UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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STATE OF TEXAS,

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Plaintiff,

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v.

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UNITED STATES OF AMERICA,

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and ERIC H. HOLDER, in his

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official capacity as Attorney General )

of the United States

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Defendants, and

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Wendy Davis, et. al.,

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Intervenor-Defendants.

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Civil Action No. 11-1303 (TBG-RMC-BAH)

MEMORANDUM OPINION Before: GRIFFITH, Circuit Judge, COLLYER and HOWELL, District Judges. Opinion for the Court filed by Circuit Judge GRIFFITH, in which District Judge HOWELL joins and District Judge COLLYER joins all except section III.A.3. Separate opinion for the Court with respect to retrogression in Congressional District 25 filed by District Judge HOWELL, in which District Judge COLLYER joins. Dissenting opinion with respect to retrogression in Congressional District 25 filed by Circuit Judge GRIFFITH. Appendix filed by District Judges COLLYER and HOWELL, in which Circuit Judge GRIFFITH joins.

Opinion for the Court by GRIFFITH, Circuit Judge:
Table of Contents
I. Background.............................................................................................................................. 3 II. Principles of Section 5 Analysis ............................................................................................. 5
A. Retrogression..................................................................................................................... 5 1. Texas’s Burden of Proof............................................................................................. 7 2. Election Analysis Methodologies ............................................................................... 8 a. Types of Elections ....................................................................................................... 8 b. Election Analysis Sample Sets ................................................................................. 11 3. Statewide Retrogression Analysis ........................................................................... 13 4. Coalition and Crossover Districts ........................................................................... 18 a. Section 5 Analysis ..................................................................................................... 18 b. Standard of Proof ..................................................................................................... 22
B. Discriminatory Intent ..................................................................................................... 25 III. Congressional Plan .............................................................................................................. 27
A. Retrogression in the Congressional Plan ...................................................................... 27 1. Congressional District 27 ......................................................................................... 29 2. Congressional District 23 ......................................................................................... 29 3. Retrogression with New Congressional Seats ........................................................ 34
B. Discriminatory Intent in the Congressional Plan ........................................................ 38 IV. State Senate Plan ................................................................................................................. 43
A. Retrogression in the Senate Plan ................................................................................... 43 B. Discriminatory Intent in the Senate Plan ..................................................................... 45 V. State House Plan................................................................................................................... 51 A. Retrogression in the State House Plan .......................................................................... 51
1. Alleged Retrogressive Districts................................................................................ 51 a. State House District 33 ............................................................................................. 51 b. State House District 35 ............................................................................................. 53 c. State House District 41 ............................................................................................. 55 d. State House District 117 ........................................................................................... 58 e. State House District 149 ........................................................................................... 60 f. State House Districts 26, 106, and 144 .................................................................... 66
2. Alleged New Ability Districts................................................................................... 67 B. Discriminatory Intent in the State House Plan ............................................................ 70 VI. Conclusion ............................................................................................................................ 72
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The latest Census reports that since 2000 the population of Texas grew by over four million. This dramatic increase required the Texas legislature to create new voting districts for the four seats added to the State’s congressional delegation, U.S. CONST. art. I, § 2, cl. 3; id. amend. XIV, § 2, and draw new boundaries for the state and congressional voting districts to comply with the mandate of one-person, one-vote, see Georgia v. Ashcroft, 539 U.S. 461, 488 n.2 (2003).
Because Texas is a covered jurisdiction under section 5 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. § 1973, the Attorney General of the United States or a three-judge panel of this Court must approve, or “preclear,” any redistricting plan before it can take effect. Id. § 1973c(a). Texas chose not to seek administrative preclearance and instead seeks from this Court a declaratory judgment that its redistricting plans will neither have “the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [language minority group].” Id. The United States opposes preclearance of the redistricting plans for Texas’s congressional delegation and the State House of Representatives, but has no quarrel with the plan for the Texas Senate. Seven Intervenors raise a variety of challenges that collectively encompass all three plans. We conclude that Texas has failed to show that any of the redistricting plans merits preclearance.1
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
1 Texas sought declaratory judgment that the three plans comply with section 5 in counts two, three, and four of the complaint. In its first count, Texas also sought from this Court preclearance of its redistricting plan for the State Board of Education. No party objected to the plan, either in their written answers or during a conference call the Court held with the parties on September 21, 2011. With no opposition and satisfied that the State Board of Education plan complies with section 5, we granted preclearance for that plan on September 22, 2011. See Minute Entry Order, Sept. 22, 2011.
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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 States and several Intervenors2 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.
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.
2 This Court has granted Defendant-Intervenor status to seven parties, each of whom challenges various aspects of some or all of Texas’s proposed plans in their capacities as individual voters, elected state representatives, or civil rights advocacy groups. The Davis Intervenors are Texas State senators and representatives from districts in the Fort Worth area. The Mexican American Legislative Caucus is a caucus in the Texas House of Representatives. The Gonzales Intervenors are a group of Hispanic and Black Texas voters. The Texas Legislative Black Caucus is composed of seventeen members of the Texas House of Representatives. The Texas Latino Redistricting Task Force is a group of Hispanic organizations focusing on redistricting and voter registration. The Texas State Conference of NAACP Branches and the League of United Latin American Citizens are civil rights and advocacy groups concerned with minority voting rights in Texas.
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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).
Meanwhile, after expedited discovery, this Court sat for trial January 17-26, 2012, with closing arguments on January 31, 2012.3 The voluminous trial record includes evidence taken in open court, party exhibits, expert reports, post-trial briefing, and designated portions of the transcript from the section 2 trial in Texas.4 After reviewing this record and carefully considering the arguments of all parties, we now deny Texas preclearance and enter judgment for the defendants.
In the discussion that follows, we do not recount the extensive background of the Voting Rights Act or of this case. Much of that is contained in our opinion at summary judgment. In addition, we do not repeat many of the factual findings set out in the appendix to this opinion. Using the framework for applying section 5 described in our summary judgment opinion, we first address a series of legal issues that remain outstanding after trial about what section 5 requires for preclearance. Then, we examine the Congressional, Senate, and House Plans in turn.
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. 42 U.S.C. § 1973c(a). We will take up the “purpose” prong below in section B. The goal of the “effect” prong is “to insure that no voting-procedure changes
3 Given the parties’ unanimous desire to proceed quickly to trial but faced with scheduling constraints from the panel members’ previously scheduled proceedings, the Court adopted a trial schedule in which all three judges heard evidence during the first four days of trial and two judges heard evidence the last four days, with the third judge reviewing the evidentiary record and transcript from those days. All three judges were present for closing arguments. The Court divided trial time so that Texas and the United States and the Intervenors would have equal time for argument when all three judges were physically present. No party raised an objection to these arrangements.
4 The full record in this case runs many thousands of pages, including over a thousand exhibits introduced by the parties.
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would be made that would lead to a retrogression in the position of racial minorities with respect
to their effective exercise of the electoral franchise,” Beer v. United States, 425 U.S. 130, 141
(1976), regardless of whether the change was intended to do so. “Effective exercise,” in turn, has
long been understood to include not only the “ability of minority groups to participate in the
political process,” but also the ability “to elect their choices to office.” Id. (quoting H.R. REP.
NO. 94-196, at 60 (1975)). In the most recent reauthorization of the VRA, Congress further
reinforced the meaning of the effect prong by stating that minority voters’ “ability to elect” their
candidates of choice is the appropriate measure of whether a proposed change will be
retrogressive. See 42 U.S.C. § 1973c(b) (stating that section 5 blocks voting changes that
diminish minority citizens’ “ability . . . to elect their preferred candidates of choice”), id.
§ 1973c(d) (explaining that the “purpose of subsection (b) . . . is to protect the ability of
[minority] citizens to elect their preferred candidates of choice”).
As we explained in our summary judgment opinion, ensuring that a proposed plan will
not undo the gains minority voters have achieved in electoral power requires a multi-factored,
functional analysis. Texas v. United States, 831 F. Supp. 2d 244, 262-64 (D.D.C. 2011). A
single-factor inquiry, such as the test Texas proposed relying on racial and ethnic population
statistics alone, is inconsistent with precedent and too limited to provide an accurate picture of the on-the-ground realities of voting power.5 Id.; see also, e.g., Ashcroft, 539 U.S. at 480 (“The
5 Indeed, analysis of the full record developed at trial has made it more clear that the test Texas initially proposed is insufficient to measure whether minority voters have an ability to elect. Several districts in the proposed plans show that population statistics alone rarely gauge the strength of minority voting power with accuracy. For example, the discussion that follows shows that Congressional District 23 and House District 117 were selectively drawn to include areas with high minority populations but low voter turnout, while excluding high minority, high turnout areas. Such districts might pass a retrogression analysis under Texas’s population demographics test (40% Black Voting Age Population or 50% Hispanic Citizen Voting Age Population as sufficient to establish ability status), even though they were engineered to decrease minority voting power. The 65% presumption of ability status we employ, discussed further below, is less susceptible to such problems. Our threshold is significantly higher than Texas’s proposed 50% test, and where it is met a district is only presumptively an ability district, not conclusively
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ability of minority voters to elect a candidate of their choice is important but often complex in
practice to determine.”). We do not repeat here the rationale for our conclusion, but instead
address the additional arguments raised at trial about the appropriate standard to determine
retrogression.
1. Texas’s Burden of Proof
Texas bears the burden of proving by a preponderance of the evidence that its redistricting plans are not retrogressive.6 City of Pleasant Grove v. United States, 479 U.S. 462,
469 (1987). Texas does not deny that it bears this burden. Instead, relying on the Supreme
Court’s observation that a state is entitled to select its “own method of complying with the
Voting Rights Act,” Bartlett v. Strickland, 556 U.S. 1, 23 (2009) (plurality opinion), Texas
claims that “the flexibility to choose one theory of effective representation over the other,”
Ashcroft, 539 U.S. at 482, gives it significant latitude in how to prove its case. Tex. Post-Trial
Br. 3.
We agree that section 5 does not interfere with many of the policy judgments a state must
make during redistricting, such as whether to retain an ability district — a district in which
minority citizens have the ability to elect their preferred candidates — or create a new one
elsewhere. Yet Texas takes this point too far, claiming that the prerogative to choose among
methods of redistricting extends to the type of evidence we should use to measure retrogression.
so. The 65% presumption may be rebutted by other factors, such as voter turnout, that indicate the district is not effective for minority voters.
6 Significantly, the State’s expert, Dr. John Alford, declined to offer an opinion on whether the enacted plans are retrogressive, even when this Court directly questioned him on the point. He testified that his analysis provided only the first steps in the more complicated inquiry this Court must undertake, refused to offer an opinion on the number of districts protected by section 5 in the existing and enacted plans, and stated he was not offering an answer to the question whether the enacted plans preserve the current degree of ability to elect. See Trial Tr. 63:21-67:10, 94:21-96:25, Jan. 24, 2012 PM. The State’s failure to produce testimony showing the enacted plans are not retrogressive may well be sufficient for us to find that Texas has not met its burden of proof under section 5. Nevertheless, because we find that the trial record is sufficient to show that the enacted plans cannot be precleared, this failing is not the only ground for our conclusions.
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For example, Texas argues that we must defer to its decision to use the results of statewide elections to measure compliance with section 5. Id. at 5. We disagree. Ashcroft holds that states may choose between “theor[ies] of effective representation,” 539 U.S. at 482 (emphasis added), but gauging effectiveness is a legal judgment that we must make. Texas is entitled to advocate its preferred methods of measuring minority voting strength, and we address those arguments below, but we need not defer to a state’s legal theory on how best to measure minority voters’ ability to elect. That is a measure at the heart of the preclearance analysis that section 5 has left to the Attorney General or the judiciary.
2. 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. We find their methodologies sound and their conclusions helpful to our analysis of the State’s redistricting. 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.
a. Types of Elections Endogenous analysis examines the results of elections held within a district to determine how often minority-preferred candidates succeed.7 See, e.g., Defs.’ Ex. 326, Dr. Lisa Handley, A
7 All parties have agreed throughout this litigation that minority voters in Texas vote overwhelmingly Democratic, and thus there is generally no dispute about the identity of minority-preferred candidates in a given
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Section 5 Voting Rights Analysis of the Proposed Texas State House Plan 3 [hereinafter Handley House Rep.]. 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 districtwide elections.
Exogenous election analysis examines how minority-preferred candidates fared in a particular district in statewide or national elections. See, e.g., Pl.’s Ex. 175, Direct Written Test. of Dr. John Alford 5-6 [hereinafter Alford Rep.]. 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.
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. As Dr.
district. See, e.g., Trial Tr. 12:8-14, Jan. 17, 2012 AM (State’s opening statement, noting that “in virtually all of the elections in fact, all of the elections you’re going to hear about during this trial” the Hispanic-preferred candidate was the Democrat). In light of the parties’ agreement on this point, as a general matter we do not address the racially polarized voting data that makes this point. In the few districts in which there is a dispute over who is the candidate of choice of minority voters, discussed further below, we credit Dr. Handley’s assessment, which is based on her analysis of racial bloc voting in the districts.
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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. Defs.’ Ex. 747, Rebuttal Report of Dr. Richard Engstrom 6 [hereinafter Engstrom Reb. Rep.]. 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.” Defs.’ Ex. 794, Rebuttal Report of Dr. Lisa Handley to Supplement Expert Report of Dr. John Alford 3 [hereinafter Handley Reb. Rep.]. 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. 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.
Texas argues that endogenous analysis is an “impracticable” tool because it is available only for benchmark plans and does not provide the “common unit of measurement” available with exogenous results. Tex. Post-Trial Br. 4. As we have stated, we agree that endogenous elections are not well suited to prospective analysis, but when predicting the impact of redistricting changes on minority voters’ ability to elect, more information is better than less. We should not discount the powerful evidence of minority voting power that endogenous elections
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provide in favor of a single tool that may be a less accurate gauge. When endogenous and exogenous analyses yield different results, we will give special attention to other relevant characteristics of the voting district.
Texas argues that endogenous analysis may overvalue minority voting power and undervalue the advantage of incumbency in districts where the minority-preferred candidate has been repeatedly reelected. See id. at 5. We disagree with the premise that an incumbent’s advantage does “not bear on the ability-to-elect inquiry.” Id. The advantage incumbents enjoy during reelection campaigns is a factor that minority voters, like any other voters, often use to help elect their preferred candidate. Ability to elect is not less real simply because subsequent elections are easier to win than the first. Texas raises the more specific objection that endogenous results may be misleading in a district in which ability status is closely contested if a long-term incumbent plans to retire. Id. Yet as our analysis below bears out, our finding that endogenous elections are particularly probative evidence does not mean that a high endogenous score automatically implies ability status. Careful consideration of all factors matters, especially in close cases.
We thus see no reason to exclude all endogenous election data from our analysis, nor to weigh exogenous data more heavily. Both types of data provide information about whether minority voters are or will be able to participate in the political process.
b. Election Analysis Sample Sets The experts also vary widely in which elections they used for their sample sets. All use a similar methodology for their exogenous analysis. Starting with the boundaries in the benchmark plan, they count the number of times the minority-preferred candidate carried the district. Reconfiguring the districts by regrouping precincts as called for in the enacted plan, their
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analyses then look to see how many times the minority-preferred candidate would have carried
that district. Outcomes are determined by inputs, of course, and whether the analysis shows an
ability to elect turns on variations in the sample set such as the number of elections chosen, the
length of time they span, whether the sample is weighted toward more recent contests, and the
offices at stake. For example, Texas’s expert, Dr. Alford, relies on reconstituted election results
from a set of ten statewide elections weighted toward more recent years provided by the Texas Office of the Attorney General (the OAG 10). See Alford Rep. 9 tbl.2.8 Texas argues that we
should give greatest weight to these exogenous results because they used a larger data set and relied more heavily on recent elections than did any other expert in the case.9 Tex. Post-Trial
Br. 5.
Although we agree that a larger data set generally improves accuracy, we are not
persuaded that the OAG 10 is the best indicator of minority voting strength. A preference for
recent elections may in fact distort the results. Dr. Handley, the expert for the United States,
cautions against giving more weight to some years than others. To do so, she warns, would allow
atypical election years to skew the picture of long-term minority voting power. See Handley Reb.
Rep. 4 n.6. This caution is especially appropriate here because three of the OAG 10 elections are
from the 2010 election cycle. As the evidence in this case shows, 2010 was an unusual year with
8 The OAG 10 includes one 2002 contest; two contests each from 2004, 2006, and 2008; and three contests from 2010. Dr. Alford’s analysis includes results using all ten of these contests, and also using only the five most recent elections on this list. See Alford Rep. 8-9.
9 Texas’s reliance on the OAG 10 exogenous analysis is a litigation position; the record is clear that this functional election analysis played little to no role in the map-drawing process itself. The OAG did not identify which districts were protected in the benchmark plans or even how many benchmark ability districts existed. In fact, the only evidence that analysis was performed regarding these critical facts was testimony from the primary House mapdrawer, Gerardo Interiano, that he made an effort to identify Hispanic ability districts in the benchmark. Trial Tr. 25:5-26:10, Jan. 17, 2012 PM. Both Interiano and the other main mapdrawer, Ryan Downton, testified that they did not look at the OAG 10 analysis of the benchmark and enacted districts until their work was essentially complete. See id. at 57:17-25, Jan. 18, 2012 AM; Trial Tr. 14:51-52, Perez, No. 11-cv-360, Sept. 12, 2011. And there is no evidence that the legislators and mapdrawers made any modifications to the proposed district lines when they did consult the OAG 10 analysis late in the process.
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low Democratic turnout in which Republicans won several seats that had long been held by Democrats. See, e.g., Defs.’ Ex. 776, Seliger Dep. 15:1-7, Sept. 1, 2011, Perez, No. 11-cv-360 [hereinafter Seliger San Antonio Dep.] It is too soon to tell if 2010 was an aberration or marked the start of a lasting change in Texas politics.
Our concerns with the OAG 10 extend to the other sample sets used by the parties’ experts. Dr. Engstrom’s exogenous election sample also places greater weight on recent years, considering elections from only 2006-2010. See Defs.’ Ex. 726, Supplemental Expert Report of Dr. Richard Engstrom 2 [hereinafter Engstrom Suppl. Rep.]; Defs.’ Ex. 799, Dr. Richard Engstrom Analysis: Retrogression in State’s Adopted House Plan [hereinafter Engstrom Chart]. And all the experts in this case use relatively small sample sets. Dr. Handley, for example, uses only five elections from 2002-2010, and Dr. Engstrom uses just seven general elections. Handley House Rep. 3-4; Engstrom Suppl. Rep. 2; Engstrom Chart. Where there are so many elections from which to choose — the record contains analysis using races ranging from governor to railroad commissioner — it is hard to assess the merits of any one expert’s data when the sample sets are small and often do not overlap. In short, we are uncomfortable relying exclusively on the exogenous analysis of any single expert. Our solution is to consider the exogenous results from all three of these sources — the OAG 10, Dr. Handley, and Dr. Engstrom — as well as the analysis for the Congressional Plan conducted by Dr. Stephen Ansolabehere, the expert for the Gonzales Intervenors, finding all to be probative but none dispositive.
3. Statewide Retrogression Analysis As the Supreme Court has made clear, our analysis of minority voting power “must encompass the entire statewide plan as a whole.” Ashcroft, 539 U.S. at 479. Section 5 is not concerned with the location of particular ability districts, but rather with whether the enacted
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plan, in its entirety, preserves minority voters’ ability to elect. In other words, section 5 allows a state to dismantle an ability district as long as it offsets that loss by drawing a new ability district elsewhere.
But Texas asks us to expand this principle to a point that is inconsistent with section 5. Texas’s expert submitted two reports to the Court, one at summary judgment and another at trial. His first report counted any district in which the number of registered Hispanic voters exceeded 50% or the Black Voting Age Population (BVAP) exceeded 40% as an ability district, without giving attention to actual election performance. See Texas, 831 F. Supp. 2d at 263 n.23. After we rejected this single-factor test, Dr. Alford changed tack in his trial report, which uses what he calls a “statewide functional analysis.” See Alford Rep. 7. Rather than determine if particular districts are ability districts, Dr. Alford’s latest approach examines changes in the degree of minority voting power across the entire plan. Using the benchmark ability districts the United States listed, Dr. Alford counted every instance in which a minority-preferred candidate carried the district in an exogenous election. He then counted how many times the minority-preferred candidate would have carried the district in the enacted plan. If the total number of “wins” in the enacted plan meets or exceeds the number in the benchmark, Dr. Alford concludes that the plan is not retrogressive. See id. at 7-12. Dr. Alford contrasts his statewide approach to what he calls the “binary” approach of every other expert in the case. Those experts examine each district individually, using exogenous results as one factor when determining if a district is an ability district. See id. at 12-13. They then compare the number of ability districts in the benchmark map with the number in the proposed plan. Dr. Alford’s method counts election victories across all districts and does not label a district as “ability” or not. Texas argues this approach is superior
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to the “blunt technique” of the binary method because it “captures the degree of minority voting strength across all relevant districts.” Tex. Post-Trial Br. 6.
Perhaps, but this approach is a variation on the type of retrogression analysis that Congress rejected when it amended the VRA in 2006. In Georgia v. Ashcroft, 539 U.S. 461 (2003), the Supreme Court concluded that courts “should not focus solely on the comparative ability of a minority group to elect a candidate of its choice,” but instead should consider the “totality of the circumstances” regarding minority participation in the electoral process. Id. at 479-80. Specifically, the Court concluded that states could draw maps containing a combination of two different types of districts to satisfy section 5: traditional majority-minority districts, and “influence districts,” which are not ability districts, but rather those in which minority voters play a “substantial, if not decisive, role in the electoral process.” Id. at 480-83.
Congress rejected this holding in 2006 when it reauthorized section 5, making it clear that retrogression is not concerned with the degree of influence minority voters exert, but with their ability to elect their preferred candidates. See 42 U.S.C. § 1973c(b) (stating that voting changes must not diminish minority citizens’ “ability . . . to elect their preferred candidates of choice”), id. § 1973c(d) (defining subsection (b)’s purpose as protecting “the ability of [minority] citizens to elect their preferred candidates of choice”). The House Report explained that the 2006 amendments were a response to Georgia v. Ashcroft, which allowed “the minority community’s own choice of preferred candidates to be trumped by political deals struck by State legislators purporting to give ‘influence’ to the minority community while removing that community’s ability to elect candidates.” H.R. REP. NO. 109-478, at 69 (2006). Congress decided that “[p]ermitting these trade-offs is inconsistent with the original and current purpose of Section 5.” Id.; see also id. at 68-72; S. REP. NO. 109-295, at 18-20 (2006) (stating that the amendments
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“clarify that [section 5] protects the ability of minority voters ‘to elect their preferred candidates of choice,’” id. at 19). Congress does not view “ability to elect” in degrees; states may not add up districts in which minority voters have “partial” ability to elect to satisfy section 5. Instead, Congress views ability status as an on-off switch: minority voters either have an ability to elect in a district or they do not.
Endorsing Dr. Alford’s analysis would be a return to the approach Congress rejected in 2006. Consider, for example, a benchmark map with three districts. In two of the districts, minority voters elect their preferred candidates in six out of ten elections in a sample set, but in the third, they fail to win a single election. In all three districts in the enacted plan, minoritypreferred candidates win in four out of the ten elections. A traditional binary approach would likely conclude that the benchmark map has two ability districts (where minority voters can elect their candidate of choice more often than not), and the enacted plan has no ability districts, just three influence districts. Such a plan would be clearly retrogressive under the current version of section 5. Yet Dr. Alford’s approach would show no retrogression because the total number of minority electoral victories remains the same (6 + 6 + 0 = 12 in the benchmark; 4 + 4 + 4 = 12 in the enacted).
Texas argues that Dr. Alford’s approach yields better policy results, but such determinations belong to Congress, not the courts. In any event, the “benefits” Texas touts are illusory. Texas argues that the binary approach “ignores gradations in minority abilities to elect and gives States no credit for improving electoral performance in districts that stay above or below the ability-to-elect cutoff.” Tex. Post-Trial Br. 6.10 In other words, Texas seeks credit for
10 This observation is accurate, but we also note that the binary approach runs both ways: under a retrogression analysis, a State may not claim credit for strengthening an ability district, but neither is it penalized for reducing minority voting power in districts that are trending toward minority ability status but have not yet achieved it, as we discuss below with respect to HDs 26, 106, and 144.
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strengthening an already-performing district from, say, six out of ten victories to ten out of ten. Yet giving credit in a scenario like this would allow Texas to use those four “additional” victories to offset a four-election decrease elsewhere. Such an approach would create a legal tool to dismantle ability districts as long as the state increases the effectiveness of others. In short, it would give states credit for packing minority voters into districts. A starker example would be a plan in which six benchmark districts perform for minority voters nine out of ten times, but perform ten out of ten times in the enacted plan. Statewide functional analysis would allow a state to use this six-election “increase” in minority effectiveness to weaken or even destroy ability districts in other parts of the state.
We also find it significant that Dr. Alford can point to no other advocates of his approach within the well-populated field of voting rights and redistricting. Statewide functional analysis is not only foreclosed by the 2006 amendments, but it lies outside accepted academic norms among redistricting experts. See, e.g., Engstrom Reb. Rep. 2-6 (critiquing Dr. Alford’s approach and noting he was “not aware of any analysis, prior to this one by Dr. Alford, by any expert that completely ignores the results of endogenous elections in a benchmark plan in a retrogression analysis,” id. at 2); Handley Reb. Rep. 2-6 (critiquing Dr. Alford’s approach).
Moreover, statewide functional analysis would be much more difficult to administer than the already fact-intensive binary approach because courts would need to make even more precise findings than whether a district is or is not an ability district. Courts would need to determine, for example, the difference between districts with effectiveness levels of 60% and 70%. Dr. Alford claims he can make these fine distinctions based on a district’s electoral performance in the limited set of elections that he chose. Yet as the multitude of experts in this case demonstrates, there is no agreed-upon method to choose how many elections are necessary to demonstrate
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voting strength, much less which elections and over how long a period of time. We lack confidence that we, or any court, would be able to make findings at the level of precision Dr. Alford’s approach requires.
Finally, we reject Texas’s argument that refusing to accept statewide functional analysis would increase the “substantial federalism costs” of preclearance by further limiting state flexibility, at the risk of rendering section 5 unconstitutional.11 See Tex. Post-Trial Br. 7 (quoting Reno v. Bossier Parish Sch. Bd. (Bossier II), 528 U.S. 320 (2000)) (internal quotation marks omitted). The constitutional avoidance canon is no aid to Texas because we are not faced with two competing yet permissible interpretations of section 5. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (describing the interpretative presumption “that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions” (emphasis added)). As we have just discussed, retrogression analysis under section 5 as amended limits our analysis to ability to elect and does not permit us to weigh degrees of effectiveness. We cannot adopt an interpretation at odds with the statutory text to avoid possible constitutional concerns.
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.” Bartlett, 556 U.S. at 13. In a coalition district, two or more minority groups work together to elect their preferred candidate. Id. We held at summary
11 Because Texas has not raised the argument, we have no opportunity in this case to consider whether the federalism costs of preclearance, when weighed against current conditions, call into question the constitutionality of section 5’s remedial scheme. Cf. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202-05 (2009) (noting the Court’s serious concerns that “current needs” may no longer justify the burdens preclearance imposes on covered jurisdictions). The constitutionality of section 5 was neither briefed nor argued to us, and we express no opinion on this significant point. In fact, our Circuit has recently held that section 5 is constitutional. See Shelby Cnty. v. Holder, 679 F.3d 848 (D.C. Cir. 2012).
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judgment that because existing “coalition and crossover districts provide minority groups the ability to elect a preferred candidate, they must be recognized as ability districts in a Section 5 analysis of a benchmark plan.” Texas, 831 F. Supp. 2d at 267-68. Texas asks us to reconsider our ruling in light of Bartlett v. Strickland, 556 U.S. 1 (2009) (plurality opinion), and the Supreme Court’s recent decision in Perry v. Perez, 132 S. Ct. 934 (2012). Having considered the parties’ arguments, we reaffirm our conclusion that coalition and crossover districts are protected under section 5.
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. The Court described districts with “coalitions of voters who together will help to achieve the electoral aspirations of the minority group,” 539 U.S. at 481, concluding that such districts count as “effective representation” for purposes of section 5, just like “safe majority-minority districts.” Id. at 480-82 (“Section 5 gives States the flexibility to choose one theory of effective representation over the other.” Id. at 482.).12 The Court’s statements in Georgia v. Ashcroft are reinforced by the House Report accompanying the 2006 amendments, which spoke of coalition districts as a type of ability district: “Voting changes that leave a minority group less able to elect a preferred candidate of choice, either directly or when coalesced with other voters, cannot be precleared under Section 5.” H.R. REP. NO. 109-478, at 71 (emphasis added).13
12 Although the 2006 amendments rejected the portion of Georgia v. Ashcroft that directed courts to consider factors other than ability to elect in their retrogression analyses, this passage is from the opinion’s earlier section describing ability to elect.
13 As we noted at summary judgment, Senator Kyl wrote separately a week after the passage of the amendments “to explain why [he] believe[d] that Congress cannot require that state or local governments create or retain influence or coalition districts,” S. REP. NO. 109-295, at 22 (additional views of Senator Kyl), but those individual views were filed a week after the VRA had passed both houses of Congress, were not considered by Congress prior to the vote, and were neither adopted nor affirmed by Congress in its findings accompanying the 2006 amendments. See Texas, 831 F. Supp. 2d at 267 n.30.
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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. The Court has long acknowledged the existence of coalition and crossover districts, recognizing at times that they can provide the means for minority voters to elect their candidates of choice. See Johnson v. De Grandy, 512 U.S. 997, 1020 (1994) (describing “communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice” (emphasis added)); Voinovich v. Quilter, 507 U.S. 146, 154 (1993) (describing a district in which a minority group was not large enough to elect its preferred candidate operating alone but could do so if it “attract[ed] sufficient cross-over votes from white voters”).14 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. See De Grandy, 512 U.S. at 1019-20. 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.
Texas argues that the Court’s decision in Bartlett precludes recognizing coalition and crossover districts under section 5. See Tex. Post-Trial Br. 8. But the Bartlett Court only concluded that section 2 does not compel states to draw new crossover districts under section 2, not that states can disregard the existence of established crossover and coalition districts in a
14 In lower court section 2 cases, courts have also frequently referred to coalition and crossover districts using the same adjectives used to describe traditional majority-minority districts, such as “performing,” “effective,” and “ability.” See, e.g., Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 366 F. Supp. 2d 887, 904 (D. Ariz. 2005) (describing this trend).
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section 5 inquiry.15 See Texas, 831 F. Supp. 2d at 267-68. Significantly, Bartlett noted that it did not reach the question of whether states could choose to draw crossover districts “as a matter of legislative choice or discretion,” and cited Georgia v. Ashcroft to show that drawing such districts may be the most effective way to strengthen minority voting power. Bartlett, 556 U.S. at 23. Far from revealing skepticism or hostility toward coalition districts, this language suggests that such districts can increase minority voters’ electoral ability, even while holding that states are not required to draw districts maximizing this potential.
Nor do the Bartlett Court’s concerns under section 2 speak to our task under section 5. Part of the Court’s analysis rested on the difficulties of predicting whether a potential coalition would provide minorities with an opportunity to elect. Id. at 17. Section 5, by contrast, asks whether an existing coalition has achieved an ability to elect. Section 5 does not call on us to guess the future, but to determine whether there is past evidence of a demonstrated ability to elect. 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,” Beer, 425 U.S. at 141 (quoting S. REP. NO. 94-295, at 19 (1975)). To be sure, forcing a state to create crossover districts would reach beyond section 2’s equality mandate, but nothing in Bartlett suggests that courts can turn a blind eye towards a district in which minority voters have already turned electoral opportunity into ability to elect.
15 Bartlett’s holding was limited to crossover districts. It did not analyze coalition districts. See Bartlett, 556 U.S. at 13-14.
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And nothing in Perez extends the reasoning in Bartlett to section 5. Perez held only that the district court had no basis to draw a new coalition district under section 2, without addressing the separate question before us: whether preexisting coalition or crossover districts merit protection under section 5. See Perez, 132 S. Ct. at 944. Thus, although section 2 does not require states to draw new crossover districts, we read section 5’s ban on retrogression to extend protection to districts in which minority voters have demonstrated an ability to elect their preferred candidates via either assembling a coalition or attracting sufficient crossover votes, or both.
b. Standard of Proof As we stated in our summary judgment opinion, proving the existence of coalition and crossover districts “require[s] more exacting evidence than would be needed to prove the existence of a majority-minority district.” Texas, 831 F. Supp. 2d at 268. The discussion that follows explains the test we have applied. At the outset, the minority group or groups must vote cohesively in coalition and crossover districts, just as they must in protected majority-minority districts. See Growe v. Emison, 507 U.S. 25, 41 (1993) (noting that proving political cohesion across an “agglomerated political bloc” — i.e, a coalition — “is all the more essential” than the need to prove cohesion within a single minority group).16 If minority groups split their vote between opposing candidates in the general election, there is by definition no candidate of choice, and the district is not protected under section 5.
16 Texas suggests that the test for proving cohesion across a coalition requires proof that the coalition votes together in primaries, not just general elections. The TLRTF joins Texas’s position in its post-trial submissions. See TLRTF Response to the Ct.’s Order of Mar. 6, 2012, at 9, ECF No. 219 (relying on Democratic primary results in Congressional District 25 as support for a conclusion that the district is not protected under section 5). As explained in our discussions of Congressional District 25 and House District 149 below, we reject this argument.
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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? See 42 U.S.C. § 1973c. In other words, are the groups large enough, motivated enough, or influential enough to elect their candidate of choice — and have they in fact done so? This question is in many respects similar to that for majority-minority ability districts. There is no single, clearly defined metric to determine when a minority group has an ability to elect, so we use a multi-factored approach to determine when a coalition or crossover district achieves that ability. See Growe, 507 U.S. at 41 (pointing to anecdotal evidence, statistical evidence of minority political cohesion, and racial bloc voting as some of the factors relevant to prove the existence of a coalition district under section 2); Texas, 831 F. Supp. 2d at 268 (“[T]here must be discrete data, by way of election returns, to confirm the existence of a voting coalition’s electoral power.”).
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. The same two inquiries apply to a crossover district, but the ability-to-elect analysis is more complicated. Although election returns are necessary to show that minority voters in a crossover district have a track record of success — results are the coin of the realm — it is not enough that they simply go along with the electoral decisions of some of the district’s Anglo voters.17 We must also be satisfied that it is the minority voters themselves who have the ability to elect their preferred candidate.
17 The same concern exists in majority-minority ability districts. A minority group that has low election day turnout despite comprising a little over half of the district’s voting age population may find itself consistently on the winning side in the district while providing relatively few votes and little influence. Nevertheless, courts have generally presumed that success electing the minority-preferred candidate in a majority-minority district is sufficient to find ability status. That such a presumption is rebuttable illustrates that we are not requiring a different kind of proof for coalition and crossover districts, only more exacting evidence.
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The test to establish this ability must be rigorous enough to avoid the scenario Texas describes: that section 5 will be interpreted to protect any district that elects a Democrat, no matter how small its minority population. In other words, that minority voters are needed to win an election does not in itself prove that they have an ability to elect. As an extreme example of this concern, consider a district with a 90% Anglo and 10% minority population. If the Anglo vote splits evenly between Democrats and Republicans and minorities vote overwhelmingly Democratic, then the Democratic candidate will win with approximately 55% of the vote, and the minority vote will properly be viewed as essential to victory every time. Yet this would not be a district in which the minority group has an ability to elect; the Anglos do. Such a district would merely be a Democratic district that happens to contain a minority group. If we were to hold otherwise, then every district that consistently elects a Democrat with the minority vote providing the margin of victory, no matter how small, would qualify for protection under section 5. This would stretch the scope of section 5 too far. A protected crossover district is not created each time Anglos and minorities vote together to elect a candidate.
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. Texas, 831 F. Supp. 2d at 268. Doing so ensures that we stay within the boundaries of section 5 and protect only those districts in which minority voters have demonstrated their effectiveness. Yet where that standard is met — where minority voters themselves “pull, haul, and trade” to elect their preferred candidates, De Grandy, 512 U.S. at 1020 — then the district is one in which minority voters have an ability to elect, and section 5’s
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safeguards apply.18 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.” 42 U.S.C. § 1973c(c); see also H.R. REP. NO. 109-478, at 93 (stating that Congress “rejects the Supreme Court’s holding in Reno v. Bossier Parish”). As a result, we may not preclear any redistricting plan enacted with discriminatory intent.
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.” Tex. Post-Trial Br. 17-18. The only way to avoid this problem, Texas claims, is to shift the burden of proof for discriminatory intent from Texas onto the United States and the Intervenors. Id. at 18. 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
18 As described further in our discussions of Congressional District 25 below, although the Court agrees on the general standard outlined above, we disagree on the appropriate test to determine when minority voters possess sufficient voting power to have established their ability to elect.
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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.
Moreover, Texas’s burden is not insurmountable.19 There is no question, as the Supreme Court has previously stated, that “assessing a jurisdiction’s motivation in enacting voting changes is a complex task requiring a ‘sensitive inquiry into such circumstantial and direct evidence as may be available.’” Reno v. Bossier Parish Sch. Bd. (Bossier I), 520 U.S. 471, 488 (1997) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). And as Texas rightly argues, this task is all the more difficult because disparate impact alone is insufficient to establish discriminatory purpose, see Bush v. Vera, 517 U.S. 952, 968 (1996) (plurality opinion) (“If district lines merely correlate with race because they are drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify . . . .”). 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
19 While Texas ultimately bears the burden of proving nondiscrimination, it may shift that burden to the defendants by making out a prima facie case for nondiscrimination. See Bossier Parish Sch. Bd. v. Reno, 907 F. Supp. 434, 446 (D.D.C. 1995), vacated on other grounds, 520 U.S. 471 (1997) (noting that in section 5 cases “something like a burden shifting must occur in this, as in every other, civil case,” and that once “[a jurisdiction] makes out its prima facie case, it is entitled to preclearance unless its prima facie case is rebutted”). After the defendants respond to the prima facie case, the issue becomes whether Texas’s “evidence is more persuasive than the evidence proffered against it.” Id.
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to . . . 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 . . . .”). There, the Court set forth a framework for analyzing “whether invidious discriminatory purpose was a motivating factor” in a government body’s decisionmaking. Arlington Heights, 429 U.S. at 266; see also Bossier I, 520 U.S. at 488-89 (collecting cases in which courts have applied Arlington Heights in the section 5 context). We follow this well-worn path and base our inquiry upon the five Arlington Heights factors: (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. Texas can carry its burden by showing that these factors — the longstanding yardstick for determining discriminatory intent — do not, taken together, show discriminatory purpose.
III. Congressional Plan We now turn to the merits of the three plans before us, considering in turn whether Texas has carried its burden to prove the absence of discriminatory purpose and effect in the Congressional, Senate, and House Plans. 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. Texas agrees that CD 27 is a lost ability district, but disputes that
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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.
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.
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.
We do, however, conclude that the enacted Congressional Plan is retrogressive and thus cannot be precleared under section 5. Although we differ among ourselves whether benchmark CD 25 was an ability district, this disagreement does not affect our overall conclusion. At the outset, we discuss the two disputed ability districts upon which we agree, then explain the majority’s conclusion that Texas was required to draw a new ability district under section 5. We set out our separate views on CD 25 at the end of the opinion.
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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. Although an Anglo Republican won the seat with a 775 vote margin in 2010, Pl.’s Ex. 32, at 13, no party argues that this anomalous result is reason to doubt the district’s status as an ability district. Indeed, Texas’s own expert conceded that the district had “performed” from the time of its creation for close to thirty years until the 2010 election, Defs.’ Ex. 581, Trial Tr. 1870:16-1871:4, Sept. 14, 2011, Perez, No. 11-cv-360, and Kel Seliger, chairman of the Texas Senate Select Committee on Redistricting, testified that benchmark CD 27 is clearly protected by the VRA and that he felt the legislature needed to draw another district to compensate for its loss, Seliger San Antonio Dep. 25:22-26:13; see also Trial Tr. 17:19-18:11, Jan. 24, 2012 AM. The enacted plan pivots CD 27 roughly 180 degrees such that the old northern boundary of the district is now the new southern boundary, with new CD 34 filling in much of CD 27’s old geography. The result is that enacted CD 27 is a majority-Anglo district: HCVAP drops to only 41.1%. Pl.’s Ex.12, at 9. All parties agree that these significant geographic and demographic shifts mean that CD 27 will no longer perform for minority voters. We agree.
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,” or one in which Hispanic voters would
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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.
Benchmark CD 23 has an HCVAP of 58.4%. Pl.’s Ex. 11, at 9. During the most recent redistricting, the mapdrawers in the Texas legislature acknowledged that CD 23 was a protected district under the VRA. See, e.g., Seliger San Antonio Dep. 13:19-15:11, 30:6-15, 31:6-16 (testimony of Chairman Seliger describing his belief during the redistricting process that CD 23 was a protected Hispanic district); Defs.’ Ex. 978 (email from congressional mapdrawer Doug Davis to National Republican Congressional Committee staffer noting VRA concerns when drawing CD 23). CD 23 elected the minority-preferred candidate in two out of the three endogenous elections since its boundaries were redrawn in 2006. Defs.’ Ex. 327, Dr. Lisa Handley, A Section 5 Voting Rights Analysis of the Proposed Texas Congressional Plan 5 [hereinafter Handley Cong. Rep.]. The one narrow loss was in 2010, a year that Chairman Seliger described as “a bit of an aberration because of things like the Tea Party influence,” further noting that he “didn’t know if [that election] was reliable.” Seliger San Antonio Dep. 15:5-7; see also Trial Tr. 11:15-21, Jan. 24, 2012 AM.20
Texas counters that none of the experts found that benchmark CD 23 clearly performs as an ability district and points to the weak showing of minority voters in exogenous elections: only three out of ten victories in the OAG 10 and two out of five victories in Dr. Handley’s election
20 Texas argues that one of the two endogenous victories, the 2006 election, should be discounted because it did not occur on general election day. See Tex. Post-Trial Br. 16. VRA litigation left no time for a primary that year, and instead all eight candidates competed in a special election held the same day as Texas’s general election. See Trial Tr. 66:21-68:9, Jan. 26, 2012 AM. Texas is correct that the Republican candidate won the plurality of votes in the special election, but we find this result unremarkable because six of the eight special election candidates were Democrats. When the runoff election was held five weeks later, Hispanic-preferred candidate Ciro Rodriguez won a decisive victory. Pl.’s Ex. 17, at 368. We see no reason to discount Rep. Rodriguez’s victory.
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set. Alford Rep. 23 tbl.4b; Handley Cong. Rep. 5. But these numbers do not tell the full story. Every expert save Dr. Alford concluded that benchmark CD 23 is an ability district despite marginal exogenous performance. Dr. Handley concluded that endogenous results are more probative than exogenous for this district, see Handley Cong. Rep. 5-6, and, as we have already discussed, we agree that this assessment is generally accurate. Dr. Ansolabehere’s analysis shows that minority-preferred candidates won the district “more often than not.” Defs.’ Ex. 724, Expert Witness Report of Dr. Stephen Ansolabehere 36-37 [hereinafter Ansolabehere Rep.]. And the TLRTF argues that a larger election sample set is necessary to make an informed judgment. When four additional racially contested contests are added to the OAG 10, the district’s exogenous success rises to seven out of fourteen. See Trial Tr. 111:14-113:4, Jan. 18, 2012 AM; Defs.’ Exs. 390, 647. These election results, combined with the endogenous elections discussed above, the fact that CD 23 was drawn to be an opportunity district, and the contemporary views of redistricting officials, are enough for us to find that benchmark CD 23 lived up to its potential as drawn in 2006 and became an ability district.
But enacted CD 23 is not. Even though the district’s demographics remain relatively unchanged — HCVAP actually increased 0.1% from the benchmark to the enacted plan, Pl.’s Ex. 12, at 9 — this fact is inconclusive. Instead, we must look to other factors, including exogenous elections, testimony, and other evidence about changes made in the district.
Enacted CD 23’s exogenous election results are significantly worse than those in benchmark CD 23. In the OAG 10, the number of victories decreases from three of ten to one. In Dr. Handley’s sample the number decreases from two of five to none. Alford Rep. 23 tbl.4b; Handley Cong. Rep. 7; see also Ansolabehere Rep. 37 (concluding that the enacted plan “lowers the electoral performance of minority-preferred candidates in the District to the point that it is
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likely no longer a minority opportunity seat”). Minority voter turnout in enacted CD 23 declines. While Hispanic voters accounted for an average of 39% of total votes cast in benchmark CD 23 over the past decade, they made up only 36.5% in enacted CD 23.21 Defs.’ Ex. 365, at 5-12; see also, e.g., Defs.’ Ex. 575, Trial Tr. 450:19-454:11, Sept. 7, 2011, Perez, No. 11-cv-360 (testimony of Dr. Henry Flores, noting that Hispanic voter turnout was higher in areas moved out of the district than in areas that were moved in; turnout in some excluded areas was consistently over 30%, while turnout in areas that replaced them was only 25-30%). The changes were enough to “nudge” a district that was an ability district, but barely so, to a nonperforming district. See Ansolabehere Rep. 37 (noting that “in a competitive district such as this one,” seemingly small changes “made a huge difference”). Even Texas’s expert testified that CD 23 “is probably less likely to perform than it was, and so I certainly wouldn’t count and don’t [and] haven’t counted the 23rd as an effective minority district in the newly adopted plan.” Defs.’ Ex. 581, Trial Tr. 1839:2-7, Sept. 14, 2011, Perez, No. 11-cv-360. Thus, CD 23 is an ability district in the benchmark, but would be no longer in the enacted plan.
Texas claims that the enacted district has remained functionally identical to the benchmark, but these claims are undermined by the mapdrawers’ own admissions that they tried to make the district more Republican — and consequently, less dependable for minoritypreferred candidates — without changing the district’s Hispanic population levels. 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. See, e.g., Defs.’ Ex. 304 (email from Eric Opiela, counsel to
21 Judges Collyer and Howell do not depend on voter turnout data to conclude that CD 23 is a lost ability district.
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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”). We also received an abundance of evidence that Texas, in fact, followed this course by using various techniques to maintain the semblance of Hispanic voting power in the district while decreasing its effectiveness. See, e.g., Defs.’ Ex. 436 (evidence showing that over 600,000 persons were moved into and out of the district to redress overpopulation of only 149,000); Defs.’ Ex. 903, at 1 (email noting that a draft map of CD 23 was “over 59% HCVAP, but still at 1/10 [exogenous election performance],” and commenting that there must be an HCVAP level high enough that low election results would not raise trouble under section 5); Defs.’ Ex. 978 (email commenting that a draft map of CD 23 “looks nice politically,” but still raises “concern[s] about the Voting Rights Act”); Trial Tr. 106:18-108:3, Jan. 18, 2012 AM (testimony of Ryan Downton that he drew the district’s lines precinct-by-precinct based on election results to keep Hispanic population numbers high while maximizing Republican performance); Id. at 12:2-16, Jan. 24, 2012 AM (testimony of Kel Seliger that CD 23 was drawn by considering “voting patterns and ethnicity” to see what could be done “to change the district”). Texas’s protestations that the district has remained functionally identical are weakened first by the mapdrawers’ admissions that they tried to reduce the effectiveness of the Hispanic
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vote and then, more powerfully, by evidence that they did. We conclude that CD 23 is a lost
ability district. 3. Retrogression with New Congressional Seats22
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.
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. Id. at 97-98. At
summary judgment we concluded that our case was similar to Abrams because “Texas’
22 Having found retrogression in the Congressional Plan because CD 25 was an ability district that was eliminated and not replaced, Judge Collyer does not reach the further question of retrogression based on proportional representation arising from multiple new congressional seats and a sizeable growth in minority population.
23 Likewise, minorities comprise 80.4% of the increase in Texas’s voting age population between 2000 and 2010. U.S. Req. for Judicial Notice ¶ 19 (citing 2000 and 2010 Census data). We agree with the United States that U.S. Census data is an appropriate subject of judicial notice. See id. at 2 (citing Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 572-73 (5th Cir. 2011); City of Port Arthur v. United States, 517 F. Supp. 987, 993 n.5 (D.D.C. 1981)).
24 The Supreme Court has also described our task as determining that the enacted plan “is no more dilutive than what it replaces.” Bossier II, 528 U.S. at 335.
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percentage gain in congressional seats (12.5%) is similar to Georgia’s percentage gain in Abrams (10%).” Texas, 831 F. Supp. 2d at 269. Yet we also noted that “Abrams does not control. Although Abrams is clear that the VRA does not require there to be a new minority ability district for every new congressional seat, it does not hold that a state’s failure to draw new minority districts can never be retrogressive.” Id. 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. Abrams spoke only to the case of a state that gained a single seat, 521 U.S. at 97-98, not to the case of a state that gains multiple seats.25
Neither section 5’s text nor existing case law tells us how to measure the “degree of discrimination” in these circumstances. But guidance is available in the Supreme Court’s section 2 cases. Even though section 5 is not ameliorative and has different purposes than section 2, some tools used in section 2 analysis reveal insights into the underlying principles of the VRA, see, e.g., Texas, 831 F. Supp. 2d at 261-62 & 262 n.21, which are especially helpful as we find ourselves in a setting no section 5 cases have yet considered.
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
25 We agree with the United States that the holding of Abrams cannot be read to govern all cases in which a state gains seats in a district map. At the extreme, consider a state with a 100-member legislature and 30 ability districts in the benchmark map. If the state redrew its legislature to double the number of districts to 200, but created no new ability districts, it would be difficult to conclude that the new plan was not dilutive and had not increased the degree of discrimination against minority voters merely because it contained the same number of ability districts.
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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 majorityminority 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.
This analysis squares with the outcomes of previous section 5 cases. Where the number of districts remains the same, the representation gap does not increase. Likewise, the representation gap in Abrams was unchanged between plans. There, Blacks constituted 27% of Georgia’s voting age population and had the ability to elect in only one of ten districts in the benchmark plan. See 521 U.S. at 103 (Breyer, J., dissenting). That put the representation gap at two districts (27% of 10 is 2.7, which, when rounded up, is two more than one).26 In the enacted plan the representation gap remained the same (27% of 11 is 3.0, which is also two more than one). There was no increase in the degree of discrimination, and the plan did not retrogress.
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. In the enacted plan, proportional representation would yield
26 We note that we are rounding 2.7 up to 3. We do so following the Court’s example in LULAC, in which it noted that “‘rough proportionality’ must allow for some deviations.” 548 U.S. at 438 (quoting De Grandy, 512 U.S. at 1023).
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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
We emphasize what our analysis does not do. It does not entitle minorities to proportional
representation. It does not require a state to create new ability districts in proportion to increases
in a minority group’s population.29 We require only that a state not “undo[] or defeat[] the rights
recently won” by minorities, Beer, 425 U.S. at 140 (quoting H.R. REP. NO. 91-397, at 8 (1969))
(internal quotation marks omitted), by increasing the “degree of discrimination,” Lockhart, 460
U.S. at 134, which requires assessing the “number of majority-minority voting districts to
minority members’ share of the relevant population,” De Grandy, 512 U.S. at 1014 n.11.
27 Our calculations use the combined Black and Hispanic share of the CVAP (39.3%), the metric advanced by the United States and various Intervenors. See also De Grandy, 512 U.S. at 1014 n.11 (“‘Proportionality’ as the term is used here links the number of majority-minority voting districts to minority members’ share of the relevant population.”). Nevertheless, we note that our method also yields one additional congressional seat if the Black and Hispanic representation gaps are calculated separately. Hispanics comprise 26.4% of Texas’s CVAP, Joint Stipulations of Fact ¶ 38, and the “Hispanic” representation gap increases by one in the enacted plan (Hispanics have seven ability districts in both plans, but 26.4% of 32 is 8.4 and 26.4% of 36 is 9.5). By contrast, Blacks comprise 12.9% of Texas’s CVAP, id., and the “Black” representation gap does not change between plans. Blacks have three ability districts in both plans; 12.9% of 32 is 4.1, and 12.9% of 36 is 4.6. Following the “rough proportionality” principle, this increase of 0.5 in the representation gap does not require the State to draw a new district, just as we require the State to draw only one additional ability district above, even though there is a 1.5 increase in the representation gap.
