for Texas to conduct elections using the district boundaries last approved under section 5. Our denial of Texas’s motion for summary judgment required the district court in the section 2 litigation to draw interim maps for the State’s fast-approaching primaries and the ensuing general election. After the Supreme Court invalidated 

those maps, see Perry v. Perez, 132 S. Ct. 934 (2012), the court issued a second set, which have not been challenged. See Feb. 28, 2012 Order, Perez v. Perry, No. 11-cv-360 (W.D. Tex. filed May 9, 2011), ECF No. 681 (Congressional Plan interim map); Feb. 28, 2012 Order, Perez, No. 11-cv-360, ECF No. 682 (House Plan interim map); Feb.  28, 2012 Order, Davis v. Perry, No. 5:11-cv-00788 (W.D. Tex. filed May 9, 2011), ECF No. 141 (Senate Plan interim map)."   pages 4-5 

 

II. Principles of Section 5 Analysis

A. Retrogression


"Texas must show that its redistricting plans have neither the effect nor the purpose of abridging minority voting rights."  page 5

1. Texas’s Burden of Proof


"Texas must show that its redistricting plans have neither the effect nor the purpose of abridging minority voting rights. "  page 5

"Texas bears the burden of proving by a preponderance of the evidence that its redistricting plans are not retrogressive."  page 72. Election Analysis Methodologies

"The parties have submitted reports and testimony from fourteen experts in fields such as redistricting, election analysis, voting rights law, and the history of voting discrimination in Texas. Although we do not find the analysis of any one expert sufficient to guide our retrogression inquiry, we rely most heavily on the reports and testimony of Dr. Lisa Handley, expert for the United States; Dr. Richard Engstrom, expert for the Texas Latino Redistricting Task Force (TLRTF); and Dr. Stephen Ansolabehere, expert for the Gonzales Intervenors."  page  8

"To explain our use of these experts we address two areas of disagreement between the parties about the merits of the various approaches the experts use: which type of elections to examine and the appropriate sample sets to use."  page 8

 

a. Types of Elections


"Endogenous analysis examines the results of elections held within a district to determine how often minority-preferred candidates succeed."  page 8

"Because endogenous analysis is based on actual election results within a single district, it is necessarily retrospective. It can only be used to determine whether a district in the existing, or benchmark, plan has an ability to elect. It cannot be used to assess whether a proposed district does as well, because a proposed district has not yet conducted any district-wide elections."  page  9 

 

"Exogenous election analysis examines how minority-preferred candidates fared in a particular district in statewide or national elections."  page 9

 

"Take the 2008 presidential election as an example. In a state where minority voters almost always prefer Democratic candidates, exogenous election analysis suggests that minority voters lack an ability to elect in a benchmark district carried by John McCain over Barack Obama. Because exogenous analysis considers results from elections that occur across all districts in a state, such analysis allows comparison between benchmark and proposed districts. Precinct-level data from statewide or national elections can show if the minority-preferred candidate won the benchmark district, and by assembling, or "reconstituting," the precinct-level returns into a district’s proposed new shape, exogenous election analysis can indicate whether the minority-preferred candidate would have won in the proposed district as well."  page  9

 

"Texas urges us to consider exogenous election analysis alone. see Tex. Post-Trial Br. 4-5, but we conclude that endogenous results are often more probative of ability to elect."  page 9 


 

"As Dr. Engstrom explained, exogenous elections are "not a good basis for predicting the specific number of elections in many new districts that will result in Hispanic preferred candidates winning," partly because there are significant contextual differences between exogenous and endogenous elections."  page 9-10 

 

"Likewise, Dr. Handley concluded that "the most essential piece of information" when determining benchmark ability districts "is whether minority voters have been successful at electing their preferred candidates to the legislative office at issue in the district."  page 10

 

"Candidates in endogenous elections live in a particular district and focus their campaigns on local voters. Candidates in statewide elections are likely to make an appeal with a less direct connection to voters in that district. Nationwide contests are even more attenuated. Local connections and direct campaigning, then, may allow a minority-preferred candidate to win an endogenous election in a district the minority-preferred candidate for statewide office could not carry. We agree with Dr. Engstrom and Dr. Handley."  page 10 

 

 