Similarly, this representation gap would exist even if CD 25 were counted as an ability district in the benchmark. In that case, the benchmark representation gap would be two districts (the difference between 13 and 11 districts) and the enacted representation gap would be three districts (the difference between 14 and 11 districts).
28 We note that this requirement would likely be subject to the caveat that a state is only required to draw a new district if possible, i.e., if it can draw a new ability district without violating other principles such as one-person, one-vote or the demands of section 2. Yet the facts that minority population growth was largely concentrated in three areas in Texas and that the parties submitted several alternate plans drawing a new Hispanic ability district suggest that this will not be an issue here. In any event, the infeasibility of drawing a new district was not argued or briefed in any depth during this litigation.
29 Under our logic, if Texas had experienced the same population growth but had not gained additional congressional seats (because, for example, other states experienced equivalent or greater growth), it would have been required to draw only 10 ability districts. It is the growth in the number of districts that triggers our analysis, not growth in the population.
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Because the Texas legislature purposes to increase this representation gap, we cannot preclear its Congressional Plan.
B. Discriminatory Intent in the Congressional Plan Although we need not reach the issue of discriminatory intent because we conclude that
the Congressional 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 preclearance. 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.”).
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
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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.
As we have already noted, CDs 9, 18, and 30 are the only Black ability districts in the benchmark and enacted plans. CD 9 is located south of Houston and incorporates parts of Harris and Fort Bend Counties, CD 18 is located within Houston, and CD 30 is within Dallas. The Texas legislature proposed substantial changes to these districts even though the 2010 Census data shows the population in each was already close to the ideal size.30 We have already determined that these changes are not retrogressive, but they raise serious concerns about what motivated the Congressional Plan.
Congressman Al Green, who represents CD 9, testified that “substantial surgery” was done to his district that could not have happened by accident. The Medical Center, Astrodome, rail line, and Houston Baptist University — the “economic engines” of the district — were all removed in the enacted plan. Trial Tr. 124:6-20, Jan. 20, 2012 AM; see also Defs.’ Ex. 721, PreFiled Test. of Congressman Alexander Green 3-4. The enacted plan also removed from CD 9 the area where Representative Green had established his district office. Trial Tr. 124:16, Jan. 20, 2012 AM. Likewise, Congresswoman Sheila Jackson Lee, who represents CD 18, testified that the plan removed from her district key economic generators as well as her district office. Id. at 13:13-14:5, Jan. 23, 2012 PM. Congresswoman Eddie Bernice Johnson of CD 30 also testified that the plan removed the American Center (home of the Dallas Mavericks), the arts district, her district office, and her home from CD 30. Id. at 79:20-81:16, Jan. 18, 2012 PM. The mapdrawers
30 According to the 2010 Census, Texas’s population was 25,145,561. If this population were divided equally between the State’s thirty-six congressional districts, each district would have 698,488 individuals. Pl.’s Ex. 12, at 2. Benchmark CD 9 has a surplus of 35,508 people, or 5.05% of the district’s population. CD 18’s surplus is 22,503 (3.22%), and CD 30’s is 7,891 (1.14%). Defs.’ Ex. 347, at 28-29.
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also removed the district office, the Alamo, and the Convention Center (named after the incumbent’s father), from CD 20, a Hispanic ability district. Mem. Opp. Summ. J. Ex. 16, Decl. of Charles A. Gonzalez ¶¶ 3-9, 11, ECF No. 77.
No such surgery was performed on the districts of Anglo incumbents. In fact, every Anglo member of Congress retained his or her district office. Trial Tr. 14:12-15, Jan. 23, 2012 PM. Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren. See Mem. Opp. Summ. J. Exs. 11, 18-19, ECF No. 77. And Texas never challenged evidence that only minority districts lost their economic centers by showing, for example, that the same types of changes had been made in Anglo districts.
The United States and the Intervenors convincingly argue — and Texas does not dispute — that removing district offices from minority ability districts but not from Anglo districts has a disparate impact on the minority districts. See U.S. Post-Trial Br. 26. District offices help “provide[] a meaningful connection between a member and the people represented.” Defs.’ Ex. 721, Pre-Filed Test. of Congressman Alexander Green 4. Their locations are often well known to constituents, often placed to be easily accessible by freeway and public transportation, and serve as a way for members of Congress to communicate with and provide services to their constituents. See id. We are likewise troubled by the unchallenged evidence that the legislature removed the economic guts from the Black ability districts. Texas does not dispute that part of a member of Congress’s job is to “bring economic generators that will benefit that community,” id. Removing those economic generators harms the district. Id. at 3-4; U.S. Post-Trial Br. 26.
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The only explanation Texas offers for this pattern is “coincidence.”31 Trial Tr. 95:5-19, Jan. 25, 2012 PM. But if this was coincidence, it was a striking one indeed. It is difficult to believe that pure chance would lead to such results. The State also argues that it “attempted to accommodate unsolicited requests from a bipartisan group of lawmakers,” and that “[w]ithout hearing from the members, the mapdrawers did not know where district offices were located.” Tex. Post-Trial Br. 29. But we find this hard to believe as well. We are confident that the mapdrawers can not only draw maps but read them, and the locations of these district offices were not secret. 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.
When taken with the remaining Arlington Heights factors, Texas’s explanation becomes weaker still. 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. See, e.g., LULAC, 548 U.S. 399; Vera, 517 U.S. 952; Upham v. Seamon, 456 U.S. 37 (1982); White v. Weiser, 412 U.S. 783 (1973); White v. Regester, 412 U.S. 755 (1973); Terrazas v. Slagle, 789 F. Supp. 828 (W.D. Tex. 1992), aff’d sub nom., Richards v. Terrazas, 505 U.S. 1214 (mem.). While a losing streak alone does not control our decision, Texas’s history of failures to comply with the VRA is one of the circumstantial factors that Arlington Heights instructs us to consider.
Next, the sequence of events leading to the passage of the Congressional Plan also supports an inference of discriminatory purpose. 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. See, e.g., Mem. Opp.
31 Unlike in its arguments about retrogression, Texas never argued that the removal of district offices and economic generators was the product of political animus.
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Summ. J. Exs. 18-19; Defs.’ Ex. 370, at 1, ECF No. 77. The Texas House and Senate redistricting committees released a joint congressional redistricting proposal for the public to view only after the start of a special legislative session, and each provided only seventy-two hours’ notice before the sole public hearing on the proposed plan in each committee. See, e.g., Defs.’ Ex. 320, Decl. of Theodore S. Arrington 57-59; Defs.’ Ex. 366. Minority members of the Texas legislature also raised concerns regarding their exclusion from the drafting process and their inability to influence the plan via amendments. See, e.g., Defs.’ Ex. 370, at 1.
Lastly, procedural and substantive departures from the normal decisionmaking process raise flags. Citing failure to release a redistricting proposal during the regular session, the limited time for review, and the failure to provide counsel with the necessary election data to evaluate VRA compliance, the Senate redistricting committee’s outside counsel described the proceedings as “quite different from what we’ve seen in the past.” Id. at 2.
Texas argues that, “[a]t worst, the evidence shows that [it] was guilty of blithe indifference to the wants to certain [minority] Congressmen.” Tex. Post-Trial Br. 29. But we do not find this explanation credible. Although we have already concluded that the Congressional Plan cannot be precleared under section 5’s effect prong, we are also persuaded by the totality of the evidence that the plan was enacted with discriminatory intent. 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 Therefore, we deny Texas declaratory judgment with respect to the Congressional Plan on this ground as well.
32 The parties have provided more evidence of discriminatory intent than we have space, or need, to address here. Our silence on other arguments the parties raised, such as potential discriminatory intent in the selective drawing of CD 23 and failure to include a Hispanic ability district in the Dallas-Fort Worth metroplex, reflects only this, and not our views on the merits of these additional claims.
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IV. State Senate Plan Next we consider Texas’s request to preclear its State Senate Plan. The United States has not objected to this plan, but the Davis Intervenors, the Texas State Conference of NAACP Branches, the League of United Latin America Citizens, and the Texas Legislative Black Caucus argue that the Senate Plan retrogresses and was enacted with discriminatory intent. Their arguments concern a single district, Senate District (SD) 10, which they contend is a coalition district in the benchmark plan, and which all parties agree is not an ability district in the enacted plan. These Intervenors also argue that discriminatory purpose motivated the legislature’s decision to break up SD 10. We conclude that benchmark SD 10 is not a coalition district, and thus that the Senate Plan is not retrogressive. Nevertheless, we deny preclearance because Texas failed to carry its burden to show that it acted without discriminatory purpose in the face of largely unrebutted defense evidence and clear on-the-ground evidence of “cracking” minority communities of interest in SD 10. Thus, we conclude that the Texas legislature redrew the boundaries for SD 10 with discriminatory intent. A. Retrogression in the Senate Plan
Benchmark SD 10 is located entirely within Tarrant County, which includes Fort Worth. When the Texas legislature last drew the district in 2001, the population was 56.6% Anglo, 16.7% Black, and 22.9% Hispanic. Defs.’ Ex. 126, 2001 State of Texas Submission for State Senate Preclearance app. I (Aug. 15, 2001). Urging the Department of Justice to preclear the 2001 State Senate Plan, Texas justified SD 10’s configuration by arguing that “[t]he voting strength of these minority communities in the future will depend on the cohesion within and between Black and Hispanic voters and the ability of such voters to form coalitions with other
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racial or ethnic groups in support of their preferred candidates.” Id. at 18. In other words, Texas argued that SD 10 had the potential to become a coalition district.
The Department of Justice precleared the 2001 map, and, over the past decade, the minority population in SD 10 has continued to grow. According to the 2010 Census, 47.6% of the population in SD 10 was Anglo, 19.2% Black, and 28.9% Hispanic. Defs.’ Ex. 151, at 5. Minorities made up a smaller portion of the 2010 CVAP, however: 62.7% were Anglo, 18.3% Black, and 15.1% Hispanic. Pl.’s Ex. 15, at 8. Republicans have won almost every election in SD 10 in the past ten years, including the district’s endogenous State Senate elections from 20002008. No Democratic candidate running in a statewide or other exogenous election has ever won a majority of the vote in SD 10. See Alford Rep. 30.
The only Democrat to win an election in SD 10 is the district’s current senator, Wendy Davis, who was elected to a four-year term in 2008. Davis’s path to the State Senate began when Democratic candidate Terri Moore lost the 2006 election for Tarrant County District Attorney, yet received nearly half of the vote in SD 10. See Trial Tr. 30:10-25, 31:1-17, Jan. 18, 2012 PM. In light of these results, Democratic elected officials and community leaders in Tarrant County were of the view that if the Black and Hispanic communities “came together as a coalition to vote . . . they could win Senate District 10.” Id. at 30:15-16. These and other leaders within the district’s minority communities recruited Fort Worth City Council member Wendy Davis to run for State Senate. Id. at 32:3-25, 33:1-17; see also id. at 16:1-5, Jan. 20, 2012 AM (Senator Davis, testifying, “I was approached by leaders in our minority community in large part because of the work I’d done as a City Council person and asked if I would consider running for the Texas State Senate.”). Senator Davis ran unopposed in the 2008 Democratic primary, see Pl.’s Ex. 135, at 3,
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then won the general election with 49.9% of the vote, beating the incumbent by 2.4% — approximately 7,100 out of 288,000 votes cast.33 Pl.’s Ex. 31, at 14.
According to Texas’s expert, Davis received 99.6% of the Black vote, 85.3% of the Hispanic vote, and 25.8% of the Anglo vote. Trial Tr. 32:24-25, 33:1-16, Jan. 25, 2012 AM. Although this is strong evidence that the minority communities in SD 10 voted cohesively in the 2008 election, the argument that SD 10 is a coalition district runs into trouble when looking at evidence that the district’s minority communities have been effective in electing their preferred candidates.
At summary judgment, we noted that “evidence that a coalition had historical success in electing its candidates of choice would demonstrate that the minority voters in that district had, and would continue to have, an ability to elect their preferred candidates.” Texas, 831 F. Supp. 2d at 268. The case that SD 10 is an ability district turns on a single, razor-thin election victory, which is not “historical success.” Indeed, SD 10’s decade-long history of electing Republicans shows just the opposite. There is no doubt that the minority community came together to elect a preferred candidate in 2008, but a single victory is not the more exacting evidence needed for a coalition district. If it were, any single victory built upon the support of minority voters would create a claim for ability status.
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.
33 Richard Cross, a libertarian candidate, received 2.6% of the vote (7,591 votes). Pl.’s Ex. 31, at 14.
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Considering first the impact of the redistricting — “whether it ‘bears more heavily on one race than another,’” Arlington Heights, 429 U.S. at 266 (quoting 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. Defs.’ Ex. 375, at 3. We find that Senator Ellis’s testimony is well supported by the record. See also Defs.’ Ex. 134, Expert Witness Report of Dr. Allan J. Lichtman ¶ 12 [hereinafter Lichtman Rep.] (“The state legislature, in dismantling benchmark SD 10 cracked the politically cohesive and geographically concentrated Latino and African American communities and placed members of those communities in districts in which they have no opportunity to elect candidates of their choice or participate effectively in the political process.”). 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 rationale, Arlington Heights instructs that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such
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circumstantial and direct evidence of intent as may be available,” and so we must “look to the other evidence.” 429 U.S. at 266.
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.” Id. at 267. The Senate’s principal mapdrawer and staff director of the Senate Redistricting Committee, Doug Davis (no relation to Senator Davis), began discussing draft maps of new Senate districts prior to the February 2011 release of official Census data by using projected population increases. Defs.’ Ex. 127, at 38-39. Once the 2011 general legislative session started in January, these maps were kept in an anteroom off the Senate floor, where many Republican members were taken individually by Chairman Seliger and Doug Davis to review the draft plans and provide input. See, e.g., Trial Tr. 39:15-25, Jan. 20, 2012 AM; Defs.’ Ex. 809, Dep. of Senator Judith Zaffirini 29:22-25, 30:1-19, Jan. 6, 2012. Senator Davis was consistently rebuffed when she asked to see the plans for SD 10, even as another senator told her that the proposed plan was “shredding” her district. Trial Tr. 38:2-8, 40:11-14, Jan. 20, 2012 AM. Senator Judith Zaffirini’s uncontroverted testimony shows that this scenario was not unique to Senator Davis, but reflected a larger pattern: every senator who represented an ability district was excluded from this informal map-drawing process and was not allowed into the anteroom to preview the maps. See Defs.’ Ex. 809, Dep. of Senator Judith Zaffirini 30:1-3. Indeed, none of the senators representing ability districts were shown their districts until forty-eight hours before the map was introduced in the Senate. See Defs.’ Ex. 129.
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
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that at least part of this informal process that gave Republican senators opportunities to provide input into the plans did not occur. 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.34
Our skepticism about the legislative process that created enacted SD 10 is further fueled by an email sent between staff members on the eve of the Senate Redistricting Committee’s markup of the proposed map. The ostensible purpose of the markup was to consider amendments to the proposed plan, but the email suggests a very different dynamic at work. David Hanna, a lawyer for the Texas Legislative Council, a nonpartisan agency that provides bill drafting and legislative research to the Texas legislature, sent an email to Doug Davis and Senate Parliamentarian Katrina Davis (Doug Davis’s wife). Hanna’s email responded to an earlier message Texas did not produce, but which concerned “precook[ing]” the committee report, i.e., writing the report before the hearing had been held. Trial Tr. 71:23-25, 72:1-7, Jan. 24, 2012 AM. With a subject line titled, “pre-doing committee report,” Hanna’s email read:
No bueno. RedAppl [the redistricting software Texas used] time stamps everything when it assigns a plan. Doing [the Committee Report on] Thursday [May 12] would create [a] paper trail that some amendments were not going to be considered at all. Don’t think this is a good idea for preclearance. Best approach is to do it afterwards and we’ll go as fast as possible. Defs.’ Ex. 359. Although the chairman of the redistricting committee, Kel Seliger, denied knowing of any advance decision to refuse to consider amendments, he acknowledged what is apparent from the email: the boundaries of the new Senate districts would be a fait accompli by
34 We also note that Texas did not refute testimony indicating that the field hearings held prior to the start of the 2011 legislative session were “perfunctory,” Trial Tr. 94:20-21, Jan. 20, 2012 AM, and “a sham,” with low attendance, low participation, and little invited testimony or prepared materials. Defs.’ Ex. 809, Dep. of Senator Judith Zaffirini 7:11-21.
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the time of the markup and the committee did not intend to consider any amendments to the plan. Trial Tr. 71:3-25, 72:1-16, Jan. 24, 2012 AM. We agree with Chairman Seliger that, at a minimum, this email shows that a plan was in place, at least at the staff level, such that no new proposals or amendments to the district map would be entertained at the markup.
Arlington Heights instructs that “departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role.” 429 U.S. at 267. This factor focuses on comparing past redistricting cycles to the present one for anomalous behavior. The State held no field hearings after Census data was released and proposed plans were drawn, unlike the hearings that were held after such data was available in the past. Defs.’ Ex. 134, at 13. Additionally, Senator Zaffirini testified that she, a senator of a minority district, “had never had less input into the drawing of any [redistricting] map” in over thirty years of redistricting experience,” Defs.’ Ex. 370, at 1, and that the 2010 redistricting process was the “least collaborative and most exclusive” she had ever experienced. Lichtman Rep. app. 7, Decl. of Senator Judith Zaffirini ¶ 3. We find this unchallenged testimony sufficient to conclude that the 2010 redistricting process was markedly different from previous years.
Finally, Arlington Heights states that “the legislative or administrative history may be highly relevant especially where there are contemporary statements by members of the decisionmaking body.” 429 U.S. at 268. Aside from the “No Bueno” email described above, we have no evidence of contemporary statements by the majority members or their staff “concerning the purpose of the official action,” id. But that email indicates, at a minimum, that redistricting committee staff feared their actions might create the appearance of impropriety under section 5. We do, however, have a statement published in the Senate journal from the eleven senators representing majority-minority districts and Senator Davis. They alleged that the fact they were
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shut out from the map-drawing process until just forty-eight hours before the map was introduced in the Senate showed that the Senate Plan had a “racially discriminatory purpose.” Defs.’ Ex. 129, at 3. Other senators also wrote directly to Chairman Seliger to express their “disappointment in the process used to develop the Senate redistricting plan” and the “exclu[sion] [of] elected representatives of minority citizens” from that process. Defs.’ Ex. 132, at 1. Although statements from the senators aggrieved by the process do not necessarily show that it was racially discriminatory, instead of merely partisan, they do indicate that the majority was aware during redistricting that several members were upset by the irregular process, yet chose not to address their concerns.
We conclude that Texas has not shown that the Senate Plan was enacted without discriminatory intent. Senator Davis and other Intervenors provided credible circumstantial evidence of the type called for by the Supreme Court in Arlington Heights, which, as a whole, indicates that an improper motive may have played a role in the map-drawing process. Rather than directly rebut this evidence, Texas asserts only that the legislature’s motivations were wholly partisan, untainted by considerations of race. We agree that a plan that impacts minority citizens more harshly than majority citizens is not necessarily at odds with section 5. But under the VRA and Arlington Heights, it is not enough for Texas to offer a plausible, nonracial explanation that is not grounded in the record. It must, at a minimum, respond to evidence that shows racial and ethnic motivation, which it has failed to do. See Arlington Heights, 429 U.S. at 266 (“Absent a [clear pattern of discrimination] . . . the Court must look to other [circumstantial] evidence.”). Here, Texas has made no real attempt to engage with the Arlington Heights factors, even though it concedes that the Senate Plan has a disparate impact on minority voters in SD 10. We find it telling that the legislature deviated from typical redistricting procedures and excluded
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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.
V. State House Plan A. Retrogression in the State House Plan
The United States and the Intervenors argue that the enacted House Plan retrogresses minority voting power by eliminating eight ability districts (House Districts (HDs) 26, 33, 35, 41, 106, 117, 144, and 149) without creating any others. Texas acknowledges retrogression in HD 33, but argues the House Plan works no abridgement of minority voting rights in any of the other districts. Texas maintains that the loss of HD 33 is offset by the plan’s provision for at least one and as many as three new ability districts. We conclude that the enacted plan will have the effect of abridging minority voting rights in four ability districts — HDs 33, 35, 117, and 149 — and that Texas did not create any new ability districts to offset those losses. Consequently, we conclude that the enacted plan cannot be precleared. We first analyze each of the eight alleged ability districts before turning to the three alleged offset districts.
1. Alleged Retrogressive Districts a. State House District 33
Nueces County in southeastern Texas includes three State House districts in the benchmark plan. HDs 33 and 34 are entirely within the county; HD 32 partially so. Benchmark HD 33 comprises the core of Corpus Christi. HD 34 includes the western part of the county, and HD 32 covers much of the eastern portion and extends into other counties immediately north of
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Nueces County. The population of Nueces County grew at a slower rate than that of the rest of the State, so it was only entitled to 2.03 districts in the new map. Because the Texas Constitution mandates that any reapportionment of State House districts observe county lines where possible,35 the House mapdrawers drew only two districts in Nueces County, choosing to eliminate Hispanic-majority HD 33. See Trial Tr. 146:21-147:10, Jan. 17, 2012 AM.
With an HCVAP of 60.4%, Pl.’s Ex. 13, at 13, and success electing the Hispanic candidate of choice in four out of the past five endogenous elections (with only a narrow victory by a Hispanic Republican in 2010 breaking this streak), Engstrom Suppl. Rep. 6 & n.5, there is no question that benchmark HD 33 was a Hispanic ability district. Even Texas concedes that if we accept, as we have, the binary analysis instead of Dr. Alford’s statewide functional approach, benchmark HD 33 would be an ability district. Tex. Post-Trial Br. 13.
There is similarly little question that HD 33 is not an ability district in the enacted plan. The benchmark district’s population was redistributed to neighboring districts, and the new HD 33 was transplanted to two predominantly Anglo counties near Dallas. The new HCVAP is only 8.5%, Pl.’s Ex. 14, at 13, and no expert’s reconstituted election analysis shows any electoral victories for minority-preferred candidates. See, e.g., Alford Rep. 11 tbl.3b. At trial, Dr. Alford conceded that enacted HD 33 is not an ability district. Trial Tr. 99:16-18, Jan. 24, 2012 PM. The State also concedes that the binary approach supports this conclusion. Tex. Post-Trial Br. 13. We thus conclude that HD 33 is a lost ability district.
35 Under the County Line Rule, TEX. CONST. art. III, § 26, a district must be drawn to mirror a county’s boundary lines if that county has sufficient population for a voting district. When the population of more than one county is needed to make up a single voting district, the Rule requires that contiguous counties be joined to form that district. Likewise, when the population of a county requires more than one voting district, the districts must be contained within the county lines and any excess population must be joined wholly with population from a neighboring county to form a district.
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b. State House District 35 The parties who address this district agree that enacted HD 35 in south Texas is not an ability district. They disagree whether it is an ability district in the benchmark plan. The United States argues that benchmark HD 35 is an ability district because, just as in HD 33, the minoritypreferred candidate won four out of the last five endogenous elections, and the fifth was a close election where a Hispanic Republican won the seat from the incumbent Hispanic Democrat.36 U.S. Post-Trial Br. 5; see also Handley House Rep. 5. This track record of success is evidence that benchmark HD 35 is an ability district. Texas counters that the exogenous analysis tells a different story. The OAG 10 indicates that the district performs for minority voters only half the time. See Alford Rep. 11 tbl.3b. The other experts’ analyses place its success rate even lower: the district performed for minority voters in just two of Dr. Handley’s five elections, and two of Dr. Engstrom’s seven. See Handley Rep. 5; Engstrom Chart. Texas also argues that enacted HD 35 will perform much the same as benchmark HD 35. The district’s HCVAP drops only slightly, from 54.6% in the benchmark to 52.5% in the enacted plan, Pl.’s Exs. 13, at 13; 14, at 13, and the exogenous analyses show only minor changes between the plans. The analyses of Dr. Handley and the OAG 10 show a one election drop in effectiveness. Handley House Rep. 9; Alford Rep. 11 tbl.3b. Dr. Engstrom’s analysis, which weights recent elections more heavily, shows a one election increase. See Engstrom Chart. To Texas, all this suggests that there is no meaningful change in the district’s performance, and because all agree that enacted HD 35 is not an ability district, benchmark HD 35 must not be an ability district either.
36 We agree with Dr. Handley that Representative Jose Aliseda, who won in 2010 with only 22.3% of the Hispanic vote, is not the Hispanic candidate of choice. See Handley House Rep. app. D, at 34.
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While true that only minor changes were made between benchmark and enacted HD 35, we think the best reading of the record is that the benchmark district is one in which minorities usually, although not always, elect their preferred candidate. Hispanic voters constitute the majority of the district, albeit barely, and they have been successful in electing their preferred candidate in endogenous elections held between 2002 and 2008. We find this to be persuasive evidence that Hispanic voters have attained an ability to elect their preferred candidates in HD 35. Texas does not argue that endogenous results are misleading in this district, but instead repeats its general position that we should consider only exogenous election results. Tex. PostTrial Br. 12. We have already rejected this argument. Exogenous analysis uses statewide and national elections to help determine political trends within a district. But by considering districtwide election results, endogenous analysis provides a more direct answer to the question posed by section 5: have minority voters shown an ability to elect their preferred candidates in that district? Because the exogenous results do not cut entirely against ability status — here, Texas’s own exogenous analysis shows a 50% benchmark success rate — and there is nothing in the record that calls into question the probative value of this district’s endogenous track record, we are confident that endogenous results accurately describe minority voting ability in the benchmark.
As to enacted HD 35, Texas has not presented any evidence that HD 35 remains an ability district or that it tried to preserve the district’s ability status, and its argument based on the small changes in exogenous election performance is insufficient to counter the evidence we do have supporting the conclusion of the United States’s expert that the district loses ability status. When a district is close to the ability-to-elect line, even minor changes can be significant. The low exogenous election results for the enacted district combined with HCVAP changes that push
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the district even closer to the majority line (52.5%) are not enough to show that the district will
continue to perform for minority voters. We must conclude that the evidence Texas offers is not
persuasive to meet its burden to show that the changes made to HD 35 will not have a retrogressive effect on minority voters.37
c. State House District 41
All parties agree that benchmark HD 41 in south Texas’s Hidalgo County is a minority
ability district. Texas argues that the district remains so in the enacted plan, and we agree.
The HCVAP in enacted HD 41 is 72.1%. Pl.’s Ex. 14, at 14. Although a decrease from
77.5% in the benchmark, Pl.’s Ex. 13, at 14, that percentage remains well above the 65% threshold we laid down in our summary judgment opinion as a presumption of ability status.38
See Texas, 831 F. Supp. 2d at 263 & n22. We agree that such a high Hispanic population density
creates a strong presumption that HD 41 remains an ability district. Significantly, none of the
experts thought that HD 41 lost ability status, a conclusion that both the OAG 10 and Dr.
Engstrom’s analysis confirm. Alford Rep. 11 tbl.3b; Engstrom Chart.
The United States takes issue with the value of a bright-line test, especially in a district
like HD 41 where the uncontested record shows that voters have faced serious and pervasive
socioeconomic barriers that depress voter turnout. U.S. Post-Trial Br. 8-9. The United States also
argues that we know very little about enacted HD 41, and what we do know — its high Hispanic
37 This district presents a close and very difficult case. Presented with more or different evidence, we might conclude that the seemingly minor changes made to the district do not alter its ability status. Nevertheless, Congress has allocated the burden to prove lack of discriminatory effect to the State. On the record before us, we conclude that Texas has not done so.
38 Texas argues that our summary judgment opinion set out a 60%, not 65%, bright-line test. Tex. Post-Trial Br. 7 & n.5, 11. We find this argument puzzling given that our previous opinion stated that “a minority voting majority of sixty-five percent (or more) essentially guarantees that . . . a cohesive minority group will be able to elect its candidate of choice.” Texas, 831 F. Supp. 2d at 263. Texas argues that most of the authorities we cited used a 60% voting age population bright line, but we cited these (nonbinding) cases only as examples of the ways other courts have approached this issue.
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population — is not enough for Texas to meet its burden to show no retrogression. The background for Texas’s approach to redrawing HD 41 centers on the decision of Representative Aaron Peña, the five-term incumbent in neighboring HD 40, to switch party affiliations from Democrat to Republican following the 2010 election. One of the mapdrawers’ goals during redistricting was to protect Rep. Peña’s chances of reelection. Trial Tr. 163:4-165:13, Jan. 17, 2012 AM. They decided that the best way to do this was to have Peña, in effect, switch districts with HD 41’s incumbent, and then cut out of the district some strong Democratic areas “to increase the Republican performance of [enacted HD 41].” Id. at 168:1-3. The result is an oddly shaped district full of sharp corners that has earned the nickname “Transformer,” both here and in the section 2 litigation. See id. at 42:4-5, Jan. 23, 2012 PM. Enacted HD 41 splits apart seventeen of the forty-two voter tabulation districts (VTDs)39 in the district, Defs.’ Ex. 800, at 35, in an effort to bolster Republican voting strength. Trial Tr. 165:17-168:17, Jan. 17, 2012 AM.
Dr. Handley was unable to draw a conclusion whether enacted HD 41 remains an ability district because of these splits. Handley House Rep. 1 n.1. Election performance data is only available at the VTD level and not at the more precise level of a city block. Reconstituted election analysis uses the political averages for an entire VTD to assess how a portion of a VTD will perform. See, e.g., Trial Tr. 74:25-78:21, Jan. 24, 2012 PM; id. at 11:7-13, 50:19-23, 74:1075:13, Jan. 26, 2012 AM. The higher the number of VTD splits in a new district, the more inconclusive these predictions become. Here, where over 31% of the district’s population lives in split-VTD areas and where the mapdrawers’ stated goal was to peel off from the district strong Democratic areas — suggesting that the general concerns about skewed exogenous results from political variance within split VTDs may be especially strong in this district — Dr. Handley
39 In Texas, VTDs are roughly equivalent to precincts elsewhere.
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concluded that the results of her exogenous analysis were not reliable forecasters of the district’s future voting strength. See Handley House Rep. 9-10.
We are not deaf to the concerns the United States raises, and we are skeptical of the State’s claim that high HCVAP is sufficient to prove continued ability status in light of the uncontested testimony that HD 41 was engineered to transform a reliable Democratic district into one that would elect a Republican instead. Nevertheless, we do not think the record calls into question enacted HD 41’s status as an ability district. Dr. Handley’s concerns would give us more pause were minority voting power less established, but we agree with the other experts that the shortcomings of reconstituted election analysis for enacted HD 41 are not enough to keep us from concluding the district does not retrogress. This is not a case in which the Hispanic population is close to the majority line, or even close to the supermajority 65% line we set out in our summary judgment opinion. Enacted HD 41 still has an HCVAP of 72.1%. We are hard pressed to find that minority voters lack an ability to elect in a district in which they comprise such a high percentage of the voting public. We need not decide whether the United States is correct that, in a rare case, 65% HCVAP may not be enough to ensure ability to elect, because in this case, 72.1% is.
Lastly, if Texas succeeded in its goal to create a Republican district, Rep. Peña’s success would require support from a sizable portion of the district’s Hispanic community. This suggests either that Rep. Peña would be the Hispanic candidate of choice, or that Hispanic voting cohesion would have broken, perhaps to the point where there would no longer be one Hispanicpreferred candidate. If the former, Rep. Peña’s victory would not be a mark against Hispanic ability to elect. If the latter, finding retrogression would cause us to discount the preferences of
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the district’s Hispanic Republican voters, which would put us at odds with section 5’s mandate. We conclude that HD 41 remains an ability district in the enacted plan.
d. State House District 117 As it does with regards to HD 41, Texas argues that the 63.8% HCVAP of southwestern San Antonio’s enacted HD 117, Pl.’s Ex. 14, at 16, satisfies our bright-line test for ability to elect. Yet as we have said, Texas misreads our summary judgment opinion. A minority voting population of 65% or higher, not 60%, is necessary to “essentially guarantee” ability to elect. Texas, 831 F. Supp. 2d at 263. We thus use the multi-factored analysis to assess the status of this district without starting from a presumption of ability status.40 Benchmark HD 117’s protected status has not been seriously challenged, and we have been presented with no evidence indicating that the district does not perform for minority voters. Dr. Handley’s endogenous data shows the minority-preferred candidate won four of the five past elections, and only lost the fifth by a narrow margin. Handley House Rep. 9. The exogenous data shows an ability district, too. See Alford Rep. 11 tbl.3b (five out of ten elections); Handley House Rep. 5 (three out of five elections); Engstrom Suppl. Rep. 6 (four out of seven elections). As for enacted HD 117, Texas points out that the district’s boundaries remain essentially unchanged and notes that the district has been trending Republican in recent years. Considering only the five most recent elections in the OAG 10, exogenous results are the same for benchmark and enacted HD 117: minority-preferred candidates won only two out of five. See Tex. Post-Trial Br. 11-12; Alford Rep. 11 tbl.3. The United States, by contrast, argues that enacted HD 117 was
40 In its post-trial brief, Texas argues for the first time that enacted HD 117 satisfies the bright-line test as a coalition district because the Hispanic and Black communities comprise 68.4% of the district’s voting age population. Tex. Post-Trial Br. 11. We reject this new argument, especially because Texas has presented no evidence, such as election analysis or evidence of voting cohesiveness between the minority communities, to support a conclusion that HD 117 is a coalition district.
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purposely engineered to appear unchanged from the benchmark, but that the proposed boundaries actually decrease minority voter power. U.S. Post-Trial Br. 9-10.
We conclude that enacted HD 117 is no longer an ability district. Texas may be correct that minority voting power is beginning to weaken in the benchmark district, but it has not yet dropped below the ability-to-elect threshold. The exogenous data shows that changes made during redistricting, not shifting political trends, are responsible for enacted HD 117’s loss of ability status. The exogenous election analyses of all experts, including Texas’s, show that minority effectiveness decreases from the benchmark level, and all conclude that minoritypreferred candidates carry HD 117 less than half the time. Alford Rep. 11 tbl.3 (two out of ten elections); Handley House Rep. 11 (one out of five elections); Engstrom Suppl. Rep. 8-9 (three out of seven elections).
The high Hispanic population in enacted HD 117 — HCVAP increases five percentage points from the benchmark to 63.8%, Pl.’s Exs. 13, at 16; 14, at 15 — could suggest that enacted HD 117 remains an ability district despite its meager exogenous results. Yet HCVAP numbers do not tell the full story. The district’s Spanish Surname Voter Registration (SSVR)41 level is significantly lower at just 50.1%. Pl.’s Ex. 14, at 27. The record shows that the mapdrawers purposely drew HD 117 to keep the number of active Hispanic voters low so that the district would only appear to maintain its Hispanic voting strength, and that they succeeded.
The primary mapdrawer for the House Plan, Gerardo Interiano, testified that a “ground rule[]” for drawing HD 117 was to keep the SSVR level just above 50%. Trial Tr. 106:25-108:1, Jan. 25, 2012 PM. The mapdrawers accomplished this goal by placing in the new district areas with high Hispanic populations but lower voter turnout, while excluding from the district high-
41 SSVR is a metric used to approximate the number of registered Hispanic voters in a given geographic area. The list is compiled by comparing state voter registration records against a Census list of common Spanish surnames.
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Hispanic, high-turnout areas. For example, the heavily Hispanic communities of Somerset and
Whispering Winds, part of benchmark HD 118, are both very poor and have low voter turnout.
See id. at 9:7-13:7, Jan. 24, 2012 PM; Defs.’ Ex. 363, Garza Dep. 40:8-42:25, Oct. 19, 2011.
They were moved to HD 117 despite repeated requests from HD 118’s representative, Joe Farias,
to keep the communities within his district. Trial Tr. 7:11-14, 14:2-15:3, Jan. 24, 2012 PM. Rep.
Farias’s offer to “trade” an area in HD 118 with similar Hispanic population numbers in
exchange for keeping Somerset and Whispering Winds in his district was rejected, and according
to his unchallenged testimony, the only plausible reason for this refusal was that Hispanic voters
in the region he offered to trade have much higher turnout rates than the voters in Somerset and
Whispering Winds. Id. at 14:19-17:23. Similarly, Interiano testified that Somerset was moved to
HD 117 as a way to keep the district “above 50 percent [SSVR] and maintain [our] other goals in
the district” — strengthening Representative John Garza’s chances at reelection. Id. at 107:7-11,
Jan. 25, 2012 PM.
These incidents illustrate Texas’s overall approach in HD 117: Texas tried to draw a
district that would look Hispanic, but perform for Anglos. According to the experts, that was the result achieved. We conclude that HD 117 is a lost ability district.42
e. State House District 149
HD 149 in Houston-area Harris County is an alleged coalition district composed of
Asian-American, Black, and Hispanic voters. The 2010 Census shows that Harris County was
42 Our conclusion that HD 117 is retrogressive may seem inconsistent with our conclusion regarding HD 41, given that HD 117’s HCVAP is only 1.2 percentage points below the 65% bright line. Yet there are significant differences between the two districts. First, HD 41’s HCVAP is eight points higher than that of HD 117, and eight points represents a significant difference in electoral power. Second, unlike HD 41, where no expert was willing to conclude that the district lost ability status, both Dr. Handley and Dr. Engstrom conclude HD 117 did. Handley House Rep. 11; Engstrom Suppl. Rep. 8-9. Finally, our concerns that finding HD 41 retrogressive would discount the choice of Hispanic Republicans is not an issue here. The evidence for HD 41 showed that the mapdrawers excluded Republican portions of the map; here it shows they excluded high-turnout portions. Selecting among Hispanic voters based on their political preferences may not raise a red flag under section 5, but selecting based on minority voters’ history of turnout, regardless of political preference, does.
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entitled to twenty-four districts, not its current twenty-five, so HD 149 was selected for elimination. The legislature chose to draw the home of HD 149’s representative, Hubert Vo, into HD 137 so that Rep. Vo would be forced to run against Scott Hochberg, HD 137’s representative, in the next election. Defs.’ Ex. 352, Test. of Rogene Calvert, Trial Tr. 422:14-22, Perez, No 11-cv-360. Representatives Vo and Hochberg are the only Democrats in the county’s delegation. Benchmark HD 149’s population was redistributed to neighboring districts and enacted HD 149 was transplanted to an entirely different county in a different part of the state. The new district’s demographics shift dramatically from minority- to majority-Anglo. Pl.’s Exs. 13, at 17 (benchmark Anglo CVAP of 37.6%); 14, at 17 (enacted Anglo CVAP of 77.4%). There is, unsurprisingly, no dispute that enacted HD 149 is not an ability district. Our only task is to determine whether benchmark HD 149 is a coalition district protected under section 5. As discussed above, we have concluded that section 5 protects coalition districts when there is clear evidence both of cohesion among the coalition’s members and demonstrated electoral success. Here, we conclude that this standard has been met.
Rep. Vo is the minority candidate of choice and has won the last four endogenous elections in the district. Handley House Rep. 7 tbl.3. With such strong results, we would likely conclude that HD 149 is an ability district were there a single minority group in the district. But as we have already discussed, we must ask more when analyzing a claim that a coalition has created an ability district. There are four reasons why we conclude this endogenous success is persuasive evidence of the coalition’s demonstrated ability to elect.43
First, population demographics give HD 149 the potential to perform as a coalition district. The district’s combined Asian-American, Black, and Hispanic CVAP is 61.3%. Pl.’s Ex.
43 Our conclusion is consistent with Dr. Handley’s assessment of the district. See Handley House Rep. 3, 7, 13.
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13, at 17. This fact has limited value in assessing minority voting power without information such as voter turnout and cohesion statistics, but it does indicate that if the minority groups in the district came together, they would likely be able to elect their preferred candidate, potentially without any help from Anglo crossover voters.
Second, the record shows that all three minority groups in the district vote cohesively. Texas has not contested that the district’s minority communities vote cohesively in general elections. And although the parties did not provide racially polarized voting analysis or a breakdown of election returns for Rep. Vo’s races, the Texas OAG’s analysis shows that Hispanic and Black voters in HD 149 uniformly prefer the same candidates in general elections and that their preferences consistently diverge from those of the district’s Anglo voters. See Pl.’s Ex. 26, at 3557-60. We have no statistical evidence of Asian-American voting patterns in the record, but the testimony at trial, discussed in more detail below, reports broad, cohesive support for Rep. Vo among all three minority communities and especially within the Asian-American community.
Third, uncontroverted anecdotal evidence shows that a tripartite coalition of the AsianAmerican, Black, and Hispanic communities consistently elects its candidate of choice. HD 137’s Rep. Hochberg testified to the strength of the coalition, concluding that “[p]olitically all three of [the minority] communities form a coalition, and the Asian community is the glue holding things together.” Defs.’ Ex. 738, Pre-Filed Direct Test. of Representative Scott Hochberg 13:12-13. Rogene Calvert, an associate of the Texas Asian American Redistricting Initiative, testified that Rep. Vo defeated a twenty-two year incumbent in 2004 on the strength of the district’s tri-ethnic coalition. Defs.’ Ex. 736, Pre-Filed Direct Test. of Rogene Calvert 11:316. The Asian-American community “really rallied behind Mr. Vo when he announced his
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candidacy” and “took a lot of pride in Vo’s candidacy,” to the point that many Asian-Americans came out to support him who had “never participated in elections.” Id. at 11:8-11. Furthermore, he “wouldn’t have had a chance of success if he hadn’t received support from the other minority communities in District 149,” including endorsements from both Black and Hispanic political groups, and the Asian-American, Hispanic, and Black communities “all worked together to elect Mr. Vo.” Id. at 11:11-23; see also Defs.’ Ex. 352, Trial Tr. 420:14-17, Test. of Rogene Calvert, Perez, No. 11-cv-360, (Calvert, testifying that she has “seen Asian-Americans elected to office and other candidates of our choice due to the fact that we can coalesce with other groups to elect those people”); Defs.’ Ex. 353, Trial Tr. 425:18-24, Test. of Sarah Winkler, Perez, No. 11-cv-360 (local school board member testifying that it is necessary to gain the support of all three minority groups to win office within HD 149). We find this testimony credible, and Texas has made no effort to dispute this evidence that the coalition is effective in local and district-wide elections.44
Finally, the coalition has a track record of success, electing Rep. Vo in 2004 and in every election since. The tri-ethnic coalition has also had sustained success electing other local officials, such as school board and Houston City Council members. Defs.’ Ex. 736, Pre-Filed Direct Test. of Rogene Calvert 12:11-13:7. Although Texas points out that the district only performs in one of Dr. Handley’s five exogenous elections, Tex. Post-Trial Br. 13; see also Handley House Rep. 7 tbl.3, we do not find this persuasive. Texas’s expert did not provide general election exogenous analysis for this district; the only expert to do so is Dr. Handley, and
44 Although the Court agrees that this testimony is sufficient to conclude that the district is protected under section 5, it differs in its views of the strength of the evidence. Judge Griffith concludes that the testimony of Rep. Hochberg and Calvert shows that the Asian-American community leads the coalition and that the Black and Hispanic communities play a consistently supportive and vital role in its success. Judges Collyer and Howell need not reach the issue of leadership because they conclude that a tri-partite arrangement of equals is sufficient for protection under section 5.
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she concluded that the endogenous results were more important for understanding voting patterns in the district. See Handley House Rep. 13 & n.20. Especially when combined with evidence that the coalition has success electing other local officials, we agree with Dr. Handley that endogenous elections, which speak to the ability of a particular voting community to coalesce around candidates for local office, are the best evidence of this coalition district’s success. Unlike the facts of SD 10, here we have evidence of both concerted efforts among a coalition to elect its preferred candidates and a pattern of success extending across multiple election cycles.
Texas’s primary objection to this approach is to argue that the minority groups in HD 149 do not vote cohesively in primaries and only come together to agree on a second- or third-best candidate in time for the general election. In Texas’s view, this does not prove an effective coalition district. Tex. Post-Trial Br. 9-10, 12-13; see also Alford Rep. 19-21 (explaining his analysis showing that Asian-American, Black, and Hispanic voters in HD 149 do not vote cohesively at the primary level). We agree that evidence of shared voting preferences at the primary level would be powerful evidence of a working coalition, but it is not needed to prove cohesion. In the first place, there is little support for Texas’s focus on primary elections. Texas cites LULAC for this point, but LULAC, a section 2 case, only talks about primaries as a method to determine one minority group’s candidate of choice; it says nothing about the need for two groups in a putative coalition to vote cohesively in a primary. See 548 U.S. at 444. More importantly, it does not hold that evidence of cohesion in a primary is necessary to identify a candidate of choice. Id. (stating that without a contested primary there was “no obvious benchmark” to determine the minority-preferred candidate, and that the district court could draw multiple reasonable inferences from this lack of primary-level evidence). The same is true here, where there has been no contested endogenous Democratic primary since 2004, when Rep. Vo
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first won his seat. Texas also cites two district court cases that rely on primary cohesion, Rodriguez v. Pataki, 308 F. Supp. 2d 346, 421 (S.D.N.Y. 2004); and Session v. Perry, 298 F. Supp. 2d 451, 478 (E.D. Tex. 2004), but these cases represent the minority view. Most courts to address this issue have expressed no preference about the election level at which voting cohesion must be shown. See, e.g., Lewis v. Alamance Cnty., 99 F.3d 600, 615 (4th Cir. 1996); LULAC, Council No. 4434 v. Clements, 999 F.2d 831, 886 (5th Cir. 1993) (en banc); Bridgeport Coal. for Fair Representation v. City of Bridgeport, 26 F.3d 271, 276 (2d Cir. 1994), vacated and remanded on other grounds, 512 U.S. 1283.
We agree with the majority view. Courts regularly consider general election data to demonstrate voter cohesion in traditional majority-minority districts, without any indication that such a showing is insufficient without evidence of voter cohesion in the primary as well. See, e.g., Thornburg v. Gingles, 478 U.S. 30, 58-59 (1986); Old Person v. Cooney, 230 F.3d 1113, 1121 (9th Cir. 2000). Additionally, requiring cohesion in the primary election distorts the role of the primary. Although minority groups sometimes coalesce around a candidate at that point in time, minority voters, like any other voters, use the primary to help develop their preferences. We refuse to penalize minority voters for acting like other groups in a political party who do not coalesce around a candidate until the race is on for the general election. See Alamance Cnty., 99 F.3d at 614-16 (“We reject the proposition that success of a minority-preferred candidate in a general election is entitled to less weight when a candidate with far greater minority support was defeated in the primary. . . . [S]uch a view is grounded in the belief that minority voters essentially take their marbles and go home whenever the candidate whom they prefer most in the primary does not prevail, a belief about minority voters that we do not share.” (citation and internal quotation marks omitted)). “Pull, haul, and trade” describes the task of minority and
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majority voters alike, and candidates may be minority “candidates of choice” even if they do not “represent perfection to every minority voter.” De Grandy, 512 U.S. at 1020.
We are persuaded the record establishes that benchmark HD 149 is a coalition district protected under section 5. The Asian-American, Black, and Hispanic voters in the district work together to support their preferred candidates, and they have a multi-year record of success. Benchmark HD 149 is a protected ability district, and Texas’s decision to dismantle it without offsetting the loss elsewhere is retrogressive.
f. State House Districts 26, 106, and 144 Various Intervenors have argued that HDs 26, 106, and 144 are also lost ability districts. We disagree. For two of the districts, HDs 26 and 106, the only evidence presented shows that neither is a majority-minority district and both are currently represented by Anglo Republicans. See Pl.’s Ex. 13, at 13, 16. Other than scant assertions about one endogenous election in which the Anglo Republican candidate won by a narrow margin and reputed exogenous success since 2008, see Texas Legislative Black Caucus Post-Trial Br. 3-7, the parties have offered no election performance data or reconstituted election analysis. We cannot make findings of minority voting ability based on this thin record. At best, the evidence may show that the districts are beginning to favor minority-preferred candidates, but section 5’s effect prong protects only existing, not emerging, ability districts. See Texas, 831 F. Supp. 2d at 264-65. Similarly, HD 144 is not a majority-minority district and is represented by an Anglo Republican. Pl.’s Ex. 13, at 17. Both Dr. Handley’s and Dr. Engstrom’s exogenous election analyses show no victories for minority-preferred candidates in this district. See Handley House Rep. 5; Engstrom Chart. We find that benchmark HD 144 is not an ability district.
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2. Alleged New Ability Districts Texas argues that the legislature created as many as three new ability districts, which offset the loss of any that might have been eliminated in the enacted plan. But the enacted plan does not draw any new ability districts. It only strengthens minority voting power in some districts that have already achieved the ability to elect. As we have already discussed, strengthening ability districts cannot salvage a retrogressive plan. A state may not offset the elimination of an ability district by “packing” additional minority voters into a district that already performs. What the State calls offsets are actually existing ability districts, and they do not compensate for the loss of others. During the course of this litigation, Texas has offered three different explanations for how the enacted plan creates new Hispanic ability districts. At summary judgment, Texas identified HD 148 in the Houston area as a new ability district. Mot. Summ. J. ¶ 11. At trial, Texas’s chief witness for the House Plan testified that he believed strengthening the SSVR percentages in HD 148 and Tarrant County’s HD 90 compensated for the loss of HD 33. Trial Tr. 11:24-12:6, Jan. 17, 2012 PM. And at closing arguments and in post-trial briefing, Texas appears to abandon these claims, shifting instead to the altogether new argument that enacted HD 74 in western Texas is a new ability district. Tex. Post-Trial Br. 13-14. Texas’s decision no longer to rely on HDs 90 and 148 was sound. Although an initial examination of the demographic data shows that both districts are more strongly Hispanic in the enacted plan,45 all the experts’ election analyses show that both are already ability districts. Both achieved a perfect score under Dr. Handley’s endogenous election analysis, Handley House Rep.
45 The HCVAP in proposed HD 90 increases from 47.9% to 49.7%, and SSVR from 47.2% to 50.1%. Pl.’s Exs. 13, at 20; 14, at 20. HCVAP in proposed HD 148 increases from 42.1% to 51.4%, and SSVR from 40.0% to 50.0%. Pl.’s Exs. 13, at 21; 14, at 21.
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5 tbl.1, and no expert’s exogenous analysis shows any change between the performance of the benchmark and enacted districts. See Alford Rep. app. B; Handley House Rep. 5 tbl.1, 11 tbl.3; Engstrom Chart. Increasing the size of their minority populations had no impact on these districts for purposes of section 5’s effect prong.
Whether enacted HD 74 is a new ability district is a closer call, but we conclude it is not.46 With an HCVAP of 69.4%, Pl.’s Ex. 14, at 15, all parties agree that enacted HD 74 is an ability district; the question is whether benchmark HD 74 is as well. Yet the rest of the evidence shows that, as with HDs 90 and 148, the district’s demographic changes only strengthen an already-performing minority district.
Benchmark HD 74 is majority-Hispanic, with an HCVAP of 59.7%. Pl.’s Ex. 13, at 14. Representative Pete Gallego, the Hispanic candidate of choice, has represented the district since 1990. Although Texas now argues that benchmark HD 74 is not an ability district, key players during redistricting believed it was. See Trial Tr. 25:5-22, Jan. 17, 2012 PM (Interiano, testifying that he identified HD 74 as a protected district at the outset of the redistricting process); Defs.’ Exs. 214, 215, 820 (memoranda from Texas Legislative Council attorney David Hanna identifying benchmark HD 74 as a protected district). With a majority-Hispanic population, twenty-two years of success electing the minority-preferred candidate, and apparently little doubt by anyone that the district was protected until late in the litigation process, it seems clear that HD 74 does not need the new boundaries of the enacted plan to perform for minority voters.
In response, Texas points to the exogenous election analyses that paint a weaker picture of minority success. See Alford Rep. 11 tbl.3b (reporting minority victories in four of the OAG 10 elections); Handley House Rep. 5 tbl.1 (one out of five victories). But see Engstrom Chart
46 We note that even if we agreed with Texas that enacted HD 74 is a new ability district, the enacted plan would still be retrogressive because the creation of one new ability district cannot offset the loss of several others.
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(four out of seven victories). Texas argues that the endogenous results reflect only the fact that Rep. Gallego has held office in HD 74 for over two decades. According to Texas, that is insufficient evidence that HD 74 is an ability district. Tex. Post-Trial Br. 13-14.
We are not persuaded. As discussed above, endogenous elections are the best indication of ability to elect. What a minority community actually does in a specific district on election day is more powerful evidence than reconstituted statewide results of its ability — or lack thereof — to elect a preferred candidate. To be sure, Rep. Gallego’s success is almost certainly attributable, in part, to the considerable advantages of incumbency. But Texas asks us to discount a long history of endogenous success without providing evidence that incumbency is the predominant reason the minority community is able to elect Rep. Gallego. We decline to speculate with Texas that this rationale, instead of, for example, a large Hispanic community of interest with a mobilized voter base, accounts for the district’s long history of electing the Hispanic-preferred candidate. Texas has failed to show that the minority community has reelected Rep. Gallego multiple times despite lacking an ability to elect.
Moreover, we reject the premise that incumbency advantage is a mark against ability to elect. The minority community need not elect a different candidate in successive terms to prove continuing ability to elect. As we emphasized in our summary judgment opinion, analyzing ability to elect includes considering all relevant factors. Texas, 831 F. Supp. 2d at 260. Incumbency can be a tool that a minority community, like any other group of voters, uses to enhance its electoral power. We are sensitive to Texas’s concern that incumbency advantage could, at times, give a “false positive” for ability status, but we conclude that the best solution is to consider the record as a whole, not to exclude probative evidence. We are persuaded that what has happened on the ground in HD 74 for over two decades — the consistent reelection of Rep.
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Gallego — reflects the reality of established minority voting power. We thus conclude that HD 74 is an ability district in the benchmark plan, and that Texas’s attempt to add Hispanic voters to the district cannot be used to offset the loss of ability districts elsewhere.47
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 VRA. 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.
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,
47 In a footnote in its post-trial briefing, Texas advances — for the first time — HD 101 as another potential offset district. Tex. Post-Trial Br. 14 n.7. It argues that if this Court finds coalition districts are protected under section 5, as we have, then enacted HD 101 is a new coalition district because the combined Black, Hispanic, and Asian-American CVAP is 55.5% and the district is located in Democratic-leaning Tarrant County (and so, presumably, the minority community will have help from crossover Anglo voters). We stated at summary judgment that the lack of election returns to show that two or more distinct minority communities will coalesce around a preferred candidate makes it “extremely difficult to confirm that minority voters would indeed have the ability to elect” in a prospective coalition district. Texas, 831 F. Supp. 2d at 268. Accordingly, we will not conclude, without evidence, that the minority groups in this new district will coalesce around the same candidates and turn out in sufficient numbers to elect them.
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race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.
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.
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.
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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.
Date: August 28, 2012 /s/
THOMAS B. GRIFFITH United States Circuit Judge
/s/ ROSEMARY M. COLLYER United States District Judge
/s/ BERYL A. HOWELL United States District Judge
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Separate opinion for the Court with respect to retrogression in Congressional District 25 by HOWELL, District Judge:
The enacted Congressional Plan abridges the ability of minorities to elect their candidates of choice, and thus cannot be precleared under Section 5 of the VRA. As explained below, CD 25 was among the districts that provided minorities the ability to elect their candidates of choice in the Benchmark Plan, and is therefore protected under the VRA. The elimination of this district, without a corresponding offset, was retrogressive.
All parties agree that CD 25 in the enacted plan is not an ability district. They disagree, however, whether Benchmark CD 25 is a protected crossover district. Texas, the United States,1 and one defendant-intervenor claim that it is not; the remaining intervenors argue that it is. As discussed above, we reaffirm the conclusion reached in our summary judgment opinion that crossover districts are protected under Section 5, and that proving their existence requires “more exacting evidence than would be needed to prove the existence of a majority-minority district,” with “discrete data, by way of election returns, to confirm the existence of a voting coalition’s electoral power.” Texas v. United States, 831 F. Supp. 2d 244, 268 (D.D.C. 2011). We conclude that the record before the Court demonstrates that minority voters are politically cohesive, have a demonstrated history of electoral success, and effectively exert their political power within the coalition that elects minority preferred candidates in CD 25. The district is therefore a protected ability district in the Benchmark that was lost in the enacted plan.
In the Benchmark Plan, CD 25 draws a majority of its population from South Austin in Travis County, but also includes seven counties southeast of Austin. The total population in the
1 The United States does not dispute that minority voters have the ability to elect their preferred candidate in CD 25, but explained that, in its view, Section 5 does not apply because racially polarized voting is not present due to the number of Anglo crossover votes. While, in dissent, our colleague correctly notes the government does “not argue that benchmark CD 25 is a protected district,” CD 25 Dissent, at 1 n.1, the government’s underlying rationale for this position is based upon a restricted view of the protection provided by Section 5, which, as discussed infra, we reject.