"Given the numerous and difficult-to-quantify factors that go into determining ability to elect, the best evidence is whether and how often minority voters have actually elected their candidate of choice to the position at issue, not the indirect proxy offered by exogenous analysis."  page 10

 

b. Election Analysis Sample Sets

 

3. Statewide Retrogression Analysis

 

 

4. Coalition and Crossover Districts

 a. Section 5 Analysis

 

 

"In a crossover district, a minority group "is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority’s preferred candidate."   page 18

 

 

"The Supreme Court has never directly addressed whether section 5 protects coalition or crossover districts.  A close reading of  Georgia v. Ashcroft, however, suggests that it does."  page  19

 

"In addition, the Court’s jurisprudence under section 2, a distinct yet related provision of the VRA mandating equal opportunity for minority voters to participate in the electoral process, supports protecting coalition and crossover districts under section 5."  page 20

 

 

"In fact, the Court has suggested that such districts will become more common over time, replacing majority-minority districts as waning racial polarization makes it easier for minority voters to elect their preferred candidates even when they do not make up the majority of a district’s voters."  page 20

 

"In other words, "ability" may look different now than it did when the VRA was first enacted. Our responsibility to protect the rights secured by section 5 calls that we be sensitive to these new, but real, forms of minority voting power."  page 20

 

 

"And while section 2 does not demand granting "special protection to a minority group’s right to form political coalitions" or "impose on those who draw election districts a duty to give minority voters the most potential, or the best potential, to elect a candidate by attracting crossover voters," id. at 15, section 5 mandates that we ensure that "the gains thus far achieved in minority political participation [are] not destroyed,"   page 21

b. Standard of Proof

 

"While the first inquiry considers whether minority voters have a candidate of choice, the next inquiry is grounded in a different part of section 5: do minority voters have the "ability to elect" their preferred candidate?"  page 23 

 

 

 

"A coalition district is protected under section 5 if there is sufficient evidence to find that minorities vote cohesively and have the ability to elect their preferred candidates."  page 23 

"A protected crossover district is not created each time Anglos and minorities vote together to elect a candidate."  page 24

 

"With respect to both coalition and crossover districts, we require "more exacting evidence" to prove that minority voters have an ability to elect than we do for majority-minority ability districts."  page 24

 

B. Discriminatory Intent
 
 

"In Reno v. Bossier Parish School Board (Bossier II), 528 U.S. 320 (2000), the Supreme Court considered whether section 5 barred a plan that "would have no retrogressive effect" but "nonetheless . . . was enacted for a discriminatory ‘purpose.’" Id. at 325. The Court held that it did not, concluding that the purpose prong extended only to intent to retrogress, not to all intentional discrimination. Thus, section 5, the Court wrote, would catch only an "incompetent retrogressor," but offered no recourse against a mapdrawer who intended to discriminate against minority voters using methods that did not create retrogression. Id. at 332. In direct response, the 2006 amendments to section 5 clarified that the term "purpose" must be read more broadly and includes "any discriminatory purpose."  page 25

"Texas argues that it should not be required to prove that it lacked any discriminatory purpose. Saddling a state with that burden, so the argument goes, adds too much to the serious federalism costs already imposed by preclearance and could "exceed Congress’ enforcement authority under the Fifteenth Amendment and violate the Tenth Amendment."  page 25

"We acknowledge the substantial federalism costs of section 5, see Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203-04 (2009) (stating that the preclearance remedy implicates serious federalism concerns), and recognize the difficulty of proving a negative. Yet it is settled law that Texas bears the burden of proving lack of discriminatory intent.   See, e.g., Pleasant Grove, 479 U.S. at 469 ("The burden of proving absence of discriminatory purpose and effect is on [the covered jurisdiction]."); City of Rome v. United States, 446 U.S. 156, 183 n.18 (1980) ("Under § 5, the city bears the burden of proving lack of discriminatory purpose and effect."); Beer, 425 U.S. at 140-41; Georgia v. United States, 411 U.S. 526, 538 (1973); South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966). Texas has pointed to no evidence that Congress intended to modify this established understanding.  page 25-26

 