district is 49.8% Anglo, 38.8% Hispanic, and 8.7% Black. Pl.’s Ex. 11. Anglos constitute 63.1% of the CVAP in CD 25 while Hispanics make up 25.3% and Blacks 9.1%. Id. If Anglos voted cohesively in CD 25, they could elect their preferred candidate in every election, and the district would be beyond the ambit of Section 5. The Anglo vote in CD 25 is split, however; as many as half of Anglo voters cross over to vote with Hispanics and Blacks to elect Democratic candidates (a much greater crossover percentage than the statewide average of approximately 25%). See Defs.’ Ex. 578 (Trial Tr. 1120-21, Perez v. Perry, Sept. 10, 2011). In contrast, the Hispanic and Black voters of CD 25 overwhelmingly vote cohesively for the Democratic candidates. Defs.’ Ex. 724 (Ansolabehere Rebuttal Report to the Supplemental Report of Dr. John Alford, Attach. 3) (“Ansolabehere Reb. Rep.”). For instance, in the 2008 and 2010 congressional elections, 100% of Black voters cast ballots for Congressman Lloyd Doggett, as did over 80% of Hispanic voters. Id. Anglo support for Congressman Doggett, however, has varied considerably. In 2008, he received 53% of the Anglo vote, but Anglo support dropped to 37% in the 2010 election. Id. The dominant political force in CD 25 is thus described by some as a “tri-ethnic coalition” composed of almost all the district’s Black and Hispanic voters, and up to half, but as little as 37%, of Anglo crossover voters. See, e.g., Trial Tr. 84-86, Jan. 19, 2012 PM (Dukes); Ansolabehere Reb. Rep., Attach. 3.
To determine if a crossover district is protected under Section 5, the Court must assess whether minority voters (1) vote cohesively and (2) successfully elect their preferred candidate by effectively exerting their political power within the voting coalition.2
2 Although our dissenting colleague characterizes this test as “novel” and “divorced from Supreme Court precedent,” CD 25 Dissent, at 1, the test we outline above is no more novel than the application of any precedent to a unique set of facts, and fully comports with this panel’s conclusion at summary judgment that crossover and coalition districts are protected by Section 5 of the VRA, Texas, 831 F. Supp. 2d at 266-68, as well as our reading of the Supreme Court precedent regarding protected districts outlined in the Majority Opinion. Majority Op., at 18-25. Nevertheless, the dissent argues that the test we delineate “sweeps too wide because it provides no way to distinguish between unprotected influence districts, where minority voters play a substantial role, and protected
2

The parties do not dispute that minorities in CD 25 combine with some Anglo voters to
form a “tri-ethnic coalition,” that this coalition votes cohesively in general elections, and that the
coalition has had considerable success in electing minorities’ candidates of choice.3 For
example, despite the fact that Anglos comprise 63.1% of the citizen voting age population, “the
candidate preferred by Blacks and Hispanics [in CD 25] has won every Congressional election
this decade.” Ansolabehere Reb. Rep., at 5; Pl.’s Ex. 11. Indeed, Texas’s own expert agreed
that Benchmark CD 25 is a district in which minorities have the ability to elect the candidates of
their choice in general elections.4 Trial Tr. 21-22, Jan. 25, 2012 AM (Alford); see also Alford
Dep. 181-82, Jan. 22, 2012.
crossover districts, in which they have an ability to elect.” CD 25 Dissent, at 2. The “unprotected influence districts” referenced by the dissent, however, are districts “where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process.” Georgia v. Ashcroft, 539 U.S. 461, 482 (2003). In other words, minority voters in influence districts fall short of exercising sufficient power to be a protected district. By contrast, our inquiry under the test we apply focuses on whether minority voters are able to “successfully elect their preferred candidate by exerting their political power.” As we make clear, it is not enough that minorities exert political power. They must also be successful in electing the candidates of their choice. See LaRoque v. Holder, 650 F.3d 777, 793-94 (D.C. Cir. 2011) (“Essentially overruling Georgia v. Ashcroft, Congress added subsections (b) and (d) to section 5, which make clear that the section 5 inquiry should focus on whether the proposed change ‘has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color . . . to elect their preferred candidates of choice.’ 42 U.S.C. § 1973c(b)”). As discussed below, and our dissenting colleague concedes, CD 25 Dissent, at 3-4 (stating that “. . . there is evidence that a coalition of Black, Hispanic, and some Anglo voters consistently elects minority-preferred candidates in CD25 . . . .”), it is undisputed that the tri-ethnic coalition elected Congressman Doggett, the minority candidate of choice, in each of the past three elections.
3 Given that Hispanic and Black voters in Benchmark CD 25 prefer the same candidate of choice in the general election, the Court considers these voters together for purposes of assessing minority voting power. See Majority Op., at 5-6 (stating that “[t]he goal of the ‘effect’ prong [of section 5] is ‘to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise,” Beer v. United States, 425 U.S. 130, 141 (1976) . . . .”) (emphasis added). While the dissent queries whether such aggregation is permissible under Section 5, CD 25 Dissent, at 2 n.2, this Court has already answered this question by confirming that coalitions formed by minority voters, who have united to elect their preferred candidate in a district, are protected under Section 5. Majority Op., at 18-22.
4 Although our dissenting colleague faults us for citing Dr. Alford’s expert opinion regarding CD 25 because we reject his methodology, Texas bears the burden of proof and its only expert credibly opined, in disagreement with his own client, the State of Texas, that Benchmark CD 25 is a district in which minority voters are able to elect the candidates of their choice. The dissent states that because “Dr. Alford uses a metric . . . we have emphatically rejected[,] [t]here is no reason that his assessment should be legally conclusive for this district, yet no other.” CD 25 Dissent, at 5 n.5. There are two inaccuracies in this statement. First, Dr. Alford’s conclusion regarding Benchmark CD 25 was not based on his rejected metric, but upon the undisputed fact that the minority candidate of choice has won all endogenous elections in the district. Trial Tr. 21, Jan. 25, 2012 AM (Dr. Alford responding “yes” to the
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Given that there is no dispute that CD 25’s tri-ethnic coalition votes cohesively and has had considerable and proven success in general elections, the only remaining question before the Court is whether minorities in CD 25 exert their political power effectively in the tri-ethnic coalition, or are rather just “hangers-on” to the choices of Anglo voters.
A. Minority Groups Effectively Exert Political Power Within the Tri-Ethnic Coalition that Elects Minority Preferred Candidates in CD 25 Texas argues that minorities succeed in CD 25 because Anglos do not vote as a racial
bloc and some Anglos happen to vote for Democratic candidates, who are preferred by minorities. See Texas Post-Trial Brief, ECF No. 201, at 16 (stating that “[t]he demographics for the district show why” CD 25 is not a protected district and arguing that it performs for minorities because it is a “reliable Democratic district”). Texas’s expert, while agreeing that minorities in Benchmark CD 25 have the ability to elect the candidates of their choice, similarly asserts that the sole cause of the minority groups’ undisputed success is the partisan makeup of the Anglo population in the district. See Pl.’s Ex. 175, at 26-27 (Alford Pre-Filed Direct Testimony) (stating that “the key factor at work is partisanship”); Defs.’ Ex. 319, Alford Report, at 2 (“Because these ‘tri-ethnic’ coalitions are driven by partisanship, they cannot be easily disentangled from partisanship . . . .”). According to this argument, minority voters in CD 25 are subject to the whims of Anglo Democrats and have no effective voice in the electoral process.
This argument is untenable for two reasons. First, the fact that a number of Anglo voters share the same political party as minority voters does not remove those minority voters from the protections of the VRA. The statute makes clear that this Court must focus on whether
question: “You would agree . . . that on the benchmark plan Congressional District 25 was a district in which Blacks and Hispanics were able to elect the candidates of their choice in general elections, correct?”). In fact, Dr. Alford testified that he did not even include CD 25 in his statewide functional analysis. Id. 21-22. Second, we do not deem Dr. Alford’s statement on CD 25 to be “legally conclusive,” which is why we discuss the law and evidence pertaining to CD 25 at length.
4

minorities are able to elect the candidate of their choice, no matter the political party that may
benefit. Second, as detailed below, the record does not support Texas’s argument concerning the
political dynamics in CD 25. Both factual and expert testimony establish that Anglos do not
control the election outcomes in CD 25 and that power is shared equally among Hispanics,
Blacks, and Anglos in this district, giving minority voters the ability to elect their preferred
candidates.5
The record demonstrates that no single group in CD 25’s tri-ethnic coalition is
sufficiently numerous to elect its candidate alone, but together the coalition consistently wins
general elections in the district. Contrary to the assertion that Anglo Democrats control the
district, evidence shows that candidates supported by the minority groups within the tri-ethnic
coalition are the ones who win. Trial Tr. 104, Jan. 19, 2012 PM (Dukes). For example, Texas
State House Representative Dawnna Dukes testified that candidates are not able to bypass
minority voters, and candidates who only obtain endorsements from Anglo groups in the tri-
ethnic coalition do not win elections. Id. at 106 (Rep. Dukes testifying that “ . . . in general
elections in Travis County [] if you do not win the Hispanic and African-American boxes that are
largely located in the central portion of Travis County, then you are not going to win an election
5 Writing in dissent, our colleague argues that to draw “the line between protected crossover districts and nonprotected districts that simply vote Democratic,” a minority group “must lead” a crossover coalition and that “an equal voice” in a district’s electoral decisions is not enough. CD 25 Dissent, at 1, 3. For this reason, the dissent is critical of the testimony that “could support a conclusion that Anglos do not control CD 25, but [] doesn’t tell us anything more.” Id. at 5. This new “leadership” test sets down a hurdle for which we find no basis in the law or precedent and, consequently, to which we do not subscribe. Section 5 of the VRA protects “the ability of [minority voters] to elect their preferred candidates of choice.” 42 U.S.C. § 1973c(d). This text charges the Court, quite simply, with assessing whether minority voters are able effectively to elect their preferred candidates. The Supreme Court has never stated that minorities must “lead” a voting coalition, but rather that when minorities “pull, haul, and trade” to elect their preferred candidate, the district is one in which minority voters have an ability to elect and section 5’s safeguards apply. See Johnson v. De Grandy, 512 U.S. 997, 1020 (1994); see also Georgia v. Ashcroft, 539 U.S. 461, 481 (2003). The Supreme Court’s oft-used description belies an interpretation of Section 5 that would require minority voters to “lead,” with the implication that they must eschew any “trade” or compromise in power sharing, even though such trading and compromise are a necessary part of the process in a political coalition. We decline to adopt a new “leadership test,” as outlined in the dissent, when the text of the statute and Supreme Court construction of the law provide no basis for the assertion that minorities are only able to elect their candidate of choice if they are “leaders,” as opposed to equal participants in the process of political coalition building.
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in Travis County without the progressive Anglo Black and Hispanic communities. I may not have an Excel spreadsheet, but I can tell you I know my county.”).
Representative Dukes provided specific examples of elections to support her analysis of minority groups’ voting power in CD 25. She recalled the 2008 election for Travis County Tax Assessor, in which the African-American supported by the coalition successfully defeated, with 74% of the vote, an Anglo male “progressive Democrat.” Id. at 112. Before the Court is similar testimony from David Escamilla, the Travis County Attorney, regarding the power of minority voters in the tri-ethnic coalition. See Defs.’ Ex. 735 (Pre-Filed Direct Testimony of David Escamilla). Mr. Escamilla not only echoed Representative Dukes’ testimony that Anglos do not control the election outcomes in the tri-ethnic coalition, but also provided the example of a race in 2008 in which an Anglo Assistant County Attorney lost a race for a county judgeship despite having “the lion’s share of endorsements from the local Democratic clubs” because he was “unable to gain significant support from the Hispanic or African American community.” Id. at 9-10.
The evidence presented to the Court regarding the power of minority voters in the triethnic coalition is persuasive, particularly because it is corroborated by the expert analysis performed by Dr. Stephen Ansolabehere.6 To assess the relative power of the groups comprising the tri-ethnic coalition, Dr. Ansolabehere examined each groups’ success in Democratic primary elections in Travis County. In the 43 Travis County primaries he analyzed, the Anglo preferred
6 As discussed infra, Dr. Ansolabehere’s analysis could be more comprehensive. His findings are nonetheless probative of the voting dynamics within CD 25. Our dissenting colleague believes that some of Dr. Ansolabehere’s statistics result in “discrepancies,” CD 25 Dissent, at 7 n.8, but our colleague’s deconstruction of Dr. Ansolabehere’s data has not been corroborated by any statistical expert. Regardless, even taking into account any alleged “discrepancies,” it is undisputed that Dr. Ansolabehere’s data indicates that Congressman Doggett enjoys virtually unanimous support from Black voters and overwhelming support from Hispanic voters.
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candidate won only once without support from the Hispanic and Black communities.7
Ansolabehere Reb. Rep., Attach. 6. On the other hand, minority preferred candidates won
twelve elections without the support of Anglo voters. Id. While Texas – as well as the TLRTF –
argues that Anglo Democrats control the tri-ethnic coalition and drown out minority voters, these
election results belie that conclusion. To the contrary, Dr. Ansolabehere concludes that
“[l]ooking across the different patterns of group coalitions reveals that no one group dominates
the primary process. Power is shared very equally and in such a way that the racial groups
succeed in nominating their preferred candidates 75 percent of the time.” Id. at 23. By way of
example, in the 43 primaries Dr. Ansolabehere analyzed, Anglo voters backed the winner in 31
primaries; Hispanic voters backed the winner in 32 primaries; and Black voters backed the winner in 31 primaries. Id., Attach. 6.8
These statistics support the testimony presented to the Court that the tri-ethnic coalition
consistently elects candidates in the Democratic primary that appeal to the minority voters in the
tri-ethnic coalition. Mr. Escamilla effectively described the political cohesion and cooperation
within the tri-ethnic coalition, which “consistently produces broad agreement to support
individual candidates and slates of candidates. The high frequency of agreement on candidates
among the organizations within the Coalition also stems from the fact that many individuals are
members of more than one of the organizations. This overlap in membership promotes
7 These primary election results are cited only to assess the relative power among groups comprising a voting coalition, not to assess whether a voting coalition exists. See Majority Op., at 64-66 (noting that groups comprising a voting coalition need not vote cohesively at the primary level). 8 A second expert also noted that voter turnout in primary elections is generally low in Travis County and CD 25, which effectively amplifies the preference of minority voters in Democratic primaries. He explained: “[I]n the lowturnout Travis County and CD 25 primaries, minority voters vote almost exclusively in the Democratic election, while the Anglo majority in Travis County, and elsewhere in CD 25, splits its vote in the March partisan balloting. That means minority voters, especially in Travis County, combining with the minority of Anglos who remain in the Democratic primary, are very effective in determining the nominee of their party.” Murray Suppl. Rep., ECF No. 218, Ex. 1, at 1; see also id. at 5 (“Fewer and fewer Anglos vote in Democratic primaries in the 25th District.”).
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agreement on common slates of political candidates.” Defs.’ Ex. 735, at 7. Indeed, the evidence
demonstrates that Anglos do not dominate the tri-ethnic coalition that successfully elects
candidates in CD 25. Rather, the record shows that the views and preferences of minority voters
in the tri-ethnic coalition are not only necessary but, more importantly for Section 5 analysis,
regularly prevail in the coalition’s selection of candidates. In our view, as noted, the tri-ethnic
crossover coalition at work in Benchmark CD 25 reflects equal power-sharing among the
members of the coalition rather than domination by Anglo voters.
In addition to the anecdotal and expert evidence of the dynamics within the tri-ethnic
coalition, there is no greater evidence of the power of minority voters in CD 25 than the
reelection of Congressman Doggett in 2010. In 2008, 53% of Anglo voters supported
Congressman Doggett’s successful reelection campaign. In 2010, however, Congressman
Doggett won reelection despite receiving only 37% of the Anglo vote because 100% of Blacks and 86% of Hispanics voted for him. Ansolabehere Reb. Rep., Attach. 3.9 Thus,
notwithstanding the fact that a large majority of Anglos voted against the minority preferred
candidate, minority voters effectively exerted their political power (with the aid of a number of
crossover Anglo voters) to elect the candidate of their choice.
Texas argues that minority success is solely due to the partisan makeup of the district, but
the 2010 election alone refutes this conclusion. Indeed, despite Texas’s burden of proof, Texas
supplies no evidence aside from demographic statistics to support its argument that minority
9 Most of the experts agree that such endogenous election results are the most probative evidence of whether a minority group or minority coalition has the ability to elect the candidate of choice. See, e.g., Defs.’ Ex. 794, at 3 (Handley Rebuttal Report) (“[T]he most essential piece of information in determining if a Benchmark district is a district that provides minority voters with the ability to elect their candidates of choice is whether minority voters have been successful at electing their preferred candidates to the legislative office at issue in the district.”); Defs.’ Ex. 327, at 4 (Handley Congressional Report); Defs.’ Ex. 724 (Ansolabehere Oct. 21, 2011 Report, at 31). While the retrogression expert proffered by Texas disagrees with reliance on endogenous election analysis, as noted previously, even he agreed that Benchmark CD 25 is a district in which minorities have the ability to elect the candidates of their choice. Trial Tr. 21-22, Jan. 25, 2012 AM (Alford).
8

voters do not have power in the tri-ethnic coalition nor does it supply evidence to undercut the intervenors’ argument that they do. The intervenors argue that minority voters’ repeated electoral success as well as the unrebutted factual and expert testimony regarding equal powersharing among the groups comprising the tri-ethnic coalition is sufficient to establish that Benchmark CD 25 is a minority ability district. We agree.
B. Evidence Discrediting Minority Voting Power is Unpersuasive Despite the success of minority voters in electing the candidates of their choice in CD 25,
unrebutted testimony of elected officials from within this district, and expert evidence corroborating the political power of minority voters within the tri-ethnic coalition, two arguments are asserted for support of the position that minority voters do not exert political power in Benchmark CD 25 and that this district is therefore not eligible for protection as an ability district. The United States also takes the position that Benchmark CD 25 is not a protected district, but does so on the belief that Section 5 does not apply to CD 25 because Anglo voting in the district is not characterized by racial polarization. Each of these arguments merits consideration.
First, the TLRTF discounts the expert evidence presented by Dr. Ansolabehere demonstrating the electoral success of minority voters and their power within the tri-ethnic coalition because this evidence relies on information from Travis County, as opposed to all of the counties that comprise CD 25 in the Benchmark plan. TLRTF’s Resp. to the Ct.’s Order of Mar. 6, 2012, ECF No. 219, at 7.10 We acknowledge that, as with other experts in this case, the analysis by Dr. Ansolabehere does not cover all possible useful data. Nonetheless, the Court finds evidence of the tri-ethnic coalition’s performance in Travis County probative of its analysis
10 Our dissenting colleague also cites this focus on Travis County as a weakness in the expert analysis and testimony. CD 25 Dissent, at 5-6.
9

of whether minorities in CD 25 have the ability to elect the candidates of their choice. As an
initial matter, there is only one endogenous election within CD 25 as a whole: the election for a
representative to the U.S. Congress, which Congressman Doggett has won since the district’s
initial formation. Thus, in order to measure the effectiveness and power of minorities in the tri-
ethnic coalition that elects Congressman Doggett, one must necessarily look to the performance
of the coalition in other political subdivisions, such as in Travis County. The portion of CD 25
that encompasses Travis County not only comprises a significant majority of the population of
CD 25 (59.7%), but also contains a large majority of the district’s minority population (66%).
See Pl.’s Ex. 11. The voting dynamics in the district’s most populous county have a significant
impact on the voting dynamics in the rest of the district. The minority population’s other
successes in Travis County are therefore significant in assessing its power and influence within
the crossover coalition. 11
Second, like Texas, the TLRTF contends that Benchmark CD 25 is not an ability district
because Anglo voters dominate the electoral outcomes in CD 25. As the prior discussion
reveals, this argument is factually wrong. It is also based upon faux data. In support of its view
of the relative voting power of minority versus Anglo voters, the TLRTF cites two different sets
of data supplied by the OAG: racially polarized voter turnout estimates and exogenous election
results in statewide Democratic primaries. Prior to discussing the reliability of these datasets,
11 No party, including Texas, presented any evidence regarding the tri-ethnic coalition’s performance in the six smaller counties wholly contained in Benchmark CD 25. Our colleague states that we are “mistaken” on this point, and writes that “[w]e received evidence indicating that the tri-ethnic coalition was ineffective in these counties in 2010.” CD 25 Dissent, at 6 n.6. The exhibit to which he cites, however, is a 206-page table of election results, which indicates that the Democratic candidate lost in the elections he references. See id.; Pl.’s Ex. 34. This table and the election results our colleague discovered on the Internet, see CD 25 Dissent, at 6 n.6, indicate that the other six counties wholly contained in Benchmark CD 25 vote overwhelmingly Republican. Id. (concluding, based on an analysis of aggregate data, that “the tri-ethnic coalition prevailed in only three of one hundred and twenty elections held in these counties in 2010”). This confirms that at least the majority of voters in these counties are not part of the tri-ethnic coalition, and thus do not affect the voting dynamics within the tri-ethnic coalition, which is the focus of our inquiry. It further indicates that the tri-ethnic coalition is able to prevail in endogenous elections in Benchmark CD 25 despite the fact that most of the voters in these six smaller counties do not vote for the minority preferred candidate.
10

the Court briefly reviews the peculiar manner in which the TLRTF first raised its arguments to
the Court.
Over three weeks after trial and following submission of the parties’ proposed findings of
fact and post-trial briefs, the TLRTF argued for the first time in an “advisory” that the Court
should not count Benchmark CD 25 as a protected district because Anglo voters “dominate the Democratic primary.”12 Advisory of Def. Intervenor TLRTF, ECF No. 210, at 3; see also
TLRTF Resp. to Gonzales Intervenors’ Brief Regarding CD 25, ECF No. 223, at 2 n.3 (TLRTF
concedes that prior to filing its advisory, this intervenor had “never previously ‘suggest[ed] to
the Court that CD 25 was not a minority ability district[.]’”). As support for its blanket statement
that Anglos “dominate” Democratic primaries in CD 25, the TLRTF cited tables of exogenous
election results from statewide primary and general elections in four years (2002, 2006, 2008 and
2010). Advisory of Def. Intervenor TLRTF, ECF No. 210, at 3 n.10 (citing Defs.’ Exs. 437,
439-41). Since the tables of election results did not identify the minority candidates of choice,
the exhibits did not corroborate TLRTF’s statement, prompting the Court to issue a Minute
Order directing the TLRTF to provide a “fuller explication of its reasoning for and the evidence
behind its conclusion.” Minute Order dated Mar. 6, 2012.
In response to the Court’s Order, the TLRTF argued for the first time that Anglos often cast a majority of votes in primary elections. 13 TLRTF’s Resp. to the Ct.’s Order of Mar. 6,
12 According to the other intervenors, when the U.S. District Court in the Western District of Texas initially adopted a congressional map that preserved CD 25, the TLRTF “defended that map in Texas’s appeal to the Supreme Court, never suggesting to the Court that CD 25 was not a minority-ability district . . . .” Resp. of Certain Def. Intervenors to TLRTF’s Briefing Relating to CD 25, ECF No. 221, at 3. 13 The TLRTF also urges the Court to look to a second OAG dataset of exogenous election results in CD 25 for statewide Democratic primaries, which the TLRTF interprets as showing that Hispanic candidates of choice only prevail in three out of nine primary elections. TLRTF’s Resp. to the Ct.’s Order of Mar. 6, 2012, ECF No. 219 at 12-13; TLRTF’s Resp. to Gonzales Intervenors’ Brief Regarding CD 25, ECF No. 223 at 13 (“Latino candidates won only three out of the nine Democratic Primary elections”) (emphasis in original). Other intervenors dispute the TLRTF’s interpretation of this data and argue that the data shows that minority preferred candidates prevailed in
11

2012, ECF No. 219, at 13. The Court agrees with the remaining intervenors, however, that the
data presented by the TLRTF to support this argument is not persuasive. 14
According to the TLRTF and our dissenting colleague, the OAG turnout estimates for
certain selected elections in four elections cycles between 2002 and 2010 indicate that Anglo
voters cast the majority of votes in both the Democratic primary and general elections in CD
25.15 Id.; see also TLRTF Resp. to Gonzales Intervenors’ Brief Regarding CD 25, ECF No. 223,
at 1-2 (arguing that “Anglo voter preferences drive the outcome of both the Primary and General
Election”). These turnout estimates, however, were appropriately criticized by Dr. Alford
because they are unreliable on their face. Dr. Alford explained:
. . . if you’ll take a quick look at the last two columns [of the data] I think you’ll agree with me there’s very little reason to put any faith in this particular analysis. I don’t put any faith in the analysis. I’ve not relied on the analysis. Precisely what you’re about to talk about here, because of a variety of technical things, we don’t need to discuss. I mean, look at the general election in 2004. This model estimated that the turnout was 26 percent. The actual turnout in the election was 40.8 percent. The error in this model is enormous, and it’s increased when we try to estimate the increase in categories. I don’t rely on this.
“six of eight primaries.” Resp. of Certain Def. Intervenors to TLRTF’s Briefing Relating to CD 25, ECF No. 221, at 5. Resolving this dispute, which the TLRTF raised for the first time in a post-trial brief, is unnecessary since the Court finds that exogenous primary evidence is not probative to assess whether a voting coalition exists or to measure the effectiveness of minority voters in CD 25. In any event, exogenous primary election results would not rebut the testimonial and expert evidence demonstrating that minority voters in CD 25 have fulfilled their “obligation to pull, haul, and trade to find common political ground” and achieve electoral success. Georgia v. Ashcroft, 539 U.S. at 481 (quoting De Grandy, 512 U.S. at 1020).
14 The timing and weak evidentiary basis for TLRTF’s belated “advisory” suggest that tactical considerations were at play. See generally Resp. of Certain Intervenors to TLRTF’s Briefing Relating to CD 25, ECF No. 221, at 3 (implying that the “Task Force has now created that argument in an attempt to justify the deal it cut with Texas” in the interim map-drawing process in the U.S. District Court for the Western District of Texas). Indeed, the TLRTF uses this Court as a forum to contend that a new Latino-majority district in CD 35 in Central Texas may properly encompass portions of Travis County, a matter that is not at issue before this Court. Advisory of Def. Intervenor TLRTF, ECF No. 210, at 3; TLRTF’s Resp. to the Ct.’s Order of Mar. 6, 2012, ECF No. 219, at 2. Whether CD 25 is a protected district only has a bearing on the key issue of the retrogressive impact of the enacted plan, and not the location or boundaries of any offsetting new ability district.
15 The TLRTF specifically referenced turnout in the 2002 Democratic primary race for Governor; the 2006 Democratic primary for Lt. Governor; the 2008 Democratic primary race for U.S. Senator; and the 2010 Democratic primary race for Lt. Governor. TLRTF’s Resp. to the Ct.’s Order of Mar. 6, 2012, ECF No. 219, at 13.
12

Trial Tr. 86-87, Jan. 24, 2012 PM (Alford). In other words, the predictions of voter turnout
produced using the methodology employed by the OAG relied on assumptions that differed
drastically from what occurred in real life. Dr. Alford’s comments pertained to the OAG turnout
data for elections for the State House, but there is no indication that the OAG’s methodology
differed when compiling data for congressional elections or that Texas’s expert’s views of the
unreliability of this data would be any different for congressional elections. Indeed, examination
of the turnout predictions for congressional elections reveals that the error rate Dr. Alford
referenced is equally as large, if not greater, than in the State House portion of this dataset.16
For example, the statistical model used to produce the OAG turnout data projected that
turnout in CD 25 in the 2010 general election was 74.6%, when the actual turnout was 31%.
Pl.’s Ex. 24, at 577. In the 2008 general election, the OAG projected turnout was 100%, but the
actual turnout was 48.6%. Id. In 2006, the OAG projected turnout was 65.7% when the actual
turnout was 28.1%. Id. In short, the projected congressional turnout data contains enormous
error rates, similar to that found in the turnout estimates for the State House, and is subject to the
same criticism of unreliability.17 Our dissenting colleague states that he relies on “different data”
16 The dissent states that Dr. Alford rejected the turnout data because he found significant discrepancies in the “‘last two columns [of the data],’” CD 25 Dissent, at 9 n.11, while we find discrepancies in other parts, or columns, of this data, an observation that leads our colleague to conclude that “Dr. Alford’s concern is not the same as” ours. This is simply wrong. Dr. Alford pointed out blatant error rates in certain columns of the dataset merely as examples of the significant issues with relying on this data, and made clear that there were a “variety” of issues with this data. Trial Tr. 86-87, Jan. 24, 2012 PM (Alford) (“I’ve not relied on the analysis . . . because of a variety of technical things, we don’t need to discuss.”) (emphasis supplied). Thus, when our dissenting colleague “use[s] that same metric [namely, the difference between the real and projected voter turnout] —the only ground Dr. Alford gave as support for his critique — to test the data,” CD 25 Dissent, at 9 n.11, he may be missing the remaining “variety of technical things” referenced by Dr. Alford that were not fully developed in the record by the experts and that make this data insufficiently reliable for even Texas’ own expert to rely upon. 17 Notably, at no point did Texas cite to the OAG turnout data in response to the intervenors’ argument that CD 25 was a protected ability district in the Benchmark Plan. The only time any party cited to this data in regards to CD 25 was in the post-trial submission filed by the TLRTF in response to a show cause order issued by the Court. See Minute Order dated Mar. 6, 2012; TLRTF’s Resp. to the Ct.’s Order of Mar. 6, 2012, ECF No. 219. Even then, the TLRTF cited to turnout data for primary elections. If the OAG’s turnout data were reliable and minority voter turnout was 10% in CD 25, CD 25 Dissent, at 9, the Court’s inquiry into whether CD 25 is a protected district in the Benchmark plan would meet a swift end. See Majority Op., at 24 (noting that minority voters who make up 10% of
13

from the OAG than the one we discuss, but it appears that all of the OAG turnout projections
were produced using the same methodology.18 Dr. Alford stated that error rate in the “model”
used by the OAG led him to completely disregard that data. Trial Tr. 86-87, Jan. 24, 2012 PM
(Alford). Indeed, none of the experts in this case appeared to rely on OAG turnout projections,
in any of its forms.19 The dissent expends much energy attempting to demonstrate that the OAG
turnout data could be accurate, and even “extrapolat[es] [] missing turnout data” from Dr.
Ansolabehere’s analysis as an alternative, but, quite frankly, our colleague’s own calculations of
turnout data are defective.20 While reliable and accurate data regarding voter turnout by racial
group in Benchmark CD 25 would be highly probative, the Court is not presented with such
evidence and will not endeavor to create its own.21 Consequently, we do not rely on such data
a population and provide a margin of victory to Anglo Democratic voters could not be protected under Section 5). If the OAG turnout data had sufficient reliability to have any probative value, Texas’s failure to rely on this data would be inexplicable. Rather, the explanation lies in the fact that this data is simply so unreliable as to be irrelevant.
18 Our colleague states in dissent that unlike the OAG dataset criticized by Dr. Alford, the OAG dataset upon which the dissent relies appears to “accurately predict[] the overall turnout in a given election.” CD 25 Dissent, at 9 n.11. This may be so, but the projections relevant to the Court’s analysis are those pertaining to the number of votes cast by minority groups. There is no testimony, expert or otherwise, in the record that the data on which the dissent relies is not as flawed as the turnout numbers rejected by Dr. Alford. Texas’s failure to cite to this data again indicates to the Court that it has little probative value.
19 Our dissenting colleague fails to acknowledge that none of the experts in this case appears to rely on OAG turnout projections. He also dismisses, without explanation, the fact that Texas – the party that compiled and calculated the turnout projections – never relied upon this data.
20 For example, our colleague acknowledges that his calculation that minorities cast only 19% of the vote for Congressman Doggett is “imperfect” because “relative turnout among minority groups . . . could have changed between elections.” CD 25 Dissent, at 8 n.10. Overall turnout changed dramatically between the 2008 and 2010 elections. In 2008, 291,296 voters voted in the election for the U.S. Congress in Benchmark CD 25. Pl.’s Ex. 31, at 10. In 2010, voter turnout dropped over 33%, by more than 100,000 votes, to 189,247. Pl.’s Ex. 32, at 13. The dissent’s assumption that turnout among racial groups remained constant as a percentage of the overall voter turnout is unsupported speculation. Given the number of variables affecting voter turnout generally and the complexity of predicting turnout on a demographic basis, none of the experts in this case – including the one who compiled the data used by our colleague to compute his 19% figure –apparently viewed such predictions as sufficiently reliable to offer an opinion.
21 We disagree with our dissenting colleague’s assertion that turnout data is the only way to provide a “context” for the expert testimony before the Court. CD 25 Dissent, at 9 n.11. In the absence of reliable turnout projections, unrebutted witness testimony and endogenous election results are sufficient to corroborate expert analysis and to provide a “context” for such evidence. See Texas, 831 F. Supp. 2d at 268 (recognizing crossover and coalition districts may be ability districts based upon “discrete data, by way of election returns, to confirm the existence of a
14

and give neither the OAG turnout projections nor our colleague’s extrapolated calculations
weight or further consideration. In its place, we rely on the most probative evidence presented to
the Court: testimony from elected officials, endogenous election results, and expert analysis.
C. The United States’ Position that CD 25 is Not Protected because of the Absence of Racially Polarized Voting Among Anglo Voters is Incorrect
The United States does not argue that CD 25 is a protected district in the Benchmark Plan
and has remained generally silent as Texas and the intervenors argue over the district’s status
under Section 5. At closing argument, in response to a direct question posed by the Court, the
United States clarified its position that while minority voters have an ability to elect the
candidate of their choice in CD 25, it believes that CD 25 is not protected by Section 5 because Anglo voting in the district is not racially polarized. Trial Tr. 82-85, Jan. 31, 2012 AM.22
The Court is presented with four distinct positions regarding racial polarization in CD 25:
The United States and certain intervenors posit that Anglo voters in CD 25 are not racially
polarized, but that finding compels the government to conclude that no Section 5 protection applies,23 while the intervenors reach the opposite conclusion. According to these intervenors,
the lack of racially polarized voting among Anglos is irrelevant to the Court’s Section 5 analysis.
See, e.g., Trial Tr. 34-35, Jan. 31, 2012 PM (Gonzales intervenors’ counsel acknowledging that
voting coalition's electoral power,” citing as example “evidence that a coalition had historical success in electing its candidates of choice”). 22 Counsel for the Department of Justice explained as follows: “Congressional District 25 does perform . . . the issues there . . . has to do with polarized voting . . . we aren’t finding the polarized voting in that area . . . . [T]here is polarized voting in most of Texas . . . . The question is regarding this area around Travis County area, and the success where it’s not crossover anymore if 52 percent of the . . . Anglo voters are voting the same as the [B]lack voters and the same as the Hispanic voters or whatever the percent may be depending upon which election contest you’re looking at. So at a certain level again, is the protections that flow do deal with the realities of polarized voting and whether or not there exists polarized voting.” Trial Tr. 84-85, Jan. 31, 2012 AM. 23 The Department does not indicate the threshold number of Anglo cross-over votes that would remove from the protection of Section 5 an otherwise minority ability district. In any event, rather than focus on the single demographic statistic of the number of Anglo cross-over votes, a functional test must be applied to assess whether minority voters effectively exercise power to elect their candidate of choice in a cross-over coalition.
15

voters in Travis County are “colorblind,” but stating that “[t]he only way the Voting Rights Act could not protect that district . . . is if somehow, there had been a bailout. . . . In fact, Section 5 covers all of Texas as a matter of law, and so Travis County, CD 25, is covered, just like every other jurisdiction in Texas.”). By contrast to those two positions, the TLRTF argues that voting is polarized in all elections. TLRTF Resp. to Gonzales Intervenors’ Brief Regarding CD 25, ECF No. 223, at 10. Finally, Texas appears to take the position that Anglo voting is not racially polarized in general elections, but asserts that CD 25 should not be protected because racial polarization is present among minority voters in Democratic primary elections. Trial Tr. 131-35, Jan. 19, 2012 PM. The Court need not determine which of these views is ultimately correct because, regardless, CD 25 is a protected district under Section 5.
The Court agrees with the Gonzales intervenors that Section 5 covers all of Texas as a matter of law and Travis County, including CD 25, is covered, just like every other jurisdiction in Texas. The position of the United States would have the anomalous consequence that once minorities successfully elect their candidates of choice in a cross-over district, Section 5 would no longer apply. 24 That is not the law. Such an ability district remains protected by the VRA and, if it is eliminated as an ability district, it must be offset, which CD 25 is not. This loss of Benchmark CD 25 as an ability district, without the creation of any new ability district, renders the enacted Congressional plan retrogressive.
24 The United States’ position is that the protections of Section 5 need not apply to CD 25 because of the presence of crossover Anglo voters. The presence of these crossover Anglo voters does not sufficiently protect minority voters in CD 25, but, in fact, may create a ripe target for actors in other parts of the state to retrogress minority voting power in CD 25 by fracturing the district and submerging its pieces in areas where race-based voting remains prevalent. Indeed, the enacted plan divides Travis County into five different districts and as a result, “[t]his is the only county in which the population exceeds the number required to constitute a [congressional] district, but the county is not the seat of any single district.” Ansolabehere Report on Minority and White Representation and Voting Patterns in the Texas Congressional District Plan C185 at 47, Perez v. Perry, Aug. 8, 2011, ECF No. 123-1.
16

GRIFFITH, Circuit Judge, dissenting with respect to retrogression in Congressional District 25: I, too, reaffirm our decision at summary judgment that crossover districts are protected
under section 5, and I agree that enacted CD 25 is not an ability district. But I cannot join in my colleagues’ proposed test for the existence of a crossover district, which is divorced from Supreme Court precedent and dangerously broad. I first explain why the test to find a protected crossover district is more demanding than that my colleagues employ. Then I show that even under their standard, the record does not contain the “more exacting evidence” needed to show that benchmark CD 25 is a crossover district.1 Texas v. United States, 831 F. Supp. 2d 244, 268 (D.D.C. 2011).
As my colleagues’ analysis shows, Blacks and Hispanics vote cohesively in CD 25, and their support is necessary to victory. But as we have already agreed, these factors alone are not enough to show that minority voters can effectively exercise their electoral power to elect their preferred candidates. My colleagues and I agree that section 5 does not protect every district in which “Anglos and minorities vote together to elect a candidate,” or “that elects a Democratic candidate no matter how small its minority population.” Majority Op. at 25, 24. We disagree over where section 5 draws the line between protected crossover districts and nonprotected districts that simply vote Democratic.
My colleagues hold that a district is protected when minority voters “effectively exert[] their political power within the voting coalition.” Under this novel rephrasing of “ability to elect,” they establish a false dichotomy, testing “whether minorities in CD 25 exert their political
1 As my colleagues note, Texas and the Texas Latino Redistricting Task Force argue that benchmark CD 25 is not an ability district under section 5. In addition, the United States and its expert, Dr. Handley, do not argue that benchmark CD 25 is a protected district. Indeed, the United States explicitly noted in its post-trial briefing that, in its view, retrogression in the Congressional Plan is based on the failure to add an additional ability district, “not on a . . . determination that benchmark [CD] 25 provides minority voters with the ability to elect preferred candidates of choice.” U.S. Post-Trial Br. 16 n.9.

power effectively in the tri-ethnic coalition, or are rather just ‘hangers-on’ to the choices of
Anglo voters.” CD 25 Majority Op. at 4. Although my colleagues do not provide a full definition
of what it means for minority voters to “effectively exert[] their political power,” it appears that
they view anything more than “hanging on” as sufficient to prove that the district is protected.
But this overbroad result runs headlong into the 2006 amendments to the VRA. As we noted at
summary judgment, Texas, 831 F. Supp. 2d at 251, Congress amended the VRA to make clear
that section 5’s retrogression prong did not include “influence districts” — ones in which
minorities play a “substantial, if not decisive, role in the electoral process,” Georgia v. Ashcroft,
539 U.S. 461, 482 (2003); see also LaRoque v. Holder, 650 F.3d 777, 793-94 (D.C. Cir. 2011).
The majority’s “effectively exert” test sweeps too wide because it provides no way to distinguish
between unprotected influence districts, where minority voters play a substantial role, and
protected crossover districts, in which they have an ability to elect.
The line between influence and protected crossover districts2 is admittedly difficult to
draw. But Supreme Court precedent — which my colleagues do not cite as support for their
“effectively exert” test3 — helps us at least to sketch its location, and CD 25 falls on the
unprotected side. Whenever the Court has examined crossover districts, it has spoken of Anglo
voters providing supplemental support to minority voters. See Bartlett v. Strickland, 556 U.S. 1,
2 CD 25 is, in fact, a combination of a potential coalition district (because Blacks and Hispanics band together) and a potential crossover district (because that joint minority group combines with Anglos to elect its candidate of choice). Even if there were only one minority group in the district, however, my analysis would yield the same result. If CD 25 were 35% Hispanic, for example, I would still conclude based on this record that it was not an ability district. For that reason, I do not assess the possible impact that a multi-ethnic coalition within a crossover district might have on the ability-to-elect inquiry. My colleagues, who hold the district is protected, do not address this issue either. Rather, they treat the Black and Hispanic communities as a single minority group for purposes of their crossover district analysis, with no explanation why such aggregation is permissible under section 5.
3 My colleagues note that the VRA “charges the Court, quite simply, with assessing whether minority voters are able effectively to elect their preferred candidates.” CD 25 Majority Op. at 5 n.5. But the majority’s “effectively exert” test, just like the statute’s “ability to elect” language, is not self-defining. As we noted above, the Supreme Court has never directly addressed the test to determine ability to elect in the context of crossover districts. Majority Op. at 19-20. Nevertheless, to the extent the Court has spoken to the issue in previous cases, we must look to those precedents for guidance.
2

13 (2009) (plurality opinion) (defining a crossover district as one in which the minority group
can “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” (emphasis added)); Voinovich v.
Quilter, 507 U.S. 146, 158 (1993) (describing a crossover district as one in which minority
voters can elect “their candidate of choice with the assistance of crossover votes from the white
majority” (emphasis added)). The Court’s language reflects its assumption that minority voters
take the leadership role in a crossover district, with Anglo voters providing necessary — but
ultimately secondary — support. Likewise, the Court’s use of vivid, active phrases to describe
the part minority voters play in a crossover district suggests a leading role. The Court has stated
that minority voters must “attract[] sufficient cross-over votes from white voters,” Voinovich,
507 U.S. at 154 (emphasis added), and “pull, haul, and trade” to elect their preferred candidates,
Johnson v. De Grandy, 512 U.S. 997, 1020 (1994) (emphases added). This is the line we must
draw: the minority group must lead in order to have the ability to elect. The leadership needed to
prove ability can be demonstrated in a variety of ways, such as by consistently casting the
majority of votes for the winning candidate in most elections, coordinating get-out-the-vote
drives, or recruiting the lion’s share of candidates. It makes little difference how that leadership
is asserted. What is crucial is that minority voters do more than provide the margin of victory or have simply an equal voice in a district’s electoral decisions.4
Such a showing is especially important in a district like CD 25, where minority voters
comprise only 35% of the Citizen Voting Age Population (CVAP). Although there is evidence
4 My colleagues argue that leadership requires that minority voters “eschew any ‘trade’ or compromise in power sharing,” CD 25 Majority Op. at 5 n.3, but leaders can (and good leaders often do) trade at times without relinquishing their position at the head of a coalition. Trading alone, however, is not enough; minority voters must also “pull” and “haul.” The Supreme Court case my colleagues and I both cite for this point reads “pull, haul, and trade,” De Grandy, 512 U.S. at 1020 (emphasis added) — and both “pull” and “haul” imply taking the lead. My colleagues’ critique isolates “trade” both from its immediate context and from the balance of Supreme Court precedent, which supports a test that requires minority voters to take a more active role in a coalition than simply being “effective.”
3

that a coalition of Black, Hispanic, and some Anglo voters consistently elects minority-preferred candidates in CD 25, there is none showing that minority voters lead the effort. For example, no testimony was presented that they play a critical role in recruiting the candidates who run in CD 25 (in contrast to Senator Davis’s uncontroverted testimony about SD 10), are instrumental in the coalition’s efforts to get out the vote (in contrast to the Asian-American community in HD 149), or that minorities consistently make up the majority of a winning candidate’s votes. The record shows only that the minority-preferred candidate wins consistently in CD 25, but that fact alone tells us little (and perhaps nothing) about who is responsible for engineering these wins.
Because there is no evidence that minorities lead in CD 25, I would stop my analysis here and find that it is not protected. But even assuming my colleagues’ test is correct, and that a district in which power is shared equally would satisfy such a test, there is insufficient evidence in the record to support a finding of equal electoral power. First, I address the anecdotal evidence regarding CD 25; then I turn to the expert and statistical evidence about the district’s voter turnout and electoral results.
My colleagues place much weight on the anecdotal testimony of one of Travis County’s State House representatives, Dawnna Dukes, and Travis County Attorney David Escamilla regarding the tri-ethnic coalition in Travis County. I am not confident their testimony can bear this weight. First, evidence about Travis County voting patterns does not adequately describe minority voting power within CD 25 because, as discussed in more detail below, less than half of Travis County is in CD 25, and approximately 40% of CD 25 lies outside Travis County. More importantly, this testimony — at best — only indicates that minority votes are needed to win, not that minority voters have an equal role in the coalition. The testimony boils down to this: to win local elections in Travis County, a candidate must have the support of Black and Hispanic voters.
4

For instance, Rep. Dukes testified that candidates running in Travis County cannot win without
support from “the progressive Anglo, Black, and Hispanic communities.” Trial Tr. 106:10-18,
Jan. 19, 2012 PM. Escamilla testified about a candidate who lost the primary because he was
“unable to gain significant support from the Hispanic or African American community.” Defs.’
Ex. 735, Pre-Filed Direct Test. of David Escamilla 9-10. My colleagues are surely right that this
testimony could support a conclusion that Anglos do not control CD 25, but it doesn’t tell us
anything more. The testimony of Dukes and Escamilla simply doesn’t address the critical issue:
do minority voters in Travis County play some role beyond providing votes necessary to win?
Minority voters may have veto power in Travis County, but the same is true whenever a minority
group, however small, consistently provides the margin of victory. Neither do the expert analysis nor statistical data show that CD 25 is a protected district.5
My colleagues place much weight on the Travis County primary election results analyzed by Dr.
Ansolabehere. But as noted above, Travis County is not CD 25. Travis County contains only
59.7% of CD 25’s population, even though it has a larger portion (66%) of the district’s minority
population. See Pl.’s Ex. 11, at 7. The remaining 40.3% of CD 25 — which votes Republican —
5 As a preliminary matter, my colleagues place much faith in Dr. Alford’s statement that benchmark CD 25 is a district in which minorities have an ability to elect. But as we have already explained at length, Majority Op. at 1419, Dr. Alford uses a metric that determines ability to elect by degree — a metric we have emphatically rejected. There is no reason that his assessment should be legally conclusive for this district, yet no other. My colleagues respond that the burden of proof is on Texas, and “its only expert credibly opined . . . that Benchmark CD 25 is an ability district.” CD 25 Majority Op. at 3 n.4. But Texas did not concede benchmark CD 25’s ability status. See, e.g., Pl.’s Mem. Concerning Congressional District 25, at 1 (“[U]nless all Democratic districts are ipso facto ability districts, no minority group in benchmark CD 25 had the ability to elect candidates of their choice.”). That Texas’s expert uses the word “ability” in his assessment of benchmark CD 25 does not mean that he was offering a legal opinion on its protected status, properly defined, contrary to the State’s position. As we agreed in the opinion, Dr. Alford has a different view of an “ability district” than that called for in section 5. In fact, he stated that if “the 25th District is a protected district, then it is hard to see how any other majority Democratic district, assuming it had at least one eligible minority resident, would not also be a protected district.” Pl.’s Ex. 175, Pre-Filed Direct Test. of Dr. John Alford 28-29. And we did not rely on Dr. Alford’s similar concession that SD 10, under his metric, was an ability district. Trial Tr. 39:5-21, Jan. 25, 2012 AM.
5

does not figure into Dr. Ansolabehere’s calculations at all.6 Even more troubling, over half of
Travis County lies outside CD 25, but is nonetheless included in the analysis. Id. Dr.
Ansolabehere’s data set is thus both over- and under-inclusive in the extreme. This is particularly
problematic because we have been provided with no explanation why it is appropriate to draw
conclusions about CD 25 from voting data drawn from only a subset of the relevant population
together with voters from a different district entirely.7 This is not the type of “more exacting
evidence” necessary to prove a crossover district. We must consider the district’s ability status,
not Travis County’s.
Even assuming Travis County can stand in for CD 25, this primary data still does not
show that minority voters themselves have an ability to elect in the district. Dr. Ansolabehere’s
report shows that the Anglo-preferred candidate won only one primary without support from the
Hispanic and Black communities in the contests he analyzed, but that the Hispanic- and Black-
preferred candidates won twelve elections without Anglo support. And the vast majority of the
time — in 31 out of 43 primaries — the prevailing candidate had support from the Black,
6 In contrast, the smaller counties of Caldwell, Colorado, Fayette, Gonzales, Hays, and Lavaca are all wholly contained within CD 25 and are not addressed in either the anecdotal testimony or Dr. Ansolabehere’s analysis. My colleagues state that “[n]o party, including Texas, presented any evidence regarding the tri-ethnic coalition’s performance in the six smaller counties wholly contained in Benchmark CD 25.” CD 25 Majority Op. at 10 n.11. They are mistaken. We received evidence indicating that the tri-ethnic coalition was ineffective in these counties. In 2010, Republican candidates won (and the tri-ethnic coalition lost) all eighteen elections held within Gonzales and Lavaca Counties. Pl.’s Ex. 34, at 49-52, 189-92. The tri-ethnic coalition fared little better in Hays County, where Democrats won only one of twenty-two elections, and Caldwell County, where Democrats won only two of eighteen. Id. at 165-68. According to the Texas Secretary of State, the tri-ethnic coalition lost all twenty-three elections in Colorado County in 2010 and all nineteen elections in Fayette. See Historical Election Results, TEX. SEC’Y OF STATE, http://www.sos.state.tx.us/elections/ historical/index.shtml (last visited Aug. 16, 2012) (official website of the Texas Secretary of State listing past election results). Thus, the tri-ethnic coalition prevailed in only three of one hundred and twenty elections held in these counties in 2010. My colleagues would have us disregard this data because “the majority of voters in these counties are not part of the tri-ethnic coalition,” CD 25 Majority Op. at 10 n.11. But nowhere else do we examine only a subset of a district to determine the district’s ability status. To determine voting dynamics in CD 25, we must examine CD 25.
7 My colleagues concede that Dr. Ansolabehere does not “cover all possible useful data,” but they argue that Travis County data is useful nonetheless because “one must necessarily look to the performance of the coalition in other subdivisions, such as in Travis County.” CD 25 Majority Op. at 9-10. But it is a far jump from useful to conclusive. My colleagues give no indication, for example, why such an analysis would not include even a passing glance at the six “other subdivisions” that are wholly contained within CD 25.
6

Hispanic, and Anglo communities. More importantly, the conclusion he drew from this evidence
is only that “[p]ower is shared very equally” in Travis County, Defs.’ Ex. 724, Expert Witness
Report of Dr. Stephen Ansolabehere 105-06 [hereinafter Ansolabehere Rep.], not that minorities
lead the way. At best, this shows that all members of the coalition play a vital role at the primary
level in Travis County. Even taking this conclusion as true, evidence that power is shared equally
does not show that minority voters are at the helm, and thus that they themselves have an ability
to elect in CD 25.
The final piece of evidence my colleagues marshal — and the only one that concerns CD
25 as a whole — is also from Dr. Ansolabehere. His report considers the breakdown of votes by
racial and ethnic group for Representative Lloyd Doggett, the minority candidate of choice in CD 25. Even taking Dr. Ansolabehere’s calculations as accurate,8 this evidence is still
insufficient to conclude that CD 25 is a crossover district. Dr. Ansolabehere calculates that
Doggett won in 2008 with 53% of the Anglo vote, 83% of the Hispanic vote, and 100% of the
Black vote in CD 25. Ansolabehere Rep. attach. 3. In 2010, he calculates that Doggett won with
37% of the Anglo vote, 86% of the Hispanic vote, and the entire Black vote. Id. At first blush,
this seems persuasive. With the support of a little more than one-third to one-half of the Anglo
vote, Rep. Doggett’s victories seem attributable to a minority community doing the heavy lifting.
But Dr. Ansolabehere’s analysis begs the question, because it tells us nothing about voter
turnout. Without that crucial element, there is no way to put his analysis into context. See Texas,
8 The regression analysis Dr. Ansolabahere provides is also not without its flaws. Dr. Ansolabehere uses VAP, not CVAP, in his calculations. Ansolabehere Rep. attach. 3. The HCVAP of CD 25 is 25.3%; its HVAP 34%. We are left to guess if this significant difference between citizen and noncitizen minority population, a highly relevant factor in light of citizen voting requirements, would change his conclusions. Moreover, there are unexplained discrepancies in Dr. Ansolabehere’s data. He states that Hispanics comprised 83% of Doggett’s coalition in 2008, id., but his retrogression calculation appears to indicate that figure was 93%, id. attach. 4. And he calculates Black support for Doggett in 2008 at 111%. Id. attach. 3, an overestimation by (at least) 11%. These problems are additional reasons why I am hesitant to find that this evidence supports finding that CD 25 is an ability district. At a minimum, it is not “more exacting evidence.”
7

831 F. Supp. 2d at 263 (“However, when there is no supermajority in a district, a Section 5
analysis must go beyond mere population data to include factors such as minority voter
registration, minority voter turnout, election history, and minority/majority voting behaviors.”
(emphasis added)). In other words, Dr. Ansolabehere does not answer the question, “83% and
86% of how many Hispanic voters, and 100% of how many Black voters?” That minorities voted
overwhelmingly for Rep. Doggett tells us very little about their role in the coalition. This data
could support a story in which minorities lead the way to victory, but it could also tell a story in
which minority voters have an equal voice to Anglos, or even one where Anglo voters take the
lead in CD 25. Incomplete data from which we might infer ability status is not the type of “more
exacting evidence” necessary to find a protected district.
Even taking Dr. Ansolabehere’s data at face value — a limb on which I am extremely
loathe to perch for the reasons stated above — and using it to try to extrapolate the missing turnout data9 would indicate that Anglos cast an average of 81% of all votes in CD 25 in 2008 and 2010, and thus that minorities cast only 19%.10 Absent any indication that minorities play a
9 To be clear, I do not think that we should engage in this type of endeavor. In my view, the fact that the experts in this case did not provide sufficient information to show ability to elect should be the end of the inquiry. I set out this analysis only because my colleagues do not share my view that Dr. Ansolabehere’s data, as presented, is insufficient.
10 Assuming that Dr. Ansolabehere is correct, I calculate turnout in the following manner. In 2008, Rep. Doggett received 65.82% of the vote. Pl.’s Ex. 31, at 10. In 2010, he garnered 52.82%. Pl.’s Ex. 32, at 13. This change, according to Dr. Ansolabehere’s data, was due almost exclusively to the decrease in Anglo support for Rep. Doggett from 53% to 37% (the only other change was an increase in Rep. Doggett’s Hispanic vote share from 83% to 86%, which is negligible and within the standard margin of error). Thus, a 16% change in Anglo preferences (53% - 37%) triggered a 13% change in votes for Rep. Doggett’s vote share (65.82% - 52.82%). This implies that Anglos comprised 81% of the total number of votes cast in 2008 and 2010 (13% / 16% = 81.25%). While this analysis is imperfect — relative turnout among minority groups (as opposed to overall turnout, which my colleagues cite, CD 25 Majority Op. at 13 n.19) could have changed between elections — it is the best we can accomplish with the limited data provided by Dr. Ansolabehere. As discussed above, I conclude that Dr. Ansolabehere failed to provide any evidence regarding turnout data, and so would prefer to stop my analysis there. I engage in this calculation only because my colleagues find Dr. Ansolabehere’s analysis to be persuasive.
8

leadership role in the coalition, I cannot conclude that a district where (according to the most
favorable reading of expert testimony) minorities cast only 19% of the votes can be protected.
This reading of Dr. Ansolabehere’s data is also largely consistent with the OAG voter
turnout statistics my colleagues discard.11 In the 2008 election, the OAG analysis indicates that
minorities comprised approximately 18% of voters, almost exactly the 19% composition Dr.
Ansolabehere appears to predict. Pl.’s Ex. 24, at 579. In 2010, the OAG data indicates voter
turnout of 10%, which is lower than Dr. Ansolabehere’s apparent, average prediction of 19%, but
11 My colleagues reject this data based on a single comment by Dr. Alford, Texas’s expert, during oral argument. CD 25 Majority Op. at 12. But Dr. Alford addressed the OAG’s racially polarized voting analysis concerning the House, not the Congress. Trial Tr. 86:12-87:7, Jan. 24, 2012 PM. And he compared a different subset of that data than my colleagues do. Compare id. at 86:19-20 (“[I]f you’ll take a quick look at the last two columns [of the data] . . . .” (emphasis added)), with CD 25 Majority Op. at 13 (discussing the difference between “estimated turnout % in district” and “actual turnout % in district,” Pl.’s Ex. 24, at 576, which are the third to last and the last columns.). In other words, Dr. Alford’s concern is not the same as my colleagues’. Moreover, Alford and my colleagues raise concerns about different data than I examine here. He critiqued the total estimated turnout calculated “as a percent of VAP,” Trial Tr. 85:23-87:7, Jan. 24, 2012 PM (discussing Defs.’ Ex. 6, at 358), i.e., what percentage of eligible voters in a minority group voted in an election.
Neither Alford nor my colleagues assess the OAG’s calculations concerning “distribution of votes in [a] contest,” Pl.’s Ex. 24, at 579, i.e., what percentage of votes in any given election was cast by each minority group. Unlike the data my colleagues examine (and on which I do not rely in any way), this analysis accurately predicts the actual overall turnout in a given election, including every election my colleagues identify as problematic. Compare Pl.’s Ex. 24, at 587-88 (predicting 190,223 votes in the 2010 general election when 173,309 were actually cast, resulting in an error rate of 9.8%), with CD 25 Majority Op. at 13 (calculating an error rate in 2010 of 43.6%); Pl.’s Ex. 24, at 587 (predicting that 300,273 votes were cast in the 2008 general election when 282,161 votes were actually cast, resulting in an error rate in 2008 of 6.4%), with CD 25 Majority Op. at 13 (calculating an error rate of 51.4%); Pl.’s Ex. 24, at 587 (predicting that 172,695 votes were cast in the 2006 general election when 159,507 were actually cast, resulting in an error rate of 8.2%), with CD 25 Majority Op. at 13 (calculating an error rate of 28.1%). Additionally, this data predicts the “number of votes cast by [each] minority group,” see Pl.’s Ex. 35, at 585-89, despite my colleagues’ apparent statements to the contrary. CD 25 Majority Op. at 13 n.18.
My colleagues state that “there is no testimony, expert or otherwise, in the record that the data on which the dissent relies is not as flawed as the turnout numbers rejected by Dr. Alford.” Id. But my colleagues would discard the State House OAG data (and, by extension the Congressional OAG data) based on the metric Dr. Alford described in his testimony: the gap between the predicted turnout and “real life.” Id. at 12. I use that same metric —
the only ground Dr. Alford gave as support for his critique — to test the data. My colleagues also note that “Texas’s
failure to cite to this data again indicates to the Court that it has little probative value.” Id. at 13. While I am skeptical that our assessment of evidence contained in the record should be influenced by whether a particular party chose to cite it, I note that the United States cited the OAG turnout data favorably. See U.S. Proposed Findings of Fact ¶¶ 24, 54, 58, 163, 197.
Finally, it bears reemphasizing that even if my colleagues’ concerns were serious enough to warrant discarding this data entirely, the proper consequence should be to conclude that Dr. Ansolabehere’s analysis is not the “more demanding evidence” necessary to prove a coalition district. As I have explained above, turnout data is the only way to provide context for the data on which my colleagues rely so heavily. My attempt to provide that missing data should not detract from the more important fact: Dr. Ansolabehere’s report does not include this essential information at all.
9

not absurdly so. Id. The rest of the OAG data indicates that minorities cast closer to 10% of the vote in CD 25, Pl.’s Ex. 24, at 579-80. This data indicates that CD 25 looks much like the hypothetical district we described before in which the Anglo voters that made up 90% of the district split their vote evenly and minority voters comprise just 10% of the votes, providing the margin of victory. We agreed that such a district would not be protected. Majority Op. at 24-25. Even assuming that minorities cast 19% of the vote, as Dr. Ansolabehere’s data appears to indicate, this would be enough only to show influence, not that benchmark CD 25 is a district in which minority voters themselves have an ability to elect.12
In sum, we heard testimony and received expert reports that minorities are essential to victory in Travis County, but that is not enough to find that CD 25 is a protected crossover district. To protect CD 25, we must find that minorities themselves have an ability to elect in CD 25 — that they lead the coalition there. It is not enough that they provide the margin of victory in a competitive Democratic district. Most of the evidence concerns Travis County alone. No evidence includes turnout data, in Travis County or in the district as a whole. At best, the evidence shows that minorities cast no more than 20% of the votes in CD 25, and possibly significantly less. If this is the “more exacting” evidence we require to prove the existence of a coalition district, it is hard to see what Democratic district in Texas would not be so protected. Respectfully, I dissent from my colleagues’ assessment that benchmark CD 25 is an ability district.
12 Even assuming that the 2010 election alone did rise to that high level of proof (which I do not believe it does), we have previously stated in the context of SD 10 that a single election does not indicate a proven history of ability to elect.
10

APPENDIX TO THE MEMORANDUM OPINION
FINDINGS OF FACT & CONCLUSIONS OF LAW REGARDING DISPUTED ABILITY DISTRICTS
COLLYER & HOWELL, District Judges:
I. THE CONGRESSIONAL PLAN
A. Congressional Redistricting Plan, C185
1. In 2006, a three-judge district court adopted a redistricting plan for the Texas congressional delegation. See LULAC v. Perry, 457 F. Supp. 2d 716, 716–18 (E.D. Tex. 2006) (per curiam). That plan, known as C100, is the Benchmark Plan for the purposes of this case.
2. The 2010 Census showed that the population of Texas increased by 4,293,741, from 20,851,820 in 2000 to 25,145,561 in 2010. Pl.’s Ex. 75. This growth represented a 20.6% increase in the State’s overall population, with 89.2% of the increase attributable to growth in the minority populations. Mot. for Judicial Notice, ECF No. 180, ¶¶ 8, 18. Hispanics comprise 65% of the increase and Blacks comprise 13.4%. Id. at ¶¶ 20, 22.
3. As a result of this population growth, Texas was entitled to four new seats in the U.S. House of Representatives, increasing the State’s number of representatives from 32 to 36 members. This increase required the State to reallocate congressional districts, and necessitated the drawing of new district maps to govern congressional elections in 2012.
B. The Legislative Process
a. 2010 Field Hearings
4. Anticipating that the State’s population growth would result in additional congressional districts, in 2010, prior to the start of the 2011 legislative session, the Texas House Committee on Redistricting, the Texas House Judiciary Committee, and the Texas Senate Select Committee on Redistricting jointly or separately held approximately 19 field hearings around the State regarding the redistricting process for the State Legislature and congressional plans. Defs.’ Ex. 320, at 58-60 (Rep. of Dr. Arrington); Trial Tr. 86, Jan. 17, 2012 AM (Rep. Todd Hunter); Pl.’s Ex. 39; Pl.’s Ex. 42. The purpose of the hearings was to receive input before the formal redistricting process began in 2011. Trial Tr. 54, Jan. 17, 2012 AM (Rep. Hunter); Trial Tr. 145, Jan. 17, 2012 PM (Doug Davis).
5. At the time of these hearings, the official 2010 Census data had not yet been released, nor had any of the State legislative committees participating in the hearings furnished for public comment any proposed Congressional redistricting plans. Trial Tr. 115-16, Jan. 17, 2012 AM (Rep. Hunter). Testimony was presented at the hearings regarding the need to retain minority communities of interest, recognize minority population growth in the

Dallas-Fort Worth metroplex with a new minority ability district, and maintain those congressional districts where minority voters had been able to elect their candidates of choice. See, e.g., Trial Tr. 10-11, Jan. 23, 2012 PM (Congresswoman Jackson Lee). Nevertheless, these hearings were of limited utility since no plans were available for the witnesses to review or to offer specific comment on. Furthermore, the sponsoring legislative committees prepared no written reports summarizing the information presented at the hearings to facilitate communication of any concerns or recommendations raised to members of the legislature who were not present. Trial Tr. 115, Jan. 17, 2012 AM (Rep. Hunter).1
6. Testimony at trial made clear that minority elected representatives from Texas viewed the 2010 field hearings as a “sham” or “just for show.” Trial Tr. 91, Jan. 19, 2012 AM (Rep. Dawnna Dukes) (testifying that the 2010 field hearings were “just a circus to show that a hearing had been held around the state, but it was not of substance because there was absolutely nothing before the committee for individuals to testify on, for or against.”); Defs.’ Ex. 809, at 4 (Senator Judith Zaffirini, Hispanic representative for SD 21, describing the 2010 field hearings as “a sham” with “low attendance, [] low participation, [] lack of invited testimony, [and] the lack of prepared materials for [members of the Senate Redistricting Committee].”); see also Trial Tr. 94, Jan. 20, 2012 AM (Sen. Rodney Ellis testifying that the 2010 field hearings were “perfunctory”).
7. In addition, the only Black member of the House Redistricting Committee, Representative Marc Veasey, testified that some field hearings, specifically in the DallasFort Worth metroplex, were held in locations inconvenient for minority voters that did not have public transport, which limited their participation. Trial Tr. 8-12, Jan. 18, 2012 PM (Rep. Veasey). Representative Veasey offered to help find locations convenient for minority voters, but ultimately locations were picked without regard to the concerns of minority members of the redistricting committee. Id. at 12 (“But when it came to, you know, trying to make sure that you know, southeast Ft. Worth and the city of Ft. Worth, which, like I said, is the third largest concentration of African-Americans in the state -trying to find a place to do hearings there, that no one came to consult with me or any other minority members of the committee. They just decided they were going to have this field hearing in Arlington, which just, you know, still to this day makes no sense at all.”).
8. No evidence was presented that the 2010 field hearings addressed the topics of the number of districts that provided minority citizens the ability to elect the candidates of their choice or the minimal number of minority ability districts required for compliance with the Voting Rights Act (“VRA”) under any new congressional plan. See generally Pl.’s Ex. 50 (Texas Legislative Council Redistricting Guidance, dated August 2011, stating that courts generally compared the number of minority districts in the benchmark plan and in the enacted plan).
1 The only way for legislators to review the information presented during these hearings was to obtain from the Committee Clerks any material submitted during the field hearings, or by viewing the hearings by webcast. Trial Tr. 114-15, Jan. 17, 2012 AM (Rep. Hunter).
2

b. 2011 Regular Texas Legislative Session
9. After convening in January 2011, the Texas Legislature faced the task of enacting redistricting maps for the State House of Representatives (“State House”), State Senate, and U.S. House of Representatives in response to the population growth in the state. Trial Tr. 59-60, Jan. 18, 2012 AM (Downton). The regular session of the Texas Legislature ran from January 11 through May 30, 2011. Joint Stipulation, ECF No. 177, ¶¶ 3-4. No congressional redistricting plan was publicly released by the Redistricting Committees of either the State House or State Senate, nor were any hearings held concerning a congressional plan during the regular session.2 Defs.’ Ex. 509, at 29-32; Joint Stipulation, ¶¶ 4-5.
10. During the Legislature’s regular session, only informal discussions were held concerning the congressional redistricting plan. Interested advocacy groups, including the Mexican American Legal Defense and Educational Fund (“MALDEF”) and Mexican American Legislative Caucus (“MALC”), proposed congressional maps to the House Redistricting Committee. Trial Tr. 60-61, Jan. 18, 2012 AM (Ryan Downton). Members of Texas’s congressional delegation also submitted proposals and attempted to meet with State legislators to discuss proposed plans.
c. 2011 Special Legislative Session
11. The Legislature’s failure to enact a new congressional plan during the regular session prompted Governor Rick Perry, on May 31, 2011, to order the State Legislature to sit in Special Session to address, among other things, legislation relating to congressional redistricting. Joint Stipulation, ¶ 5. On the first day of this special session, on May 31, 2011, Chairman Kel Seliger, chairman of the Senate Redistricting Committee, and Chairman Burt Solomons, chairman of House Redistricting Committee, publicly released C125, which was the first congressional redistricting plan proposed publicly by the leadership of the State Legislature. Defs.’ Ex. 366.
12. Hispanic and Black members of the State House were not included in the map-drawing process for C125. State Representative Marc Veasey, a Black member of the House Redistricting Committee, testified that no minority state representative had any input into the proposed congressional redistricting map before it was made public. Defs.’ Ex. 335 (Veasey Dep. at 25-27, Aug. 19, 2011); see also Trial Tr. 91-93, Jan. 19, 2012 PM (Rep. Dukes) (testifying that she first saw the proposed congressional map on Friday, June 9, 2011 well after its release).3
13. In the late afternoon of May 31, 2011, the State House and Senate noticed public hearings on C125. Less than 48 hours later, at 9:00 a.m. on June 2, 2011, the House Redistricting
2 The focus of the legislative redistricting efforts during this session was on the State House and Senate plans, which, if not enacted during the regular session, would have been determined by the Texas Legislative Redistricting Board. Trial Tr. 59-60, Jan. 18, 2012 AM (Downton).
3 Representative Dukes did not explain why she first saw the map on June 9 when the map was publicly released on May 31, 2011.
3

Committee held its only public hearing on the proposed plan at the State Capitol in Austin. The following day, on Friday, June 3, 2011, the Senate Redistricting Committee held its only hearing on C125, also in the State Capitol in Austin. Defs.’ Ex. 320, at 59 (Rep. of Dr. Arrington); Defs.’ Ex. 366 (Congressional Redistricting Timeline); Defs.’ Ex. 509, at 39.
14. At the June 3, 2011 Senate Redistricting Committee hearing, minority members of the Committee complained of being excluded from the congressional redistricting process. Defs.’ Ex. 370 at 1. Specifically, Senator Judith Zaffirini, a Hispanic Senator representing SD 21, and Senator Royce West, a Black Senator representing SD 23, complained that the process was too rushed and stated that neither they nor the public had adequate time to study the proposed map or meaningfully participate. Id. Senator West stated: “For the purposes of the record, I did not have any input into the map 125. I never saw map 125 before you published it.” Id. Similarly, Senator Zaffirini told Chairman Seliger: “I’ve been on every redistricting committee since my election in 1986 and I must say that I have never had less input into the drawing of any map until this session.” Id.
15. Experts retained by the Senate Redistricting Committee from Baylor University’s School of Law and the University of Texas Law School, Professors David Guinn, Mike Morrison, and Robert Heath (“Senate Redistricting Committee Outside Experts”), echoed concerns about the lack of opportunity for public scrutiny of C125 in comparison to redistricting processes in previous years. Trial Tr. 73, 81, Jan. 24, 2012 AM, (Chairman Seliger); Defs.’ Ex. 370, at 2. These outside experts indicated that they did not have an opportunity to review the proposed congressional redistricting plan before it was presented in the Committee hearing. Defs.’ Ex. 370, at 2; Defs.’ Ex. 568, at 1. Professor Morrison testified that “this process has been quite different from what we’ve seen in the past. . . [n]obody has had the opportunity to study it the way it has been done in the past.” Id. He explained further that this procedure differed from the one followed in 2003 when the committee’s staff “went all over the state . . . spent sixteen hours in one place, twenty in another. We sat down . . . we visited. We hired experts to do retrogression analysis.” Id. In fact, evidence presented at trial shows, for example, that prior to passage of the congressional redistricting plan in 2003, the Redistricting Committees held seven public hearings, and the committee substitute bill was the focus of six of those hearings. Defs.’ Ex. 300.
16. At the June 3, 2011 hearing, the Senate Redistricting Committee Outside Experts cautioned Members about the care required for compliance with the VRA, testifying that they “furnished the committee an advisement to take [the DOJ 2011 Guidelines] and read them all very carefully.” Defs.’ Ex. 370. Indeed, Chairman Seliger testified that the sole responsibility of these outside counsel was “to vet the maps as we drew them and to inform me or anyone else on the committee whether they were legal or not.” Trial Tr. 81, Jan. 24, 2012 AM (Chairman Seliger). In his pre-filed written direct testimony, Chairman Seliger claimed that he relied on these experts to “inform me if the demographics, performance, or any other attribute of a proposed district would raise concerns under the Voting Rights Act.” Pl.’s Ex. 162, ¶ 4 (Seliger Pre-filed Direct
4

Testimony). To the contrary, these experts testified before the Senate Redistricting Committee that they did not “provide[] verbal or written guidance or []opinion to the committee regarding whether [the proposed Congressional plans were] in compliance with Section 5” because they were not asked to do so. Defs.’ Ex. 370, at 3.
17. On June 6, 2011, the Monday immediately following the Friday hearing, the full Senate considered the proposed congressional redistricting plan, C185 (the “Congressional Plan”). On the floor of the Senate, Senator Zaffirini asked Chairman Seliger if “any minority Members [were] involved in developing” the redistricting maps under consideration. Chairman Seliger bluntly responded, “[n]ot that I recall.” Devaney Decl., ECF No. 77, Ex. 9 (Texas State Senate Journal, June 6, 2011, at A-12). Chairman Seliger also admitted during the floor debate that the Senate Redistricting Committee Outside Experts he hired had not seen the Congressional Plan until it was released in committee and that these outside experts had not evaluated the plan for compliance with the VRA. Defs.’ Ex. 568 at 1. Nevertheless, the Senate passed the proposed Congressional Plan in Senate Bill 4 (“SB4”) on June 6, 2011 by a party-line vote of 18-12. Joint Stipulation, ¶¶ 16-17, 19.
18. Following passage of SB4, the State House leadership gave notice that the House Redistricting Committee would meet to consider the Senate Bill at 9:00 a.m. on June 9, 2011. On June 9, 2011, the House Redistricting Committee met to consider the proposed Congressional Plan, and passed it out of Committee without taking any public comments. Defs.’ Ex. 320, at 59 (Rep. of Dr. Arrington); Defs.’ Ex. 366. Representative Dukes, who is not on the House Redistricting Committee, testified that she first saw the proposed Congressional Plan on June 9, 2011. Trial Tr. 91-93, Jan. 19, 2012 PM (Rep. Dukes). That same day, the State House passed a Calendar Rule requiring any amendments to the proposed map to be filed “prior to Monday.” Id. This effectively gave any representative two days to prepare and submit proposed alterations to the congressional map. Representative Dukes testified that she worked through the weekend on an amendment and proposed a new map, but Chairman Solomons tabled her amendment and it was never considered. Trial Tr. 93-94, Jan. 19, 2012 AM (Rep. Dukes). State Representative Dukes further testified that every Democratic proposal to amend C185 was tabled. Id.
19. On June 15, 2011, the State House passed the proposed Congressional Plan by a vote of 93-47-3,4 after incorporating minor amendments. Joint Stipulation, ¶¶ 16-17. All Democratic members of the State House voted against passage of SB4. Texas State House Journal, June 15, 2011, at 421. The State Senate concurred with the State House amendments to the proposed Congressional Plan on June 20, 2011, and SB4 was reported as enrolled on June 20, 2011. SB4 was then signed by the State Senate on June 22, 2011, and the State House on June 24, 2011. Joint Stipulation, ¶ 16. On June 24, 2011, SB4 containing the proposed congressional map, C185, was transmitted to Governor Rick Perry, who signed it into law three weeks later, on July 18, 2011. Id.
20. The legislative process under which the Congressional Plan was made public, considered
4 Three Representatives voted “present.”
5

and enacted was rapid. The timing of the two public hearings in the House and Senate Redistricting Committees within the short span of 48 and 72 hours, respectively, after first public release of the Congressional Plan severely circumscribed the opportunity for meaningful public scrutiny and comment, including by minority citizens and their elected officials. Defs.’ Ex. 320, at 58-60 (Rep. of Dr. Arrington); Trial Tr. 16, Jan. 18, 2012 PM (Rep. Veasey). Outreach by Representative Todd Hunter, Chair of the House Judiciary Committee, to the congressional delegation during a 2010 visit to Washington, D.C., and by Congresswoman Sheila Jackson Lee and Congressman Gene Green to Chairman Solomons in 2011, appear to have been “meet and greet” sessions with minimal to no substantive discussion about the changes planned by the Texas legislators to the districts represented by minority Members of Congress. Pl.’s Ex. 162, ¶ 12 (Chairman Seliger Pre-Filed Direct Testimony); Pl.’s Ex. 148, ¶ 8 (Chairman Solomons Pre-Filed Direct Testimony) (stating that the meetings with Congressman Green and Congresswoman Jackson Lee were “more of a ‘meet and greet,’ neither of the congresspersons provided me with any details requesting specific changes to their districts”).
C. Mapdrawers’ View of the Redistricting Process
21. Ryan Downton, the general counsel to the House Committee on Redistricting under Chairman Burt Solomons, was the principal drafter of the Congressional Plan. Trial Tr. 44-45, Jan. 18, 2012 AM (Downton); Trial Tr. 47, Jan. 17, 2012 PM (Interiano). Mr. Downton was primarily responsible for “zeroing-out”5 districts to make them conform to the required population size and for allocating Texas’s four new congressional districts. Gerardo Interiano, counsel to Speaker of the State House Joe Straus, also testified that he periodically helped Mr. Downton with the congressional map to zero-out population deviations. Trial Tr. 105, Jan. 17, 2012 PM (Interiano); Trial Tr. 44-45, Jan. 18, 2012 AM (Downton); Trial Tr. 47, Jan. 17, 2012 PM (Interiano).
22. Upon release of the 2010 Census data on February 17, 2011, Mr. Downton testified that he learned that “there were three areas where the population growth per region significantly outpaced growth in the rest of the state. Those three regions, the first being north central Texas around the Dallas-Fort Worth metroplex. The second being the suburban areas around Harris County in kind of Southeast Texas, and the third being the I-35 corridor running from San Antonio north through Austin.” Trial Tr. 61-62, Jan. 18, 2012 AM (Downton).6 Mr. Downton believed that of the four new congressional seats allotted to Texas, “one had to go in each of those regions and in the fourth one [Texas] had some flexibility.” Id. at 62.
5 Congressional districts must be drawn within one person of the ideal district size. Congressional districts therefore must be “zeroed out” by the mapdrawer, meaning that the district must deviate from the required population by at most one person. Trial Tr. 91-92, Jan. 18, 2012 AM (Downton); Trial Tr. 71-72, Jan. 25, 2012 PM (Interiano). Based on the 2010 Census, the ideal population for each of the 36 congressional districts in Texas is 698,488. Joint Stipulations, ¶ 15.
6 Mr. Downton later clarified that although “Dallas County itself lost population relative to the rest of the State[,] Tarrant County on the west and Colin and Denton counties on the north gained population.” Trial Tr. 62, Jan. 18, 2012 AM (Downton).
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23. Prior to assignment of map-drawing responsibilities, Mr. Downton was aware of the VRA and actively sought to educate himself on its requirements. Trial Tr. 45, Jan. 18, 2012 AM (Downton). To this end, Mr. Downton consulted with the Texas Legislative Council7 (“TLC”), including a lawyer named David Hanna. See id. at 50. Mr. Downton testified that he viewed compliance with the VRA on par in importance with getting enough votes to get the map passed, but this testimony is not credible. Defs.’ Ex. 778A (Downton Dep. 62, Aug. 12, 2011).
24. Mr. Downton testified that during the map-drawing process he identified districts protected by the VRA in the Benchmark Plan “based on Census level. If they were above 50%, then they were Hispanic majority districts.” Trial Tr. 63, Jan. 18, 2012 AM (Downton). The specific demographic statistics that Mr. Downton relied upon were Hispanic Citizen Voting Age Population (“HCVAP”) and Spanish Surname Voter Registration (“SSVR”). Defs.’ Ex. 778A (Downton Dep. 22, Aug. 12, 2011); Trial Tr. 67, Jan. 18, 2012 AM (Downton). If these statistics were above the 50% mark, he believed the district was protected under the VRA. Defs.’ Ex. 577 (Trial Tr. 966, Perez v. Perry, civil action no. SA:11-360 (W.D. Tex. Sept. 9, 2011)). Based on Census data alone, Mr. Downton identified seven districts (CDs 15, 16, 20, 23, 27, 28 and 29) as protected districts in the Benchmark Plan that provided Hispanic citizens the ability to elect their candidates of choice.8 Trial Tr. 63-65, Jan. 18, 2012 AM (Downton)
25. The Office of the Attorney General (the “OAG”) performed a racially polarized voting analysis of the Benchmark and enacted districts. Pl.’s Ex. 26, 27.
26. The OAG also performed reconstituted election analyses that estimated what percentage of a specific racial or language-minority group voted for certain candidates in chosen primary and general elections. Pl.’s Ex. 27. These analyses were based on ten general elections (the “OAG 10”) selected by Todd Giberson, an employee in the OAG’s Legal Technical Support Division, because they were “racially contested elections,” i.e., ones that involved minority candidates running against each other or a minority candidate running against a non-minority candidate. Giberson Dep. 16, 20-21, Oct. 18, 2011.
27. Mr. Interiano, who assisted in drawing the Congressional Plan, confirmed that any initial understanding of protected districts in the Benchmark Plan was made solely by looking at the demographic population statistics of the district. Trial Tr. 26-27, 47-48, Jan. 17, 2012 PM (Interiano). He testified that the mapdrawers did not look at election result analyses for the Benchmark Plan to help identify protected districts until they had already submitted draft redistricting plans to the OAG. Id. Mr. Downton was also clear that he did not factor the State’s reconstituted election analysis into his determination of
7 The TLC is an agency within the legislative branch of the Texas State government that provides nonpartisan, technical support and services to each member of the Legislature. Archer Dep. 8-9, Oct. 12, 2011.
8 By contrast, Texas argued at summary judgment that any district with a Black voting age population of 40% or more is an ability district. Pl.’s Mem. in Supp. of Mot. for Summ. J., ECF. No. 41, at 30.
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whether a district was a Hispanic majority district and therefore a protected district in the Benchmark Plan. Defs.’ Ex. 778A (Downton Dep. 22-23, Aug. 12, 2011). In his view, political performance was not particularly relevant. Id. at 24. If a district met the mapdrawers’ own standard of over 50% in HCVAP and SSVR, he classified the district as an ability district regardless of whether it elected the minority candidate of choice 3 out of 10 times, or 1 out of 10 times. Id. at 24-25; Defs.’ Ex. 577 (Trial Tr. 966, Perez v. Perry, Sept. 9, 2011 (Downton)). Mr. Interiano also testified that demographic information, including Hispanic Voting Age Population (“HVAP”), HCVAP and SSVR, must be considered to determine if a district is a Hispanic “opportunity” district. Defs.’ Ex. 579 (Trial Tr. 1451, Perez v. Perry, Sept. 12, 2011 (Interiano)). Mr. Hanna advised the mapdrawers, however, that even if a district were over a 51% threshold based upon demographic data, it might not perform for the minority population. See Defs.’ Ex. 305; Defs.’ Ex. 312, at 5 (when editing Texas’s informal preclearance submission to the DOJ, Mr. Hanna commented that demographic benchmarks were “phony”).
28. Mr. Downton ignored Mr. Hanna’s advice about identifying minority ability districts. Relying solely on demographic statistics to identify a minority population’s ability to elect, Mr. Downton testified that when drawing the Congressional Plan, he tried to keep the demographic numbers of protected districts “at their benchmark levels.” Trial Tr. 65-66, Jan. 18, 2012 AM (Downton). The Congressional Plan was legally compliant with the VRA, in his opinion, because seven districts in South and Central Texas have over 50% HCVAP. Defs.’ Ex. 577 (Trial Tr. 950, Perez v. Perry, Sept. 9, 2011 (Downton)). Mr. Downton asserted, however, that based on the reconstituted election analysis conducted after the Congressional Plan was submitted to the OAG, in his view, the Congressional Plan actually increases the number of districts that provide Hispanics the ability to elect their candidate of choice. Trial Tr. 67-68, Jan. 18, 2012 AM (Downton).
29. Messrs. Downton and Interiano both testified that they did not look at reconstituted election analyses or performance prior to completing the Congressional Plan, even though they both received legal advice that, for VRA compliance, reliance solely on demographic data is insufficient to measure the number of protected districts in the benchmark or the enacted plan. Trial Tr. 1451-52, Perez v. Perry, Sept. 12, 2011 (Interiano); Trial Tr. 57, Jan. 18, 2012 AM (Downton).
30. While the mapdrawers’ reliance solely on demographic data to assess VRA compliance was erroneous, their superiors were negligent of their responsibilities under the VRA. The Chairmen of the Redistricting Committees testified that they relied on the mapdrawers to ensure that the map was “legal,” but made little independent effort to ensure that minority districts were protected. Chairman Solomons did not utilize the Senate Redistricting Committee Outside Experts hired to evaluate whether the Congressional Plan complied with the VRA. Neither he nor Chairman Seliger ever asked for the specific number of minority ability districts required, at a minimum, to ensure that the congressional map complied with the VRA. Trial Tr. 11, Jan. 24, 2012 AM (Chairman Seliger); Trial Tr. 65-67, Jan. 20, 2012 PM (Chairman Solomons testifying that he did not know or identify the number of protected districts in the Benchmark Plan
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because that determination was made by his staff).
D. Congressional Districts at Issue
a. Congressional District 23
31. In the Benchmark Plan, CD 23 is based in West Texas and incorporates Brewster, Crockett, Culberson, Dimmit, Edwards, Hudspeth, Jeff Davis, Kinney, Maverick, Medina, Pecos, Presido, Reeves, Terrel, Uvalde, Val Verde, and Zavala counties, as well as portions of Bexar, El Paso, and Sutton counties. Pl.’s Ex. 11, at 5-6. In terms of metropolitan areas, CD 23 in the Benchmark Plan includes the cities of Del Rio and Eagle Pass, as well as areas of Bexar County that fall outside San Antonio’s city limits. This district was drawn in 2006, following the Supreme Court’s ruling in LULAC v. Perry, by the U.S. District Court for the Eastern District of Texas in order to remedy the State’s violation of Section 2 of the VRA and provide Hispanics the opportunity to elect candidates of their choice. Defs.’ Ex. 826, at 5 (Rep. of Dr. Flores); Defs.’ Ex. 575 (Trial Tr. 300, Perez v. Perry, Sept. 7, 2011 (Flores)).
32. Based on demographic statistics, Hispanics are a clear majority of the population in the Benchmark CD 23 and endogenous election results indicate that the district often elected a Hispanic candidate of choice, even if not every time. See infra ¶ 35.
33. The only expert proffered by Texas on the issue of retrogression disagrees with Texas and concludes that CD 23 is no longer an ability district. Defs.’ Ex. 581 (Trial Tr. 1839, Perez v. Perry, Sept. 14, 2011) (Dr. Alford testifying: “I don’t think that the 23rd is any more likely to perform that it was. I think it is probably less likely to perform than it was, and so I certainly wouldn’t count and don’t – in all of this discussion, I haven’t counted the 23rd as an effective minority district in the newly adopted plan, but it does remain a majority district.”) (emphases added).
34. CD 23 in the Congressional Plan is no longer an ability district.
i.Demographic and Election Result Data for Benchmark Congressional District 23
35. Texas has identified CD 23 as a Hispanic ability district in the Benchmark. See Pl.’s Mem. Supp. Mot. Summ. J., ECF No. 41, at 6. In the Benchmark Plan, CD 23 has an overall Hispanic population of 66.4%, an HCVAP of 58.4%, and an SSVR of 52.6%. Pl.’s Ex. 11, at 10. According to the OAG’s election analysis, Hispanic citizens in Benchmark CD 23 elected their candidate of choice in three out of ten elections. Defs.’ Ex. 390. The Texas Latino Redistricting Task Force (“TLRTF”) argues that the OAG 10 does not accurately reflect the ability of Hispanics to perform in the district. If four additional racially contested elections are examined, the Hispanic candidate of choice wins in 7 out of 14 elections. Trial Tr. 111-13, Jan. 18, 2012 AM (Downton); Defs.’ Ex. 647. Moreover, Dr. Richard Engstrom, an expert offered by TLRTF, emphasizes that from 2006 to 2010, the candidate of choice of Hispanics won two of three endogenous elections in Benchmark CD 23. Defs.’ Ex. 575 (Trial Tr. 513-14, Perez v. Perry, Sept. 7,
9