"But we have clear direction how to conduct this "complex task" from Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). See Bossier I, 520 U.S. at 488 ("In conducting [a section 5 purpose] inquiry, courts should look  Arlington Heights  for guidance."); see also H.R. REP. NO. 109-478, at 68 ("[T]he factors set out in [Arlington Heights] provide an adequate framework for determining whether voting changes submitted for preclearance were motivated by a discriminatory purpose . . . .")."     pages 26-27

 

III. Congressional Plan

 

 

A. Retrogression in the Congressional Plan

 

 

"There are thirty-six districts in the enacted Congressional Plan. Certain Intervenors argue that the enacted plan has one fewer ability district than the benchmark because three ability districts — Congressional Districts (CDs) 23, 25, and 27 — are lost and only two ability districts — CDs 34 and 35 — are added. There is no dispute that these two new districts are Hispanic ability districts."  page  27

"Texas agrees that CD 27 is a lost ability district, but disputes that benchmark CDs 23 and 25 are ability districts. Under Texas’s theory, the Congressional Plan results in a net increase of one Hispanic ability district."  pages 27-28


"The United States and certain Intervenors argue that the enacted Congressional Plan retrogresses by failing to draw an additional Hispanic ability district. They assert that CDs 23 and 27, but not CD 25, were Hispanic ability districts in the benchmark whose loss in the enacted plan is offset by the gain of CDs 34 and 35. Nevertheless, in light of the growth in the State’s Hispanic population, they argue that failing to draw one of the four new congressional districts as a Hispanic ability district increases the degree of Hispanic disenfranchisement from the benchmark level and thus violates section 5."  page  28

 

"In addition to these arguments about Hispanic ability districts, some of the Intervenors argue that the Congressional Plan is retrogressive with respect to Black voters as well. All parties agree that CDs 9, 18, and 30 are ability districts for Black voters in both the benchmark and enacted congressional maps. Some of the Intervenors allege that the enacted plan "packed" these districts with Black voters from neighboring jurisdictions that were not performing for minority voters. But because section 5’s effect prong does not prohibit reductions in minority voting power in nonability districts, we find no retrogression in Black ability districts in the Congressional Plan."  page 28



"We do, however, conclude that the enacted Congressional Plan is retrogressive and thus cannot be precleared under section 5."  page 28


1. Congressional District 27
"Benchmark CD 27 includes the cities of Corpus Christi and Brownsville in southeastern Texas. With a Hispanic Citizen Voting Age Population (HCVAP) of 63.8%, Pl.’s Ex. 11, at 9, and, until 2010, a twenty-seven year history of representation by a Hispanic Democrat, benchmark CD 27 is a clear Hispanic ability district."  page 29

"All parties agree that these significant geographic and demographic shifts mean that CD 27 will no longer perform for minority voters. We agree."  page 29

2. Congressional District 23

 
"West Texas’s CD 23 has a complicated history under the VRA. In 2006, the Supreme Court held that CD 23, as then constituted, violated section 2.  See LULAC v. Perry, 548 U.S. 399, 425-42 (2006). In response, the U.S. District Court for the Eastern District of Texas redrew its boundaries in 2006 to be an "opportunity district," one in which  Hispanic voters would have an opportunity to elect their preferred candidates, as required by section 2. See Defs.’ Ex. 575, Trial Tr. 300:13-18, Sept. 7, 2011, Perez, No. 11-cv-360. We now find that the Hispanic voters in CD 23 turned that opportunity into a demonstrated ability to elect, but that the 2010 redistricting took that ability away."  pages29-30
"The mapdrawers consciously replaced many of the district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of CD 23’s Anglo citizens. In other words, they sought to reduce Hispanic voters’ ability to elect without making it look like anything in CD 23 had changed."  page 32

 "See, e.g. Defs.’ Ex. 304 (email from Eric Opiela, counsel to Texas House Speaker Joe Strauss, to mapdrawer Gerardo Interiano in November 2010 urging Interiano to find a metric to "help pull the district’s Total Hispanic Pop[ulation] and Hispanic CVAPs up to majority status, but leave the Spanish Surname [Registered Voter] and [turnout numbers] the lowest," which would be "especially valuable in shoring up [CD 23 incumbent] Canseco"); id. (email from Interiano responding that he would "gladly help with this"); Defs.’ Ex. 739, at 40 (email indicating that Opiela provided sample maps to Interiano as late as June 11, 2011, that would "improve CD 23’s [H]ispanic performance while maintaining it as a Republican district")."  page 33 