2011) (Engstrom).
36. Mr. Interiano testified that prior to redrawing CD 23, he never made a determination as to whether CD 23 was a protected district in the Benchmark Plan. Trial Tr. 49, Jan. 17, 2012 PM (Interiano). Chairman Seliger, however, testified that in the Benchmark Plan CD 23 is a Hispanic “opportunity” district and was drawn to be a Hispanic “opportunity” district by the court. Defs.’ Ex. 776 (Seliger Dep. 13, Sept. 1, 2011). The State’s expert witness, Dr. Alford, similarly testified that since the creation of CD 23 in 2006, it elected the Hispanic-preferred candidate in 2006 and 2008. Defs.’ Ex. 964 (Alford Dep. 121, Sept. 2, 2011).
37. CD 23 is currently represented by Congressman Francisco Canseco, a Hispanic Republican. Defs.’ Ex. 406, at 7. Congressman Canseco was first elected to office in the 2010 election, in which he defeated incumbent Ciro D. Rodriguez, a Hispanic Democrat, by a vote of 74,853 to 67,348, or 49.39% to 44.44%. Pl.’s Ex. 32, at 13. Voting in the 2010 election was racially polarized, with 84.7% of Hispanics voting for Mr. Rodriguez. Defs.’ Ex. 728, at 25 (Rep. of Dr. Engstrom). While Hispanics overwhelmingly supported Mr. Rodriguez, he received only 18.1% of votes cast by non-Hispanics. Id.
38. The evidence presented demonstrates that Congressman Canseco won a close election for CD 23 in 2010. With regards to this election, and others during 2010, Chairman Seliger testified that “the 2010 election was a bit of an aberration because of things like the Tea Party influence and I didn’t know if it was reliable.” Defs.’ Ex. 776 (Seliger Dep. 15, Sept. 1, 2011); Trial Tr. 11, Jan. 24, 2012 AM (Chairman Seliger).
39. Although Chairman Seliger acknowledged that the 2010 election may not be “reliable,” he expressed his belief that Congressman Canseco was the preferred candidate of Hispanics in CD 23. Defs.’ Ex. 776 (Seliger Dep. 15, Sept. 1, 2011); Trial Tr. 11, Jan. 24, 2012 AM (Chairman Seliger). He conceded that his belief is not based upon any analysis to determine whether Congressman Canseco was in fact the Hispanic candidate of choice. Defs.’ Ex. 776 (Seliger Dep. 31, Sept. 1, 2011). Furthermore, despite his stated belief that Congressman Canseco was the Hispanic candidate of choice in a Hispanic district, Chairman Seliger testified that he wanted to change CD 23 to make it safer for Congressman Canseco. Id. at 14; Trial Tr. 11, Jan. 24, 2012 AM (Chairman Seliger). Indeed, he testified that it was possible that Congressman Canseco would lose in 2012 if CD 23 were not reconfigured in some way. Defs.’ Ex. 776 (Seliger Dep. 15, Sept. 1, 2011); Trial Tr. 11-12, Jan. 24, 2012 AM (Chairman Seliger). Notwithstanding his desire to improve Congressman Canseco’s electoral performance, Chairman Seliger testified that he stressed to staff that CD 23 needed to remain a Hispanic district. Defs.’ Ex. 776 (Seliger Dep. 13, 15, 30, 37, Sept. 1, 2011). He believed that the Legislature was legally required to build a district to elect the Hispanic candidate of choice in CD 23. Id. at 31; Trial Tr. 14-16, Jan. 24, 2012 AM (Chairman Seliger). Chairman Seliger further testified that if he had understood that Congressman Canseco was not the Hispanic preferred candidate, and he was taking steps to make CD 23 safer for Congressman Canseco, that would have created a concern in his mind regarding compliance with the VRA. Trial Tr. 11-16, Jan. 24, 2012 AM (Chairman Seliger).
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ii. Plan to Protect Congressman Canseco
40. The Senate Redistricting Committee staff attempted to draw a district safe for Congressman Canseco’s reelection but found this to be a difficult challenge. Chairman Seliger stated: “in order to keep it as an opportunity district we just couldn’t piece it together where it served Congressman Canseco; and we wanted to if we could. And then [the House] came up with their design and we thought it was good.” Defs.’ Ex. 776 (Seliger Dep. 14, Sept. 1, 2011).
41. The mapdrawers in the State House, Messrs. Downton and Interiano, testified that there were “two goals” with regard to CD 23 when drawing the enacted map: “to maintain or strengthen the Hispanic nature of 23 and also strengthen the [R]epublican nature of 23.” Trial Tr. 80, Jan. 18, 2012 AM (Mr. Downton); Trial Tr. 47, Jan. 17, 2012 PM (Interiano); Defs.’ Ex. 579 (Trial Tr. 1454-55, Perez v. Perry, Sept. 12, 2011 (Interiano)); Defs.’ Ex. 779A (Interiano Dep. 102, Aug. 2, 2011). Mr. Interiano acknowledged, however, that he never conducted any analysis to determine if Congressman Canseco is the Hispanic preferred candidate in Benchmark CD 23. Defs.’ Ex. 579 (Trial Tr. 1456, Perez v. Perry, Sept. 12, 2011 (Interiano)); Defs.’ Ex. 779A (Interiano Dep. 86-87, Aug. 2, 2011); Trial Tr. 49, Jan. 17, 2012 PM (Interiano). Mr. Downton conceded that he knew when he was drawing CD 23 that Congressman Canseco was not the Hispanic candidate of choice. Defs.’ Ex. 577 (Trial Tr. 966, Perez v. Perry, Sept. 9, 2011 (Downton)); Defs.’ Ex. 778A (Downton Dep. 90, Aug. 12, 2011). He nonetheless drew CD 23 to “giv[e] Mr. C[a]nseco his best chance to be re-elected while maintaining and increasing the . . . total . . . Hispanic voting age, Hispanic citizen voting age, and Spanish surname voter registration.” Trial Tr. 105107, Jan. 18, 2012 AM (Downton).
42. The mapdrawers were aware that because Congressman Canseco was not the minority candidate of choice, increasing CD 23’s performance for Congressman Canseco would be problematic. For example, on April 13, 2011, a staffer at the National Republican Congressional Committee, Lee Padilla, requested in an email that Doug Davis, Director for the Senate Select Committee on Redistricting, “check on the latest Canseco version.” Defs.’ Ex. 978. Mr. Davis responded that “[i]t looks nice politically. We’re still concerned about the Voting Rights Act.” Mr. Davis continued that “[w]e’re going to have to put our best legal minds on the 23rd.” Id.
43. During the map-drawing process, legislative staffers understood that drawing a map to protect Congressman Canseco while maintaining the benchmark demographic statistics would require careful uses of demographic statistics. As early in the redistricting process as November 2010, Eric Opiela9 sent an email to Mr. Interiano, explaining that “certain data would be useful in identifying a nudge factor by which one can analyze which census blocks, when added to a particular district, especially 50-plus-1 majority-minority districts, help pull the districts total Hispanic pop[ulation]
9 Mr. Interiano testified that at the time of this email, Eric Opiela was his colleague doing political work for Speaker Straus. Trial Tr. 54, Jan. 17, 2012 PM (Interiano).
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and the Hispanic CVAP up to majority status, but leave the Spanish surnamed registered voters and turnout the lowest. This is especially valuable in shoring up Canseco and Farenthold.” Defs.’ Ex. 304; Trial Tr. 52-53, Jan. 17, 2012 PM (Interiano). According to Mr. Interiano, the import of this November 2010 email was to use demographic data, such as HVAP, HCVAP and SSVR, to draw a district that featured lower turnout of Spanish surname voters, while leaving the HCVAP at the benchmark level. Trial Tr. 53, Jan. 17, 2012 PM (Interiano).
44. Mr. Opiela was not an outsider to the redistricting process and played a role in the manner in which districts were drawn. Mr. Downton testified that he communicated with Mr. Opiela during the drawing of the Congressional Plan and understood that the latter was “speaking on behalf of the Republican Congressmen from Texas with the exception of Representative Barton.” Trial Tr. 104, Jan. 18, 2012 AM (Downton); Trial Tr. 56, Jan. 17, 2012 PM (Interiano). Indeed, Mr. Downton acknowledged that he incorporated some of Mr. Opiela’s ideas into the Congressional Plan. Trial Tr. 104, Jan. 18, 2012 AM (Downton). Mr. Opiela also gave pointers to Mr. Interiano during the redistricting process. In particular, after Mr. Opiela informed Mr. Interiano in the November 2010 email that data available at the block level could be used to lower a district’s turnout of voters with Spanish surnames while raising its total Hispanic population, Messrs. Interiano and Opiela requested SSVR data at the block level from the TLC. Defs.’ Ex. 820; Defs.’ Ex. 980.
iii. Alterations to Congressional District 23 in the Congressional Plan
45. The 2010 Census indicated that CD 23 was overpopulated by about 149,000 people. Defs.’ Ex. 575 (Trial Tr. 450, Perez v. Perry, Sept. 7, 2011 (Flores)); Defs.’ Ex. 436. Mr. Downton testified that CD 23 was “a very sensitive district” throughout the redistricting process because “[i]t was previously a court drawn district. We wanted to make sure we maintained the SSVR and HCVAP level of District 23.” Trial Tr. 78, Jan. 18, 2012 AM (Downton). As noted above, Mr. Downton also wanted to improve the district’s performance for Congressman Canseco. Id. at 105.
46. Mr. Downton testified that while drawing CD 23 in the Congressional Plan he shaded precincts by election results and moved precincts in and out of CD 23 based on their election performance. Trial Tr. 107-08, Jan. 18, 2012 AM (Downton). In choosing between two precincts with similar SSVR, Mr. Downton testified that he would select the precinct with the greater percentage of Republican votes. Id. at 109. He did not, however, have any data showing which voters in a precinct were both Hispanic and Republican. Id. at 108. Mr. Downton sought to protect Congressman Canseco’s reelection prospects by including in CD 23 those precincts that voted for Senator John McCain in the 2008 Presidential election, even though he recognized the possibility that these precincts voted for Senator McCain because Anglo voters preferred Senator McCain and turned out at higher rates than Hispanic voters. Id. at 109-10; Defs.’ Ex. 577 (Trial Tr. 956, Perez v. Perry, Sept. 9, 2011 (Downton)); Defs.’ Ex. 778A (Downton Dep. 76-77, Aug. 12, 2011). Mr. Downton testified, however, that he “never looked at turnout data for any map.” Trial Tr. 89, Jan. 18, 2012 AM (Downton).
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47. To address the overpopulation in CD 23 of approximately 149,000 people, mapdrawers moved over 600,000 residents in and out of the district. Defs.’ Ex. 575 (Trial Tr. 450, Perez v. Perry, Sept. 7, 2011 (Flores)); Defs.’ Ex. 436. The Congressional Plan adds approximately 33,000 people from traditionally Anglo counties along Benchmark CD 23’s northern border. Id. at 448; Defs.’ Ex. 430, at 1. Chairman Seliger testified that he did not know why some of these counties were added to CD 23 because it was done by his counterparts in the State House, but stated that no study was done in these counties to determine if the Republican primary voters would support a Hispanic candidate. Defs.’ Ex. 776 (Seliger Dep. 31, 36, Sept. 1, 2011); Trial Tr. 15, Jan. 24, 2012 AM (Seliger).
48. Instead of adding population from Anglo counties in the northern part of CD 23 – north of the Pecos river – Chairman Seliger testified that the excess population in CD 23 could have been addressed by simply moving CD 23 down toward the border with Mexico, without extending the district northward. Defs.’ Ex. 776 (Seliger Dep. 38, Sept. 1, 2011); Trial Tr. 20-21, Jan. 24, 2012 AM (Seliger). Chairman Seliger acknowledged that if CD 23 were pulled down closer to the border, Hispanic voters would “determine[] the outcome” of the election in CD 23. Defs.’ Ex. 776 (Seliger Dep. 38, Sept. 1, 2011); Trial Tr. 20-21, Jan. 24, 2012 AM (Seliger). Mr. Downton similarly testified that because CD 23 lies adjacent to the border with Mexico and New Mexico, it is mathematically possible to achieve the ideal population in CD 23 by removing precincts from the northern and western part of the district. Defs.’ Ex. 778A (Downton Dep. 85, Aug. 12, 2011).
49. In addition to adding population from Anglo counties to the north of CD 23, over 300,000 people in Bexar County were moved out of, and about 60,000 individuals in Bexar County were moved into CD 23. Defs.’ Ex. 575 (Trial Tr. 485, Perez v. Perry, Sept. 7, 2011 (Flores)); Defs.’ Ex. 436.
50. At the same time that he attributed population shifts in CD 23 as furthering the goal of making the district safer for Congressman Canseco, Mr. Downton also testified that changes were made to CD 23 in Bexar County to accommodate requests by State Representative Jose Menendez and Congressman Charles Gonzales for CD 20 and CD 35, a new congressional district in the Bexar County area. Trial Tr. 78-79, Jan. 18, 2012 AM (Downton). These requests with respect to CD 23 in the San Antonio area, according to Mr. Downton, “dropped the HCVAP of [CD] 23 below the Court [drawn] level” and required “other changes to [CD] 23 in other parts of the map to try to bring it back up. So it was kind of a constant ripple between 20, 23, 35 and to a lesser extent 21, and it might be 15, and other districts coming into Bexar County to try to get all of that to work.” Id. In order to increase the HCVAP and SSVR of CD 23 to benchmark levels, Mr. Downton testified that he altered the boundary between CD 16 and CD 23 near El Paso County, and made changes to the “southern region” of CD 23. Id. at 81-83. Specifically, Mr. Downton testified that he split Maverick County at the southern end of enacted CD 23 and moved half of that County into enacted CD 28 in order to raise enacted CD 23’s HCVAP level. He did this, in part, because he did not want to split Webb County, given previous litigation regarding a split of Webb County in LULAC v. Perry. Id. at 83-84.
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iv. The Splitting of Maverick County
51. In the Benchmark Plan, Maverick County, and its most populous city, Eagle Pass, are entirely contained in CD 23. Defs.’ Ex. 428, at 4. The Congressional Plan, however, moves half of Maverick County from CD 23, splitting the city of Eagle Pass between CD 23 and CD 28. Id.; Defs.’ Ex. 340, at 1; Defs.’ Ex. 575 (Trial Tr. 447, Perez v. Perry, Sept. 7, 2011 (Flores)); Defs.’ Ex. 430, at 1.
52. Maverick County is located along the Mexican border and is among the “poorest counties in the United States.” Trial Tr. 113, Jan. 18, 2012 PM (Saucedo). The County Judge for Maverick County, David Saucedo, testified that despite their relative poverty, “the citizens of Maverick County have been educated on the electoral process. They’re aware of the fact of the investments that are made in that district. They’re aware of the fact [of] the money that’s invested by candidates to run in that district. And Maverick – the people in Maverick County understand that you can actually have a larger margin come [from] one community like Maverick County than you would in all of the San Antonio portion that is represented by that congressman. So that is what has given a community, a midsized community like ours, more influence.” Id. at 118. Judge Saucedo further testified that the Maverick County community is united and “[w]hen we go out, . . . we vote for one candidate and we’ve finally seen some of that change come about. We’re fighting for four-year universities, we’re fighting for veterans clinics, things that don’t exist in Maverick County that actually exist in smaller communities outside Maverick County.” Id. at 115.
53. The Congressional Plan splits Maverick County in half between enacted CD 23 and CD 28. Defs.’ Ex. 428, at 4; Defs.’ Ex. 340, at 1. During his testimony at trial, Mr. Downton could not remember how he split Maverick County, but believed “a large part of it follows the road . . . it was essentially just cutting the county in half.” Trial Tr. 85, Jan. 18, 2012 AM (Downton). Mr. Downton later conceded, however, that the split of Maverick County in the enacted plan does not follow just one road and also resulted in at least three precinct cuts. Id. at 114; Defs.’ Ex. 575 (Trial Tr. 449, Perez v. Perry, Sept. 7, 2011 (Flores)).
54. Mr. Downton indicated that he was not aware that he cut the city of Eagle Pass in half when he split Maverick County. Trial Tr. 86, Jan. 18, 2012 AM (Downton). In any event, he appeared to discount the impact of this decision, stating his belief that “there’s roughly a thousand people that live there. So it didn’t change the nature of either district.” Id. The City of Eagle Pass actually has a population of 26,248 and is 95.5 % Hispanic. Defs.’ Ex. 391, at 1012.
55. Mr. Downton testified that he removed portions of Maverick County from CD 23 because Maverick County does not have a good record of voting Republican. Defs.’ Ex. 577 (Trial Tr. 963, Perez v. Perry, Sept. 9, 2011 (Downton)); Defs.’ Ex. 778A (Downton Dep. 87-90, Aug. 12, 2011). In the 2010 general election, Ciro Rodriguez, the candidate of choice of Hispanics, won 80.29 % of the vote in Maverick County and Congressman
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Canseco won only 15.64 % of the vote. Defs.’ Ex. 393, at 3. In the 2010 Republican Primary Election, Congressman Canseco received only 23.07 % of the vote in Maverick County. Id. at 4. Judge Saucedo testified that for the past ten years Maverick County has turned out about 12,000 to 14,000 voters for presidential elections, and 8,000 to 9,000 voters in other elections, and they vote heavily for the Hispanic-preferred candidate. Defs.’ Ex. 576 (Trial Tr. 771, Perez v. Perry, Sept. 8, 2011 (Saucedo)); Defs.’ Ex. 576 (Trial Tr. 681, Perez v. Perry, Sept. 8, 2011 (Korbel)). Splitting Maverick County, according to Judge Saucedo, could make the difference in an election. Defs.’ Ex. 576 (Trial Tr. 771, Perez v. Perry, Sept. 8, 2011 (Saucedo)).
v. Hispanic Citizens’ Ability to Elect in Congressional District 23 in the Enacted Plan
56. In the Congressional Plan, CD 23 is 67.8% Hispanic, with an HCVAP of 58.5% and an SSVR of 54.8%. Pl.’s Ex. 12, at 6, 11. The Congressional Plan slightly increases CD 23’s HCVAP by 0.01% and its SSVR by 2.2% over the Benchmark. See Defs.’ Ex. 575 (Trial Tr. 454-55, Perez v. Perry, Sept. 7, 2011 (Dr. Flores stating that “even though the number SSVR is higher I don’t consider it a Hispanic opportunity district at all. I think that a Hispanic candidate would find it very difficult to get elected in the new configuration.”)); Pl.’s Ex. 11; Pl.’s Ex. 12.
57. The evidence demonstrates that mapdrawers sought to ensure that the overall performance of Hispanic candidates of choice would decrease. On May 28, 2011, Messrs. Downton, Davis, and Interiano had an email exchange regarding the Attorney OAG’s election analysis results for the Congressional Plan, in which Mr. Interiano asked, “Any guidance on your 23. Have you been able to make any of the changes that we all discussed?” Mr. Downton responded, “Have it over 59 % HCVAP, but still at 1/10. There has to be some level of HCVAP where it doesn’t make a difference what the election results are. It is more Hispanic than the other two San Antonio based districts . . . . ” Defs.’ Ex. 903, at 1. In this email, mapdrawers referenced the OAG’s reconstituted election analysis, which indicated that candidates supported by Hispanics dropped from winning three out of ten elections in the Benchmark Plan, to one out of ten in enacted CD 23. Pl.’s Ex. 65; Defs.’ Ex. 390.
58. Mr. Interiano conceded that enacted CD 23 does not perform as a minority ability district. Defs.’ Ex. 779A (Interiano Dep. 96-97, Aug. 2, 2011). David Hanna and Jeffrey Archer from the TLC expressed concern that CD 23 was not “really effective in the proposed map.” Defs.’ Ex. 288. The goal of changes to CD 23 was, in fact, to make the district safer for Congressman Canseco, who is not the Hispanic candidate of choice.
59. Mr. Downton, however, expressed little concern about the performance of CD 23. In proceedings before the U.S. District Court for theWestern District of Texas, Mr. Downton testified that he did not consider political performance as particularly relevant. Defs.’ Ex. 577 (Trial Tr. 966, Perez v. Perry, Sept. 9, 2011 (Downton)). He would classify a district as a majority-minority district if it elected the minority candidate of choice three out of ten times or one out of ten times because he believes “that any
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district where the Hispanic citizen voting age population exceeds 50 percent, it is, by definition, a Hispanic opportunity district.” Id.; Defs.’ Ex. 778A (Downton Dep. 24-25, Aug. 12, 2011). Notwithstanding Texas’s position before this Court that CD 23 is an ability district both in the Benchmark and in the enacted plan, Mr. Downton does not view it as such. He testified that he believed CD 23 “was not an ability to elect district . . . before or afterward. It was performing in three out of ten elections before, and one of ten afterward, so in neither case was it performing.” Trial Tr. 87, Jan. 18, 2012 AM (Downton). The Chairmen of the Redistricting Committees, however, testified otherwise. Chairman Seliger testified that no one had told him that CD 23 in the Congressional Plan was predicted to elect the Hispanic preferred candidate in only one out of ten elections. Defs.’ Ex. 776 (Seliger Dep. 24, Sept. 1, 2011); Trial Tr. 13-14, Jan. 24, 2012 AM (Seliger). Chairman Solomons similarly testified that he would consider it problematic if a new congressional plan were to reduce the number of wins by the minority candidate of choice by three or more in a VRA protected district. He stated that it would also be a problem if the number of wins went from three in the base plan down to one and would necessitate a change to the plan. Defs.’ Ex. 580 (Trial Tr. 1605-07, Perez v. Perry, Sept. 13, 2011 (Solomons)). He further testified that if an election analysis reduces the number of wins for minority preferred candidates by one out of ten, it would get his attention and that it was his understanding that legislative council was using that as a basis of their analysis. Trial Tr. 89, Jan. 20, 2012 PM (Solomons).
60. The ability of Hispanic voters to elect their candidate of choice is lost in enacted CD 23.
b. Congressional District 25
61. In the Benchmark Plan, CD 25 draws 59.7% of its population from south Austin in Travis County, and also incorporates counties southeast of Austin, including Caldwell, Colorado, Fayette, Gonzales, Hays, and Lavaca counties, as well as portions of Bastrop County. Pl.’s Ex. 11. The District as configured in the Benchmark Plan is 38.8% Hispanic, 8.7% Black, and 49.8% Anglo. The citizen voting age population (“CVAP”) is 25.3% Hispanic, 9.1% Black, and 63.1% Anglo. Id. at 7, 9. The SSVR in the District is 20.4%. Id. at 10. As reflected by the above statistics, the combined minority citizen voting age population totals 34.4% and Anglos constitute a majority of voters in the district.
62. CD 25 is currently represented by Congressman Lloyd Doggett. Defs.’ Ex. 802; Trial Tr. 115, Jan. 19, 2012 PM (Dukes). Congressman Doggett won the special election for CD 25 in December 2006, and was reelected in 2008 and 2010.
63. Congressman Doggett is the candidate of choice of minority voters in CD 25. Trial Tr. 101, Jan. 19, 2012 PM (Dukes). A tri-ethnic coalition of Black, Hispanic, and crossover Anglo voters work together to elect Democratic candidates in the area that CD 25
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encompasses.10 Id. at 85.
64. The success of this tri-ethnic coalition depends on support of some Anglos for Democratic candidates. Trial Tr. 86, Jan. 19, 2012 PM (Dukes).
i.Minority Election Performance
65. Despite the fact that Anglos comprise 63.1% of the CVAP, “the candidate preferred by Blacks and Hispanics [in CD 25 in the Benchmark] has won every congressional election this decade.” Defs.’ Ex. 724,at 5 (Ansolabehere Reb. Rep Jan 16, 2012); Pl.’s Ex. 11.
66. Elected officials from areas encompassed by CD 25 testified at trial about the effectiveness of the tri-ethnic coalition and the role of minority voters within that coalition. State Representative Dukes testified that candidates supported by the triethnic coalition are the ones who win in Travis County. Trial Tr. 104, Jan. 19, 2012 PM (Dukes). Candidates are not able to bypass minority voters, and those who only obtain endorsements from Anglo groups in the tri-ethnic coalition do not win elections in Travis County. Id. at 106 (“[I]n general elections in Travis County [] if you do not win the Hispanic and African-American boxes that are largely located in the central portion of Travis County, then you are not going to win an election in Travis County without the progressive Anglo[,] black and Hispanic communities. I may not have an Excel spreadsheet, but I can tell you I know my county.”). As an example, Representative Dukes testified that Nelda Wells Spears, an African-American supported by the coalition, successfully defeated an Anglo male “progressive Democrat” with 74% of the vote. Id. at 112.
67. In addition to Representative Dukes, David Escamilla, the Travis County Attorney, provided unrebutted written testimony that political cohesion and cooperation in the tri-ethnic coalition “consistently produces broad agreement to support individual candidates and slates of candidates. The high frequency of agreement on candidates among the organizations within the Coalition also stems from the fact that many individuals are members of more than one of the organizations. This overlap in membership promotes agreement on common slates of political candidates.” Defs.’ Ex. 735, at 7. He provided the example of the 2008 election, in which an Anglo Assistant County Attorney lost a race for a county judgeship despite having “the lion’s share of endorsements from the local Democratic clubs” because he was “unable to
10 Representative Dukes testified that this coalition includes “multiple democratic organizations. There is the Black Austin Democrats, the Tejano Democrats, the Mexican-American Democrats, the lesbian-gay, or Stonewall Democrats, there's the Central Austin Progressives, there's the University Democrats, the Northwest Democrats that help northeast, and the list goes on and on and on and on, coupled with labeled [sic] organizations, especially the Central Labor Counsel [sic] made up of 15 labor unions, the police association, fire fighters, all working together, and the candidates work very hard to get the endorsements because they will go out and work the community, through literature and create a slate. It is very rare, if you have that coalition’s support that you are not successful in winning.” Trial Tr. 85, Jan. 19, 2012 PM (Dukes).
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gain significant support from the Hispanic or African American community.” Id. at 910.11
ii. Congressional District 25 in the Congressional Plan
68. In the enacted plan, CD 25 is significantly altered. While CD 25 in the Benchmark extended southeast of Travis County, CD 25 in the enacted plan takes a smaller population from Travis County and extends north to Tarrant County. Compared to its Benchmark configuration, CD 25 in the enacted plan loses population from south Austin and five counties and gains eleven counties. CD 25 in the enacted plan no longer incorporates Bastrop, Caldwell, Colorado, Fayette, Gonzales, and Lavaca counties, and now includes Bosque, Burnet, Coryell, Hamilton, Hill, Johnson, Lampasas, and Somervell counties, as well as portions of Bell, Erath, and Tarrant counties. Compare Pl.’s Ex. 11 with Pl.’s Ex. 12.
69. State House Representative Dawnna Dukes testified that the Congressional Plan “takes the historical African-American community that was forced by segregation into central Austin and moved it into a majority Republican district that runs west . . . .” Trial Tr. 129, Jan. 19, 2012 PM (Dukes).
70. CD 25 in the Benchmark Plan was overpopulated by 115,893 voters, or by 16.59%, and needed to shed this excess population. Pl.’s Ex. 11. Compared to the Benchmark, enacted CD 25 retained only 126,507 of the District’s original voters, lost 489,434, and added 392,869 voting age persons. Defs.’ Ex. 724, tbl. C.2 (Ansolabehere Rep. Oct. 21, 2011). In sum, only 28% of the voters in enacted CD 25 are from the Benchmark district. Id. at 39.
71. In the Congressional Plan, CD 25 is 70.3% Anglo, 17.3% Hispanic, and 8.3% Black. Pl.’s Ex. 12. The CVAP is 78.2% Anglo, 10.3% Hispanic, and 8.1% Black. Id. In short, the citizen voting age population of Hispanics was cut by more than half and of Blacks was reduced by half a percentage point, while the population of Anglos was increased by over fifteen percentage points. In addition, the Anglo population in the new areas added to CD 25 “shows high levels of racial cohesion and polarization” and “85 % of Whites in this new district vote for the same candidate.” Defs.’ Ex. 724, at 35-36 (Ansolabehere Rep. Oct. 21, 2011). In contrast to the new areas added to CD 25, the small area that remains from the old district votes 60% for the minoritypreferred candidates. Id. at 39. According to Dr. Ansolabehere, CD 25 in the enacted plan no longer provides minorities living in the district the ability to elect their candidates of choice. Id.
c. Congressional District 27
11 Mr. Escamilla stated that since 2002 minority candidates have prevailed in 34 county-wide elections in Travis County, 18 of whom were Black and 16 were Hispanic. Defs.’ Ex. 735, at 8. He did not provide the total number of countywide elections from which this information is draw, which undermines the usefulness of this evidence in evaluating the ability of minority voters in the district.
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i. Congressional District 27 in the Benchmark Plan
72. In the Benchmark Plan, CD 27 is located in southeastern Texas, and includes the cities of Corpus Christi and Brownsville, the counties of Kenedy, Kleberg, Willacy, and Nueces, as well as portions of Cameron and San Patricio counties. Pl.’s Ex. 11; Defs.’ Ex. 575 (Trial Tr. 458, Perez v. Perry, Sept. 7, 2011 (Flores)); Defs.’ Ex. 818. Based on 2010 demographic data, CD 27 in the Benchmark had a total Hispanic population of 73.2%, an HVAP of 69.2%, an HCVAP of 63.8%, and an SSVR of 61.1%. Pl.’s Ex. 11.
73. CD 27 is currently represented by Congressman Blake Farenthold, an Anglo Republican. Congressman Farenthold has been representing CD 27 since 2010, when he defeated twenty-seven year incumbent Solomon Ortiz, a Hispanic Democrat. Pl.’s Ex. 32, at 13; Trial Tr. 16, Jan. 24, 2012 AM (Chairman Seliger). In the 2010 election, Congressman Farenthold defeated Mr. Ortiz by only 775 votes and received 51,001 votes, or 47.84 %, compared to Mr. Ortiz, who received 50,226 votes, or 47.11 %. Pl.’s Ex. 32, at 13.
74. Chairman Seliger recognized that Congressman Farenthold was not the Hispanic candidate of choice in CD 27. Defs.’ Ex. 776 (Seliger Dep. 20, Sept. 1, 2011); Trial Tr. 16-17, Jan. 24, 2012 AM (Seliger). Despite their inability to reelect Mr. Ortiz in 2010, Hispanic citizens in Benchmark CD 27 elected their candidate of choice to the United States House of Representatives in 2004, 2006 and 2008. Defs.’ Ex. 327, at 5 (Handley Congress Rep.).
75. According to Texas’s expert, CD 27 had “performed” from the time of its creation for close to thirty years until the 2010 election. Defs.’ Ex. 581 (Trial Tr. 1870-71, Perez v. Perry, Sept. 14, 2011 (Alford)). Indeed, Chairman Seliger testified that CD 27 in the Benchmark Plan is “clearly an opportunity district.” Defs.’ Ex. 776 (Seliger Dep. 25-26, Sept. 1, 2011); Trial Tr. 17-18, Jan. 24, 2012 AM (Seliger). Chairman Solomons similarly understood that CD 27 was protected under the VRA. Defs.’ Ex. 777 (Solomons Dep. 153, Aug. 31, 2011).
ii. Congressional District 27 in the Congressional Plan
76. According to 2010 Census data, CD 27 in the Benchmark Plan was overpopulated by about 43,000 people. Trial Tr. 99, Jan. 18, 2012 AM (Downton); Pl.’s Ex. 11. In the Congressional Plan, CD 27 is reconfigured and moved north, keeping the city of Corpus Christi and adding the cities of Victoria, Wharton, and Bay City, but eliminating Brownsville from the district. Mr. Downton acknowledged that CD 27 in the Benchmark Plan and CD 27 in the Congressional Plan are very different districts. Defs.’ Ex. 577 (Trial Tr. 971, Perez v. Perry, Sept. 9, 2011 (Downton)); Defs.’ Ex. 778B (Downton Dep. 48, Aug. 31, 2011). The Congressional Plan removes the southern counties of Kenedy, Kleberg, Willacy, and Cameron from the district, and adds Aransas, Calhoun, Jackson, Lavaca, Matagorda, Refugio, Victoria, and Wharton counties, as well as parts of Bastrop, Caldwell, and Gonzales counties. Pl.’s Ex. 12.
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77. Mr. Downton testified that he believed that CD 27 was a district protected by the VRA in the Benchmark but was no longer a majority Hispanic district in the Congressional Plan. Defs.’ Ex. 778A (Downton Dep. 32-33, Aug. 12, 2011); Defs.’ Ex. 778B (Downton Dep. 54, Aug. 31, 2011). Similarly, Texas’s expert, Dr. Alford, testified that CD 27 in the Congressional Plan “has flipped, in almost exactly the same way 23 was flipped previously, so it is CD 27 this time that is flipped into being a majority . . . Anglo district.” Defs.’ Ex. 581 (Trial Tr. 1829-30, Perez v. Perry, Sept. 14, 2011 (Alford)).
78. In the Congressional Plan, CD 27 has a total Hispanic population of 49.5%, an HVAP of 45.1%, an HCVAP of 41.1%, and an SSVR of 36.8%. Defs.’ Ex. 859, at 2; Defs.’ Ex. 881, at 1. When compared to the Benchmark Plan, the HVAP decreases by 24.4%, SSVR decreases by 22.6%, and the HCVAP decreases by 22.7% in enacted CD 27.
79. While enacted CD 27 no longer includes counties in South Texas, Nueces County remains in the district. Nueces County is thus no longer included in the South and West Texas configuration of Hispanic ability districts. Trial Tr. 103, Jan. 18, 2012 AM (Downton). Mr. Downton testified that, Nueces County effectively is in a different district in the Congressional Plan than in the Benchmark Plan. Defs.’ Ex. 778B (Downton Dep. 49, Aug. 31, 2011).
80. Nueces County has a population of 340,223 and an HCVAP of 54.6%. Pl.’s Ex. 11; Defs.’ Exs. 883, 746B, 391. In the Benchmark Plan, Nueces County voters constitute over 50% of the total registered voters of CD 27, while in the Congressional Plan, they do not. Trial Tr. 119-20, Jan. 18, 2012 AM (Downton); Defs.’ Ex. 778B (Downton Dep. 54-55, Aug. 31, 2011).
81. According to Mr. Interiano, a goal of the Congressional Plan was to allow Nueces County to anchor a congressional district. That said, Mr. Interiano testified that he did not know what portion of CD 27 voters were in Nueces County under the Benchmark Plan. Defs.’ Ex. 579 (Trial Tr. 1461-62, Perez v. Perry, Sept. 12, 2011 (Interiano)); Defs.’ Ex. 779A (Interiano Dep. 112, Aug. 2, 2011).
82. Mr. Downton conceded that because Benchmark CD 27 was overpopulated by only about 43,000 individuals, if it had simply been the State’s goal to maintain CD 27, he would have had to remove only a few precincts. Trial Tr. 119, Jan. 18, 2012 AM (Downton). Mr. Downton further testified that CD 27 was redrawn to give Congressman Farenthold a better chance of reelection. This could have been accomplished in the Congressional Plan by carving out a small portion of Nueces County containing the incumbent’s home and moving that portion into a northern district, leaving the bulk of Nueces County in a South Texas district. Defs.’ Ex. 778B (Downton Dep. 53-54, Aug. 31, 2011).
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83. Chairman Seliger similarly testified that it is conceptually possible to take Congressman Farenthold’s neighborhood, which is located along Gulf Shore Drive in Corpus Christi, and pair it with counties to the north to make him a safer district, leaving the remainder of Nueces County in the district that runs south to Cameron County. Defs.’ Ex. 776 (Seliger Dep. 27-28, Sept. 1, 2011); Trial Tr. 19, Jan. 24, 2012 AM (Chairman Seliger).

84. Mr. Downton testified that the mapdrawers considered and rejected proposals to include Nueces County’s Hispanic population in the South Texas configuration of congressional districts. Trial Tr. 103-04, Jan. 18, 2012 AM (Downton). This decision was in large part a political choice. Id. at 104. According to Mr. Downton, he moved Nueces County north into CD 27 in part because “the Cameron County delegation in the House and the Senate had expressed a preference that they have a District anchored in Cameron County without Nueces so that their county would be the sole anchor point and could control the election.” The Cameron County delegation included State Senator Eddie Lucio, Jr., State Representative Eddie Lucio, III, and State Representative Renee Oliveira, who are all Democrats. Mr. Downton fulfilled these representatives’ requests by creating enacted CD 34, a new district that was intended to be an offset for the loss of CD 27.12 Trial Tr. 71, Jan. 18, 2012 AM (Downton); Trial Tr. 118, Jan. 18, 2012 AM (Downton); Defs.’ Ex. 575 (Trial Tr. 485-86, Perez v. Perry, Sept. 7, 2011 (Flores)); Defs.’ Ex. 577 (Trial Tr. 971, Perez v. Perry, Sept. 9, 2011 (Downton)); Defs.’ Ex. 778A (Downton Dep. 31-32, 66, Aug. 12, 2011).

85. As configured in the Congressional Plan, CD 27 does not provide Hispanic citizens the ability to elect their candidates of choice.

E.

Discriminatory Purpose in the Congressional Plan

a. Disparate Impact on Minority Congresspersons

i.Congressional District 9

86. In the Benchmark Plan, CD 9 is located south of Houston and incorporates parts of Harris and Fort Bend counties. Pl.’s Ex. 11. This district provides Black and Hispanic citizens the ability to elect the candidate of their choice.

12 CD 34, one of four new districts created in the Congressional Plan, is located in southeast Texas, and includes De Witt, Goliad, Bee, Jim Wells, Kleberg, Kenedy, Willacy and Cameron counties, as well as portions of Hidalgo County, San Patricio County, and Gonzales County. Pl.’s Ex. 12, at 1. All parties agree that proposed CD 34 provides Hispanic citizens living in the district the ability to elect candidates of their choice. Defs.’ Ex. 726, at 4. Specifically, CD 34 has an HVAP of 79%, an HCVAP of 71.7%, and an SSVR of 71.9%. Defs.’ Ex. 885; Pl.’s Ex. 12, at 9. Chairman Seliger testified that he created CD 34 because he felt he was required to create a Hispanic district in South Texas, particularly after the loss of CD 27. Defs.’ Ex. 776 (Seliger Dep. 25-26, Sept. 1, 2011); Trial Tr. 18, Jan. 24, 2012 AM (Chairman Seliger).
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87. Based on 2010 demographic data, CD 9 is 36.7% Black and 42.4% Hispanic. The district has a BVAP of 36.3%, an HCVAP of 19.1%, and an SSVR of 16.2%. Pl.’s Ex. 11, at 4, 10-11. Congressman Al Green has represented CD 9 since 2005.
88. In the Benchmark Plan, CD 9 has a surplus of 35,508 people, or 5.05 %. Defs.’ Ex. 347, at 28. While this district was required to shed a small percentage of population, Congressman Green testified that his district had “substantial surgery” done to it. Trial Tr. 124-25, Jan. 20, 2012 AM (Congressman Green). Primarily Black communities, such as Hiram Clarke, were removed from his district, along with “economic engines,” such as the rail line, Houston Baptist University, the Medical Center, and the Astrodome. The removal of these areas substantially decreased the political power of the citizens in his district. Defs.’ Ex. 721, at 4; Trial Tr. 124-25, Jan. 20, 2012 AM (Congressman Green).
89. In addition to removing key landmarks from his district, the Congressional Plan removes Congressman Green’s district office. Congressman Green testified that the “district office provides a meaningful connection between a member and the people represented. Our district office is in a location that is well-known to my constituents and has been in its present location since 2006; it has easy access to major freeways, mass transit, and many of the important centers of business activity within the Ninth Congressional District such as the Texas Medical Center, the VA hospital, and the Astrodome complex. Other similar properties in the area have been surgically removed; this couldn’t have been done by accident.” Defs.’ Ex. 721, at 4 (Congressman Green Pre-filed Direct Testimony).
ii. Congressional District 18
90. In the Benchmark Plan, CD 18 is located in Houston and within Harris County. Pl.’s Ex. 11. Based on 2010 demographic data, CD 18 in the Benchmark Plan is 43.5% Hispanic, 37.6% Black, and 15.8% Anglo. The district has a BVAP of 46.4%, an HCVAP of 22.3%, and an SSVR of 18.4%. Id. at 6, 9-10. Congresswoman Sheila Jackson Lee has represented CD 18 since 1995.
91. Congresswoman Jackson Lee testified that during the 2011 redistricting process, she traveled to Texas to meet with the Chairmen of the House and Senate Redistricting Committees, and went to a public redistricting hearing to urge state lawmakers to respect communities of interest in CD 18. Trial Tr. 9-11, Jan. 23, 2012 PM (Congresswoman Jackson Lee). These requests, however, were unheeded and she was never contacted to discuss changes to CD 18. Id.
92. Based on 2010 demographics, CD 18 in the Benchmark is over-populated by 22,503 people, or 3.22%, which thus required only minor changes to reach the ideal population size. Defs.’ Ex. 347, at 29 (Murray Rep.). Nonetheless, in the Congressional Plan, the district’s key economic generators, as well as Congresswoman Jackson Lee’s district office are removed. Trial Tr. 13-14, Jan. 23, 2012 PM (Congresswoman Jackson Lee). Congresswoman Jackson Lee testified that
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her district office has been in the same location for a lengthy period of time, having been used by the previous two representatives of CD 18, including former Congresswoman Barbara Jordan. Consequently, constituents in the district know where the office is and go there to seek services. Id. In addition to removing her district office, the Congressional Plan also splits the historic Third Ward-MacGregor area, an important Houston community and home to many of Houston’s AfricanAmerican leaders. This area has been in CD 18 since the district’s creation in 1972. Defs.’ Ex. 577 (Trial Tr. 1051, Perez v. Perry, Sept. 9, 2011 (Murray)); Trial Tr. 1213, Jan. 23, 2012 PM (Congresswoman Jackson Lee).
iii. Congressional District 30
93. In the Benchmark Plan, CD 30 is located in Dallas within Dallas County. Pl.’s Ex. 11.
94. Based on 2010 demographic data, CD 30 is currently 42.4% Black, 39.7% Hispanic, and 16.7% Anglo. The district has a BVAP of 42.5%, an HCVAP of 19.8%, and an SSVR of 14.6%. Pl.’s Ex. 11, at 7, 9-10. Since 1992, Congresswoman Eddie Bernice Johnson has represented CD 30. Trial Tr. 67, 69, Jan. 18, 2012 PM (Congresswoman Johnson).
95. Benchmark CD 30 has only 7,891 people over the ideal population, or 1.14%, and thus required only minor changes to reach the ideal population size. Pl.’s Ex. 11. Despite this fact, significant changes were made to CD 30, including the addition of a large prison, which artificially inflated the Black population in the enacted district. Trial Tr. 81, Jan. 18, 2012 PM (Congresswoman Johnson); Defs.’ Ex. 579 (Trial Tr. 1276, Perez v. Perry, Sept. 12, 2011 (Congresswoman Johnson)).
96. The Congressional Plan removes from the district Congresswoman Johnson’s district office and even her own home. Trial Tr. 79, Jan. 18, 2012 PM (Congresswoman Johnson). Congresswoman Johnson testified that the removal of her district office would be a significant loss to her community because her constituents are familiar with her office and it is easily accessible. Id. at 79-80.
97. In addition to her district office and home, the Congressional Plan removes economic generators from the district, including areas that Congresswoman Johnson has worked to improve, such as the American Center, where the Dallas Mavericks play, transportation areas for the downtown park, and the arts district. Trial Tr. 81, Jan. 18, 2012 PM (Congresswoman Johnson).
iv. Congressional District 20
98. Hispanic Congressman Charlie Gonzalez represents CD 20. In the Congressional Plan, his district office is removed from CD 20. The enacted plan also removes key economic and cultural landmarks from Congressman Gonzalez’s district, including the Alamo and the Convention Center named after Congressman Gonzalez’s father.
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Devaney Decl., Ex. 16 (Decl. of Congresman Charles Gonzales, ¶¶ 3-9, 11).
v. Comparative Treatment of Anglo Congresspersons
99. While all three Black Congresspersons and Hispanic Congressman Gonzalez had their district offices removed from their re-configured districts, and Congresswoman Johnson even had her home removed, no Anglo Congressperson had his or her district office or home removed from his or her district as a result of the re-districting process. Trial Tr. 14, Jan. 18, 2012 PM (Congresswoman Jackson Lee); Trial Tr. 80, Jan. 18, 2012 PM (Congresswoman Johnson).
100. While minority Congresspersons had key landmarks in their districts removed, the mapdrawers accommodated requests from Anglo Congresspersons to include in their districts country clubs and grandchildren’s schools. Devaney Decl., Exs. 19-21. For example, mapdrawers ensured that Anglo Congresswoman Kay Granger, whose office originally had been drawn out of her district, had her office restored before adoption of the final plan. Devaney Decl., Ex. 5 ( Opiela Dep. 63, Aug. 22, 2011); id., Ex. 17. Anglo Congressman Kenny Marchant requested on May 31, 2011, that his district lines be drawn to cross a street to include his grandchildren’s school. Id., Ex. 18. Mapdrawers accommodated that request. Anglo Congressman Lamar Smith requested on June 8, 2011, that his district lines be drawn to include a precinct with the San Antonio Country Club. Id., Ex. 19. The Republican leadership also granted that request. Devaney Decl., Ex. 20.
101. With regard to the removal of district offices, Mr. Interiano testified that the mapdrawers did not have the addresses of any congressional district offices when they were redrawing the congressional map. Mr. Interiano stated that it was just “coincidence” that minority Congresspersons had their district offices removed. Trial Tr. 95, Jan. 25, 2012 PM (Interiano). The Court finds that this testimony is not credible.
b. Configuration of Congressional Districts in North Texas
102. In the Benchmark Plan, nine congressional districts converge in the Dallas-Fort Worth metroplex. Defs.’ Ex. 818, at 1. Of these nine districts, CD 30 is the only minority ability district. Defs.’ Ex. 327, at 2 (Handley Congress Rep.).
103. The Dallas-Fort Worth metroplex is located in north Texas, and is spread across Dallas and Tarrant counties. Between 2000 and 2010, the non-Anglo population in Dallas County grew by 28%, accounting for 100% of the population growth in the county. During the same period, the Anglo population declined by 20%. Defs.’ Ex. 734, at 5-6 (Supp. Rep. of Rogelio Saenz). The non-Anglo population in Tarrant County grew 12 times faster than the Anglo population, accounting for 89% of the population growth there. Id. According to 2010 census data, Blacks and Hispanics now account for a combined 55% of the voting age population in Dallas County and 37% of the voting
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age population in Tarrant County. Mot. for Judicial Notice, ECF No. 180, ¶¶ 33, 37.
104. Due to significant population growth in Dallas and Tarrant counties, the Congressional Plan allocates CD 33, one of the State’s newly apportioned congressional districts that will be Anglo controlled, to the area. Pl.’s Ex. 12. The Dallas-Fort Worth metroplex will thus have ten congressional districts converge in the area in the Congressional Plan, but CD 30 remains the only minority ability district among them. Id.
105. Despite significant minority population growth, and the addition of another congressional district, the Congressional Plan does not reflect the minority growth in the Dallas-Fort Worth metroplex. Trial Tr. 13, Jan. 18, 2012 PM (Rep. Veasey); Defs.’ Ex. 320, ¶¶ 148-52 (Arrington Rep.). The Congressional Plan divides the urban, minority population in the Dallas-Fort Worth metroplex among four Anglo-controlled congressional districts, CD 6, CD 12, CD 26, and new CD 33. Trial Tr. 16-17, Jan. 18, 2012 PM (Rep. Veasey); Defs.’ Ex. 320, ¶¶ 148-152 (Arrington Rep.); Defs.’ Exs. 67780, 683-84; Trial Tr. 75, Jan. 18, 2012 PM (Congresswoman Johnson testifying that the Congressional Plan has been configured to break “solid African-American and Latino growth up in one, two, three, four, five or six different districts”).
106. To rebut claims that minorities in the Dallas-Fort Worth metroplex were either fractured into Anglo-dominated districts or packed into CD 30, Mr. Downton testified, that it was difficult to draw a Hispanic district in the Dallas-Fort Worth metroplex because “a significant part” of the population growth was either non-citizen, under 18, or “assimilated.” Trial Tr. 74, Jan. 18, 2012 AM (Downton).
107. The Republican congressional delegation, through Congressman Lamar Smith, MALDEF, MALC and Representative Veasey all presented Mr. Downton with “concepts” for North Texas, but Mr. Downton stated that none of these groups provided him with a proposed map during the regular or special session. Trial Tr. 73, Jan. 18, 2012 AM (Downton).
108. Mr. Downton’s testimony on this issue is not accurate. In early April 2011, Congressman Lamar Smith, on behalf of a majority of the Texas Republican congressional delegation, distributed a draft congressional map to Republican leaders of the Texas Legislature, as well as the Lieutenant Governor and Governor. Defs.’ Ex. 394. Congressman Smith’s map created “one new Voting Rights Act district in the Dallas-Ft. Worth area,” which, inter alia, “reflects the population growth in Texas over the last decade.” Id.
109. Representative Veasey testified that when he heard through the local paper that the Congressman Lamar Smith and the Republican congressional delegation had proposed a map with another minority congressional district in north Texas, in addition to CD 30, he approached Chairman Solomons and asked to see it. Chairman Solomons responded that there was no such map. Representative Veasey testified that he subsequently learned that Chairman Solomons had, in fact, seen Congressman Smith’s proposed map. Trial Tr. 15-16, Jan. 18, 2012 PM (Rep. Veasey).
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i.

Congressional Districts 6, 12, and 33

110. CD 6 in the Benchmark Plan is anchored in the heavily Anglo counties of Ellis and Navarro and reaches into both Dallas County and Tarrant County to include heavily Hispanic neighborhoods in Dallas County and areas of Tarrant County with rapidly growing Hispanic and Black population areas. Trial Tr. 21, Jan. 18, 2012 PM (Rep. Veasey); Defs.’ Ex. 819 at 1. CD 6 in the Benchmark has a combined Black and Hispanic CVAP of 38.6%, with most of the minority population in Dallas County. Defs.’ Ex. 857, at 2.

111. CD 12 in the Benchmark is based in northern Tarrant County, which is comprised of affluent Anglo communities. The district also incorporates southeast Fort Worth, which is a Black community. Southeast Fort Worth is situated south of Interstate 30 and east of Interstate 35 and is made up of several inner-city, low-income communities that are predominantly minority.

112. CD 33 is one of the State’s newly apportioned congressional districts. In the Congressional Plan, this district includes all of Parker County and parts of Wise County, both of which are predominantly comprised of Anglo, suburban areas. Anglos make up 85.3% of the population in Parker County and the portion of Wise County included in CD 33 is 78.7% Anglo. Pl.’s Ex. 12. In addition to those Anglo areas, CD 33 cuts into Tarrant County to include Tarrant County’s fast-growing minority populations. Representative Veasey testified that enacted CD 33 “goes around southwest -- underneath southeast Ft. Worth in the unincorporated Tarrant County, and then moves into Arlington, into the heavily Anglo part of Arlington, and then picks up the fast minority growth area in southeast Tarrant County, Arlington -- southeast Arlington-Grand Prairie area.” Trial Tr. 23, Jan. 18, 2012 PM (Rep. Veasey).

ii.

Congressional District 26

113. CD 26 in the Benchmark Plan covers parts of Cooke, Dallas, Denton, and Tarrant counties. Pl.’s Ex. 11. Benchmark CD 26 is anchored in Denton County, and then reaches south into the center of Tarrant County in a long peninsula-like strip, incorporating 363,872 individuals. The population of benchmark CD 26 in Tarrant County is 45.5% Anglo, 24.4% Black, and 26.5% Hispanic. Pl.s’ Ex. 12.

114. In the Congressional Plan, CD 26 covers parts of three counties: Dallas, Denton, and Tarrant, with most of Denton County within the district. Pl.’s Ex. 12, at 1, 7. The portion of Denton County in CD 26 is 67.1% Anglo. Id.; Trial Tr. 18, Jan. 18, 2012 PM (Rep. Veasey). CD 26 also includes a small portion of Dallas County containing 841 individuals, who are 43.9% Anglo. Pl.’s Ex. 12, at 7. In addition to these Denton County and Dallas County areas, CD 26 in the Congressional Plan runs down the center of Tarrant County in an exaggerated “lightning bolt” shape to capture 147,815 individuals, 65.2% of whom are Hispanic. Id.; Defs.’ Ex. 75.

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Benchmark CD 26

Enacted CD 26

115. The “lightning bolt” into Tarrant County divides two significant minority communities of interest in Tarrant County – North Side and South Fort Worth – and moves these areas to CD 12, a district represented by Anglo Republican Congresswoman Kay Granger. North Side is an urban, low-income, majority Hispanic community in Fort Worth. South Fort Worth is another urban, low-income, majority Hispanic community in Fort Worth. Trial Tr. 19, Jan. 18, 2012 PM (Rep. Veasey); Trial Tr. 98-99, Jan. 18, 2012 PM (Jiminez).
116. The boundary between enacted CD 26 and enacted CD 12 in Tarrant County – the eastern boundary of the “lightning bolt” – divides minority communities according to race. Defs.’ Ex. 630; Pl.’s Ex. 133.
117. The “lightning bolt” running through Tarrant County in the Congressional Plan contains 38 splits of voter tabulation districts (“VTD”).13 Defs.’ Ex. 875, at 10-11. The purpose behind the split VTDs was to move Hispanic populations into enacted CD 26 and split the non-Hispanic population out of the district. Defs.’ Ex. 887 at 74-82, 185-88. Mr. Downton testified that he drew the map to keep the Hispanic population together, even though he also testified that these Hispanic populations may not want to be submerged into Denton County. Defs.’ Ex. 778A (Downton Dep. 130-131, Aug. 12, 2011).
118. In an effort to explain the configuration of the “lightning bolt” in the Congressional Plan, Mr. Downton testified that the “lightning bolt” running from Denton County to Tarrant County went through “multiple iterations and changes based on concerns raised by various people throughout the process.” Trial Tr. 68, Jan. 18, 2012 AM (Downton). According to Mr. Downton, the “lightning bolt” went further down into Fort Worth because “concerns were raised that we had split the Hispanic population of the City of Fort Worth between a group in the . . . northern side of Fort Worth which we had put in

13 While not precisely the same, the parties agree that VTDs are essentially the same as voting precincts.
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26 and a group down in the southern part of Fort Worth that we had put in 12. So to rectify that concern we reached down further . . . and . . . the two Fort Worth Hispanic communities which we were told shared a community of interest, we put them in 26. Initially when we did that, it looked a little cleaner coming down, but in doing that we had taken out downtown Fort Worth and the [Trinity Vision] project out of District 12. Congressman Granger expressed concern that she really needed those areas in her District. . . . Then we made an additional change over Representative Veasey’s request that primarily the black community we had put in 26 and he asked us to move that to 12 and so we did that as well.” Id. at 68-69.

119. The assertion that that the jagged edges in the “lightning bolt” were due to Congresswoman Granger’s request to keep the Trinity Vision Project in CD 12, is disputed by other evidence in the record. Specifically, Tarrant County Commissioner Roy Brooks stated in a memorandum, dated September 15, 2011, to the DOJ: “Frankly, you are not being told the truth . . . . I have no doubt that the State wants Trinity Vision to remain in CD 12. However, using the project to explain and excuse their racially discriminatory map is flatly dishonest.” Defs.’ Ex. 113. Mr. Brooks further stated that “[t]he contorted lines south of the Trinity Vision site reflect a careful effort to include Hispanic precincts and blocks in CD 26 while placing African American precincts and blocks in CD 12. Any difficulty in retaining Trinity Vision in CD12 was caused by the State placing a higher priority on separating black and Hispanic voters from each other.” Id.

iii.

Packing of Minorities into Congressional District 30

120. Evidence presented to the Court demonstrates that the Congressional Plan concentrates a large part of Dallas County’s minority population into enacted CD 30. Enacted CD 30 has a BVAP of 45.6% and an HVAP of 40.3 %, which increases the combined minority voting age population from the Benchmark district by 4.8 %. Compare Defs.’ Ex. 859, at 2 with Defs.’ Ex. 858, at 2.

II. STATE SENATE PLAN

121. There are 31 seats in the State Senate. Senators serve terms of four years.

122. On July 24, 2001, following the failure of the Texas State Legislature to enact a redistricting plan for the State Senate, the Texas Legislative Redistricting Board adopted a plan to redistrict all 31 Senate seats. This plan was precleared by the DOJ on October 15, 2001. This is the Benchmark State Senate Plan (the “Benchmark Plan”) for the purposes of this case.

123. Redistricting maps for the State House and State Senate must be passed during the general legislative session. Otherwise, the maps are drawn by a Legislative Redistricting Board that is designated by statute and consists of the State’s Lieutenant Governor, Speaker of the House, Attorney General, Comptroller, and Land Commissioner.

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124. On May 17, 2011, the State Senate passed Senate Bill 31, containing a new redistricting plan for the State Senate based on the 2010 Census, and the Governor signed it into law on June 17, 2011 (the “State Senate Plan”). This is the Plan for which Texas is seeking preclearance.
125. SD 10 is represented by Senator Wendy Davis in the Benchmark Plan and its configuration in the State Senate Plan is the only challenge to the State Senate Plan before the Court.
A. State Senate Redistricting Process
126. Doug Davis, the director for the Senate Select Committee on Redistricting, was the principle mapdrawer for the State Senate Plan. Trial Tr. 140, Jan. 17, 2012 PM (D. Davis).
127. In September 2010, the Senate Redistricting Committee held seven field hearings across the State to “receive input from the public” on redistricting. Trial Tr. 145, Jan. 17, 2012 PM (D. Davis).
128. Redistricting hearings for the State Senate Plan were held in “population centers” around the State, but none was held in Tarrant County by the Senate Redistricting Committee. Trial Tr. 17, Jan. 18, 2012 AM (D. Davis).
129. The State House Committee on Redistricting held the only hearing in Tarrant County in Arlington, which has the dubious distinction of being the largest city in the United States that lacks both public bus and rail service, Trial Tr. 8, Jan. 18, 2012 PM (Rep. Veasey), and therefore is not fully accessible without private transportation. As discussed, Rep. Veasey specifically asked that a public hearing be held in Fort Worth and offered to locate an appropriate site, but his request was ignored. Id. at 8-10.
130. Senator Judith Zaffirini, a Hispanic who served on the Senate Redistricting Committee in 2011 and who had been through several past Senate redistricting cycles, said that the field hearings were “a sham” because of low attendance and participation, lack of invited testimony, and lack of prepared materials for members of the Redistricting Committee. Defs.’ Ex. 189 (Zaffirini Dep. 7-8, Jan. 6, 2012). Senator Rodney Ellis similarly testified that these hearings had very limited attendance and were “fairly perfunctory.” Trial Tr. 94-95, Jan. 20, 2012 AM. Both Senators’ testimony is credited by this Court.
131. Chairman Seliger and Doug Davis met with Senator Davis in March 2011 and asked her what changes she would like made to SD 10. Trial Tr. 35, Jan. 20, 2012 AM (Sen. Davis). She told them that the urban cores of Fort Worth and Arlington were “very important” to the District and that she felt “it was important to keep the district wholly contained within Tarrant County.” Id.
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132. During late April 2011, draft redistricting maps were available for viewing in a room adjacent to the State Senate floor, but only by invitation. Those senators who were invited to look would leave the floor of the State Senate with Chairman Seliger and Mr. Davis to review the draft proposals and provide comments on them. Trial Tr. 39, Jan. 20, 2012 AM (Sen. Davis).
133. Senator Ellis testified that senators who represented “minority districts” were left out of the redistricting process. Trial Tr. 95, Jan. 20, 2012 AM (Sen. Ellis). Senator Zaffirini testified that Anglo senators had access to view the plans for their districts and the overall State Senate Plan but minority senators did not. Defs.’ Ex. 809 (Zaffirini Dep. 29-30, Jan. 6, 2012). She characterized the redistricting in 2011 as the “least collaborative and most exclusive” she had ever experienced. Defs.’ Ex. 134, Lichtman Rep. app. 7 (Decl. of Judith Zaffirini, ¶ 3).
134. Throughout April and May, Senator Davis constantly asked Mr. Davis and Chairman Seliger to see the map for her district. Trial Tr. 38-39, 42, Jan. 20, 2012 AM (Sen. Davis). Senator Davis was not shown any drafts and it was not until May 10, 2011 that she saw her district for the first time. Id. at 42; Defs.’ Ex. 128. On that date, Senator Davis sent a letter to Chairman Seliger, expressing concern that minority voting rights were badly undermined by the State Senate Plan and that excluding her from the process, as the representative of several minority communities, contributed to this result. Defs.’ Ex. 128.
135. Mr. Davis explained that he did not show Senator Davis how her district was re-drawn because “we were not printing maps and giving them to members.” Trial Tr. 172, Jan. 17, 2012 PM (D. Davis); see also id. at 173. On the contrary, Chairman Seliger admitted that he provided maps to three other senators who represent majority-Anglo districts. Trial Tr. 67-68, Jan. 24, 2012 AM (Chairman Seliger); see also Defs.’ Ex. 646 (Dep. of Sen. Jane Nelson 10-11, Jan. 6, 2012).
136. Senator Davis appeared at the May 12, 2011 Senate Select Committee on Redistricting hearing to testify against the State Senate Plan. Trial Tr. 9-10, Jan. 18, 2012 AM (D. Davis). Because Senator Davis was not a member of the Committee, she could not propose amendments in Committee. Senator Zaffirini sponsored amendments on her behalf. Trial. Tr. 43-45, Jan. 20, 2012 AM (Sen. Davis). These amendments were designed to “strengthen[] the African American and Latino makeup of [SD 10].” Id. at 45. Neither of these plans passed the committee vote. Senator Davis again offered amendments on the floor of the State Senate, but was defeated in a “party line” vote. Trial. Tr. 12, Jan. 18, 2012 AM (D. Davis).
137. The formal Senate redistricting process began on May 12, 2011 and the bill was passed to the State House on May 18, 2011, six days later. Defs.’ Ex. 156. The State Senate passed the redistricting plan by a roll call vote of 29-2. Only Senators Davis and Ellis voted against it.
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138. On Wednesday, May 11, 2011, the day before the public hearing on the State Senate Plan, David Hanna an attorney at the TLC, responded to an email from Karina Davis, the Senate Parliamentarian (and Doug Davis’s wife), with a copy to Mr. Davis. Ms. Davis had inquired about “pre-doing the committee report,” Defs.’ Ex. 359, but Mr. Hanna advised “No bueno [no good]. RedAppl time stamps everything when it assigns a plan. Doing it Thursday would create paper trail that some amendments were not going to be considered at all. Don’t think this is good idea for preclearance.” Id.
139. Although Chairman Seliger testified that he never knew about the Davis-Hanna email, he did agree that he knew on May 11, 2011 that none of Senator Davis’s proposed amendments to the State Senate Plan would pass. Trial Tr. 70-71, Jan. 24, 2012 AM (Chairman Seliger).
B. Senate District 10
140. SD 10 in the Benchmark is a geographically compact district located entirely within Tarrant County that includes most of Fort Worth, Texas.
141. The 2010 Census reported that SD 10’s population is 19.2% Black, 28.9% Hispanic, 4.9% other minorities (i.e., approximately 53% minorities) and 47.6% Anglo. Defs.’ Ex. 151, at 5. However, the 2010 Census showed an 18.3% Black Citizen Voting Age Population (“BCVAP”), 15.1% HCVAP, 62.7% White Citizen Voting Age Population (“WCVAP”), and a 2.6% Asian-American citizen voting age population in the district. Pl.’s Ex. 15, at 8.
142. In 2006, an Anglo Democrat, Terri Moore, ran for District Attorney in Tarrant County but lost with close to 50% of the vote. Trial Tr. 30, Jan. 18, 2012 PM (Rep. Veasey). This election result caught the attention of State House Representative Marc Veasey, who studied the 2006 election results to see whether Black and Hispanic voters could elect a candidate of choice in SD 10. Representative Veasey concluded that “when African-American and Hispanic communities came together as a coalition to win, . . . they could win Senate District 10.” Id.
143. Thereafter, a coalition of Black and Hispanic community leaders in SD 10 visited Wendy Davis, an Anglo with deep minority support who was then serving on the Fort Worth City Council, and asked her to run for the State Senate in SD 10 in 2008. Trial Tr. 16-19, Jan. 20, 2012 AM (Sen. Davis).
144. During her campaign, Senator Davis “spent a great deal of time going into [Black and Hispanic] neighborhood meetings, knocking [on] doors in those communities and attending churches and speaking to church congregations in those communities.” Trial Tr. 21, Jan. 20, 2012 AM (Sen. Davis).
145. According to the Chairman of the Texas State Democratic Party, Boyd Richie, “there was a concerted effort to build support from and mobilize African-American and Hispanic voters and to have them unite in their electoral support for Wendy Davis.”
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Defs.’ Ex. 732, at 3 (Decl. of Boyd Richie). Senator Davis corroborated this testimony and is credited by this Court.
146. Senator Davis had no primary opponent and ran against the Anglo Republican incumbent, Senator Kim Brimer, in the general election in 2008. Senator Davis testified that Senator Brimer was “incredibly well funded” and had “the endorsement of every mayor and the police and fire unions, and had mayors appearing in television commercials with him endorsing him.” Trial Tr. 67-68, Jan. 20, 2012 AM (Sen. Davis).
147. Senator Davis won the election to the State Senate in 2008 by approximately 7,100 of the 288,000 votes cast in SD 10. Senator Davis received 147,832 votes (49.91%); former Senator Brimer received 140,737 votes (47.52%); and Libertarian Party candidate Richard Cross received 7,591 (2.56 %). Pl.’s Ex. 110, at 4.
148. Dr. Alford, Texas’s expert witness, calculated that Senator Davis was elected with 99.6% of the Black vote, 85.3% of the Hispanic vote, and 25.8% of the Anglo vote. Trial Tr. 32-33, Jan. 25, 2012 AM (Alford).
149. The Court finds that the election of Senator Davis in 2008 demonstrated a successful three-way coalition of Blacks, Hispanics and some cross-over Anglos in SD 10. Since, however, there has been no occasion for Senator Davis to win reelection, and no evidence of the coalition’s success in other elections, the Court concludes that the ability of minorities to elect candidates of choice in SD 10 has insufficient history to afford it protection as a Benchmark ability district for purposes of redistricting in 2011.
150. Nonetheless, the Court concludes that the record demonstrates purposeful discrimination in the re-drawing of SD 10.
C. Dismantling of Senate District 10’s Minority Coalition
151. SD 10 in the Benchmark is comprised of almost all the traditional and growing minority neighborhoods of Tarrant County in and around Fort Worth, including the historic Northside Hispanic area, the growing Southside Hispanic area, Defs.’ Exs. 138, 657; Trial Tr. 21-22, Jan. 18, 2012 AM (D. Davis), and the predominantly Black areas of Southeast Fort Worth, Forest Hill, and Everman. Defs.’ Exs. 136, 657; Trial Tr. 21-22, Jan. 18, 2012 AM (D. Davis).
152. These areas were broken apart and placed into Anglo-controlled districts in the State Senate Plan, specifically enacted SDs 12 and 22. Defs.’ Ex. 141; Pl.’s Ex. 16 (showing that enacted SD 12 has a 61% Anglo population and a 75.5% WCVAP and enacted SD 22 has a 61.3% Anglo population and a 72.3% WCVAP).
153. The ideal district size for a senate district in the State Senate Plan is 811,147 individuals. Trial Tr. 149, Jan. 17, 2012 PM (D. Davis). The 2010 Census showed Benchmark SD 10 to have a population of 834,265, which is 23,118 more than the
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ideal number for a senate district in Texas. Defs.’ Ex. 151, at 5. The additional population in Benchmark SD 10, however, is well within the populations deviation accepted for redistricting in the State Senate Plan by the State and there is no evidence this “over-population” played any part in redrawing the district. See Pl.’s Ex. 35 at 32.
154. The maps below show Benchmark SD 10 and enacted SD 10 and the surrounding districts, particularly SDs 12, 9, and 22.

Benchmark SD 10

Enacted SD 10

155. A closer examination of the area of Fort Worth (below) clarifies the cracking of the minority communities from SD 10 in the State Senate Plan. An excerpt of the map above is below depicting Fort Worth and its surrounding areas, which are enclosed within the loop shape. The loop, which represents Interstate 820, is intersected by Texas State Highway 30 running east to west and Interstate 35 running north to south, which create four quadrants within the loop.

12

22
Benchmark SD 10 33

Enacted SD 10
156. In the southeast quadrant lies a large Black community in Southeast Fort Worth, described as “the core urban community of Fort Worth,” Trial Tr. 42, Jan. 20, 2012 AM (Sen. Davis). Southeast Fort Worth continues south of Interstate 820 where it remains a predominantly minority community. Defs.’ Exs. 657, 136. This area is moved from Benchmark SD 10 into enacted SD 22 in the State Senate Plan. Id.
157. Within the northwest quadrant is the community known as the “north side Latino community,” Trial Tr. 28-29, Jan. 20, 2012 AM (Sen. Davis); Defs.’ Ex. 657, which is moved out of SD 10 into enacted SD 12 in the State Senate Plan. Id. at 42.
158. Overall, an examination of enacted SD 10 shows that it is drawn in a bow-tie shape in order to exclude many of the urban minority communities in Tarrant County that are in Benchmark SD 10. Defs.’ Ex. 141.
159. Senator Rodney Ellis explained in a letter to the DOJ: “The demolition of [Senate] 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.” Defs.’ Ex. 375, at 3.
160. Dr. Allan J. Lichtman, an expert witness for the Davis Intervenors, echoed in his report: “[The] [S]tate legislature, in dismantling benchmark SD 10[,] cracked the politically cohesive and geographically concentrated Latino and African American communities and placed members of those communities in districts in which they have no opportunity to elect candidates of their choice or participate effectively in the political process.” Defs.’ Ex. 134, ¶ 12 (“Lichtman Rep.”).
161. Over 53,000 persons are moved from SD 10 into SD 12 in the State Senate Plan, of whom 89.5% are Hispanic or Black, even though Benchmark SD 12 is already overpopulated by more than 200,000 people. Defs.’ Ex. 151, at 2. Likewise, 104,703 persons are moved from SD 10 to SD 22, of which 78.2% are either Hispanic or Black. Id. at 3.
162. Doug Davis admitted that he knew that the areas he cut out of SD 10 were minority neighborhoods. Trial Tr. 22, Jan. 18, 2012 PM (D. Davis). Chairman Seliger also admitted that he knew that many of the neighborhoods being moved out of SD 10, including Everman and Forest Hills, were minority neighborhoods. Trial Tr. 56-57, Jan. 24, 2012 AM (Chairman Seliger).
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163. Mapdrawers attribute the changes to SD 10 to partisanship, stating that one of the goals in drawing the State Senate Plan was to increase the Republican voting strength in four districts. Trial Tr. 144, 161, Jan 17, 2012 PM (D. Davis). SD 10 was one of those districts. Id. at 160.
164. SD 10 is a majority Anglo district in the State Senate Plan. The Anglo population is 54.5% of the enacted district’s population, 6.9% higher than the Benchmark; the Black population is 14.6%, a 4.6% decrease from the Benchmark; and the Hispanic population is 25.9%, a 3% decrease from the Benchmark. Pl.’s Ex. 15, at 4; Pl.’s Ex. 16, at 4. Furthermore, the WCVAP increases to 69.5% of the enacted district’s citizen voting age population, 6.8% higher from the Benchmark; the HCVAP in enacted SD 10 is 13.6%, 1.5% lower than in the Benchmark; the BCVAP is 12.8%, 5.5% lower than in the Benchmark; and the Asian-American citizen voting population CVAP increases from .1% to 2.7%. Pl.’s Ex. 15, at 8; Pl.’s Ex. 16 at 9.
165. In 2001, the State of Texas predicted that SD 10 could become a district where the minority community would grow to be able to elect a candidate of its choice. Trial Tr. 36, Jan. 20, 2012 AM (Sen. Davis). In the State Senate election of 2008, SD 10 exhibited the real-life potential of that prediction. In 2011, the State Senate cracked SD 10 and removed most of its minority populations, spreading them into predominately Anglo districts and effectively dismantling the coalition that had elected Senator Davis.
166. The dismantling of SD 10 will have a disparate and negative impact on minority groups in the District.
I. STATE HOUSE PLAN
167. There are 150 Members (the “Members”) of the State House, who run for office every two years. There are currently 101 Republican Members and 49 Democratic Members. Trial Tr. 133, Jan. 17, 2012 AM (Interiano).
168. The Texas State Constitution provides that its Legislature will meet every two years. The Legislature is sworn in on the second Tuesday of every odd-numbered year and meets for 140 days, unless a special session is called by the Governor. The committees within the Legislature are typically not appointed until February and, therefore, legislation is not usually considered until mid-February, when the general legislative session begins. Actual legislative consideration of bills and their passage primarily takes place between February and May of a legislative year. Trial Tr. 61-62, Jan. 17, 2012 AM (Hunter). There are approximately 70 to 80 days that are available within a regular legislative session to pass a bill in the State House. Trial Tr. 70, Jan 20, 2012 PM (Chairman Solomons).
169. On November 28, 2001, a three-judge district court adopted a redistricting plan for the State House in Balderas v. Texas, No. 6:01-cv-158, 2001 WL 34104833 (E.D. Tex. Nov. 28, 2001), based on the 2000 Census. That plan is the Benchmark Plan for purposes of this case.
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170. When the State House failed to pass a redistricting plan for the State House in 2001, the Legislative Redistricting Board drew the map. Pl.’s Ex. 148, at 2 (Solomons’ Pre-filed Testimony). Avoidance of this default process was important to the State House in 2011. Id.
171. On February 17, 2011, the U.S. Census Bureau released redistricting data from the 2010 Census to Texas. During the 82nd Legislature, which met between January and May 2011, the State House took up redistricting based upon population numbers from the 2010 U.S. Census. The Texas Legislature did not begin the actual map-drawing process until the U.S. Census Bureau released block-level population data. Pl.’s Ex. 35, at 26.
172. The redistricting plan for the State House contained in House Bill 150 (the “State House Plan”) is the redistricting plan for which Texas seeks preclearance.
A. Map-Drawing Process
173. Speaker of the State House Joe Straus appointed Representative Burt Solomons, who represents HD 65, to chair the State House Redistricting Committee. Straus Dep. 6364, Oct. 24, 2011. Chairman Solomons had never before chaired a redistricting committee, Pl.’s Ex. 148 at 1 (Pre-filed Testimony of Chairman Burt Solomons), and had “no background in redistricting.” Trial Tr. 65, Jan. 20, 2012 PM (Chairman Solomons).
174. Speaker Straus did not give Chairman Solomons any specific instructions other than to prepare a map that would be supported within the State House. Straus Dep. 63-64, Oct. 24, 2011.
175. Chairman Solomons spent no time learning anything about the VRA or Texas’s obligations thereunder, and was entirely reliant on legislative staff members (Ryan Downton, Gerardo Interiano, and the TLC) and the OAG throughout the redistricting process. Trial Tr. 65-66, Jan. 20, 2012 PM (Chairman Solomons).
176. Mr. Interiano was the principal mapdrawer for the State House Plan. Trial Tr. 127-32, Jan. 17, 2011 AM (Interiano).
177. Members provided Mr. Interiano with proposed maps for their districts and it was his responsibility to put the pieces together to create the 150-district map. Trial Tr. 132, Jan. 17, 2012 AM (Interiano). Mr. Interiano worked with Members on drawing and redrawing their districts. Trial Tr. 105, Jan. 25, 2012 PM (Interiano).
178. Mr. Interiano understood from both Speaker Straus and Chairman Solomons that one major goal behind the State House Plan was “to give members the opportunity to be reelected.” Trial Tr. 160, Jan. 17, 2012 AM. Additionally, he was tasked by Speaker Straus to pass a legal map; ensure that map-drawing was a member driven process; and
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pair the least number of Members to run against each other in re-drawn or new districts. Id. at 133-34.
179. Mr. Downton’s role in the process was to assist Members in drawing maps and to help mediate disagreements. Trial Tr. 46, Jan 18, 2012 AM (Downton).
180. Speaking on the floor of the State House, Chairman Solomons told the Members in early 2011 that he wanted the redistricting process to be a member-driven process, which meant that he wanted the Members to draw their own districts. Pl.’s Ex. 148 at 3.
181. As a result, redistricting was in large measure left to the State House Members without, as far as the record reveals, any instruction on or attention to the State’s obligations under the VRA or its history of discrimination in voting. The process promoted Members’ self-interest in reelection – with Republicans preferred by the Republican House majority – ahead of all other considerations for redistricting. See, e.g., infra ¶¶ 240, 249, 258.
182. Chairman Solomons never addressed, or contemporaneously even knew, the number of minority districts protected by the VRA under the Benchmark Plan. Trial Tr. 61-62, Jan. 20, 2012 PM (Solomons). There is no evidence that any other legislator was any better informed. Speaker Straus relied on Chairman Solomons and staff to assure him that the State House Plan was compliant with the VRA. Straus Dep. 71, Oct. 24, 2011. Likewise, Chairman Seliger in the State Senate relied on assurances from Chairman Solomons that the State House Plan complied with the VRA. Trial Tr. 33-34, Jan. 24, 2012 AM (Chairman Seliger).
183. When issues concerning the VRA arose, Mr. Interiano and/or Mr. Downton would usually make any necessary decision, but they went to the political leadership on critical issues. Trial Tr. 99, Jan. 25, 2012 PM (Interiano) (“[I]n the vast majority of the process of drawing, the decision was made by the staff. . . . [W]hen it was a decision that we were not comfortable making [,] we would take [it] to [Chairman Solomons and Speaker Straus].”).
B. Redistricting Principles
184. It is a requirement of Texas law that a candidate live in the State House district from which s/he is running for election. Trial Tr. 166, Jan. 17, 2012 AM (Interiano). This requirement resulted in strangely-shaped new districts, such as HD 41 (known as the “Transformer” because of its abrupt angles) in which lines were carefully drawn to include the home of Representative Aaron Pena and to exclude the home of Representative Veronica Gonzales so that the two incumbents would not have to run against each other. Id.
185. Based on the State’s population of 25,145,561 people in 2010, State House districts with perfectly equalized population would each contain 167,637 residents. Pl.’s Ex. 35
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at 15. A ten percent total population deviation from 167,000 individuals per State House district was acceptable in redistricting. Trial Tr. 1473-74, Perez v. Perry, Sept. 12, 2011 (Interiano); Trial Tr. 149, Jan. 17, 2012 AM (Interiano).
186. The County Line Rule greatly shaped the State House Plan. It stems from Section 26, Article 3 of the Texas State Constitution, which provides that State House districts must be apportioned within counties “as nearly as may be” according “to the most recent United States Census.” TEX. CONST., art. III, § 26. The mapdrawers first divided the total population of the State into 150 districts and then assigned the appropriate number of districts to each county. They interpreted the County Line Rule to mean that as many whole districts as possible must be drawn within a county and that any surplus population must be wholly joined with other counties or with whole surpluses from other counties to form a district. Trial Tr. 143-45, Jan. 17, 2012 AM (Interiano); Pl.’s Ex. 9. Adherence to the County Line Rule was the explanation offered for the elimination of Hispanic ability districts. Trial Tr. 147, Jan. 17, 2012 PM (Interiano); see infra § E(a).
187. Where all proposed State House districts in a county were projected to be wholly contained within the county lines, the affected State House Members drew their own maps because any changes did not affect the rest of the State House Plan. Those counties were “dropped-in” to the overall redistricting map. Trial Tr. 46-47, Jan. 18, 2012 AM (Downton). El Paso, Dallas, Tarrant, Denton, Bexar, Travis, Nueces, and Harris Counties were treated as drop-in counties. Id. at 48. The process worked smoothly for some counties, but was more difficult in others.
188. Mr. Interiano testified that he used HCVAP and SSVR data to determine that the State House Plan complied with the VRA. Trial Tr. 138-39, Jan. 17, 2012 AM (Interiano).
189. Neither Mr. Interiano nor Mr. Downton even looked at the OAG election analyses until the work was basically done. Trial Tr. 1451-52, Perez v. Perry, Sept. 12, 2011 (Interiano); Trial Tr. 57, Jan. 18, 2012 AM (Downton). There is no testimony that the OAG analyses prompted any changes in the State House Plan after Messrs. Interiano and Downton actually looked at them.
190. The OAG did not identify or analyze districts in which minority voters had the ability to elect a candidate of choice. Giberson Dep. 20-21, Oct. 18, 2011. Using a test of 50.1% or more for an ability district, both Mr. Interiano and Mr. Hanna identified 29 Hispanic ability districts in the Benchmark Plan, and thought this number increased to 30 in the State House Plan because the SSVR of HDs 90 and 148 increased. See Trial Tr. 25-26, 32, Jan. 17, 2012 PM (Interiano); id. at 181, Jan. 17, 2012 AM (Interiano); Pl.’s Ex. 6.
191. Based upon the testimony at trial, the Court does not find credible or persuasive representations by counsel that election analysis was an important tool to determine whether proposed State House districts would assure minority voters the ability to elect. It is clear that Texas adopted the principle that districts with SSVR above 50.1% were Hispanic ability districts under the VRA. See, e.g., Pl.’s Ex. 6 (email between
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Mr. Hanna and Mr. Interiano discussing the number of districts with an SSVR over 50%); Trial Tr. 183, Jan. 17, 2012 AM (Interiano); Trial Tr. 66-68, Jan. 25, 2012 PM (Interiano).
192. Although Mr. Interiano agreed that it would have been possible to draw another Hispanic ability14 district in the map, he did not do so because “this was a memberdriven map [and] we were not going to be asking [members] to make changes unless we believed that it was required by the Voting Rights Act or any other law.” Trial Tr. 35, Jan. 17, 2012 PM (Interiano).
C. Data Available to Draw the Maps
193. Mr. Interiano testified that he spent close to one thousand hours learning the RedAppl software program used for redistricting even before any census results were available. Trial Tr. 131, Jan. 17, 2012 AM (Interiano). He also attended several conferences and read major cases on redistricting. Id. at 130. David Hanna and Jeffery Archer of the TLC contributed legal advice when asked, id. at 134-35, but, according to the record, were frequently ignored.15
194. RedAppl has a function that shades a map to indicate the percentage of ethnic (Hispanic) or racial (Black) voting age population in a certain voter tabulation district (“VTD”). As relevant here, RedAppl further disaggregates this data to allow a user to view the variations of voting age population or total population by race or ethnicity at the census block level through color shading. RedAppl also allows a user to view variances in SSVR16 between VTDs through color shading, but does not show variances in SSVR between census blocks within a particular VTD. Trial Tr. 70, Jan.
14 Mr. Interiano testified that another Hispanic opportunity district could have been drawn. Because he was discussing retrogression the Court finds that he was testifying to the possibility of an additional Hispanic ability district. Trial Tr. 35, Jan. 17, 2012 PM (Interiano) (“Q. And you agreed also with me that it was possible to have avoided retrogression in [the] house plan by creating a Latino Opportunity District elsewhere in the state, but you did not do that? A. That’s correct. And that was due to the fact that this being a member-driven map – in many circumstances, the delegation bought us a map where they had all agreed to it – we were not going to be asking them to make changes to it unless we believed that it was required by the Voting Rights Act or any other law. But at this point, we felt comfortable that the fact -- with the map, that it was a legal map.”). A minority opportunity district is meaningful under Section 2 of the VRA, which is concerned with whether minority “voters have less opportunity than other members of the electorate to . . . elect representatives of their choice.” 42 U.S.C. § 1973(b).
15 Mr. Hanna prepared various memoranda during the redistricting process that noted Section 5 problems with the developing map. See Pl.’s Ex. 3 (April 6, 2011); Pl.’s Ex. 4 (April 10, 2011); Pl.’s Ex. 5 (April 20, 2011). Mr. Interiano reviewed all of these memos, Trial Tr. 175-78, Jan. 17, 2012 AM (Interiano), although he identified no significant changes or actions he took as a result.
16 Mapdrawers for the State House used non-suspense data with respect to SSVR, instead of total voter registration data. Trial. Tr. 181-83, Jan. 17, 2012 AM (Interiano). According to the Texas Secretary of State’s website, “[a] suspense voter is a voter known to have an incorrect address or outdated address. The county has sent the voter a form to obtain a new current address, but no response has been received. The voter is however considered to be an active voter for voting purposes.” Texas Secretary of State’s Voter Registration Public Information Request Form, http//www.sos.state.tx.us/elections/forms/pi.pdf, (last visited Aug. 10, 2012). The Court takes judicial notice of this information and all SSVR numbers referenced are non-suspense numbers for 2010.
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25, 2012 PM (Interiano). Similarly, election information, i.e. the percentage of population that voted for a certain candidate in a prior election, is only available at the level of a VTD. Trial Tr. 69-71, Jan. 19, 2012 AM (Korbel).
195. Mr. Interiano testified that the State has no specific policy against splitting VTDs when drawing new electoral maps. Trial Tr. 63-64, Jan. 25, 2012 PM (Interiano). As a result, VTDs were split readily in districts like HD 41 in Hidalgo County. Splitting VTDs reduces minority voting, as confusion and lack of language skills causes some minority voters not to vote. Trial Tr. 61-62, Jan. 19, 2012 AM (Korbel) (“[I]t has a disproportionate impact because minority, a great number of minority voters don’t have transportation for example, don’t read . . . , aren’t able to read these notices in the newspaper about changes in polling place and it results in a great deal of confusion.”).
196. Mr. Interiano testified that he used shading functions on RedAppl to indicate population by racial or ethnic group very early in the process, but he did not use this function to shade for Hispanic voting age population at the census block level; instead, he only examined Hispanic voting age population at the VTD level. Trial Tr. 86-87, Jan. 25, 2012 PM (Interiano). He further testified that he did not know that the RedAppl software could even show shading for different racial populations at the census block level. Trial Tr. 94, Jan. 17, 2012 PM (Interiano) (“I never did it at the bloc [sic]. I did not know that it was even possible, as I testified in several of my depositions. I did not know that it was possible to do it, and because it was not possible I certainly never tried and never used bloc [sic] racial shading.”).
197. This testimony is not credible and is not accepted by this Court. As demonstrated at trial, when racial/ethnic population shading is used in RedAppl, a drop-down menu gives the user the option to show variances in that demographic between census blocks. Trial Tr. 88-89, Jan. 25, 2012 PM (Interiano). After one thousand hours of training and experience, the Court is confident Mr. Interiano would be aware of this functionality in the software and saw the drop-down menu.
198. Furthermore, it is clear Mr. Interiano knew that using census block data to identify the demographics of voters could advance the goal of maximizing Republican electoral strength by suppressing the minority vote. As previously discussed, in early December 2010, Eric Opiela, counsel to Speaker Straus, suggested to Mr. Interiano that voting and population data might permit distinctions between minorities who turn out heavily to vote and those who do not; with such information, he suggested, districts could be drawn that would retain a large minority population but actually include a much smaller number of minority voters. Defs.’ Ex. 304. Mr. Interiano tried to obtain demographic information on the level of census blocks but learned that only data on “Spanish Surname VR/Total Hispanic Population” was available. Defs.’ Ex. 197. Although he obtained the data and sent it to Mr. Opiela, Mr. Interiano insisted that he never opened the files containing SSVR information on a census block level. Interiano Dep. 69, Jan. 10, 2012. Given the results in some districts, such as CD 23, where lowvoting minorities were substituted for politically-active minorities, the Court does not credit this testimony.
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199. In addition, the fact that HD 41, a Benchmark ability district, was crafted with 17 VTD splits in the State House Plan, Defs.’ Ex. 886, at 76-77, and the reasons for all of these splits was not explained further leads the Court to discredit this testimony. Trial Tr. 168, Jan. 17, 2012 AM (Interiano).
D. Hearings, Procedures, and Passage
200. The first statewide proposal put forth by the Chairman of the State House Redistricting Committee, known as Plan H113, was released on Wednesday, April 13, 2011. Notice of a public hearing on the plan was provided on that day, and public hearings were held immediately, in Austin, Texas, on Friday, April 15 and Sunday, April 17. No hearings outside Austin were conducted.
201. The House Rules provide for a three-to-five day rule for posting advance notice of hearings. The notice for the April 15th hearing on the H113 was posted on April 13, 2011, which resulted in less than two days’ notice. Solomons Dep. 83-85, Aug. 31, 2011. David Hanna advised that the hearing schedule was too tight, but his caution was ignored. Defs.’ Ex. 971, at 2.
202. On Monday, April 18, 2011, it was announced on the floor of the House that the Redistricting Committee would meet on Tuesday, April 19. Defs.’ Ex. 509 at 18. When it met, the House Redistricting Committee passed a plan known as H153 out of Committee.
203. State House Members were given until Monday, April 25, 2011 (the Monday after Easter weekend) to file any amendments to the bill. Trial Tr. 801, Perez v. Perry, Sept. 8, 2011 (Turner).
204. The rushed schedule severely hampered the ability of citizens to attend the two hearings on the bill and of legislators to prepare objections or proposed amendments. See Defs.’ Ex. 738 at 19 (Rep. Hochberg Pre-filed Direct Testimony).
205. On Thursday, April 28, 2011, the State House passed an engrossed version of the plan, H283, in House Bill 150 by a vote of 92-54-3.
206. No changes were made to the State House Plan in the State Senate. Pl.’s Ex. 162, ¶ 5 (Seliger Pre-filed Testimony). Thus, when the Texas Legislature passed House Bill 150 on May 23, 2011, the State House Plan that was adopted was the one drawn by the State House.
207. The Governor signed House Bill 150 into law on June 17, 2011.
E. Alleged Lost Hispanic Ability Districts
a. Nueces County & House District 33
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208. The Benchmark contained three House districts in Nueces County: 32, 33, and 34. HD 32 was the only district not fully contained in the county. HD 33 was dropped from Nueces County in the State House Plan. The demographics of the districts containing some part of Nueces County under the Benchmark Plan are as follows:

Benchmark HD HD 32 HD 33 HD 34

HCVAP 35.3% 60.4% 58.2%

SSVR 33.2% 54.3% 53.8%

Pl.’s Ex. 13, at 13, 23.

209. Benchmark HD 32 is represented by Representative Todd Hunter, an Anglo Republican. It is only partially in Nueces County and also includes Aransas, San Patricio and Calhoun counties. The majority of voters in HD 32 in general elections are Anglo. Defs.’ Ex. 737, at 11 (Abel Herrero Pre-filed Direct Testimony ).

210. Benchmark HD 34 is represented by Representative Connie Scott, an Anglo Republican. It is made up of both urban and rural areas of Nueces County and is a majority Hispanic district. The Hispanic candidate of choice won four out of the past five endogenous elections in HD 34. Defs.’ Ex. 326, at 5 (Handley House Report). It is a district where Hispanic voters have the ability to elect a candidate of their choice in the Benchmark.

211. Benchmark HD 33 is represented by Representative Raul Torres, a Hispanic Republican. It is made up of the historic core of Corpus Christi. Defs.’ Ex. 737, at 8. Hispanic voters are ordinarily the majority of voters in Benchmark HD 33. Id. at 9-10. It is a district where Hispanic voters have the ability to elect in the Benchmark and it no longer provides Hispanic voters the ability to elect in the State House Plan.

212. The voting demographics of Benchmark and enacted HD 33 are as follows:

HD 33

Pop. VAP17 CVAP HCVAP BCVAP WCVAP SSVR

Benchmark 148,929 109,257 97, 255 60.4% 4.5 % 33.5% 55.3%

Enacted 172,135 119,518 109,865 8.5 % 5.9 % 81.2% 6.5%

Pl.’s Exs. 13, 14.
213. Hispanic voters were successful in electing their candidate of choice in four of the past five endogenous elections in Benchmark HD 33. Handley House Rep., at 5. In the 2010 election, Representative Solomon Ortiz, the Hispanic candidate of choice, won
17 VAP represents voting age population.

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47.5% of the vote, but lost to Representative Raul Torres, the current representative of HD 33. Defs.’ Ex. 726 at 6, n.5 (Engstrom Supp. Rep.).
214. Hispanic candidates of choice won at least 50% of the exogenous elections the experts in this case analyzed in Benchmark HD 33. Handley House Rep. at 5 (five out of five elections); Defs.’ Ex. 799 (“Engstrom Chart”) (four out of seven elections); Pl.’s Ex. 175, at 11, tbl. 3b (“Alford Rep.”) (six out of ten elections).
215. According to the 2010 American Community Survey 1-year estimates, Nueces County had a citizen voting-age population of 238,102 persons, including 91,467 Anglos (38.4%) and 133,084 Hispanic persons (55.9%). As a whole, however, Nueces County had an SSVR below 50%. Trial Tr. 9, Jan. 17, 2012 PM. It was allotted 2.03 districts based upon the County Line Rule in the State House Plan. Trial Tr. 147, Jan. 17, 2012 AM (Interiano). The State calculated this number by dividing Nueces County’s population of 340,233 by the ideal district size (167,637). Pl.’s Ex. 35, at 19.
216. Messrs. Hanna and Interiano decided that Nueces County “needed to have two districts and only two districts” in the State House Plan. Trial Tr. 147, Jan. 17, 2012 PM (Interiano). They informed Chairman Todd Hunter, who represents HD 32, and the rest of the Nueces County delegation of this fact. Id. HD 33, a Hispanic ability district in the Benchmark, was chosen for elimination.
217. Legislative staff drew one district that was a “Latino Democratic” district and one that “would likely be Republican and not Latino.” Defs.’ Ex. 742 (Hanna Dep. 46, Jan. 12, 2012). The core of Benchmark HD 33 is moved into enacted HD 34. Defs.’ Ex. 737, at 13-14. Representative Raul Torres, the current incumbent in Benchmark HD 33, and Representative Connie Scott, the current incumbent in Benchmark HD 34, are the junior Republican members of the Nueces County delegation and are paired under the State House Plan in HD 34, while Representative Todd Hunter is drawn into enacted HD 32 in Nueces County. Trial Tr. 122, Jan. 17, 2012 AM (Rep. Hunter).
218. Mr. Hanna recognized that drawing two districts in Nueces County may have to yield to the VRA. He wrote on April 20, 2011: “While there are two 50% SSVR plus districts within the county currently that may constitute performing Hispanic districts, they are both significantly underpopulated [sic] and the remaining people in Nueces County are predominantly Anglo. The county line rule likely requires two districts to be wholly contained within Nueces County with no surplus coming out; however this would have to yield to the federal Voting Rights Act if it can be shown retrogression could be avoided by splitting the county.” Pl.’s Ex. 5, at 1. He further advised that splitting the Hispanic population in half would only result in two districts with SSVRs under 50% which were unlikely to perform as “Hispanic districts of choice.” Id. In keeping with the County Line Rule, it was not possible to draw two districts that had an SSVR of above 50% in Nueces County and therefore only one district was drawn with an SSVR of above 50%.18 Trial Tr. 147, Jan. 17, 2012 AM (Interiano).
18 The County Line Rule was broken in Henderson County to comply with the federal one-person one-vote requirement. Trial Tr. 85-86, Jan 20, 2012 PM (Chairman Solomons).
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219. Mr. Hanna did not know if the loss of a district that “performed” for Hispanic voters in Nueces County was made up somewhere else in the State House Plan. Defs.’ Ex. 742 (Hanna Dep. 46, Jan. 12, 2012). Mr. Interiano testified that he felt that the loss of HD 33 would be accounted for through the increase in SSVR in enacted HDs 90 and 148. Under the Benchmark, neither of these districts had an SSVR above 50%, Trial Tr. 10, Jan. 17, 2012 PM (Interiano), although each was in fact an ability district. See infra § F.

220. In the State House Plan, only HDs 32 and 34 remain in Nueces County, see Pl.’s Ex. 88, with the following demographics:

Enacted HD HD 32 HD 34

HCVAP 44.2% 64.6%

SSVR 36.6% 60.1%

Pl.’s Ex. 14, at 13, 23.

221. The area that makes up Benchmark HD 33 is relocated to Dallas County in the State House Plan. Minority preferred candidates have no success in exogenous elections in enacted HD 33. Handley House Rep. at 9; Alford Rep at 11, tbl. 3b; Engstrom Chart.

b. House District 35

222. Benchmark HD 35 is located in southern Texas and contains Atascosa, Karnes, Goliad, Bee, Live Oak, and McMullen counties. Enacted HD 35 loses the counties of Karnes, Goliad, and Jim Wells. It gains San Patricio and Duvall counties.

223. Benchmark HD 35 is a district where Hispanic voters have the ability to elect. It cannot be determined whether minority voters have the ability to elect in HD 35 in the State House Plan.

224. The voting demographics for the Benchmark and enacted HD 35 are as follows:

HD 35

Pop. VAP CVAP HCVAP BCVAP WCVAP SSVR

Benchmark 151,882 113,190 107,735 54.6% 5.3 % 38.8 % 55.3%

Enacted 172,482 127,314 121,925 52.5 % 4.2 % 42.0 % 53.4 %

Pl.’s Exs. 13, 14.
225. The minority candidate of choice won the last four of five endogenous elections in Benchmark HD 35. Handley House Rep., at 5. The current representative of Benchmark HD 35 is Jose Aliseda, a Hispanic Republican, who is not running for reelection. Representative Aliseda is a freshman representative who beat former Represenative Yvonne Gonzales, a Democrat, to win the seat in 2010. Trial Tr. 39, Jan
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20, 2012 PM (Chairman Solomons). Representative Aliseda was not the candidate of choice of Hispanic voters. Handley House Rep., at 34.
226. The exogenous election results for Benchmark HD 35 show that Hispanic candidates of choice may win approximately half or fewer of the elections analyzed by the experts in this case. See Handley House Rep. at 5 (two out of five elections); Alford Rep. at 11, tbl. 3 (five out of ten elections); Engstrom Chart (two out of seven elections). The exogenous election results of the experts vary with respect to their measurement of minority voting strength in enacted HD 35, making these results inconclusive in evaluating the change in minority voting power in enacted HD 35. Handley House Report at 5 (one out of five elections); Alford Rep. at 11, tbl. 3 (four out of ten elections); Engstrom Chart (three out of seven elections).
227. Representative Aliseda wanted to draw a proposed HD 35 that was more Republican in the State House Plan. Trial Tr. 113, Jan. 17, 2012 PM (Aliseda). He himself proposed a large portion of the map for this district, but he did not receive every area he proposed. Id. He worked with Mr. Interiano on the map and relied on Mr. Interiano’s advice regarding the manner in which the district needed to be drawn. Id. at 111, 113, 118. He understood that, due to the VRA, he needed to keep the Hispanic population in HD 35 at current percentages. Id. at 122.
c. House District 117
228. Both the Benchmark and enacted HD 117 are wholly located within Bexar County. HD 117 shares its eastern border with HD 118 in both the Benchmark and State House Plans.
229. HD 117 is a Hispanic ability district in the Benchmark, but Hispanic voters lose the ability to elect in this district in the State House Plan.
230. The Hispanic candidate of choice won three out of five of the last endogenous elections in Benchmark HD 117. Defs.’ Ex. 326, at 5 (Handley House Rep.).
231. HD 117 is currently represented by John Garza, a Hispanic Republican and a freshman representative in the State House who defeated Representative David Liebowitz, an Anglo Democrat, by a very close margin in 2010. Representative Garza is not the Hispanic candidate of choice. Handley House Rep. at 34. The Hispanic candidate of choice, Representative Liebowitz, won 48.1% of the vote in 2010. Id. at 34; Engstrom Supp. Rep. at 7.
232. HD 118, which lost some area to HD 117 in the State House Plan, is currently represented by Representative Jose Farias, a Hispanic Democrat.
233. The exogenous election results for Benchmark HD 117 show that Hispanic citizens are successful in electing their candidate of choice at least 50% of the time. See Alford Rep., at 11, tbl. 3b (five out of ten elections); Handley House Rep., at 5 (three out of
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five elections); Engstrom Supp. Rep., at 6 (four out of seven elections). In enacted HD 117, the exogenous results show that minority effectiveness in such elections will drop; in particular, Dr. Alford and Dr. Handley’s analyses both show decreases of at least 30% in exogenous election results in the enacted district. Alford Rep., at 11, tbl. 3 (two out of ten elections); Handley House Rep., at 11 (one out of five elections); see also Engstrom Supp. Rep., at 8-9 (three out of seven elections).
234. The voting demographics for Benchmark and enacted HD 117 are as follows:

HD 117 Benchmark
Enacted

Pop. VAP CVAP HCVAP BCVAP WCVAP SSVR

220,360 155,490 106,595 58.8% 6.1%

32.3%

50.8%

171,249 116,261 71,395 63.8% 4.6 %

29.4%

50.1%

Pl.’s Exs. 13, 14.

235. The Bexar County Delegation, made up of seven Democrats and three Republicans, met as a whole to decide how to redistrict the County. Trial Tr. 105, Jan. 25, 2012 PM (Interiano). Representative Mike Villarreal, a Hispanic Democrat, and Representative Ruth McClendon, a Black Democrat, led the process. Defs.’ Ex. 363 (Garza Dep. 25, Oct. 19, 2011). Mr. Interiano was present at meetings where the delegation discussed how to draw the new map. Id. at 28; Trial Tr. 105, Jan. 25, 2012 PM (Interiano).

236. Mr. Interiano described the process for drawing the Bexar County map as one where all of the Members proposed their ideal district to Representative Villarreal, who put the districts together in a map that showed where requests overlapped. The Members then negotiated to determine who would receive specific parts of the map. Trial Tr. 107, Jan. 25, 2012 PM (Interiano). Nine out of ten Members from the Bexar County delegation approved the districts for the County. Trial Tr. 105, Jan. 25, 2012 PM (Interiano). Representative Farias did not agree.

237. Mr. Interiano’s goal in drawing enacted HD 117 was to keep its SSVR above 50%. Trial Tr. 159, Jan. 17, 2012 AM (Interiano). Mr. Interiano told Representative Garza that he needed to keep his district above a 50% SSVR and “maintain [his] other goals in the district.” Trial Tr. 107, Jan. 25, 2012 PM (Interiano).

238. Representative Garza said that he did not have much control and that the delegation agreed on the map for Bexar County on a consensus basis. Defs.’ Ex. 363 (Garza Dep. 69, Oct. 19, 2011). He said that he wanted his district to move northward, where the area was more Anglo and more Republican. Id. at 30-31. And while he testified that he did not identify any specific areas that he wanted in his district, id. at 33, he then said that he wanted to keep Port San Antonio, the University of Texas at San Antonio, and Lackland Air Force Base in his district. Id. at 34-35.
239. Representative Garza was aware that minority representation had to be maintained in HD 117. Defs.’ Ex. 363 (Garza Dep. 26, Oct. 19, 2011). He was advised by both the OAG and Representative Villarreal that he could not move his district northward and

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that he had to continue to keep certain indicators of Hispanic voting strength the same as in the Benchmark district. Id. In his deposition, Representative Garza could not identify those specific indicators, id. at 51, although contemporaneously he told Representative Farias that he had to have an SSVR of 50.1% in his enacted district. Trial Tr. 14-15, Jan. 24, 2012 PM (Rep. Farias).
240. The mapdrawers thus decided to maintain SSVR levels while minimizing the actual Hispanic vote so that Representative Garza, as a Republican, could be reelected. Part of the attention to this issue is revealed by a March 24, 2011 email from Representative Villarreal to Mr. Interiano containing a chart stating that “[o]f the 27 VTD’s won by Garza, 4 had a majority of SSRV.”19 Defs.’ Ex. 917, at 3.
241. In order to accomplish this goal, the communities of Somerset and Whispering Winds were moved from Representative Farias’s district to Representative Garza’s district. Somerset is a rural, minority community with low Hispanic voter turnout. Defs.’ Ex. 363 (Garza Dep. 39-40, Oct. 19, 2011). Whispering Winds is another largely, Hispanic community with low voter turnout. Trial Tr. 13, Jan. 24, 2012 PM (Farias).
242. Both Somerset and Whispering Winds are very poor communities that have poor water quality and poor housing. Farias Dep. 25, Jan. 5, 2012. As a result, Representative Farias paid special attention to the needs of these communities and was working actively to improve both. Trial. Tr. 9-11, Jan. 24, 2012 PM (Farias). He was very concerned that he continue to represent both communities. Trial Tr. 7-8, Jan. 24, 2012 PM (Rep. Farias).
243. Despite Representative Farias’s strong objections, Whispering Winds and Somerset were drawn into HD 117, Representative Garza’s district. Trial Tr. 8, 23, Jan. 24, 2012 PM (Rep. Farias).
244. Representative Villarreal proposed taking Somerset and Whispering Winds out of Representative Farias’s district, Trial Tr. 24, Jan. 25, 2012 PM (Rep. Farias), at the behest of Speaker Straus to ensure Representative Garza’s reelection. Farias Dep. 26, Jan. 5, 2012.
245. Mr. Interiano admitted that the “political numbers” of Representative Garza’s benchmark district meant that Representative Garza could not be reelected if Somerset were not included in his district in the State House Plan. In order to maintain “demographic [i.e. SSVR] and political numbers” for his reelection, Somerset was a necessary addition. Trial Tr. 160, Jan. 17, 2012 AM (Interiano).
246. Because Representative Farias’s goal was to keep the communities of Somerset and Whispering Winds in HD 118, he asked Representative Garza to take South San Antonio Independent School District (“ISD”) from HD 118 in exchange for allowing Somerset and Whispering Winds to remain in his district. Trial Tr. 15-16, Jan. 25, 2012 PM (Rep. Farias). Notably, South San Antonio ISD had a very high voter turnout
19 SSVR may also be referred to as SSRV (Spanish Surname Registered Voters).
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as compared to Somerset and Whispering Winds. Trial Tr. 17, Jan. 24, 2012 PM. Representative Garza refused to make the trade. Id. at 16-18.
247. Representative Farias also visited with Mr. Interiano and Speaker Straus, unsuccessfully, in his effort to keep Whispering Winds and Somerset in his district. Trial Tr. 14, Jan 24, 2012 PM (Rep. Farias).
248. Representative Farias ultimately offered an amendment on the floor of the State House to allow Whispering Winds to stay in his district in exchange for moving the area around Lackland Air Force Base to Representative Garza’s district. Trial Tr. 17, Jan. 24, 2012 PM (Rep. Farias); Defs.’ Ex. 323, at 36. Representative Garza said he would leave the Amendment to the will of the House. Trial Tr. 17, Jan. 24, 2012 PM (Rep. Farias).
249. During the House discussion of Representative Farias’s amendment, Representative Aliseda expressed concerns regarding what it would do to the “Republican numbers” of Representative Garza’s new district. Defs.’ Ex. 323, at 36.
250. Representative Farias was unsuccessful in passing his amendment and the communities of Somerset and Whispering Winds are in HD 117 in the State House Plan.

d. House District 41
251. Representative Veronica Gonzales, a Hispanic Democrat, currently represents Benchmark HD 41 in Hidalgo County. Representative Aaron Pena, a Hispanic Republican, currently represents Benchmark HD 40, immediately adjacent to HD 41 in Hidalgo County. Representative Pena is a five-term incumbent who switched political affiliation from Democrat to Republican at the end of 2010. Trial Tr. 163, Jan. 17, 2012 AM (Interiano).
252. Both Benchmark enacted HD 41 are a Hispanic ability districts.
253. In Benchmark HD 41, the Hispanic candidate of choice was elected in five out of five of the past endogenous elections. Handley House Rep., at 4. Furthermore, in Benchmark HD 41, the minority candidate of choice wins the exogenous elections the experts analyzed over 50% of the time. Handley House Rep., at 5 (four out of five elections); Alford Rep., at 11 tbl. 3 (seven wins out of ten elections); Engstrom Chart (five out of seven elections).
254. The demographics of Benchmark and enacted HD 41 are as follows:

HD 41

Pop. VAP CVAP HCVAP BCVAP WCVAP SSVR

Benchmark 185,892 125,055 86,940 77.5%

0.9%

20.2%

69.2%

Enacted

160,238 111,689 79,770 72.1%

0.9%

25.3%

64.6%

Pl.’s Exs. 13, 14.

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255. According to the 2010 American Community Survey 1-year estimates, Hidalgo County, Texas had a citizen voting-age population of 363,615 persons, including 48,087 Anglos (13.2%), and 309,690 Hispanics (85.2%).

256. Mr. Interiano drew all of the proposed State House districts in Hidalgo County. Trial Tr. 1426, Perez v. Perry, Sept. 12, 2011 (Interiano). He first drew HD 41, id. at 147677, with the objective of boosting Representative Pena’s chances for reelection. Trial Tr. 165, Jan. 17, 2012 AM (Interiano).

257. Mr. Interiano knew when he drew enacted HD 41 that it would have to be a majorityHispanic district because it was impossible to draw a district that was not majorityminority in Cameron or Hidalgo counties. Trial Tr. 42-43, Jan. 17, 2012 PM (Interiano).

258. In the process of drawing the map for HD 41, Mr. Interiano split 17 VTDs. Defs.’ Ex. 886, at 76-77. VTDs were cut in order to avoid pairing incumbents, allow Representative Pena’s house to be moved into enacted HD 41, and to cut out heavily Democratic areas “because [mapdrawers] wanted to increase the [sic] Republican performance of that district.” Trial Tr. 168, Jan. 17, 2012 AM (Interiano); Defs.’ Ex. 785 (Pena Dep. 160-61, Oct. 19, 2011). Many splits, however, were not specifically explained. Over 31% of the population of enacted HD 41 was drawn into the district from split VTDs. Handley House Report, at 9.

F. New Hispanic Ability Districts

a. Alleged New Hispanic Ability Districts

i.House Districts 90 & 148

259. Mr. Interiano specifically testified that the loss of HD 33 was made up in part by the increased SSVR in enacted HDs 90 and 148. Trial Tr. 10, Jan. 17, 2012 PM (Interiano). Both of these districts are Hispanic ability districts in the Benchmark and remain so in the State House Plan.

260. Representative Jessica Farrar, a Hispanic Democrat, represents Benchmark HD 148, located in Harris County. Representative Lon Burnam, an Anglo Democrat, represents Benchmark HD 90, located in Tarrant County.

261. The voting demographics for Benchmark and enacted HD 148 are as follows:

HD 148

Pop. VAP CVAP HCVAP BCVAP WCVAP SSVR

Benchmark 140,946 109,647 79,785 42.1%

10.0%

45.4%

40.0%

Enacted

175,324 126,854 86,715 51.4%

9.4%

37.0%

50.0%

49

Pl.’s Exs. 13, 14.

262. In Benchmark HD 148, the Hispanic candidate of choice won five out of five of the past endogenous elections. Handley House Rep. at 5. The Hispanic candidate of choice also won all of the exogenous elections the experts analyzed in this case. Id. at 5; Engstrom Chart. These results do not change in the enacted State House Plan. Handley House Rep., at 11; Engstrom Chart.

263. The voting demographics for Benchmark and enacted HD 90 are as follows:

HD 90

Pop. VAP CVAP HCVAP BCVAP WCVAP SSVR

Benchmark 141,349 97,594 62,045 47.9%

12.6%

37.2%

47.2%

Enacted

159,428 105,582 67,570 49.7%

15.6%

32.5%

50.1%

Pl.’s Exs. 13, 14.
264. In Benchmark HD 90, the Hispanic candidate of choice won five out of five of the past endogenous elections. Handley House Rep. at 5. In Benchmark HD 90, the Hispanic candidate of choice also won all of the exogenous elections the experts analyzed. Id.; Engstrom Chart. These results do not change in the State House Plan. Handley House Rep., at 11; Engstrom Chart.
265. Other than Mr. Interiano’s testimony at trial, there is no evidence that the decision to increase the SSVR in these two districts was intended to offset the loss of HD 33. Instead, it appears that HDs 90 and 148 were drawn with SSVRs at or above 50% in the State House Plan at the request of MALDEF. Trial. Tr. 10, Jan. 17, 2012 PM (Interiano). Luis Figueroa of MALDEF testified at a Redistricting Committee Hearing and requested this change.20 Id.
266. Mr. Interiano never determined whether HDs 90 and 148 are Hispanic ability districts in the Benchmark. Defs.’ Ex. 779A (Interiano Dep. Vol. 1, 151-53, Aug. 2, 2011). However, he decided that both districts are ability districts in the State House Plan because their SSVR increased above 50%. Id. at 153.
267. Mr. Interiano explained that he did not do an election analysis of HD 90 because “[i]t was going to perform ten out of ten, and it performed ten out of ten because it was a Democrat [sic] district, not because it was a district that was always electing the candidate of choice of the Latino community.” Trial. Tr. 14, Jan. 17, 2011 PM (Interiano). Similarly, Mr. Interiano did no analysis of HD 148 to determine whether it was or would become a Hispanic ability district. Id. at 32.

20 MALDEF wrote to Chairman Solomons on April 27, 2011, stating that it considered HDs 90 and 148 to be Benchmark ability districts so that raising their SSVR in the State House Plan would not create new ability districts. Defs.’ Ex. 649, at 2.
50

268. Mr. Interiano based some of his assessment of enacted HD 90’s effectiveness for minority voters on politics. Mr. Interiano believed Hispanic voters would be able to elect their preferred candidate in enacted HD 90 because the sitting representative, Lon Burnam, opposed the increase in SSVR in this district, while MALDEF supported it. Trial. Tr. 12-13, Jan. 17, 2012 PM (Interiano).

ii. House District 74

269. Benchmark HD 74 encompasses the counties of Uvalde, Edwards, Val Verde, Terrell, Pecos, Brewster, Presidio, Jeff Davis, Ward, Reeves, Loving, Culberson, and Hudspeth. Enacted HD 74 combines Hudspeth, Culberson, Loving, Jeff Davis, Reeves, Presidio, Brewster, Pecos, Terrell, Val Verde, Kinney and Maverick counties.

270. Benchmark HD 74 is a Hispanic ability district.

271. Benchmark HD 74 is represented by Representative Pete Gallego, a Hispanic Democrat, who has represented this district since 1991. Representative Gallego is running for Congress in CD 23 in 2012 and he does not plan to run for reelection to the State House. Pl.’s Ex. 10. It is uncontested that he has been the candidate of choice of Hispanic voters.

272. Mr. Interiano testified that he believed that HD 74 was a Hispanic opportunity district in the Benchmark. Trial Tr. 25, Jan. 17, 2012 PM (Interiano).

273. The demographics for Benchmark and enacted HD 74 are as follows:

HD 74

Pop. VAP CVAP HCVAP BCVAP WCVAP SSVR

Benchmark 143,566 104,522 85,920 59.7% 1.8% 36.7% 58.1%

Enacted

162,357 115,236 86,210 69.4% 1.5% 27.2% 69.6%

Pl.’s Exs. 13, 14.
274. The exogenous election results of the experts in this case for Benchmark HD 74 vary with respect to their measurement of minority voting strength. Alford Rep. at 11 (reporting minority victories in four of ten elections); Handley House Rep. at 5 (one out of five elections); Engstrom Chart (four out of seven elections).
iii. Failure to Draw Additional Hispanic Ability Districts
275. Mr. Interiano thought that that there did not need to be an additional Hispanic ability district in the State House Plan because it was a Member-driven map. As a result, if the Members did not add such districts, he would not ask them to make changes. He felt comfortable with this decision because he believes that the State House Plan is legal under the VRA. Trial Tr. 35, Jan. 17, 2012 PM (Interiano). However, Mr.

51

Interiano did admit that it was possible to draw another majority-Hispanic district, which he would classify as an “opportunity” district in Southern Texas in the Rio Grande Valley.
276. In this area of the State, the State House Plan continues to maintain two State House districts in Cameron County and spills its excess population northward into a district shared with Willacy and Kennedy Counties. Pl.’s Ex. 14, at 1. It also maintains four districts in Hidalgo County and spills its excess population towards Starr County to form another district. Id.
277. Mr. Interiano testified it was possible to use excess population from Cameron and Hidalgo counties to create a majority Hispanic district in the State House Plan that likely would have performed as a Hispanic “opportunity”21 district. Trial Tr. 42, Jan. 17, 2012 PM (Interiano).
278. If such a district were drawn, then a ripple effect would have caused a county line split in the northern portion of the map around Nueces County. The TLRTF submitted such a proposal. Trial Tr. 39-40, Jan. 17, 2012 PM (Interiano). Due to the violation of the County Line Rule that would result if the populations from the two districts were spilled towards each other, another majority-Hispanic district was not created in this area in the State House Plan. Id. at. 40.
279. Chairman Solomons was aware that there was excess population in both Cameron and Hidalgo Counties, but testified that he never realized that a district could have been created using these populations because his staff did not advise him of that fact. Trial. Tr. 76-77, Jan. 20, 2012 PM (Chairman Solomons).
280. Though population is available to draw a potential new Hispanic opportunity district, the State did not choose to do that nor does it argue that any other new potential Hispanic opportunity/ability district was drawn in the State House Plan
281. There are no new Hispanic ability districts in the State House Plan.
H. Lost Coalition District: House District 149
282. Benchmark HD 149 is in Harris County, but is eliminated from the County in the State House Plan.
283. HD 149 is a district where a coalition of Asian-American, Black, and Hispanic voters have the ability to elect and its elimination from Harris County in the State House Plan leads to the loss of a minority ability district.
21 In this instance, the Court cannot make a finding that Mr. Interiano was discussing a potential ability district, because this portion of his testimony is unclear.
52

284. Hubert Vo, a Vietnamese-American Democrat, is the representative of Benchmark HD 149. Mr. Vo was elected in 2004 and is the only Vietnamese-American in the State House.

285. The voting demographics of Benchmark and enacted HD 149 are as follows:

HD 149

Pop. VAP

Benchmark 169,836 123,771

CVAP 90,245

HCVAP BCVAP WCVAP Asian

CVAP

19.0%

26.1% 37.6%

16.2%

Enacted 164,376 116,361 98,445

12.9%

4.4%

77.4%

3.8%

Pl.’s Exs. 13, 14.
286. Benchmark HD 149 contains the community of Alief, a large Asian-American population in the Houston area. Defs.’ Ex. 736, at 5-6, 8 (Rogene Calvert Pre-filed Testimony ).
287. In general, a review of election results from the OAG 10 shows that Hispanic and Black voters uniformly prefer different candidates from Anglo voters in HD 149 in general elections and that voting is racially polarized in this district. Pl.’s Ex. 26, at 3557-60.
288. Asian-Americans, Hispanics, and Blacks in the area of HD 149 often work together to support candidates in local elections and Asian-American candidates have successfully been elected to school boards in Alief and to the Houston City Council. Defs.’ Ex. 736, at 12.
289. In particular, Hispanic, Black, and Asian-American communities came together to help to elect Representative Vo. Defs.’ Ex. 736, at 11. Mr. Vo received endorsements from the Tejano Democrats and the African Coalition for his candidacy in 2004. Id. Representative Hochberg, the Democratic representative from HD 137, testified that Hispanics, Blacks, and Asian-Americans form a coalition in HD 149, with the AsianAmerican community acting as the glue for this coalition. Defs.’ Ex. 738, at 13. Representative Vo has had a very diverse base of volunteers working on his campaigns, including Asian-American, Hispanic, and African-American volunteers. Id. at 13; Defs.’ Ex. 736, at 11.
290. Mr. Vo would not have been successful in his bid for election if he had not received support from all of the minority communities in HD 149. Defs.’ Ex. 736, at 11. In particular, the Asian-American community has taken a great deal of pride in Representative Vo’s election and many Asian-Americans turned out to vote for him who had not before participated in elections. Id.
291. Because Harris County went from 25 districts in the Benchmark to 24 in the State House Plan, one fewer district was available. HD 149 is eliminated from Harris County and Representative Scott Hochberg and Representative Vo are paired in
53

enacted HD 137 in the State House Plan. Enacted HD 137 contains only one VTD that Representative Vo previously represented. Defs.’ Ex. 738, at 20. Representative Hochberg understands that enacted HD 137 was drawn to give him a chance to win the district, not Representative Vo. Id. at 21.
292. The decision to decrease the number of districts in Harris County was based upon 2010 census data. Dividing Harris County’s population of 4,092,459 by the ideal district size (167,637) yielded 24.4126 districts for the County.22 Pl.’s Ex. 35, at 20; Trial Tr. 148, Jan. 17, 2012 AM (Interiano).
293. Members of the minority community regarded the decision to eliminate this minority ability district as detrimental to minority voting interests and strength. Leaders of the Texas Asian American Redistricting Initiative, MALDEF, and the NAACP in Houston sent Chairman Solomons a letter protesting the elimination of HD 149. The letter highlighted that the State House Plan would break up the community of interest in Alief. Defs.’ Ex. 632.
294. Mr. Hanna of the TLC concluded that either 24 or 25 districts would be permissible in Harris County, but he thought the choice to draw 24 districts in Harris County was “absolutely defensible.” Defs.’ Ex. 742 (Hanna Dep. 106, Jan. 12, 2012).
295. Initially, Chairman Solomons had stated on the floor of the State House that there would be 25 districts in the enacted Harris County map. Trial Tr. 43, Jan. 19, 2012 PM (Coleman); Defs.’ Ex. 738, at 15. Mr. Interiano told Representative Wayne Smith, an Anglo Republican, and Representative Senfronia Thompson, a Black Democratic from Harris County, to draw maps for Harris County that had both 24 and 25 districts. Trial Tr. 148, Jan. 17, 2012 AM (Interiano). It was generally understood that Representative Smith would lead the redistricting effort in Harris County. Defs.’ Ex. 738, at 15.
296. Between March and April of 2011, Representative Smith and Representative Thompson worked with the whole Harris County delegation on a 25-member map. Trial Tr. 4648, Jan. 19, 2012 PM (Coleman).
297. Chairman Solomons later told Representative Smith, however, that the Harris County map would only have 24 districts. Representative Smith then drew a 24-district version of the Harris County map that merged Representative Vo and Representative Hochberg’s districts. Smith Dep. 22-23, 37, 38, Oct. 13, 2011. Mr. Interiano provided instruction to the delegation on which districts could be eliminated. He testified: “If the courts would have found or do find that coalition district[s] are protected by the Voting Rights Act, then we believed that the district that was going to most likely be protected by the Voting Rights Act was Scott Hochberg’s district. As a result, . . . we instructed the Harris County delegation . . . that the demographics of that district, that was the combination of Hochberg and Vo, needed to more closely assemble [sic] Mr.
22 Chairman Solomons testified that he decided that there would be 24 not 25 districts in Harris County in the State House Plan based upon the “advice of counsel.” Trial Tr. 1567, Perez v. Perry, Sept. 13, 2011 (Chairman Solomons).
54

Hochberg’s district rather than Mr. Vo’s.” Trial. Tr. 153, Jan. 17, 2012 AM (Interiano).

298. Representative Smith sent the 24-district version of the map to Speaker pro tem of the State House, Beverly Woolley. Smith Dep. 34-35, Oct. 13, 2011. Speaker Woolley separately worked on a map that had 24 districts, which she presented to the State House Redistricting Committee. Trial Tr. 46-48, Jan. 19, 2012 PM (Coleman). All of the Republican members of the Harris County delegation signed off on Speaker Woolley’s map, which she then showed to Mr. Interiano. Woolley Dep. 17, Oct. 13, 2011. Democratic members of the Harris County delegation objected to the decision to decrease the number of districts in Harris County. Trial Tr. 150, Jan. 17, 2012 AM (Interiano). Speaker Woolley’s map ultimately was the basis for the way that Harris County was drawn in the State House Plan. Trial Tr. 52, Jan. 19, 2012 PM (Coleman).

299. Mr. Hanna told Mr. Interiano that he felt that a coalition district composed of three different minority groups would be novel. Trial Tr. 30-31, Jan. 17, 2012 PM (Interiano). Nonetheless, he thought that both Representative Hochberg’s and Representative Vo’s districts fell “into [a] potential coalition district situation.” Defs.’ Ex. 742 (Hanna Dep. 39, Jan. 12, 2012). Indeed, Mr. Hanna advised Mr. Interiano via email on February 17, 2011 that cutting Harris County down to 24 seats would lead to two Republicans being paired because all of the Democratic seats constituted “minority” seats. Defs.’ Ex. 293.

300. In Mr. Interiano’s estimation, neither Representative Vo’s district (HD 149) nor Representative Hochberg’s district (HD 137) could be classified as a coalition district within his understanding of the term. Interiano Dep. 46-47, Jan. 10, 2012. However, he realized there was a chance that Benchmark HD 137 might be protected because the district is majority-minority based upon the population of two minority groups whereas Benchmark HD 149 is majority-minority based upon the combination of three minority groups. Trial Tr. 30-31, Jan. 17, 2012 PM (Interiano).

I. Other Disputed Districts

a. House District 26

301. Benchmark HD 26 is located in Fort Bend County and is represented by Charlie Howard, an Anglo Republican. Enacted HD 26 is also located in Fort Bend County and continues to share a border with Benchmark HD 149.

302. The voting demographics of enacted and benchmark HD 26 are as follows:

HD 26

Pop.

Benchmark Enacted

180,72 9 160,09 1

VAP
133,838 117,247

CVAP
108,535 85,950

HCVAP BCVAP Asian CVAP
10.5% 12.6% 22.2%
11.6% 10.6% 19.6%

WCVAP SSVR
53.5% 9.7% 57.3% 10.3%

55

Pl.’s Exs. 13, 14.