"We conclude that CD 23 is a lost ability district."  page 34

 

3. Retrogression with New Congressional Seat

"Texas’s population grew by approximately 4.3 million in the past decade, an increase of 20.6%. Approximately 89% of this growth was from non-Anglo minorities: Hispanics comprise 65% of the increase, Blacks 13.4%, and Asian-Americans 10.1%.   See U.S. Req. for Judicial Notice ¶¶ 8, 20, 22, 24 (citing 2000 and 2010 Census data).23 As a result of this increase, the Texas delegation in the U.S. House of Representatives grew from 32 to 36 members, the largest growth ever in a jurisdiction fully covered by section 5. See Texas, 831 F. Supp. 2d at 257. The United States and various Intervenors argue that Texas was required to draw at least one of these new districts as an ability district. See, e.g., U.S. Post-Trial Br. 14-15. We agree."   page 34

 

"As already discussed, section 5’s prohibition on retrogression means that "the entire [enacted] statewide plan as a whole," Ashcroft, 539 U.S. at 470, cannot "increase the degree of discrimination against [minority voters],"24 City of Lockhart v. United States, 460 U.S. 125, 134 (1983). Abrams v. Johnson, 521 U.S. 74 (1997), tells us how to measure the degree of discrimination when the number of districts remains the same or increases by one: there is no retrogression as long as the number of ability districts remains the same."   page 34 

 

"Upon further examination and after weighing the arguments presented at trial, we have concluded that Texas’s failure to draw a new minority district does in fact make the enacted plan retrogressive under the specific facts of this case."  page 35

 

"In the section 2 context, the Court has looked to the relationship between a minority group’s share of the CVAP statewide and the number of opportunity districts to help determine whether new opportunity districts must be created.   See LULAC, 548 U.S. at 438 ("Looking statewide, there are 32 congressional districts. The five reasonably compact Latino opportunity districts amount to roughly 16% of the total [number of districts], while Latinos make up 22% of  Texas’ citizen voting-age population. . . .  Latinos are, therefore, two districts shy of proportional representation.");  De Grandy, 512 U.S. at 1014 n.11 (examining "the number of majority-minority voting districts [compared] to minority members’ share of the relevant population"). We agree with the United States that this "representation gap" between the number of districts proportional representation would yield and the number of districts the legislature has actually created is a strong indicator of the "degree of discrimination." U.S. Post-Trial Br. 15. When the representation gap grows, the degree of discrimination increases."  pages 35-36   

 

 

"By contrast, the representation gap in Texas has increased. The Black and Hispanic communities currently make up 39.3% of Texas’s CVAP. Joint Stipulations of Fact ¶ 38. Thus, if districts were allocated proportionally, there would be 13 minority districts out of the 32 in the benchmark (39.3% of 32 is 12.6). Yet minorities have only 10 seats in the benchmark, so the representation gap is three districts."  page 36

 

"Yet minorities have only 10 seats in the benchmark, so the representation gap is three districts. In the enacted plan, proportional representation would yield 14 ability districts (39.3% of 36 is 14.1), but there are still only 10 ability districts.27 Thus, the representation gap in the enacted plan is four districts. Because this gap increases by one district, we cannot preclear the enacted plan.28"  pages 36-37    

 

B. Discriminatory Intent in the Congressional Plan

 

 

"Although we need not reach the issue of discriminatory intent because we conclude that the ongressional Plan will have a retrogressive effect, we do so here because, as we have just discussed, we do not all agree on the appropriate rationale for finding retrogression. But because we agree that the plan was enacted with discriminatory purpose, we reach this issue as an alternative, unanimous basis to deny preclearance for the Congressional Plan. If true, the allegations of the United States and the Intervenors that Texas drew the Congressional Plan with discriminatory purpose provide grounds to deny reclearance. Texas argues that intent to discriminate against minority voters played no role in the plan and that its decisions were motivated solely by partisan politics. See, e.g., Tex. Post-Trial Br. 26 (“Texas adopted the Congressional Plan with the lawful aim of protecting incumbents.”). "  page 38