303. No election analysis regarding this district was offered to the Court.

b. House District 106

304. Benchmark HD 106 is located in Dallas County and is represented by Representative Rodney Anderson, an Anglo Republican. Enacted HD 106 is relocated out of Dallas County.

305. The voter demographics of Benchmark and enacted HD 106 are as follows:

HD 106

Pop. VAP CVAP HCVAP BCVAP WCVAP SSVR

Benchmark 159,716 110,146 81,165 29.0% 12.8% 52.0%

23.6%

Enacted 161,947 110,568 74,515 8.8%

6.5%

80.1%

7.6%

Pl.’s Exs. 13, 14.
306. No election analysis was offered to the Court regarding this district.
c. House District 144
307. House District 144 is currently represented by an Anglo Republican and is not a minority-majority district in terms of citizen voting age population. Pl.’s Ex. 13.
308. Minority preferred candidates do not win endogenous elections in this district. Handley House Report, at 5 (zero out of five elections); Engstrom Chart (zero out of five elections).

56

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,

)

Office ofthe Attonery General

)

209 W. 14th Street

)

Austin, Texas 78701,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES OF AMERICA

)

and ERIC H. HOLDER, JR. in his )

official capacity asAttorney General )

of the United States,

)

)

Defendants.

)

)

COMPLAINT FOR DECLARATORY JUDGMENT PURSUANT TO SECTION 5 OF THE VOTING RIGHTS ACT OF 1965 AND REQUEST FOR THREE-JUDGE COURT

The State of Texas, by and through its Attorney General Greg Abbott,

seeks a declaratory judgment that its recently enacted redistricting plans for

the State Board of Education (the SBOE Plan), the Texas House of

Representatives (the House Plan), the Texas Senate (the Senate Plan), and the

United States House of Representatives (the Congressional Plan) fully comply

with Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (Section 5). The

State's redistricting plans have neither the purpose nor will they have the effect

of denying or abridging the right to vote on account of race, color, or

membership in a language minority. This complaint is filed under the

assumption that Section 5 complies with the United States Constitution. The

State reserves all applicable legal claims in light of the U.S. Supreme Court's

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 2 of 11
decision in Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S.Ct. 2504, 2511-13 (2009) (raising serious questions regarding the constitutionality of Section 5), and pending this Court's decisions in Shelby County, Ala. v. Holder, No. 10-00651, (D.D.C.), and Laroque v. Holder, No. 10-00561 (D.D.C.). See Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.").
PARTIES 1. Plaintiff, the State of Texas, is a state of the United States and brings this action on behalf of itself and its citizens. Texas is subject to the preclearance requirements of Section 5 of the Voting Rights Act of 1965, as amended and codified at 42 U.S.C. § 1973c. 2. Defendants are the United States of America and Eric H. Holder, Jr., in his official capacity as Attorney General of the United States. Attorney General Holder is principally responsible for administering Section 5 of the Voting Rights Act and is a necessary party to these proceedings.
JURISDICTION AND VENUE
3. This action is brought pursuant to Section 5 of the Voting Rights Act, under which this Court is authorized to declare Plaintiffs redistricting plans compliant with Section 5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
2

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 3 of 11
4. Venue is proper in this Court pursuant to Section 5 of the Voting Rights Act. 42 U.S.C. § 1973c.
FACTS
5. According to the 2010 Census data, Texas' population increased to 25,145,561, entitling it to 36 representatives in the United States House of Representatives (an increase of 4).
6. The population growth in Texas resulted in the malapportionment of preexisting electoral districts in the SBOE, the House, the Senate, and the Congressional Plans.
7. Consequently, the 82nd Texas Legislature recently reapportioned the electoral districts for the SBOE, the House, the Senate, and the United States House of Representatives.
8. This is a lawsuit for judicial preclearance under 42 U.S.C. § 1973c (Section 5 of the Voting Rights Act) and is entitled to review by a three-judge court.
9. Simultaneous with the filing of this action, Plaintiff has made a complete, but informal. submission-for all four redistricting plans-to the U.S. Department of Justice (DOJ) in order to facilitate and expedite disposition of this matter (the Submission). The Submission tracks and mirrors the DOJ's administrative pre-clearance process. A copy of the Submission is attached. Attachment 1.
3

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 4 of 11

State Board of Education Redistricting Plan

lO.

Texas' State Board of Education (SBOE) consists of 15 members,

each of whom represents a single-member district.

11.

Mter the release of the 20 lO Census data, the 82nd Legislature

reapportioned the SBOE districts to equalize population.

12.

The SBOE Plan, H.B. 600, was passed by the Legislature on May 6,

2011 and became law on May 18, 2011. The SBOE Plan will become effective

on August 29, 2011. Maps depicting the former and revised SBOE districts are

attached. Attachment 2.

13.

On July 19, 2011-as explained above-Texas provided to the DOJ

all of the documents and data necessary for the Attorney General to confirm

that the SBOE redistricting plan complies with Section 5 and is entitled to

preclearance. A copy of the State's submission is attached to this Complaint

and incorporated herein for the Court's convenience.

14.

The Submission explains that the SBOE redistricting plan, as

compared to its previous benchmark, maintains or increases the ability of

minority voters to elect their candidate of choice in each district protected by

Section 5.

15.

Specifically, the benchmark plan (i.e., the preexisting SBOE

districting plan) included three districts (Districts 1, 2 and 3) where Hispanic

voters were able to elect their candidate of choice and two districts (Districts 4

and 13) where Mrican-American voters were able to elect their candidate of

choice. The Plan maintains those five districts while enhanCing the Hispanic

4

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 5 of 11

Voting Age Population (HVAP), the Hispanic Citizen Voting Age Population

(HCVAP ) and the Spanish Surname Voter Registration (SSVR ) in both

Districts 1 and 3.

State House of Representatives Redistricting Plan

16.

The Texas House of Representatives (the House) is divided into 150

single-member districts.

17.

After the release of the 2010 Census data, the 82nd Legislature was

required by law, TEx. CONST. art. 3, § 26, to reapportion the Texas House

districts.

18.

The House Plan, H.B. 150, was passed by the Legislature on May

23, 2011 and became law on June 17, 2011. Maps depicting the former and

current House districts are attached. Attachment 3.

19.

The House Plan will become effective on August 29,2011.

20.

On July 19, 2011-as explained above-Texas informally provided

the DOJ all of the documents and data necessary for the Attorney General to

confirm that the House redistricting plan fully complies with Section 5 and is

entitled to preclearace. A copy of the Submission is attached to this Complaint

and incorporated herein for the Court's convenience.

21.

The Submission explains that the House Plan, as compared to its

previous benchmark, maintains or increases the ability of minority voters to

elect their candidate of choice in each district protected by Section 5.

22.

Specifically, as detailed in the chart below, the current House

redistricting plan maintains or increases the number of districts at or above

5

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 6 of 11
key thresholds for relevant metrics used to determine whether a minority voting population is able to elect its candidate of choice:

BENCHMARK HB 150

HVAP' (greater than 60%)

30

30

HCVAp2 (greater than 50%)

30

30

SSVR3 (greater than 50%)

29

30

BVAP4 (greater than 40%)

11

12

State Senate Redistricting Plan

23.

The Texas Senate is divided into 31 single-member districts.

24.

After the release of the 2010 Census data, the 82nd Legislature was

required by law, TEx. CONST. art. 3, § 25, to reapportion the Senate districts.

25.

The Senate Plan, S.B. 31, was passed by the Legislature on May

23,2011 and became law on June 17, 2011. Maps depicting the former and

current Senate districts are attached. Attachment 4.

26.

The Senate Plan will become effective on August 29, 2011.

27.

On July 19, 2011-as explained above-Texas informally provided

the DOJ all of the documents and data necessary for the Attorney General to

confirm that the Senate redistricting plan fully complies with Section 5 and is

1 Hispanic Voting Age Population. 2 Hispanic Citizen Voting Age Population. 3 Spanish-Surname Voter Registration. 4 Black Voting Age Population.
6

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 7 of 11

entitled to preclearance. A copy of the Submission is attached to this

Complaint and incorporated herein for the Court's convenience.

28.

The Submission explains that the Senate Plan, as compared with

its previous benchmark, maintains or increases the ability of minority voters to

elect their candidate of choice in each district protected by Section 5.

29.

Specifically, there are seven Senate districts (Districts 6, 19, 20,

21, 26, 27 and 29) in the benchmark map and in the Senate Plan with a

Hispanic Voting Age Population (HVAP) greater than 60%. Additionally, there

are two districts (Districts 13 and 23) in the benchmark and the Senate Plan

with a Black Voting Age Population (BVAP) of over 40%. All nine of these

districts will continue to elect the minority voters' candidate of choice under

the Plan.

Congressional Redistricting Plan

30.

According to the 2010 Census data, Texas' population increased to

25,145,561, entitling the State to 36 representatives in the U.S. House of

Representatives (an increase of 4).

3l.

Due to this growth in population and the apportionment of four

additional seats to Texas, the State was required to reapportion its

congressional districts after the release of the 2010 Census data.

32.

The Legislature adjourned its regular session on May 30, 2011

without reapportioning Texas' congressional districts.

33.

A special session was convened on May 31, 2011, the Legislature

passed the Congressional Plan, S.B. 4, on June 24, 2011, and the Plan was

7

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 8 of 11

signed into law on July IS, 2011. Maps depicting the fonner and current

congressional districts are attached. Attachment 5.

34.

On July 19, 2011-as explained above-Texas infonnally provided

the DOJ all of the documents and data necessary for the Attorney Genral to

confinn that the Congressional Plan fully complies with Section 5 and is

entitled to preclearance. A copy of the Submission is attached to this

Complaint and incorporated herein for the Court's convenience.

35.

The Submission explains that the Congressional Plan, as

compared with its previous benchmark, maintains or increases the ability of

minority voters to elect their candidate of choice in each district protected by

Section 5.

36.

With regard to the African-American communities, the

Congressional Plan increases by one the number of congressional districts with

a Black Voting Age Population (BVAP) of over 40% and also contains one

district with 37.6% BVAP.

37.

In addition, there are seven majority-minority districts both in the

benchmark map and in the Congressional Plan with a Hispanic Voting Age

Population (HVAP) greater than 60% (and one new seat with an HVAP over

50%).

COUNT I

3S.

The allegations in Paragraphs 1-15 are reincorporated here.

39.

The SBOE Plan does not retrogress and "neither has the purpose

nor will have the effect of denying or abridging the right to vote on account of

8

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 9 of 11

race or color" or membership in a language minority. 42 U.S.C. § 1973c. In all

respects, it complies with Section 5 of the Voting Rights Act.

40.

Plaintiff is entitled to a judgment that the SBOE Plan fully

complies with Section 5 of the Voting Rights Act and may be implemented

immediately.

COUNT II

41.

The allegations in Paragraphs 1-9 and 16-22 are reincorporated

here.

42.

The House Plan does not retrogress and "neither has the purpose

nor will have the effect of denying or abridging the right to vote on account of

race or color" or membership in a language minority. 42 U.S.C. § 1973c. It

therefore complies with Section 5 of the Voting Rights Act.

43.

Plaintiff is entitled to judgment that the House Plan fully complies

with Section 5 of the Voting Rights Act and may be implemented immediately.

COUNT III

44.

The allegations in Paragraphs 1-9 and 23-29 are reincorporated

here.

45.

The Senate Plan does not retrogress and "neither has the purpose

nor will have the effect of denying or abridging the right to vote on account of

race or color" or membership in a language minority. 42 U.S.C. § 1973c. It

therefore complies with Section 5 of the Voting Rights Act.

46.

Plaintiff is entitled to judgment that the Senate Plan fully complies

with Section 5 of the Voting Rights Act and may be implemented immediately.

9

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 10 of 11

COUNT IV

47.

The allegations in Paragraphs 1-9 and 30-37 are reincorporated

herein.

48.

Texas' Congressional Plan does not retrogress and "neither has the

purpose nor will have the effect of denying or abridging the right to vote on

account of race or color" or membership in a language minority. 42 U.S.C. §

1973c. It therefore complies with Section 5 of the Voting Rights Act.

49.

Plaintiff is entitled to judgment that the Congressional redistricting

plan fully complies with Section 5 of the Voting Rights Act and may be

implemented immediately.

DEMAND FOR JUDGMENT

Plaintiff respectfully requests the following relief from the Court:

A. Convene a three-judge court pursuant to 42 U.S.C. § 1973c;

B. Enter declaratory judgment that the SBOE, House, Senate, and

Congressional redistricting plans neither have the purpose nor will

have effect of denying or abridging the right to vote on account of

race, color, or membership in a language minority and otherwise fully

comply with Section 5 of the Voting Rights Act.

C. Enter a declaratory judgement that the SBOE, House, Senate, and

Congressional redistricting plans may be implemented immediately.

10

Case 1:11-cv-01303-RMC-TBG-BAH Document 1 Filed 07/19/11 Page 11 of 11
D. Grant Plaintiff such other and further relief as may be proper and appropriate.

Dated:

July 19, 2011

Respectfully Submitted,
GREG ABBOTT Attorney General of Texas
DANIEL T. HODGE First Assistant Attorney General
BILL COBB Deputy Attorney General for Civil Litigation
DAVID C. MATTAX Director of Defense Litigation

DAVID SCHENCK

Deputy Attorney General for Legal Counsel

J. REED CLAY, JR.

Special Assistant and Senior Counsel

to the Attorney General

/J...tYj fAJ. )l./tz ..sf.

PD (SOX IJSt./ If'

A~ J,/l.J 0)( 1

70} J/-').,S"Ljo

LS""/l) 11(,.-tJl).l.

11

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 1 of 54
ATTACHMENT 1

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 2 of 54
State ofTexas Informal Submission Act of June 24, 2011, 82nd Leg., 1st C.S., S.B. 4 United States Congress
This document outlines the information provided in the State of Texas' informal submission of S.B. 4 (the "Plan") to the Department of Justice. While this is not a formal submission, the State of Texas is nonetheless providing all information which would normally be contained in a submission pursuant to 28 C.F.R. §§ 51.27 and 51.28. This document either provides the information requested or references the relevant attachment where the information is located.
Section 51.27 (a) - Copy of Plan
A copy of the Plan may be found online at http://gis1.tlc.state.tx.us/download/Congress/PLANC18s.pdf and is included as Attachment 1.
Section 51.27(b) - Copy of Plan Currently in Effect
A copy of Texas' current United States House of Representatives districts can be found online at http://gis1.tlc.state.tx.us/download/Congress/PLANClOo.pdf and is included as Attachment 2. That plan is referred to herein as "benchmark plan" or "Cwo" in the electronic reports.
Section 51.27(C) - Statement of Change Requested
The Plan makes changes to all 32 of the State's preexisting congressional districts, and it also creates the 4 new congressional districts that were allocated to Texas after the decennial census. Reports and maps have been included in the submission and detail those changes. The Texas Legislature redrew the State's congressional districts to accommodate the creation of new districts and to ensure existing districts reflect equal representation in the wake of divergent population growth within various regions of the state over the last ten years.
Section 51.27(d) - Person Submitting Change
Greg Abbott Texas Attorney General 209 W. 14th Street Austin, Texas 78701
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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 3 of 54
(512) 463-2191 - office (512) 936-0545 - fax greg.abbott@oag.state.tx.us
Section 51.27(e) and 00: Not applicable Section 51.27(g) - Body Responsible for Change The body responsible for passing the Plan was the 82nd Texas Legislature.
Section 51.27(h) - StatutoryAuthority for Change
Redistricting of the state's congressional districts has always been and continues to be a legislative responsibility under the general legislative power granted by article 3, section 1 of the Texas Constitution. Because of an increase in the State of Texas' population between 2000 and 2010, the State is entitled to four additional congressional districts, increasing its U.S. House of Representatives delegation from 32 to 36 members. Accordingly, Texas' benchmark plan was malapportioned and in violation of the U.S. Supreme Court's "one person, one vote" standard. A more detailed discussion of the process the Legislature undertook can be found in Section 51.28(f).
Section 51.27(i) and (D - Date Change Adopted and Effective Date of Change The Plan became law on July 18, 2011 and will become effective on September 28, 2011.
Section 51.27(k) - Statement ofNonimplementation
The Plan has not been implemented.
Section 51.270) - Affected Jurisdiction
The Plan affects the entire jurisdiction of the State of Texas.
Section 51.27 (m) and (n) - Reason for and Effect ofChange
Background According to the 2010 federal decennial census, the State of Texas has a population of 25,145,561. In December 2010, the State was notified that it will be allocated 36 U.S. House of Representatives districts, a gain of 4 congressional seats. Each of those 36 districts is ideally populated at 698,488.
2

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 4 of 54
The 82nd Texas Legislature convened its regular session on January 10, 2011 and adjourned on May 30, 2011 without enacting legislation creating congressional districts. The Governor called the Legislature into a special session on May 31, 2011 to address, among other initiatives, congressional redistricting.
Statewide Impact on Minority Voters
The Texas Legislature's goals during the redistricting process were to equalize population as required by the "one-person, one-vote" principle, avoid pairing incumbents, preserve city lines and preserve the cores of prior districts when possible.' The State's resulting redistricting plan created an additional majority-minority district.
The Plan adopted by the Legislature fully complies with all applicable state and federal laws and neither has 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. The Plan does not retrogress racial or language minorities' ability to effectively exercise their electoral franchise.
From a statewide perspective, the State's congressional redistricting plan does not retrogress minority voting rights. All but one of the preexisting congressional districts were overpopulated, some by as much as 50.6% over the ideal population. The districts were redrawn to accommodate population growth while also maintaining, to the greatest extent possible, the cores of existing districts. Both the benchmark map and the Plan contain seven districts where Hispanic Voting Age Population (HVAP) exceeds 60%. The Plan also creates a new district with greater than 50% HVAP.
The Texas Legislature's congressional plan also increases - from one to two districts the number of congressional districts with a Black Voting Age Population (BVAP) over 40%. It also includes one district which contains 37.6% BVAP. Election data indicate that these three districts (Districts 9, 18 and 30) preserve or increase African-American voters' ability to elect their candidate of choice.
New Districts. Of the four new congressional districts, the Legislature created one new district (District 35) that is very likely to elect Hispanic voters' candidate of choice. That district joins communities from Travis and Bexar Counties and results in a district that contains 58.3% HVAP, 51.9% Hispanic Citizen Voting Age Population (HCVAP)2
'See http://www.journals.house.state.tx.uslhjrnI1821IpdfI82CIDAYo8SUPPLEMENTFINAL.pdf. 'The Fifth Circuit has unequivocally held that HCVAP is the population base that should be considered to determine whether a minority group satisfies the first Gingles requirement in a vote dilution claim. See Campos v. City of Houston, 113 F.3d 544, 548 (5th Cir. 1997) ("We hold that courts evaluating vote dilution claims under section 2 of the Voting Rights Act must consider the citizen voting-age population of the group challenging the electoral practice when determining whether the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district."); see also Session v. Perry, 298 F. Supp. 2d 45',494 n.133 (E.D. Tex. 2004) ("This circuit, along with every other circuit to consider the question, has concluded that the relevant voting population for Hispanics is citizen voting age population."), reversed on other grounds, LULACv. Perry, 548 U.S. 399, 429 (2006)
3

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 5 of 54
and 45.0% Spanish Surname Voter Registration (SSVR).3 AB was stated on the record during public redistricting committee hearings and the floor debate, the concept of this district was originally presented by the Mexican American Legal Defense and Educational Fund ("MALDEF ") in Public Plan C122. In fact, on the day the Legislature passed the Plan, a Hispanic state representative from San Antonio publicly stated that he was considering running for the new congressional seat. The Democratic State Representative publicly stated that he believes the district will survive legal challenges and that it is a "blessing in disguise for two cities that really complement each other, that are intertwined."4 The other three new congressional districts, which were created in high growth areas throughout the state, are located in East Texas (District 36), North Texas (District 33), and South Texas (District 34).
Dallas County and Tarrant County. Dallas County's population grew at a much slower rate than the rest of the state over the last decade. While the overall State population increased at a rate of 20.6%, Dallas County's population growth was only 6.7%. In contrast, Tarrant County grew at a higher rate than the state as a whole. During the course of the legislative process, the Legislature discussed and debated whether a new majority-minority seat could be created in the Dallas/Fort Worth region. No plans were publicly submitted for consideration that successfully created a compact Hispanic-majority district for Dallas/Fort Worth. The Hispanic population in the region is too scattered to accommodate a compact district. Additionally, the area's Hispanic population suffers from low citizenship numbers and low voter registration. Ultimately, the newly created District 33 was drawn to accommodate population growth in Tarrant County and thus contains 558,265 Tarrant County residents.
South and West Texas. Due to the high concentration of Hispanic population in South and West Texas, the districts in that region inevitably have high HVAP numbers.
(commenting (but not holding) in dicta that using HCVAP to determine Hispanic electoral oppOltunity "fits the language of § 2 because only eligible voters affect a group's opportunity to elect candidates")' For information about
how the State of Texas calculates HevAP, please see the Texas Legislative Council's website:
http:((www.tlc.state.tx.us(redist(pdf(CitizenshipAddendum.pdf. 3 According to the Texas Legislative Council:
Spanish surname voter registration, also reported in the secretary of state's Statewide Voter Database, is generated using a comparison to the 2000 Census Bureau List of Spanish Surnames. While most sources agree that the match between people who have Spanish surnames and those who consider themselves Hispanic is relatively good in Texas (the Census Bureau estimates a go percent correlation for the state), the reported number of registered voters with Spanish surnames is not a precise measure of Hispanic voter registration. Some people who consider themselves Hispanic do not have surnames that are included in the Spanish surname file and will be missed by the Spanish surname matching technique. Others, who have surnames that are included in the Spanish surname file but do not consider themselves Hispanic, will be incorrectly counted as Hispanic registered voters. http://www.tlc.state.tx.us/redist/pdf/Data 2011 Redistricting.pdf. 4 "Castro to Take on Doggett for New Congressional Seat" The Texas Tribune, June 24, 2011, available at http://www.texastribune.org/texas-politics/2012-congrcssional-election/castro-to-take-on-doggett-forcongressional-seat/.
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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 6 of 54

The South and West Texas districts - Districts 15, 16, 20, 23, 28, and 34 - all contain over 60% HVAP. District 35 contains 58.3% HVAP.

One of the state's newly created districts, District 34, is largely comprised of former District 27. Election data indicate that District 34 will more consistently elect the Hispanic community's candidate of choice than did the former District 27. The newly redrawn District 27 is made up of excess population from surrounding districts and more accurately reflects the electoral history of communities contained in the district.

The Plan increases District 23's HVAP, SSVR and HCVAP. Because the Legislature wanted to keep District 20 wholly contained within Bexar Countys - which is consistent with the district's historical core - and also wanted to ensure that new District 35 had adequate population to provide the Hispanic community with the ability to elect its candidate of choice, the Plan results in very small reductions in demographic metrics from District 20'S benchmark. However, minority voters' ability to elect their candidate of choice in District 20 is not adversely impacted in the Plan. The following chart shows the relative Hispanic population metrics in Districts 20, 23 and 35.

District 23 20
35

HVAP (Benchmark)
62.8
71.5 nla

HVAP (SB4)
63·8
69.3 58.3

HCVAP

HCVAP

SSVR

(Benchmark) (SB4) (Benchmark)

58-4

58·5

52.6

63.8

62.9

59. 2

nla

51.9

nla

SSVR (SB4)
54.8
56·3 45·0

Harris County. Over the last decade, Harris County's population grew at a slightly slower pace than the State's overall population. Under the benchmark plan, Harris County contains two congressional districts that elect the African-American community's candidate of choice and one district that elects the Hispanic community's candidate of choice. The Plan maintains these districts. Although several demonstration plans were filed by legislators seeking to create new minority districts in Harris County, none of those plans managed to create new minority-controlled districts without causing retrogression in other established districts.6
Section 51.27(0) Pending Litigation
The following litigation involving the state's newly enacted redistricting plans is currently pending:

5 This was a request ofthe incumbent Congressman. 6 See C168 by Representative Carol Alvarado, which attempted to create a new Hispanic congressional district in Harris County. However, Rep. Alvarado's plan proposed a new district that only contained 42.5% SSVR and 41.1% HCVAP. Further, to achieve even these Hispanic population statistics in the proposed new congressional district, the
plan reduced District 29'S SSVR from 52.6% to 35.5% and its HCVAP from 56% to 38.6%.
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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 7 of 54

Name Consolidated: Perez, et a1. v. State ofTexas, et al; Texas Latino Redistricting Task Force et a1. v. Perrx, et al: MALC v. State of Texas, et aJ. Teuber v. State of Texas , et aJ.
Teuber v. State of Texas, et aJ.
MALC v. State ofTexas, et aJ.
Barton et aJ. v. State ofTexas & HOlle Andrade Barton et a1. v. State ofTexas & HOl1e Andrade Washburn v. State of Texas & HOQe Andrade Washburn v. State ofTexas & HOl1e Andrade John "Canica" Limon, et a1. v. Rick Perry, et a1. Bianca Garcia, et a1. v. Rick Perry, et al.
Rodriggez, et a1. v. State of Texas, et al.
Morris v. State of Texas, et al.
Quesada, et aJ. v. Rick Per!), and Halle Andrade

Cause No. & Venue
SA-ll-CA-36o-0LG-JES-XR W.D. Tex. San Antonio Three Judge Court: Garcia, Smith, Rodriguez
SA-ll-CA-oS72-0LG-JES-XR W.D. Tex. San Antonio Three Judge Court: Garcia, Smith, Rodriguez CV-ll-0270 397th District Court, Grayson County, Texas No. Tll-CV-144 S.D. Texas - McAllen Division (Judge Crane)
11-20238-CV 13th District Court, Navarro County, Texas 11-20263-CV 13th District Court, Navarro County, Texas Cause No. CV 110921 397th District Court, Grayson County, Texas Cause No. CV 110931 397th District Court, Grayson County, Texas D-1-GN-ll-001611 351st Judicial District Court, Travis County, Texas D-1-GN-ll-001612 419th Judicial District Court, Travis County, Texas 1:11-CV-00451 W.D. Tex. AU1:)tin Division Three Judge Court: Yeakel, Smith, Garcia
ll-CV-2244 S.D. Tex. Houston Division (Judge Rosenthal)
ll-CV-592 W.D. Texas. San Antonio Division (Judge Garcia)

Section 51.27(p) - Prior Preclearance
The State's benchmark congressional plan was ordered by a three-judge court in the United States District Court for the Eastern District of Texas on August 4, 2006. The district court's order was predicated on the United States Supreme Court's decision in League ofUnited Latin American Citizens v. Perry, 548 U.S. 399 (2006). A copy of the Court's opinion may be found at http://www.tlc.state.tx.us/redist/pdf/LulacvPerryOpinion.pdf.
Section 51.28 (a) (b) and (d) - Demographic Information, Maps and Election Returns (Attachment 3)

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 8 of 54

1. Election Data folder - Same election data is used for all plan types - provided once

a. Zipped files for each of the last five election cycles; returns, voter registration

(VR), and turnout (TO) by County/ VTD.

1.

2oo2_Election.zip

(1) 2002_Democratic_Prima'Y_Election_Returns.csv

(2) 2002_Democratic_Primary_Election_VRTO.csv

(3) 2002_Democratic_Runoff_Election_Returns.csv

(4) 2002_Democratic_ Runoff_Election_ VRTO.csv

(5) 2002_Republican_Primary_Election_Returns.csv

(6) 2002_Republican_Primary_Election_ VRTO.csv

(7) 2002_Republican_Runoff_Election_Returns.csv

(8) 2002_Republican_Runoff_Election_ VRTO.csv

(9) 2002_GeneraLElection_Returns.csv

(10) 2002_GeneraLElection_ VRTO.csv

(n) readme. txt

ii. 2oo4_Election.zip - contains same reports as in 2002_Election.zip iii. 2oo6_Election.zip - contains same reports as in 2002_Election.zip;
also includes the special general and runoff for the court-ordered congressional districts. iv. 2oo8_Election.zip - contains same reports as in 2002_Election.zip v. 201o_Election.zip - contains same reports as in 2002_Election.zip 2. PlanCIOO folder

a. PlanCIOO Reports folder

1.

2oo2_Election folder

(1) 2002_Democratic_Prima'Y_RED225 .pdfand .xls

(2) 2002_Democratic_Runoff_ RED225 .pdfand .xls

(3) 2002_Republican_Prima'Y_ RED225 .pdfand .xls

(4) 2002_Republican_Runoff_ RED225 .pdfand .xls

(5) 2002_GeneraCElection_ RED225 .pdfand .xls

n. 2oo4_Election folder- contains same reports as in 2002_Election

folder

iii. 2oo6_Election folder - contains same reports as in 2002_Election

folder; also includes the special general and runoff for the court-ordered

congressional districts.

IV. 2oo8_Election folder - contains same reports as in 2002_Election

folder

v. 201o_Election folder - contains same reports as in 2002_Election

folder

vi. VTD level VR_SSVR_TO (RED 216.pdfand .xls) - includes voter

registration, Spanish surname voter registration, and turnout by district

and VTD for the 2010 gubernatorial election

Vll. ACS HCVAP Special Tab(RED 106) - Citizen Voting Age Population)

(HCVAP) from the 2005-2009 ACS (DOJ Special Tabulation)

viii. District Population Analysis with Counties (RED 100) -

contains plan deviation statistics and verification information and district

population data

IX. Population and Voter Data (RED 202)

X. Incumbents (RED 350)

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 9 of 54

Xl. Compachtess Analysis (RED 315) XlI. Split Cities by District (RED 130)

b. PlanClOo Maps folder -- 28 CFR Sec. 51.28(b)1-6 i. Maps of state and split counties with districts ii. nla iii. Maps of split counties with raciallethnic shading by VTD Ill. Maps of split counties with Spanish Surname voter registration by VTD IV. Maps of split counties with natural boundaries and geographic features IV. Maps of split counties with cities v. nla vi. nla
3. PlanC18s folder - same as PlanCloo folder
4. Shapefiles folder a. Shapefiles of all 54 public Texas Congressional plans b. blk.zip--block equivalency file (.csv) for PlanClOo and PlanC185

5. Two Plan Comparison Reports a. Two Plan by Incumbent (RED 335) b. Plan Overlap Analysis (RED 340)

Section 51.28m - Publicity and Participation
The Texas Legislature began the process of developing and debating the u.s. House of
Representatives plan almost a year before the map was finally passed and signed into law. The Texas House of Representatives and the Texas Senate conducted numerous hearings throughout the State during the legislative interim period that preceded the 82nd Legislative Session. In the House of Representatives, hearings were conducted by both the House Committee on Redistricting and the House Committee on Judiciary and Civil Jurisprudence. The date and city where each public hearing was held are detailed in the following list:

6/2/2010 6/21/2010
7/19/2010
7/20/2010 7/21/2010

Joint Hearing: Honse Redistricting and House Judiciary and Civil Jurisprudence (Austin) Joint Hearing: House Redistricting Subcommittee on San Antonio Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on McAllen Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Laredo Redistricting and House Jndiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Corpus Christi Redistricting and House Judiciary and Civil Jurisprudence

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 10 of 54

8/16/2010 8/18/2010 9/20/2010 9/21/2010 9/22/2010 10/18/2010 10/20/2010 11/17/2010 11/20/2010

Joint Hearing: House Redistricting Subcommittee on EI Paso Redistricting and House Judiciary aud Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Lubbock Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting, House Judiciary and Civil Jurisprudence Subcommittee on Dallas Redistricting and Senate Select Committee on Redistricting Joint Hearing: House Redistricting Subcommittee on Tarrant County Redistricting, House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Richardson/UT-Dallas Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Beaumont Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Marshall Redistricting and House Judiciary and Civil Jurisprudence House Redistricting Subcommittee on Austin Redistricting Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston)

In the Texas Senate, hearings were conducted by the Senate Select Committee on Redistricting:

9/1/ 2010 9/20/2010
10/4/2010 10/5/2010 10/21/2010 11/4/2010 11/20/2010

Austin Joint Hearing: House Redistricting, House Judiciary and Civil Jurisprudence Subcommittee on Downtown Dallas Redistricting and Senate Select Committee on Redistricting Amarillo Midland Edinburg San Antonio Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston)

Members of the public were not limited to speaking on any particular map during the interim hearings. Prior to each interim hearing, the Senate Select Committee on Redistricting notified elected officials in the area and encouraged them to widely disseminate information about the hearing. The committee office has retained the notification e-mails that were sent. Once the Texas Legislature began the redistricting process by holding interim hearings, the House Committee on Redistricting created an e-mail contact database to notify interested members of the public about upcoming legislative hearings. That database, which ultimately included over 200 community leaders, advocacy groups, and election officials, fostered public participation by ensuring interested parties received regular communications about the redistricting process throughout the legislative session.

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 11 of 54
During each House interim hearing, it was announced that the public record on the hearings would remain open until December, 2010, in order to give the public ample time to provide written comments to the committees.
Pursuant to House and Senate rules, every legislative hearing notice, redistricting plan submitted by members of the public, and proposed amendments to redistricting maps were posted on the Texas Legislative Council's redistricting website, www.tlc.state.tx.us/redistlredist.html. All public plans were accessible through DistrictViewer.7 The Texas Legislative Council also maintained two RedAppl8 terminals which were available for public use during normal business hours.
The Texas Legislature could not begin the map drawing process until the U.S. Census Bureau released block-level population data to Texas on February 17, 2011. During the regular session, the House Committee on Redistricting conducted a public hearing to solicit input from the public on congressional redistricting. That hearing was held on April 7, 2011. As explained above, the 82nd Legislature adjourned on May 30, 2011 without passing legislation reapportioning the United States House of Representatives districts. On May 31, 2011, the Governor called a special session. Shortly thereafter, congressional redistricting was added to the list of initiatives eligible for consideration by the Legislature during the special session.
Senator Kel Seliger and Representative Burt Solomons jointly released a public plan (CI2S) on May 30,2011.
The Senate Select Committee on Redistricting held a public hearing on June 3 to consider congressional redistricting plan CI2S. Later that day, after hearing testimony from interested members of the public, the Plan was voted out of committee. The full Senate considered the Plan on June 6 and passed it the same day with 18 ayes and 12 nays.
The House Committee on Redistricting held a public hearing on June 2, 2011 to consider CI2S. After the Senate passed the Plan on June 6, 2011, the House Redistricting Committee considered the Senate Bill on June 9, 2011. During that hearing, the House Redistricting Committee considered and adopted amendments to the Senate Bill before voting the State's proposed plan out of committee. On June 14, 2011, the House of Representatives set the bill on the calendar and passed it to engrossment. The vote on second reading was 93 ayes and 48 nays. The following day, June 15, 2011, the House of Representatives passed the Plan on third reading with a vote
7 DistrictViewer is the Texas Legislative Council's Intelnet-based application that interactively displays all public maps and reports. It is available to anyone with Internet access and includes access to all benchmark plans, as well. S RedAppl is the Texas Legislative Council's district modeling software. It was installed in legislators' offices as well as in public terminals in the Texas Legislative Council's offices.
10

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 12 of 54
of 93 ayes and 47 nays. The full Senate voted on June 20, 2011 to concur with the changes made to the Plan by the House of Representatives and send it to the Governor for signature.
Notice for all hearings was provided in compliance with the Rules of the Texas House of Representatives and the Texas Senate. The following links include hearing notices, minutes, and witness lists for each of the hearings on the Plan:
House Redistricting Committee Hearings Hearing on April 7
Notice http://www.capitol.state.tx.us/t1odocs/82R/schedules/pdf/Co802011040709001.PDF Minutes htID://www.capitol.state.tx.us/tiodocs/82R/minutes/pdflCo8020llo407og001.PDF Witness List htID:/lwww.capitol.state.tx.us/tlodocs/82R/witlistmtg/pdflCo802011o407ogoo1.PDF
Hearing on June 2 Notice http://www.capitol.state.tx.us/tlodocs/82R/schedules/pdf/C0802011060210451.PDF Minutes http://www.capitol.state.tx.us/tlodocs/82R/minutes/pdf/Co802011060210451.PDF Witness List htt;p:f/www.capitol.state.tx.us/t1odocs/82R/witlistmtg/pdflCo802011060210451.PDF
Hearing on June 9 Notice htt;p://www.capitol.state.tx.us/t1odocs/82R/schedules/pdf/Co80201106ogog001.PDF Minutes http://www.capitol.state.tx.us/tlodocs/82R/minutes/pdflCo802o11o6ogog001.PDF
Senate Select Committee on Redistricting Hearing on June 3
Notice http://www.capitol.state.tx.us/t1odocs/82R/schedules/pdf/C62520110603og00l.PDF Minutes htt;p://www.capitol.state.tx.us/t1odocs/82R/minutes/pdf/C62520llo6030goo1.PDF WiIDess List http://www.capitol.state.tx.us/tlodocs/82R/witlistmtg/pdflC6252011060309001.PDF
51.2S(g)(1) - Public Availability ofSubmission
On July 19,2011, the Attorney General issued a press release informing the public that the State filed a declaratory judgment action seeking preclearance of the Plan from the United States District Court for the District of Columbia. The State's press release also announced that this informal submission was provided to DOJ. A copy of that press release can be found online at www.texasattorneygeneral.gov. Members of the public
11

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 13 of 54

were informed that they may provide comment by contacting the Office of the Attorney General via e-mail at redistricting@oag.state.tx.us or via telephone at (800)252-8011.

51.2S(g)(2) - Electronic Availability of Data

The Attorney General has made the data included in this submission available on the OAG's website at www.texasattorneygeneral.gov.

51.2S(h) - Minority Group Contacts

The following individuals reside in the State of Texas and are familiar with the proposed change and were active in the political process by which the Plan was adopted:

Nina Perales Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476
Luis Figueroa Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476
Gary Bledsoe Texas NAACP 1107 E. 11th Street, Suite A Austin, Texas 78702 (512) 322-9547
The Honorable Mike Villarreal Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0532

The Honorable Stefanie Carter Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0454
The Honorable Eric Johnson Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0586
The Honorable Ruth Jones McClendon Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0708
The Honorable Ryan Guillen Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0416

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 14 of 54

The Honorable Aaron Perra Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0426

The Honorable Mario Gallegos, Jr. Texas Senate P.O. Box 12068 Austin, Texas 78711 (512) 463-0106
The Honorable Carlos Uresti Texas Senate P.O. Box 12068 Austin, Texas 78711 (512) 463-0119

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 15 of 54
State of Texas Informal Submission Act of May 23,2011, 82nd Leg., R.S., S.B. 31
Texas State Senate
This document outlines the information provided in the State of Texas' informal submission of S.B. 31 (the "Plan") to the Department of Justice. While this is not a formal submission, the State of Texas is nonetheless providing all information which would normally be contained in a submission pursuant to 28 C.F.R. §§ 51.27 and 51.28. This document either provides the information requested or references the relevant attachment where the information is located.
Section 51.27 (a) - Copy ofPlan
A copy of the Plan may be found online at http://gisl.tlc.state.tx.us/download/Senate/PLANS148.pdfand is included as Attachment
1.
Section 51.27(b) - Copy ofPlan Cnrrently in Effect
A copy of the current State Senate districts can be found online at http://gis1.tlc.state.tx.us/download/Senate/PLANSlOo.pdf and is included as Attachment 2. The Texas Senate's preexisting redistricting plan is referred to herein as "benchmark plan" or "SlOO" in the electronic reports.
Section 51.27(C) - Statement of Change Requested
The Plan makes changes to all 31 of Texas' state senatorial boundaries. Reports and maps have been included in the submission and detail those changes.
Section 51.27(d) - Person Submitting Change
Greg Abbott Texas Attorney General 209 W. 14th Street Austin, Texas 78701 (512) 463-2191 - office (512) 936-0545 - fax greg.abbott@oag.state.tx.us
Section 51.27(e) and (f): Not applicable
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Section 51.27(g) - Body Responsible for Change The body responsible for passing the Plan was the 82nd Texas Legislature.
Section 51.27(h) - Statntory Authority for Change
Article 3, section 28 of the Texas Constitution directs the Legislature to reapportion the State's senatorial districts in the first regular session that convenes after the U.S. Census Bureau publishes decennial census data. Pursuant to that authority, the Texas Legislature introduced and passed the Plan. A more detailed discussion of the process the Legislature undertook can be found in Section 51.28m
Section 51.27(0 and (D - Date Change Adopted and Effective Date ofChange The Plan became law on June 17, 2011 and will become effective on August 29, 2011.
Section 51.27(k) - Statement Regarding Implementation
The Plan has not been implemented.
Section 51.27(1) - Affected Jurisdiction
The Plan affects the entire jurisdiction of the State of Texas.
Section 51.27 (m) and (n) - Reason for and Effect of Change
Background The Texas Senate is divided into 31 districts. Based on the State's population of 25,145,561, Senate districts with perfectly equalized population would each contain 811,147 residents. Because of divergent population growth in various regions of the State, the benchmark plan currently has an overall population deviation of 46.1%. The Texas Senate district that experienced the most growth currently exceeds the ideal population by 203,880, while the most under populated district is 170,140 under the ideal population. This high variation necessitated the redrawing of the State Senate boundaries. The Plan has an overall population deviation of 8.04%, which is less than the 9.71% deviation that occurred after redistricting in 2001. The most populated state senate district, District 3, exceeds the ideal population by 4.00%. The least populated, District 28, is 4.04% under the ideal population.
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The Legislature's stated goals during the redistricting process were to equalize population among districts and produce a fair and legal map.1 The Plan adopted by the Legislature fully complies with all applicable state and federal laws and neither has 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. The Plan does not retrogress racial or language minorities' ability to effectively exercise their electoral franchise.
Statewide Impact on Minority Voters
On a statewide level, the proposed Plan avoids retrogression of minority voting rights. Both the benchmark map and the Plan contain seven Senate districts (Districts 6, 19, 20, 21,26,27 and 29) where Hispanic Voting Age Population ("HVAP") is greater than 60%. Similarly, both the benchmark and the newly enacted maps have two Senate districts (Districts 13 and 23) where Black Voting Age Population ("BVAP") exceeds 40%. Election data indicate that, under the Plan, these districts will continue to elect the minority voters' candidates of choice. Eight of these nine minority districts in the benchmark plan are currently under populated. Only District 20 is over populated. The combined population shortfall of these minority Senate districts was 580,252. Despite the difficulties associated with those districts' under population, the Texas Legislature managed to largely maintain the demographic metrics within these districts.
South Texas. Districts 20 and 27 remained largely unchanged between the benchmark and the Plan. District 21 was under populated by almost 60,000 residents and therefore needed additional population. In order to add the necessary population, District 21 was extended north. In the resulting district, Hispanic voters will be able to continue electing their candidate of choice. In fact, their voting strength has been increased.
Harris County. Under the benchmark plan, Harris County's Senate districts were both heavily under and over populated. District 6 had to gain almost 170,000 new residents. This was accomplished while both retaining the district wholly within Harris County and maintaining the District's Spanish Surname Voter Registration ("SSVR")2 at 50.5%. District 13 was under populated by over 80,000 residents. Nonetheless, the Legislature
• See http://www.journals.senate.state.tx.us/sjrnI/82R/pdf/82RSJ05-17-FA.pdf. 2 According to the Texas Legislative Council's website:
Spanish surname voter registration, also reported in the secretary of state's Statewide Voter Database, is generated using a comparison to the 2000 Census Bureau List of Spanish Surnames. While most sources agree that the match between people who have Spanish surnames and those who consider themselves Hispanic is relatively good in Texas (the Census Bureau estimates a 90 percent correlation for the state), the reported number of registered voters with Spanish surnames is not a precise measure of Hispanic voter registration. Some people who consider themselves Hispanic do not have surnames that are included in the Spanish surname file and will be missed by the Spanish surname matching technique. Others, who have surnames that are included in the Spanish surname file but do not consider themselves Hispanic, will be incorrectly counted as Hispanic registered voters. http://www.tlc.state.tx.us/redist/pdf/Data 2011 Redistricting.pdf.
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was able to populate District 13 within .3% of the ideal population and still increase the BVAP from 43.2% to 44.3%.

Section 51.27(0) Pending Litigation

The following litigation involving the state's newly enacted redistricting plans is currently pending:

Name

Cause No. & Venue

Consolidated: Perez. et a1. v. State of Texas. et al: Texas Latino Redistricting Task Force, et a1. v. PerIT, et al; MALC v. State of Texas, et al.

SA-ll-CA-36o-0LG-JES-XR W.D. Tex. San Antonio Three Judge Court: Garcia, Smith, Rodriguez

Teuber v. State of Texas, et al.

SA-ll-CA-oS72-0LG-JES-XR
w.n. Tex. San Antonio
Three Judge Court: Garcia, Smith, Rodriguez

Teuber v. State of Texas, et al.

CV-ll-0270 397th District Court, Grayson County, Texas

MALe v. State of Texas, et a1.

NO·7:11-CV-144 S.D. Texas - McAllen Division (Judge Crane)

Barton et a1. v. State of Texas & HOl1eAndrade

11-20238-CV 13th District Comi, Navarro County, Texas

Barton et a1. v. State of Texas & Hone Andrade

11-20263-CV 13th District Court, Navarro County, Texas

Washburn v. State of Texas & HOlle Andrade

Cause No. CV 110921; 397th District Comt, Grayson County, Texas

Washburn v. State ofTexas & Ho:ge Andrade

Cause No. CV 110931; 397th District Comt, Grayson County, Texas

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John "Canica" Limon, et al. v. Rick Perry, et al.

D-l-GN-ll-001611 351st Judicial District Court, Travis County, Texas

Bianca Garcia, et al. v. Rick Perry, et al.

D-l-GN-ll-001612 419th Judicial District Court, Travis County, Texas

Rodriguez, et al. v. State of Texas, et al. Morris v. State of Texas, et al. Quesada. et al. v. Rick Per~ and Hone Andrade

111-CV-00451 W.D. Tex. Austin Division Three Judge Court, Yeakel Smith, Garcia
ll-CV-2244 S.D. Tex. Houston Division (Judge Rosenthal)
ll-CV-592 W.D. Texas. San Antonio Division (Judge Garcia)

Section 51.27(p) Prior Preclearance
The benchmark state senate plan was submitted to the Department of Justice for preclearance in 2001. The DOJ precleared the 2001 State senate map without objection.
Section 51.28 (a) (b) and (d) - Demographic Information. Maps and Election Returns (Attachment 3)
1. Election Data folder - Same election data is used for all plan types - provided once a. Zipped files for each of the last five election cycles; returns, voter registration (VR), and turnout (TO) by County/ VTD. i. 2oo2_Election.zip (1) 2002_Democratic_Primary_Election_Returns.csv (2) 2002_Democratic_Primary_Election_VRTO.csv (3) 2002_Democratic_Runoff_Election_Retu"'ls.cSV (4) 2002_Democratic_ Runoff_Election_ VRTO.csv (5) 2002_Republican_Primary_Election_Returns.csv (6) 2002_Republican_Primary_Election_ VRTO.csv (7) 2002_Republican_Runoff_Election_Returns.csv (8) 2002_Republican_Runoff_Election_ VRTO.csv (9) 2002_GeneraCElection_Returns.csv (10) 2002_GeneraCElection_ VRTO.csv (11) readme. txt
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ii. 2oo4_Election.zip - contains same reports as in 2002_Election.zip iii. 2oo6_Election.zip - contains same reports as in 2002_Election.zip;
also includes the special general and runoff for the court-ordered Congressional districts. IV. 2oo8_Election.zip - contains same reports as in 2002_Election.zip v. 2010_Election.zip - contains same reports as in 2002_Election.zip 2. PlanSloo folder

a. PlanSloo Reports folder

i.

2oo2_Election folder

(1) 2002_Democratic_Primary_RED225 .pdfand .xls

(2) 2002_Democratic_RunofL RED225 .pdfand .xls

(3) 2002_Republican_Primary_ RED225 .pdfand .xls

(4) 2002_Republican_Runoff_ RED225 .pdfand .xls

(S) 2002_GeneraLElection_ RED225 .pdfand .xls

ii. 2oo4_Election folder- contains same reports as in 2002_Election

folder

iii. 2oo6_Election folder - contains same reports as in 2002_Election

folder; also includes the special general and runoff for the court-ordered

Congressional districts.

iv. 2oo8_Election folder - contains same reports as in 2002_Election

folder

v. 2010_Election folder - contains same reports as in 2002_Election

folder

vi. VTD level VR_SSVR_TO (RED 216.pdfand .xls) - includes voter

registration, Spanish surname voter registration, and turnout by district

and VTD for the 2010 gubernatorial election

vii. ACS HCVAP Special Tab(RED 106) - Citizen Voting Age Population)

(HCVAP) from the 200S-2009 ACS (DOJ Special Tabulation)

Vlll. District Population Analysis with Counties (RED 100) -

contains plan deviation statistics and verification information and district

population data

ix. Population and Voter Data (RED 202)

x. Incumbents (RED 350)

Xl. Compactness Analysis (RED 315)

XlI. Split Cities by District (RED 130)

b. PlanSl00 Maps folder -- 28 CFR Sec. S1.28(b)1-6

i.

Maps of state and split counties with districts

ii. nla

111. Maps of split counties with raciallethnic shading by VTD

111. Maps of split counties with Spanish Surname voter registration by VTD

IV. Maps of split counties with llatural boundaries and geographic features

IV. Maps of split counties with cities

v. nla

vi. nla

3. PlanS148 folder - same as PlanSl00 folder 4. Shapefiles folder
a. Shapefiles of all 32 public Texas Senate plans

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b. blk.zip--block equivalency file (.csv) for Plan8100 and Plan8148 5. Two Plan Comparison Reports
a. Two Plan by Incumbent (RED 335) b. Plan Overlap Analysis (RED 340)

Section 51.28(f) Publicity and Participation

The Texas Legislature began the process of developing and debating the Texas Senate Plan almost a year before the map was finally passed and signed into law. The Texas House of Representatives and the Texas Senate conducted numerous hearings throughout the state during the legislative interim period that preceded the 82nd Legislative Session. In the House of Representatives, hearings were conducted by both the House Committee on Redistricting and the House Committee on Judiciary and Civil Jurisprudence. The date and city where each public hearing was held are detailed in the following list:

6/2/2010 6/21/2010 7/19/2010 7/20/2010 7/21/2010 8/16/2010 8/18/2010 9/20/2010
9/21/2010 9/22/2010 10/18/2010 10/20/2010 11/17/2010

Joint Hearing: House Redistricting and House Judicimy and Civil Jurisprudence (Austin) Joint Hearing: House Redistricting Subcommittee on San Antonio Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on McAllen Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Laredo Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Corpus Christi Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on El Paso Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Lubbock Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting, House Judiciaty and Civil Jurisprudence Subcommittee on Downtown Dallas Redistricting and Senate Select Committee on Redistricting Joint Hearing: House Redistricting Subcommittee on Tarrant County Redistricting, House JudicialY and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Richardson/UT-Dallas Redistricting and House JudicialY and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Beaumont Redistricting and House Judiciaty and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Marshall Redistricting and House Judiciary and Civil Jurisprudence House Redistricting Subcommittee on Austin Redistricting

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11/20/2010

Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston)

In the Texas Senate, hearings were conducted by the Senate Select Committee on Redistricting:

9/1/2010 9/20/2010
10/4/2010 10/5/2010 10/21/2010 11/4/2010 11/20/2010

Austin Joint Hearing: House Redistricting, House Judiciary and Civil Jurisprudence Subcommittee on Dallas Redistricting and Senate Select Committee on Redistricting Amarillo Midland Edinburg San Antonio Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston)

During the Senate Select Redistricting Committee's hearings in communities across the state, members of the public were not limited to speaking on any particular map proposal. Prior to each interim hearing, the Senate Redistricting Committee notified the elected officials in the area and encouraged them to widely disseminate information about the hearing. The committee office has retained e-mails that were sent notifying local officials about the interim hearings.
Every legislative hearing notice, redistricting plan submitted by members of the public, and proposed amendments to redistricting maps were posted on the Texas Legislative Council's redistricting website, www.tlc.state.tx.uslredistlredist.html. and all public plans and amendments were accessible through DistrictViewer.3 The Texas Legislative Council also maintained two RedAppl4 terminals, which were available to the public for their use during normal business hours.
The Texas Legislature could not begin the map-drawing process until the U.S. Census Bureau released block-level population data to Texas on February 17, 2011. The Senate Redistricting Committee conducted proactive outreach with interested parties. Meetings were held with members of the senate, their staff, and outside groups. During the time that elapsed between the Census Bureau's release of Texas' population data and the public posting of the committee's proposed Senate map, Committee Chairman Kel Seliger released his statewide proposal on May 11, 2011 (S107). The Redistricting Committee held public hearings on May 12, 2011 and May 13, 2011. On May 13, 2011, the committee voted out Plan S125.