"There is no direct evidence that the enacted plan was motivated by discriminatory purpose; no emails, letters, or testimony about conversations between those members involved in congressional redistricting disclose such an intent. Cf. Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011) (“Direct evidence is something close to an explicit admission . . . that a particular decision was motivated by discrimination; this type of evidence is rare, but it‘uniquely reveals’ the . . . intent to discriminate.” (quoting Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 720 (7th Cir. 2005))). Thus, we must assess the circumstances surrounding the drawing of the new maps. Our analysis follows the Supreme Court’s decision in Arlington Heights, which, as discussed in more detail above, identifies five “subjects of proper inquiry in determining whether racially discriminatory intent existed”: (1) discriminatory impact, (2) historical background, (3) sequence of events leading up to the decision, (4) procedural or substantive deviations from the normal decisionmaking process, and (5) contemporaneous viewpoints expressed by the decisionmakers. Arlington Heights, 429 U.S. at 266-68."  pages 38-39

"that removing district offices from minority ability districts but not from Anglo districts has a disparate impact on the minority districts." page 40
 

"Removing those economic generators harms the district." page 40

 

"The improbability of these events alone could well qualify as a "clear pattern, unexplainable on grounds other than race," Arlington Heights, 429 U.S. at 266, and lead us to infer a discriminatory purpose behind the Congressional Plan." page 41
 

"The improbability of these events alone could well qualify as a "clear pattern, unexplainable on grounds other than race," Arlington Heights, 429 U.S. at 266, and lead us to infer a discriminatory purpose behind the Congressional Plan." page 41


"First, the historical background gives us grounds for concern. In the last four decades, Texas has found itself in court every redistricting cycle, and each time it has lost." page 41


"Next, the sequence of events leading to the passage of the Congressional Plan also supports an inference of discriminatory purpose." page 41 

"Black and Hispanic members of Congress testified at trial that they were excluded completely from the process of drafting new maps, while the preferences of Anglo members were frequently solicited and honored." page 41

"Lastly, procedural and substantive departures from the normal decisionmaking process raise flags." page 42
 

"Arlington "Texas did not adequately engage with the evidence raised by the other parties on this point, and under Arlington Heights we find sufficient evidence to conclude that the Congressional Plan was motivated, at least in part, by discriminatory intent.32 " page 42

 

"Therefore, we deny Texas declaratory judgment with respect to the Congressional Plan on this ground as well." page 42

B. Discriminatory Intent in the Senate Plan 

   

"There is no direct evidence that the Texas legislature acted with a racially discriminatory purpose in its reconfiguration of SD 10, and so we must look to circumstantial evidence. Once again, we look to the Arlington Heights factors to determine whether Texas has met its burden of disproving discriminatory intent." page 45

 
"Considering first the impact of the redistricting — "whether it ‘bears more heavily on one race than another,’" Arlington Heights;" Washington v. Davis, 426 U.S. 229, 242 (1976)), there is little question that dismantling SD 10 had a disparate impact on racial minority groups in the district. Even Dr. Alford agreed that the enacted plan "diminishes the voting strengths of Blacks and Latinos in [SD 10]," Trial Tr. 39:14, Jan. 25, 2012 AM. In a letter he sent to the Department of Justice objecting to the enacted Senate Plan, Texas State Senator Rodney Ellis explained in detail how the new boundaries eliminate the ability of minority citizens to elect their preferred candidates by submerging their votes within neighboring and predominantly Anglo districts:"

"The demolition of District 10 was achieved by cracking the African American and Hispanic voters into three other districts that share few, if any, common interests with the existing District’s minority coalition. The African American community in Fort Worth is "exported" into rural District 22 — an Anglo-controlled District that stretches over 120 miles south to Falls [County]. The Hispanic Ft. Worth North Side community is placed in Anglo suburban District 12, based in Denton County, while the growing South side Hispanic population remains in the reconfigured majority Anglo District 10." Texas State Senator Rodney Ellis page 46

"Texas does not deny this disparate impact, but responds that its decision to "crack" SD 10 is best explained by partisan, not racial, goals. Tex. Post-Trial Br. 25. While this is a potentially plausible

Arlington Heights instructs that "[d]etermining whether invidious discriminatory purpose was a rationale, motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available," and so we must "look to the other evidence." 429 U.S. at 266. pages 46-47

"These other factors do not support Texas’s case. The second factor is Texas’s history of discrimination, and as we discussed in our analysis of the Congressional Plan above, history is not on Texas’s side. The third considers the "specific sequence of events leading up to the challenged decision." page 47

"Texas offered conflicting testimony in response. Doug Davis testified that "we were not printing maps and giving them to members," Trial Tr. 172:10-11, Jan. 17, 2012 PM, suggesting that at least part of this informal process that gave Republican senators opportunities to provide input into the plans did did not occur. 34 But Chairman Seliger, Davis’s boss, testified that he provided paper maps to at least three senators during this period, all of them Anglo. Trial Tr. 68:1-3, Jan. 24, 2012 AM. In any case, it is clear that senators who represented minority districts were left out of the process." page 47-48

"We conclude that Texas has not shown that the Senate Plan was enacted without discriminatory intent." page 50

"We find it telling that the legislature deviated from typical redistricting procedures and excluded minority voices from the process even as minority senators protested that section 5 was being run roughshod. One would expect a state that is as experienced with VRA litigation as Texas to have ensured that its redistricting process was beyond reproach. That Texas did not, and now fails to respond sufficiently to the parties’ evidence of discriminatory intent, compels us to conclude that the Senate Plan was enacted with discriminatory purpose as to SD 10." page 51

 

B. Discriminatory Intent in the State House Plan

 

 

"Because of the retrogressive effect of the State House Plan on minority voters, we do not reach whether the Plan was drawn with discriminatory purpose. But we note record evidence that causes concern. First, the process for drawing the House Plan showed little attention to, training on, or concern for the VTR. See, e.g., Trial Tr. 61:1-66:23, Jan. 20, 2012 PM. And despite the dramatic population growth in the State’s Hispanic population that was concentrated primarily in three geographic areas, Texas failed to create any new minority ability districts among 150 relatively small House districts." page 70

 

"These concerns are exacerbated by the evidence we received about the process that led to enacted HD 117. As detailed above, the mapdrawers modified HD 117 so that it would elect the Anglo-preferred candidate yet would look like a Hispanic ability district on paper. They accomplished this by switching high-turnout for low-turnout Hispanic voters, hoping to keep the SSVR level just high enough to pass muster under the VRA while changing the district into one that performed for Anglo voters. This testimony is concerning because it shows a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote." page 70-71

 

"Finally, the incredible testimony of the lead House mapdrawer reinforces evidence suggesting mapdrawers cracked VTDs along racial lines to dilute minority voting power. Texas made Interiano’s testimony the cornerstone of its case on purpose in the House Plan. Trial Tr. 45:22-25, Jan. 17, 2012 AM ("[O]ur [discriminatory purpose] case rests largely on the credibility of one person. His name is Gerardo Interiano."). Interiano spent close to a thousand hours — the equivalent of six months of full-time work — training on the computer program Texas used for redistricting, id. at 131:3-5, yet testified that he did not know about the program’s help function, id. at 85:18-25, Jan. 25, 2012 PM, or of its capability to display racial data at the census block level, id. at 93:13-19, Jan. 17, 2012 PM. As unequivocally demonstrated at trial, this information was readily apparent to even a casual user, let alone one as experienced as Interiano. See id. at 93:1-15; id. at 88:5-89:17, Jan. 25, 2012 PM. The implausibility of Interiano’s professed ignorance of these functions suggests that Texas had something to hide in the way it used racial data to draw district lines. The data about which Interiano claimed ignorance could have allowed him to split voting precincts along racial (but not political) lines in precisely the manner the United States and the Intervenors allege occurred." page 71

 

"This and other record evidence may support a finding of discriminatory purpose in enacting the State House Plan. Although we need not reach this issue, at minimum, the full record strongly suggests that the retrogressive effect we have found may not have been accidental. " page 71

VI. Conclusion

"We conclude that Texas has not met its burden to show that the U.S. Congressional and State House Plans will not have a retrogressive effect, and that the U.S. Congressional and State Senate Plans were not enacted with discriminatory purpose. Accordingly, we deny Texas declaratory relief. Texas has failed to carry its burden that Plans C185, S148, and H283 do not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group under section 5 of the Voting Rights Act. " page 72