3 DistrictViewer is the Texas Legislative Council's Internet-based application that interactively displays all public maps and reports. It is available to anyone with Internet access and includes access to all benchmark plans, as well. 4 RedAppl is the Texas Legislative Council's district modeling software. It was installed in legislators' offices as well as in public terminals in the Texas Legislative Council's offices.
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On May 17, 2011, the Senate took up S125 and passed the map by a vote of 29 to 2. Only Sen. Wendy Daviss and Sen. Rodney Ellis voted against the map.
Proper notice for all hearings was provided in compliance with the Rules of the Texas House of Representatives and the Texas Senate. The following links include hearing notices, minutes, and witness lists for each of the hearings on the proposed Plan:
Senate Select Committee on Redistricting Hearing on May 12, 2011
Notice http://www.capitol.state.tx.us/tlodocsI 82RIschedulesIpdflC625 2011051209001. PDF Minutes http://www.capitol.state.tx.us/tlodocsI 82RIminutes IpdfI C6252011051209001.PDF Witness List http://www.capitol.state.tx.us/tlodocs/82R/witlistmtg/pdf/C6252011051209001.PDF
Hearing on May 13, 2011 Notice http://www.capitol.statc.tx.us/tlodocs/82R/schedules/pdflC6252011051308001.PDF Minutes http://www.capitol.state.tx.us/tlodocs/82R/minutes/pdf/C6252011051308001.PDF
House Redistricting Committee Hearings Hearing on May 18, 2011
Notice http://www.capitol.state.tx.us/tlodocs/82R/schedules/pdflC0802011051811001.PDF Minutes http://www.capitol.state.tx.us/tlodocs/82R/minutes/pdf/C0802011051811001.PDF
51.28(g)(1) Public Availability of Submission
On July 19, 2011, the Attorney General issued a press release informing the public that the State filed a declaratory judgment action seeking preclearance of the Plan from the United States District Court for the District of Columbia. The State's press release also announced that this informal submission was provided to DOJ. A copy of that press release can be found online at www.texasattorneygeneral.gov. Members of the public
5 Under the benchmark plan, Senate District 22 was under populated and needed to draw excess population from a neighboring county. The northern boundary of District 22 abuts District 10, which is currently represented by Sen. Davis. Because District 22 was under populated, the Plan shifts population from District 10 into District 22. The resulting makeup of District 10 is consistent with the district's historical election performance. When the committee considered how to add population to District 22, it worked to keep communities of interest whole. AB a result, District 10 is a more Fort Worth-centric district - an additional 137,402 Fort Worth residents were moved to District 10thereby preserving the core of the district within the City of Fort WOlth.
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were informed that they may provide comment by contacting the Office of the Attorney General via e-mail at redistricting@oag.state.tx.us or via telephone at (800)252-8011.
51.28(g)(2) Electronic Availability of Submission
The Attorney General has made the data included in this submission available on the OAG's website at www.texasattorneygeneral.gov.

51.28(h) Minority Group Contacts

The following individuals reside in the State of Texas, are familiar with the proposed change, and were active in the political process by which the Plan was adopted:

Nina Perales Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476
Luis Figueroa Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476
Gary Bledsoe Texas NAACP 1107 E. 11th Street, Suite A Austin, Texas 78702 (512) 322-9547
The Honorable Mike Villarreal Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0532

The Honorable Stefanie Carter Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0454
The Honorable Eric Johnson Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-058 6
The Honorable Ruth Jones McClendon Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0708
The Honorable Ryan Guillen Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0416

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The Honorable Aaron Perra Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0426
The Honorable Mario Gallegos, Jr. Texas Senate

P.O. Box 12068 Austin, Texas 78711 (512) 463-0106
The Honorable Carlos Uresti Texas Senate P.O. Box 12068 Austin, Texas 78711 (512) 463-0119

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State ofTexas Informal Submission Act of May 23, 2011, 82nd Leg., R.S., H.B. 150 Texas House ofRepresentatives
This document outlines the information provided in the State of Texas' informal submission of H.B. 150(the "Plan") to the Department of Justice. While this is not a formal submission, the State of Texas is nonetheless providing all information which would normally be contained in a submission pursuant to 28 C.P.R. §§ 51.27 and 51.28. This document either provides the information requested or references the relevant attachment where the information is located.
Section 51.27 (a) - Copy ofPlan
A copy of the Plan may be found online at http://gis1.tlc.state.tx.us/download/House/PLANH283.pdf and is included'as Attachment 1.
Section 51.27(b) - Copy of Plan Currently in Effect
A copy of the current State House of Representatives districts can be found online at http://gis1.tlc.state.lx.lls/Uuwnluad/House/PLANHlOo.pdf and is included as Attachment 2. The Texas House of Representatives' preexisting redistricting plan is referred to herein as "benchmark plan" or "HlOO" in the electronic reports.
Section 51.27(C) - Statement of Change Requested
The Plan makes changes to all 150 of Texas' State House of Representatives district boundaries. Reports and maps have been included in the submission and detail those changes.
Section 51.27(d) - Person Submitting Change
Greg Abbott Texas Attorney General 209 W. 14th Street Austin, Texas 78701 (512) 463-2191 - office (512) 936-0545 - fax greg.abbott@oag.state.tx.us
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Section 51.27(e) and (f): Not applicable
Section 51.27(g) Body Responsible for Change
The body responsible for passing the Plan was the 82nd Texas Legislature.
Section 51.27(h) - StatutoryAuthority for Change
Article 3, section 28 of the Texas Constitution directs the Legislature to reapportion the State's House districts in the first regular session that convenes after the U.S. Census Bureau publishes decennial census data. Article 3, section 26 of the Texas Constitution also requires that when a county contains sufficient population to make up one.or more whole districts, those districts shall be created entirely within that county. Pursuant to that authority, the Texas Legislature introduced and passed the Plan. A more detailed discussion of the process the Legislature undertook can be found in Section 51.28(0.
Section 51.270) and (D - Date Change Adopted and Effective Date
The Plan became law on June 17, 2011 and will become effective on August 29, 2011.
Section 51.27(k) - Statement Regarding Implementation
The Plan has not been implemented.
Section 51.27(1) - Affected Jurisdiction
The Plan affects the entire jurisdiction ofthe State of Texas.
Section 51.27 (m) and (n) - Reason for and Effect of Change
Background The Texas House of Representatives is divided into 150 districts. Based on the State's population of 25,145,561, House districts with perfectly equalized population would each contain 167,637 residents. Population shifts over the last decade have resulted in wide variations among the House districts in the benchmark plan, with the largest district, District 70, at 79-4% over the ideal population. The smallest district, District 103, is 30.0% under the ideal population. The Legislature's stated goals' were to equalize population, abide by the state constitutional requirement that preserves county lines,2 avoid pairing incumbents when
, See http://www.joumals.house.state.tx.us/hjrnl!82RlpdfI 82RDAY63SUPPLEMEN'f. pdf.
, See TEX. CONST. art. 3, § 26. 2

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possible, respond to the public and advocacy groups when appropriate, and maintain communities of interest. All of these goals were accomplished in the Plan that ultimately passed the Legislature and was signed into law.
The Plan adopted by the Legislature is in compliance with all applicable state and federal laws and neither has 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. The Plan does not retrogress racial or language minorities' ability to effectively exercise their electoral franchise.
In the Plan, the districts have an overall population deviation of 9.92%, with the smallest district 4.9% under the ideal population and the largest district 5.02% over the ideal population.
In response to population shifts within the state, the Legislature created seven new districts in high-growth areas and eliminated seven districts in areas with slowing or negative growth. These population shifts resulted in the pairing of incumbents. In order to give each paired member of the House a fair chance at re-election, the unavoidable pairings in the Plan all involve House members of the same party (i.e., 6 pairings were Republican-Republican and one was Democrat-Democrat).
Throughout the legislative process, the author of H.B. 150 made numerous comments from the floor of the House of Representatives urging members from various regions of the State to work together to produce regional "member-driven maps," which could be incorporated into the larger statewide map.
Statewide Impact on Minority Voters
The makeup of the Hispanic population in Texas complicates the traditional analysis of what constitutes a "performing minority district." The American Community Survey's estimates indicate that roughly 11% of the State's residents are non-citizens.3 AB a result, a majority-Hispanic House district, particularly in urban areas with extremely high concentrations of non-citizen Hispanics, will not necessarily elect the Hispanic community's candidate of choice on a consistent basis. This is the case because a majority Hispanic Voting Age Population in these districts includes individuals who are not eligible to vote. Likewise, Hispanic citizens of voting age within a district may not register to vote in the same concentrations as non-Hispanic white and African American citizens. Accordingly, merely populating a district with 50% HVAP is an inadequate basis upon which to expect that the district will elect the Hispanic community's candidate of choice. AB a result, for the purpose of determining retrogression or creating
3 See http://factfinder.census.gov/servlet/ADPTable? bm-y&-geo id-04000US48&-context-adp&cIs l1ame-ACS 2009 lYR Goo &-trce id-309&- lang-en&- caller-geoselect&-format-,
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replacement districts, the Legislature regarded 50% HVAP as an inadequate basis to determine the Hispanic community's ability to elect its candidate of choice.
Guidance provided by the Department of Justice ("DOJ" or the "Department") indicates that "the Attorney General does not rely on any predetermined or fixed demographic percentages at any point in the assessment."4 Nevertheless, some critics of the Plan take an overly simplistic, and frankly incorrect, view of the term "retrogression." These critics incorrectly claim that the fact that the Plan contains two fewer districts at the 50% HVAP level as compared to the benchmark is in and of itself retrogressive. However, due to the high percentage of non-citizens, coupled with disparate voting patterns, a higher, 60% HVAP threshold - in conjunction with reviewing HCVAP,5 SSVR,6 and the district's actual electoral performance - is a more appropriate standard under which to review Texas' districts for compliance with Section 5.
Even if the 50% HVAP threshold were adopted as an inflexible standard, the loss of two districts at the 50% level would not constitute retrogression when those specific districts are analyzed. Those districts (District 144 and District 33) are specifically addressed within the analysis below.
The State's 2001 Section 5 submission to DOJ for state House districts noted that the African American population had grown less rapidly ilian the population of other racial and ethnic groups within the state. This slower-growth trend continued to hold true over the last decade. In 2011, the Legislature faced a substantial challenge maintaining the Black Voting Age Population (BVAP) in the 11 benchmark districts. All but 2 of the
4 Guidance Concerning Redistricting under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470 (Feb. 8. 2011). 5 The Fifth Circuit has unequivocally held that HCVAP is the population base that should be considered to determine whether a minority group satisfies the first Gingles requirement in a vote dilution claim. See Campos v. City of Houston. 113 F.3d 544, 548 (5th Cir. 1997) ("We hold that courts evaluating vote dilution claims under section 2 of the Voting Rights Act must consider the citizen voting-age population afthe group challenging the electoral practice when determining whether the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district."); see also Session v. Perry, 298 F. Supp. 2d 451, 494 n.133 (E.D. Tex. 2004) ("This circuit, along with every other circuit to consider the question, has concluded that the relevant voting population for Hispanics is citizen voting age population."), reversed on other grounds, LULAC v. Perry, 548 U.S. 399, 429 (2006) (commenting (but not holding) in dicta that using HCVAP to determine Hispanic electoral opportunity "fits the language of § 2 because only eligible voters affect a group's opportunity to elect candidates"). For information about how the State of Texas calculates HCVAP, please see the Texas Legislative Council's website: httD://www.tlc.state.tx.us/redist/pdflCitizenshipAddendum.pdf. 6 According to the Texas Legislative Council:
Spanish surname voter registration, also reported in the secretary of state's Statewide Voter Database, is generated using a comparison to the 2000 Census BUreau List of Spanish Surnames. While most sources agree that the match between people who have Spanish surnames and those who consider themselves Hispanic is relatively good in Texas (the Census Bureau estimates a go percent correlation for the state), the reported number of registered voters with Spanish surnames is not a precise measure of Hispanic voter registration. Some people who consider themselves Hispanic do not have surnames that are included in the Spanish surname file and will be missed by the Spanish surname matching technique. Others, who have surnames that are included in the Spanish surname file but do not consider themselves Hispanic, will be incorrectly counted as Hispanic registered voters. http://1Nww.tlc.statc.tx.us/redist/pdf/Data 2011 Redistricting.pdf.
4

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 30 of 54

11 benchmark districts with a BVAP over 40% were under populated. The Legislature maintained those districts and actually increased - by one - the number of districts with a BVAP over 40%. Statistical studies demonstrate that the African American population tends to register to vote in higher percentages and turn out to vote at a higher rate than the Hispanic population.? A district with approximately 40% BVAP historically will elect the African-American community's candidate of choice.

Statewide, the comparison between the benchmark and the Plan shows the following number of districts:

BENCHMARK HB150

HVAP (greater than 60%)

30

30

HCVAP (greater than 50%) 30

30

SSVR (greater than 50%)

29

30

BVAP (greater than 40%)

11

12

Neither Hispanic nor Black voting strength retrogresses in the Plan.
Regional Impact on Minority Communities
South aud West Texas. EI Paso County is apportioned 5 districts in the Plan. The high concentration of Hispanic residents results in districts with unavoidably high levels of HVAP. All 5 El Paso districts in both the benchmark and the Plan are populated with over 60% HVAP.
The same situation exists in Hidalgo County. Hidalgo County is entitled to 4+ districts (four districts wholly contained within the county plus excess population shared with a neighboring county). The districts in Hidalgo County all contain over 75% HVAP in both the benchmark and the Plan. HCVAP and SSVR numbers are also generally high in that area.
7 "[T]he Latino population suffers from participation rates lower than those of non-Hispanic black and white populations, in terms of both voter registration and election day turnout. While turnout rates among Hispanics are lower than those among whites and blacks, low registration rates among eligible voters pose the biggest problem. Only 58% of eligible Latino voters were registered to vote in 2004, compared to 75% of whites and 69% of blacks. Experts attribute these low participation rates to the fact that, like African-Americans, Hispanics are disproportionately young, less educated, and less affluent- all attributes that traditionally dampen political participation. For Hispanics, these factors are exacerbated by language barriers. The combined effect oflow voter eligibility and palticipation is devastating: Only 18% of all Hispanics voted in 2004, compared to 51% of whites and 39% of blacks, and Hispanics only contributed 6% of all the bal10ts cast on election day." Alvaro Bedoya, Note, The Unforeseen Effects ofGeorgia v. Ashcroft on the Latino Communihj, 115 YALE L.J. 2112, 2128-29 (2006).
5

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Nueces County. In 2001, Nueces County was apportioned 2 seats wholly contained within the county and a portion of a third district. According to the 2010 census, Nueces County grew at a substantially slower rate than the state as a whole, and the county's population of 340,223 no longer entitles it to more than 2 districts.S As a result, the portion of the county contained in the third district needed to be redistributed into the two remaining Nueces County districts. This loss of one state representative seat necessarily caused the pairing of two incumbents. The paired incumbents are Representative Raul Torres (R) in District 33 and Representative Connie Scott (R) in District 34. Nueces County now has two districts, both of which are wholly contained within its boundaries - Districts 34 and 32. Pursuant to the requirements in article 3, section 26 of the Texas Constitution, the Legislature adhered whenever possible to the Texas constitutional requirement that county lines should be preserved. In this case, adding a third district to Nueces County would have broken county lines in violation of the state constitutional rule.
Under the Plan, the Legislature strengthened Hispanic voters' influence in one of Nueces County's two remaining districts. Under the benchmark plan, neither District 32, District 33, nor District 34 was consistently electing Hispanic voters' candidate of choice. Election data indicate that District 34 will now consistently elect the Hispanic community's candidate of choice.
Nueces County as a whole contains 36.7% Anglo VAP and 56.8% HVAP. No map was publicly submitted to the Legislature that drew two performing Hispanic districts without violating the county line rule mandated by article 3, section 26 of the Texas Constitution.9

Former District 33 District 34

HVAP (BENCHMARK)

HVAP (HB 150)

61.9

--

61.6

67·7

SSVR
(BENCHMARK)

SSVR
(HB 150)

55·3

--

53·8

60.8

HCVAP

HCVAP

(BENCHMARK) (HB 150)

60·5

--

58 -4

64·7

8 Dividing Nueces County's population of 340,233 by the ideal district size (167,637) yields the number of seats Nueces County is entitled to: 2.0285. This number was rounded down to two whole districts since the remaining population could easily be distributed among the two districts and keep them within the allowed deviation statevvide. 9 Representative Roberto Alonzo's proposed amendment (Plan H115, H164) achieved two performing districts within Nueces County. However, the Alonzo amendment, which was submitted on behalf of MALDEF, was withdravvn before it was brought to a vote on the House floor. Further, the Alonzo amendment violated the Texas Constitution's county line rule, because it split Nueces County's Anglo population into a third district that exceeded the county's geographical limits. Representative Trey Maltinez-Fischer presented a plan on behalf of the Mexican American Legislative Caucus which split Nueces County into 5 legislative districts, also violating the state constitutional county line rule.
6

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 32 of 54

[ District 32 [ 37-2

[ 45·9

[ 33.2

[ 37·3

[ 35·3

[ 44·2

Harris County. Under the benchmark plan, Harris County had 25 House districts. Although Harris County did experience growth between 2000 and 2010, its growth did not keep pace with the rest of the state. Growth in Harris County was 20.3%, while the state as a whole grew at a rate of 20.6%. Based on the U.S. Census Bureau's 2010 population data, Harris County is entitled to either 24 or 25 districts. Dividing Harris County's population of 4,092,459 by the ideal district size (167,637) yields the number of districts Harris County is entitled to: 24-4126. Accordingly, and in compliance with section 26, Article III, of the Texas Constitution (requiring districts be apportioned to large counties based on the federal census "as nearly as may be"), the Legislature chose to apportion 24 House districts to Harris County and create a district elsewhere in the state where population growth was higher. This elimination of a district necessitated the pairing of two incumbents in Harris County.

Harris County Pairing

District
137'"
Former District
149"

HVAP (BENCHMARK)
59.S

HVAP (HB
150)
55·3

SSVR
(BENCHMARK)
22.0

SSVR
(HB
150)
24·3

HCVAP (BENCHMARK)
25.S

HCVAP (HB
150) 26-4

30.2

-

15·9

-

19·0

-

The Texas Legislature proactively increased minority voting strength in one of Harris County's Hispanic House districts. At the request of the Mexican AInerican Legal Defense and Educational Fund (MALDEF), the Legislature increased both SSVR and HCVAP to over 50% from 40.0% and 42.1%, respectively, in House District 148.'2
After the House Redistricting Committee passed a proposed statewide redistricting plan, the Harris County delegation offered an amendment during the debate on the House floor that impacted the African American communities in Harris County. Under the amendment, which received bipartisan support from minority and Anglo House
10 Under the benchmark plan, District 137 also contained 13.7% Anglo YAP, 14.6% BVAP, and 13% Other VAP. U Underthe benchmark plan, District 149 also contained 26.6% Anglo VAP, 16.2% BVAP and 6.2% Other VAP. 12 See Hearing on H.B. 150 Before the House Comm. on Redistricting, 8271d Leg., R.S. (ApfUIS, 2011). http://vvww.hollse.state.t'(.l1s/video-alldio/committee-broadcasts/committeearchives/?committee=o8o&session=82.
7

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 33 of 54

members, Black YAP percentage was slightly reduced in two of four performing districts. However, the members of the Harris County delegation agreed to the amendment because it did not negatively affect Black voters' ability to elect their candidate of choice in any district.'3 The following districts were affected:

District BVAP

BVAP

(BENCHMARK) (HB 150)

139

47·2

4 2.1

141

42.8

50.0

142 40.8

42·9

147

39·2

38.2

Finally, under the Plan, one Harris County district (District 144) drops below the 50% HVAP level. Under the benchmark, District 144, which is represented by a Republican, contains 50.3% HVAP. However, the CVAP in the district was 35.1% and the SSVR was 31.5%. The Plan decreases HVAP to 48.5% but does not change the overall characteristics of the district. Election data confirm that House District 144 was not a performing district for Hispanic voters under the benchmark - nor is it under the Plan.
Dallas County. Between 2000 and 2010, Dallas County's population only increased by 6.7%, while the state population grew at a rate of 20.6%. Dallas County grew much more slowly than the rest of the state, and equalizing population within each district required that two of the County's House Districts be eliminated. As a result, Dallas County was apportioned 14, rather than 16, districts. Under the benchmark plan, every district in Dallas County except for District 109 was under populated according to the U.S. Census Bureau's 2010 population data. Despite this challenge, the Plan maintains four districts with a BVAP over 40% and two districts with an HVAP over 65%. All four benchmark districts that were paired under the Plan are represented by Republican legislators.
Tarrant County. Based on population growth, Tarrant County was apportioned an additional district. As a result, Tarrant County's House delegation rose from 10 to 11 legislators. The Plan contains a new district, District 101, which contains 32.5% HVAP, 27.0% BVAP and 24.6% Anglo VAP.
The House proactively increased minority voting strength in one of Tarrant county's performing Hispanic districts. At the request of MALDEF, the SSVR and HCVAP in District 90 were increased from 47.2% and 48.0%, respectively, to 50.1% SSVR and 49.7% HCVAP.
13 See House Journal Supplement, pages 8206-8208, http://www.iournals.house.slale.tx.us/hjrnlL82R/pdfl82RDAY6'lSUPPLEMENT.pdf.
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Section 51.27(0) Pending Litigation

The following litigation involving the state's newly enacted redistricting plans is currently pending:

Name

Cause No. & Venue

Consolidated: Perez, et a1. v. State of Texas, et a1; Texas Latino Redistricting Task Force, et a1. v. Perry, et al; MALC v. State of Texas, et al.

SA-ll-CA-36o-0LG-JES-XR W.D. Tex. San Antonio Three Judge Court: Garcia, Smith, Rodriguez

Teuber v. State of Texas, et a1.

SA-ll-CA-oS72-0LG-JES-XR
w.n. Tex. San Antonio
Three Judge Court: Garcia, Smith, Rodriguez

Teuber v. State of Texas. et a1. MALC v. State of Texas, et aJ.

CV-ll-0270
397th District Court, Grayson County, Texas
NO.7: 11-cV-144 S.D. Texas - McAllen Division (Judge Crane)

Barton et a1. v. State of Texas & Ho:ge Andrade

11-20238-CV 13th District Court, Navarro County, Texas

Barton et a1. v. State of Texas & HOlle Andrade

11-20263-CV 13th District Court, Navarro County, Texas

Washburn v. State ofTexas & HOlle Andrade

Cause No. CV 110921; 397th District COUlt, Grayson County, Texas

Washburn v. State of Texas & HO:Qe Andrade

Cause No. CV 110931; 397th District Court, Grayson County, Texas

John "Canica" Limon. et aL v. Rick Perry. et a1.

D-I-GN-ll-001611 351st Judicial District Court, Travis County, Texas

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 35 of 54

Bianca Garcia, et a1. v. Rick Perry, et al.

D-1-GN-ll-001612 419th Judicial District Court, Travis County, Texas

Rodriguez, et a1. v. State of Texas, et al. Morris v. State of Texas, et al. Quesada, et al. v. Rick Perry and Roge Andrade

1:11-CY-0045 1 W.D. Tex. Austin Division Three Judge Court: Yeakel, Smith, Garcia
ll-CY-2244 S.D. Tex. Houston Division (Judge Rosenthal)
ll-CY-592 W.D. Texas. San Antonio Division (Judge Garcia)

Section 51.27(p) - Prior Preclearance

The Texas House of Representatives map that forms the basis of the benchmark plan

was submitted to the DOJ for section 5 preclearance in 2001. The Department objected

to three House districts. A three-judge court, convened in the United States District

Court for the Eastern District of Texas, modified the legislature's state house plan to

address DOJ objections. The resulting plan modified and approved by the federal court

is the benchmark plan.

The court's opmlOn can be found at

http://www.tlc.state.tx.us/redist/pdf/housepc.pdfand the Final Judgment can be found

at http://www.tlc.state.tx.us/redist/pdf/finalorderhouse.pdf.

Section 51.28 (a) (b) and (d) - Demographic Information, Maps and Election Returns (Attachment 3)

1.

Election Data folder - Same election data is used for all plan types - provided once

a.

Zipped files for each of the last five election cycles; returns, voter registration (VR), and

turnout (TO) by County/ VTD.

i.

2oo2_Election.zip

(1) 2oo2_Democrutic_Primury_Election_Returns.csv

(2) 2oo2_Democrutic_Primury_Election_VRTO.csv

(3) 2oo2_Democ,·utic_Runoff_Election_Returns.csv

(4) 2oo2_Democrutic_ Runoff_Election_ VRTO.csv

(5) 2oo2_Republicun_Primury_Election_Returns.csv

(6) 2oo2_Republicun_Primury_Election_ VRTO.csv

(7) 2oo2_Republicun_Runo.f{_Election_Returns.csv

(8) 2oo2_Republicun_Runo.f{_Election_ VRTO.csv

(9) 2oo2_GeneruCElection_Retu,'ns.csv

(10) 2oo2_Genm'uLElection_ VRTO.csv

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 36 of 54

(11) readme. txt

ii.

2oo4_Election.zip - contains same reports as in 2oo2_Election.zip

iii. 2oo6_Election.zip - contains same reports as in 2002_Election.zip; also

inclndes the special general and runoff for the comt-ordered

Congressional districts.

iv. 2oo8_Election.zip - contains same reports as in 2002_Election.zip

v.

201o_Election.zip - contains same reports as in 2002_Election.zip

2.

PlanH100 folder

a.

PlanH100 Reports folder

i.

2oo2_Election folder

(1) 2002_Democratic_Primary_RED225 .p<ifand .xls

(2) 2002_Democratic_RunofL RED225 .pdfand .xls

(3) 2002_Republican_Pl'imary_ RED225 .p<ifand .xls

(4) 2002_Republican_Runoff_ RED225 .p<ifand .xls

(5) 2002_GeneJ'aLElection_ RED225 .pdfand .xls

ii.

2004_Election folder- contains same reports as in 2002_Election folder

lll. 2006_Election folder - contains same reports as in 2002_Election folder; also

includes the special general and runoff for the court-ordered Congressional

districts.

IV. 2oo8_Elcction folder - contains same reports as in 2002_Election folder

v.

2010_Election folder - contains same reports as in 2002_Election folder

VI.

VTD level VR_SSVR_TO (RED 216.pdfand .xls) - inclndes voter

registration, Spanish surname voter registration, and turnout by district and VTD

for the 2010 gubernatorial election

vii. ACS HCVAP Special Tab(RED 106) - Citizen Voting Age Population)

(HCVAP) from the 2UU5-2UU9 ACS (DOJ Special Tabulation)

viii. District Population Analysis with Counties (RED 100) - contains plan

deviation statistics and verification information and district population data

ix. Population and Voter Data (RED 202)

x.

Incumbents (RED 350)

XI. Compactness Analysis (RED 315)

xii. Split Cities by District (RED 130)

b.

PlanH100 Maps folder -- 28 CFR Sec. 51.28(b)1-6

i.

Maps of state and split counties with districts

ii. nla

iii. Maps of split counties with racial/ethnic shading by VTD

iii. Maps of split counties with Spanish Surname voter registration by VTD

iv. Maps of split counties with natural boundaries and geographic features

iv. Maps of split counties with cities

v.

nla

VI.

nla

3.

PlanH283 folder - same as PlanH100 folder

4.

Shapefiles folder

a.

Shapefiles of all 111 public Texas House plans

b.

blk.zip--block equivalency file (.csv) for PlanHlOo and PlanH283

5.

Two Plan Comparison Reports

a.

Two Plan by Incumbent (RED 335)

11

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 37 of 54

b.

Plan Overlap Analysis (RED 340)

Section 51.28(0 - Publicity aud Participation

The Texas Legislature began the process of developing and debating the Texas House of Representatives Plan almost a year before the map was finally passed and signed into law. The Texas House of Representatives and the Texas Senate conducted numerous hearings throughout the State during the legislative interim period that preceded the 82nd Legislative Session. In the House of Representatives, hearings were conducted by both the House Committee on Redistricting and the House Committee on Judiciary and Civil Jurisprudence. The date and city where each public hearing was held are detailed in the following list:

6/2/2010 6/21/2010 7/19/2 010 7/20/2010 7/2 1/2010 8/16/2010 8/18/2010 9/20/ 2010 9/21/2010 9/22/2010 10/18/2010 10/20/2010 11/17/2 010 11/20/2010

Joint Hearing: House Redistricting and House Judiciary and Civil Jurisprudence (Austin) Joint Hearing: House Redistricting Subcommittee on San Antonio Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on McAllen Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Laredo Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Corpus Christi Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on El Paso Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Lubbock Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting, House JudicialY and Civil Jurisprudence Subcommittee on Dallas Redistricting and Senate Select Committee on Redistricting Joint Hearing: House Redistricting Subcommittee on Tarrant County Redistricting, House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Richardson/UT-Dallas Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Beaumont Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Marshall Redistricting and House Judiciary and Civil Jurisprudence House Redistricting Subcommittee on Austin Redistricting Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston)

In the Texas Senate, hearings were conducted by the Senate Select Committee on Redistricting:

9/1/2010

Austin

12

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 38 of 54

9/20/ 2010
10/4/2010 10/5/2 010 10/21/2010 11/4/2 010 11/20/2010

Joint Hearing: House Redistricting, House Judiciary and Civil Jurisprudence Subcommittee on Downtown Dallas Redistricting and Senate Select Committee on Redistricting Amarillo Midland Edinburg San Antonio Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston)

Pursuant to House and Senate rules, every legislative hearing notice, redistricting plan submitted by members of the public, and proposed amendments to redistricting maps were posted on the Texas Legislative Council's redistricting website, www:tlc.state.tx.us/redist/redist.html. and all public plans and amendments were accessible through DistrictViewer.14 The Texas Legislative Council also maintained two RedAppl15 terminals which were available to the public for their use during normal business hours.
Once the Texas Legislature began the redistricting process by holding interim hearings, the House Committee on Redistricting created an e-mail contact database to notify interested members of the public about upcoming legislative hearings. That database, which ultimately included over 200 community leaders, advocacy groups, and election officials, fostered public participation by ensuring interested parties received regular communications about the redistricting process throughout the legislative session. Prior to each interim hearing, the Senate Committee on Redistricting notified the elected officials in the area and encouraged them to widely disseminate information about the hearing. The committee office has retained the notification e-mails that were sent. During each House interim hearing, it was announced that the public record on the hearings would remain open until December 2010, in order to give the public ample time to provide written comments to the committees.
The Texas Legislature could not begin the map drawing process until the U.S. Census Bureau released block-level population data to Texas on February 17, 2011. On March 24, 2011, the House Committee on Redistricting held a public hearing to solicit additional input from the public about the upcoming reapportionment of Texas House of Representatives districts. On April 13, 2011, Chairman Burt Solomons publicly released an initial plan (H113) for public and legislative consideration.

14 DistrictViewer is the Texas Legislative Council's Internet-based application that interactively displays all public maps and reports. It is available to anyone with Internet access and includes access to all benchmark plans, as well. 15 RedAppi is the Texas Legislative Council's district modeling software. It was installed in legislators' offices as well as in public terminals in the Texas Legislative Council's offices.
13

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 39 of 54
In addition to holding a public hearing and seeking public comment before a House plan was introduced, the Redistricting Committee and the Speaker of the House's staff conducted a proactive outreach effort in order to ensure interested parties had an opportunity to participate in the redistricting process. During the two months that elapsed between the census data's release and the introduction of H113, leadership and staff held several meetings with House members from both parties. Multiple meetings were also held with groups that represent minorities' interests such as MALDEF and the Mexican American Legislative Caucus (MALC). Several of MALDEF's recommended changes were incorporated into the plan that was ultimately passed and signed into law. The staff proactively contacted the NAACP of Texas in an effort to schedule a meeting, but the outreach efforts were unsuccessful. On the House floor, Chairman Solomons repeatedly encouraged members from various regions of the State to work collaboratively to jointly submit regional redistricting proposals. The committee took all of these regional proposals into consideration when it crafted the new House plan.
After H113 was publicly posted on DistrictViewer, two public hearings were held by the House Redistricting Committee. Chairman Solomons laid out a committee substitute plan (HI34) during the first hearing, which was on Friday April 15, 2011. The second hearing convened on Sunday, April 17, 2011. The committee held one meeting during the week and one on the weekend so that members of the public would have opportunities to participate in the process both during the five-day work week and during a weekend.
The committee held a third formal meeting on Tuesday, April 19, 2011. During that meeting, the committee considered several amendments before approving an amended map and sending it to the House floor for the entire Chamber's consideration. On April 19, 2011, the House Calendars Committee scheduled the committee-approved plan, H153, for second reading on the House floor.'6 H153 was debated on April 27, 2011. The proceedings were transcribed.I? A record vote was taken, and the Plan passed with 92 yeas and 54 nays. Two Democrats voted for the plan - Representative Eiland and Representative Guillen. The House's engrossed version, H283, was sent to the Senate for consideration. The Senate Redistricting Committee held a public hearing on the bill on May 6, 2011, and the bill passed in the Senate, without amendments, on May 17, 2011 by a vote of 22 yeas and 9 nays on second reading and 25 yeas and 6 nays on third reading.
Notice of all hearings was provided in compliance with the Rules of the Texas House of Representatives and the Texas Senate. The following links include hearing notices, minutes, and witness lists for each of the hearings on the Plan:
16 Pursuant to the Texas Constitution, a bill must be read on three separate occasions. The first reading is when a bill is introduced and referred to committee. The second and third reading, as referenced above, are when the full House considers passage ofthe legislation. '7 See http://www.iournals.house.state.tx.us/hirnl/82R/pdf/82RDAY63SUPPLEMENT.pdf.
14

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 40 of 54
House Redistricting Committee Hearings Hearing ouApril15
Notice httn: Ilwww.capitol.state.tx.us/tlodocs IS2RIschedules Ipdfl COS02011041512001.PDF Minutes httn: IIwww.capitol.state.tx.us/tlodocs IS2R/minutes/pdflCOS02011041512001.PDF Witness List hUn: Ilwww.capitol.state.tx.us/tlodocs IS2R/witlistmtg IpdflCo 8020 l1041512001.PDF
Hearing on April 17 Notice httn:llwww.capitol.state.tx.us/tlodocs/S2Rlschedules/pdflCOS02011041714001.PDF Minutes http://www.capitol.state.tx.us/tlodocs/S2R/miuutes/pdf/CoS02011041714001.PDF Witness List http://www.capitol.state.tx.us/tlodocs IS2R{witlistmtg(pdfICoSo 2011041714001.PDF
Hearing on April 19 Notice http:{lwww.capitol.state.tx.usltlodocs/S2Rlschedules/pdfICoS02011041g11001.PDF Minutes http://www.capitol.state.tx.usltlodocsIS2R/minutes/pdf/COS02011041g11001.PDF
Senate Select Committee on Redistricting Hearing on May 6
Notice http://www.capitol.state.tx.usltlodocsIS2Rlschedules/pdf/C6252011050609001.PDF Minutes http://www.capitol.state.t.x.usltlodocsIS2R/minutes/pdflC6252011050609001.PDF Witness List http://www.capitol.state.lx.usltlodoes IS2R/witlistmtg/pdflC62 5201105060g001. PDF
Hearing on May 13 Notice http://www.capitol.state.tx.us/tlodocsIS2RlscheduleslpdflC625201105130S001.PDF Minutes http://www.capitol.state.tx.us/tlodocs/S2R/minutes/pdf/C6252o1105130S001.PDF
51.28(g)(1) - Public Availability ofthe Submissiou
On July 19, 2011, the Attorney General issued a press release informing the public that the State filed a declaratory judgment action seeking preclearance of the Plan from the United States District Court for the District of Columbia. The State's press release also announced that this informal submission was provided to DOJ. A copy of that press release can be found online at www.texasattorneygeneral.gov. Members of the public
15

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 41 of 54

were informed that they may provide comment by contacting the Office of the Attorney General via e-mail at redistricting@oag.state.tx.us or via telephone at (800)252-8011.

51.28(g)(2) - Electronic Availability of Data

The Attorney General has made the data included in this submission available on the OAG's website at www.texasattorneygeneral.gov.

51.28(h) - Minority Group Contacts

The following individuals reside in the State of Texas, and are familiar with the proposed change, and were active in the political process by which the Plan was adopted:

Nina Perales Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476
Luis Figueroa Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476
Gary Bledsoe Texas NAACP 1107 E. 11th Street, Suite A Austin, Texas 78702 (512) 322-9547
The Honorable Mike Villarreal Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0532

The Honorable Stefanie Carter Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0 454
The Honorable Eric Johnson Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0586
The Honorable Ruth Jones McClendon Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0708
The Honorable Ryan Guillen Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0416

16

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 42 of 54

The Honorable Aaron Pena Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0426

The Honorable Mario Gallegos, Jr. Texas Senate P.O. Box 12068 Austin, Texas 78711 (512) 463-0106
The Honorable Carlos Uresti Texas Senate P.O. Box 12068 Austin, Texas 78711 (512) 463-0119

17

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 43 of 54
State ofTex~s Informal Submission Act of May 6, 2011, 82nd Leg. R.S., H.B. 600 State Board of Education
This document outlines the information provided in the State of Texas' informal submission of H.B. 600 (the "Plan") to the Department of Justice. While this is not a formal submission, the State of Texas is nonetheless providing all information which would normally be contained in a submission pursuant to 28 C.F.R. §§ 51.27 and 51.28. This document either provides the information requested or references the relevant attachment where the information is located.
Section 51.27 (a) - Copy of Plan
A copy of the Plan may be found online at http://gis1.tlc.state.tx.us/download/SBOE/PLANE120.pdfand is included as Attachment
1.
Section 51.27(b) - Copy of Plan Currently iu Effect
A copy of the current State Board of Education (the "SBOE" or the "Board") districts can be found online at http://gisl.tlc.state.tx.lls/download/SBOE/PLANElOo.pdfand is included as Attachment 2. The SBOE's preexisting map is referred to herein as "benchmark plan" or "EI00" in the electronic reports.
Section 51.27(C) - Statement of Change Requested
The Plan makes changes to the boundaries of all 15 SBOE districts.'
Section 51.27(d) - Person Submitting Change
Greg Abbott Texas Attorney General 209 W. 14th Street Austin, Texas 78701 (512) 463-2191 - office (512) 936-0545 - fax greg.abbott@oag.state.tx.us
Section 51.27(e) and (f): Not applicable
'See http://www.iournals.hollse.state.tx.us/hirnI/82R/html/82RDAY56FINAL.htm.
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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 44 of 54
Section 51.27(g) - Body Responsible for Change
The body responsible for passing the Plan was the 82nd Texas Legislature.
Section 51.27(h) - Statutory Authority for Change
While no state constitutional provision or state statute requires the reapportionment of SBOE districts at any particular time, Texas laws governing the Board assume the districts will be redrawn after each federal decennial census.2 Likewise, since the 2010 federal decennial census revealed significant population deviations among the SBOE
districts, the equal protection clause of the 14th Amendment to the u.s. Constitution
requires that the Board's districts be redrawn.
Section 51.27(0 and (j) - Date Change Adopted and Effective Date ofChange
The Plan became law on May 18, 2011 and will become effective on August 29, 2011.
Section 51.27(k) - Statement Regarding Implementation
The Plan has not been implemented.
Section 51.27(1) - Affected Jurisdiction
The Plan affects the entire jurisdiction of the State of Texas.
Section 51.27 (m) and (n) - Reason for and Effect ofChange
Background
The SBOE is established by the Texas constitution and Texas statutes and is composed of 15 members elected from single-member districts. The Board's members serve for four-year terms, which are staggered following the reapportionment of the districts.3 The Board adopts rules and establishes policies that govern a wide range of educational programs and services provided by Texas public schools. The Commissioner of Education, who is appointed by the Governor, serves as chief executive officer of the Board and supervises the administration of Board rules through the Texas Education Agency (TEA).
Together the Board, the Commissioner, and the TEA facilitate the operation of a vast public school system with 1,237 school districts and wmter schools, more than 8,450 campuses, more than 640,000 educators and staff, and more than 4.8 million
, See Tex. Education Code §7.104 (Vernon 2006). 3 Seeld.
2

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 45 of 54
schoolchildren. The SBOE establishes and promotes goals for the public school system and adopts and promotes four-year plans for meeting those goals.4
The State of Texas is divided into 15 SBOE districts. Based on the state's population of 25,145,561, SBOE districts with perfectly equalized population would each contain 1,676,371 residents. The shifts in population among the districts, as evidenced by the release of the U.S. Census Bureau's 2010 population data, required that the Legislature change SBOE districts' preexisting boundary lines. Under the benchmark plan, the smallest district, District 15, was 12-4% under the ideal size. The most over populated district was District 10, which was 17.2% over the ideal population.
The Legislature's stated goals during the SBOE redistricting process were to equalize population, maintain communities of interest, reduce the number of split counties, reduce the number of split school districts, avoid pairing incumbents, and respond to the public testimony and input that was received during the interim and the legislative session.s All of these goals were accomplished in the Plan that ultimately passed the Legislature. Under the State's Plan, SBOE districts have an overall deviation of 5.85%. The largest district (District 9) is 2.07% over the ideal population, and the smallest district (District 10) is 3.78% under the ideal population.
The Plan adopted by the Legislature fully complies with all applicable state and federal laws and neither has 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. The Plan does not retrogress racial or language minorities' ability to effectively exercise their electoral franchise.
The Legislature undertook an extensive outreach effort during the legislative interim and also conducted numerous hearings during the Legislative session. The details of those efforts are explained under Section 51.2Sffi ofthis submission.
Statewide Impact on Minority Voters
The benchmark plan included three districts (Districts 1, 2 and 3) where the Hispanic community was historically able to elect the candidate of its choice. It also contained two districts (Districts 4 and 13) where the Mrican-American community was historically able to elect its candidate of choice. The Plan maintains minority voting strength in those five districts while increasing Hispanic Voting Age Population
4 See Tex. Education Code §7.102 (Vernon 2006). 5See http://www.ionrnai5.hou5e.5tate.lx.us/hjmi/82R/hlIni/82RDAY56FINAL.htm.
3

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 46 of 54
("HVAP"), Hispanic Citizen Voting Age Population ("HCVAP")6 and Spanish Surname Voter Registration ("SSVR")7 in both Districts 1 and 3.
The benchmark plan contained SBOE districts that split 161 school districts. Among the Legislature's stated goals during the SBOE redistricting process was reducing the number of split school districts. The proposed Plan contains only 148 school district splits. The Legislature also endeavored to reduce the number of counties and cities that were unnecessarily divided by SBOE district lines. Also, the Plan does not pair any incumbent SBOE members.
Regional Impact. Under the benchmark plan, the Hispanic Voting Age Population (HVAP) is above 50% in three South Texas districts (Districts 1, 2 and 3). Election data indicate that the minority community in each of those districts was able to elect its candidate of choice. The Plan passed by the Legislature increases various Hispanic population metrics in Districts 1 and 3. In District 2, the HVAP, HCVAP and SSVR dip only slightly. However, a review of historic election data confirms that this change will not affect the minority community's ability to elect its candidate of choice.
The benchmark plan contains two districts where African-American communities historically elect their candidates of choice (Districts 4 and 13). District 4 in Harris County was significantly under populated and therefore needed an additional 150,000 new residents. The Legislature was able add the necessary population, while at the same time only reducing the Black Voting Age Population (BVAP) by .2%. A review of historical election data confirms that the minority community's candidate of choice will
6 The Fifth Circuit has unequivocally held that HCVAP is the population base that sbould be considered to determine whether a minority group satisfies the first Gingles requirement for a vote dilution claim. See Campos v, City of Houston, 113 F.3d 544, 548 (5th Cir. 1997) ("We bold that courts evaluating vote dilution claims under section 2 of the Voting Rights Act must consider the citizen voting-age population of the group challenging the electoral practice when determining whether the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district."); see also Session v. Perry, 298 F. Supp. 2d 451, 494 n.133 (E.D. Tex. 2004) ("This circuit, along with every other circuit to consider the question, has concluded that the relevant voting population for Hispanics is citizen voting age population."), reversed on other grounds, LULACv. Perry, 548 U.S. 399, 429 (2006) (commenting (but not holding) in dicta that using HCVAP to determine Hispanic electoral opportunity "fits tbe language of § 2 because only eligible voters affect a group's opportunity to elect candidates"). For information about how the State of Texas calculates HCVAP, please see the Texas Legislative Council's website: http://www.tIc.state.tx.us/redist/pdf/CitizenshipAddcndum.pdf.
7 According to the Texas Legislative Council's website: Spanish surname voter registration, also reported in the secretary of state's Statewide Voter Database, is generated using a comparison to the 2000 Census Bureau List of Spanish Surnames. While most sources agree that the match between people who have Spanish surnames and those who consider themselves Hispanic is relatively good in Texas (the Census Bureau estimates a 90 percent correlation for the state), the reported number of registered voters with Spanish surnames is not a precise measure of Hispanic voter registration. Some people who consider themselves Hispanic do not have surnames that are included in the Spanish surname
file and will be missed by the Spanish surname matching technique. Others, who have surnames that are
included in the Spanish surname file but do not consider themselves Hispanic, will be incorrectly counted as Hispanic registered voters." .l11;t;n:f1www.tic.state.tx.lls/redist/pdf/Data 2011 Redistricting,p.ill.
4

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 47 of 54

consistently continue to prevail in District 4. District 13 in Dallas County was also highly under populated in the benchmark plan. As a result, District 13 needed more than 180,000 new residents. The Legislature was able to add the necessary population while only slightly reducing the district's BVAP by 0.8%. A review of historical election data indicates that the minority communtity's candidate of choice will consistently continue to prevail in District 13.
Section 51.27(0) - Pending Litigation
The following litigation involving the state's newly enacted redistricting plans is currently pending:

Name

Cause No. & Venue

Consolidated: Perez, et al. v. State of Texas, et a1; Texas Latino Redistricting Task Force et a1. v. Perry, et aJ.; MALC v. State of Texas, et aJ.

SA-ll-CA-36o-0LG-JES-XR W.D. Tex. San Antonio Three Judge Court: Garcia, Smith, Rodriguez

Teuber v. State of Texas, et al.

SA-ll-CA-0572-0LG-JES-XR W.D. Tex. San Antonio Three Judge Court: Garcia, Smith, Rodriguez

Teuber v. State of Texas, et a1.

CV-ll-0270 397th District Court, Grayson County, Texas

MALe v. State of Texas, et al.

NO.7: 11-CV- 144 S.D. Texas - McAllen Division (Judge Crane)

Barton et al. v. State of Texas & HOl1eAndrade Barton et al. v. State of Texas & HOl1eAndrade Washburn v. State ofTexas & HOlle Audrade Washburn v. State ofTexas & Halle Audrade John "Canica" Limon, et al. v. Rick Pem. et a1.

11-20238-CV 13th District Court, Navarro County, Texas
11-20263-CV 13th District Court, Navarro County, Texas
Cause No. CV 110921; 397th District Court, Grayson County, Texas
Cause No. CV 110931; 39?ili District Court, Grayson County, Texas
D-1-GN-ll-001611 3518t Judicial District Comt, Travis County, Texas

5

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 48 of 54

Bianca Garcia, et al. v. Rick PerIT, et al. Rodriggez, et al. v. State of Texas, et al. Morris v. State of Texas, et al. Quesada, et al. v. Rick Pem and Halle Andrade

D-I-GN-ll-001612 419th Judicial District Court, Travis County, Texas
1:11-cv-00451 W.D. Tex. Austin Division Three Judge COUlt: Yeakel, Smith, Garcia
ll-CV-2244 S.D. Tex. Houston Division (Judge Rosenthal)
ll-CV-592 W.D. Texas. San Antonio Division (Judge Garcia)

Section 51.27(p) - Prior Preclearance

The benchmark plan's preexisting SBOE districts stem from a November 2, 2001 order by a three-judge court convened in the case of Miller v. Cuellar, Cause No. 3-OlCV1072G (N.D. Tex.). Because the benchmark plan's districts were drawn by a federal court, it was not subject to preclearance by the Department of Justice. A copy of the district court's order is attached as Attachment 3.

Section 51.28 (a) (b) and (d) Demographic Information. Maps and

Election Returns (Attachment 4)

1. Election Data folder

a. Zipped files for each of the last five election cycles; returns, voter registration (VR), and turnout (TO) by County/ VTD.

i.

2oo2_Election.zip

(1) 2002_Democratic_Primary_Election_Returns.csv

(2) 2002_Democratic_Primary_Election_VRTO.csv

(3) 2002_Democratic_Runoff_Election_Returns.csv

(4) 2002_Democratic_ Runoff_Election_ VRTO.csv

(5) 2002_Republican_Primary_Election_Returns.csv

(6) 2002_Republican_P,·imary_Election_ VRTO.csv

(7) 2002_Republican_Runoff_Election_Returns.csv

(8) 2002_Republican_Runoff_Election_ VRTO.csv

(9) 2002_GeneraLElection_Returns.csv

(10) 2002_GeneraLElection_ VRTO.csv

(11) readme. txt

H. 2oo4_Election.zip - contains same reports as in 2002_Election.zip HI. 2oo6_Election.zip - contains same reports as in 2002_Election.zip;
also includes the special general and runoff for the court-ordered congressional districts. iv. 2oo8_Election.zip - contains same reports as in 2002_Election.zip

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 49 of 54

v. 201o_Election.zip - contains same reports as in 2oo2_Election.zip 2. PlanE100 folder

a. PlanE100 Reports folder

i.

2oo2_Election folder

(1) 2002_Democratic_Primary_RED225 .pdfand .xls

(2) 2002_Democratic_RunofL RED225 .pdfand .xls

(3) 2002_Republican_Primary_ RED225 .pdfand .xls

(4) 2002_Republican_Runoff_ RED225 .pdfand .xls

(5) 2002_GeneraCElection_ RED225 .pdfand .xls

ii. 2oo4_Election folder- contains same reports as in 2002_Election

folder

iii. 2oo6_Election folder - contains same reports as in 2002_Election

folder; also includes the special general and runoff for the court-ordered

congressional districts.

iv. 2oo8_Election folder - contains same reports as m 2002_Election

folder

v. 2010_Election folder - contains same reports as m 2002_Election

folder

VI. VTD level VR_SSVR_TO (RED 216.pdf and .xls) - includes voter

registration, Spanish surname voter registration, and turnout by district

and VTD for the 2010 gubernatorial election

vii. ACS HCVAP Special Tab(RED 106) - Citizen Voting Age Population)

(HCVAP) from the 2005-2009 ACS (DOJ Special Tabulation)

viii. District Population Analysis with Counties (RED 100) -

contains plan deviation statistics and verification information and district

population data

ix. Population and Voter Data (RED 202)

x. Incumbents (RED 350)

Xl. Compactness Analysis (RED 315)

xii. Split Cities by District (RED 130)

b. PlanE100 Maps folder -- 28 CFR Sec. 51.28(b)1-6

i.

Maps of state and split counties with districts

ii. nla

iii. Maps of split counties with racial!ethnic shading by VTD

iii. Maps of split counties with Spanish Surname voter registration by VTD

IV. Maps of split counties with natural boundaries and geographic features

IV. Maps of split counties with cities

v. nla

vi. nla

3. PlanE120 folder - same as PlanE100 folder 4. Shapefiles folder
a. Shapefiles of all 14 public SBOE plans b. blk.zip--block equivalency file (.csv) for PlanElOo and PlanE120 5. Two Plan Comparison Reports
a. Two Plan by Incumbent (RED 335) b. Plan Overlap Analysis (RED 340)

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 50 of 54

Section 51.28(f) Publicity and Participation

The Texas Legislature began the process of developing and debating the State Board of Education Plan almost a year before the map was finally passed and became law. The Texas House of Representatives and the Texas Senate conducted numerous hearings throughout the State during the legislative interim period that preceded the 82nd Legislative Session. In the House of Representatives, hearings were conducted by both the House Committee on Redistricting and the House Committee on Judiciary and Civil Jurisprudence. The date and city where each public hearing was held are detailed in the following list:

6/2/2010 6/21/2010 7/19/2010 7/20/2010 7/21/2010 8/16/2010 8/18/2010 9/20/2010 9/21/2010 9/22/2010 10/18/2010 10/20/2010 11/17/2010 11/20/2010

Joint Hearing: House Redistricting and House Judiciary and Civil Jurisprudence (Austin) Joint Hearing: House Redistricting Subcommittee on San Antonio Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on McAllen Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Laredo Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Corpus Christi Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on El Paso Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Lubbock Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting, House Judiciary and Civil Jurisprudence Subcommittee on Dallas Redistricting and Senate Select Committee on Redistricting Joint Hearing: House Redistricting Subcommittee on Tarrant County Redistricting, House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Richardson/UT-Dallas Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Beaumont Redistricting and House Judiciary and Civil Jurisprudence Joint Hearing: House Redistricting Subcommittee on Marshall Redistricting and House Judiciary and Civil Jurisprudence House Redish'icting Subcommittee on Austin Redistricting Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston)

In the Texas Senate, hearings were conducted by the Senate Select Committee on Redistricting:

9/1/2010 9/20/2010
10/4/2010

Austin Joint Hearing: House Redistricting, House Judiciary and Civil Jurisprudence Subcommittee on Downtown Dallas Redistricting and Senate Select Committee on Redistricting Amarillo

8

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 51 of 54

10/5/2010 10/21/2010 11/412010 11/20/2010

Midland Edinburg San Antonio Joint Hearing: Snbcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston)

Every legislative hearing notice, redistricting plan submitted by members of the public, and proposed amendments to redistricting maps were posted on the Texas Legislative Council's redistricting website, www.tlc.state.tx.uslredist/redist.htmL and were accessible through DistrictViewer.8 The Texas Legislative Council also maintained two RedAppl9 terminals, which were available to the public for their use during normal business hours.
Once the Texas Legislature began the redistricting process by holding interim hearings, the House Committee on Redistricting created an e-mail contact database to notify interested members of the public about upcoming reapportionment of SBOE districts. That database, which ultimately included over 200 community leaders, advocacy groups, and election officials fostered public participation by ensuring interested parties received regular communications throughout the legislative session. During each House interim hearing, it was announced that the public record on the hearings would remain open until December, 2010, in order to give the public ample time to provide written comments to the committees.
The Texas Legislature could not begin the map drawing process until the U.S. Census released block-level data to Texas on February 17, 2011. On March 15, 2011, the House Committee on Redistricting held a hearing to solicit additional input from the public about the upcoming reapportionment of the SBOE. The Chairman of the committee released Plan E101 publicly on March 22, 2011. On March 25, 2011, the committee held a public hearing to consider the committee substitute to HB 600. Public testimony was taken at that hearing. On April 1, 2011 the committee held a formal meeting to consider the bill, and it was voted out of committee.
The bill was considered on the floor of the House on April 14, 2011 and again on April 15, 2011 before it passed out of the House on third reading with a vote of 104 ayes to 34 nays. Three statewide substitute plans were offered as floor amendments, but they were tabled because they paired incumbents and Legislators expressed concern that the amendments might reduce minority voting strength in certain districts in favor of other districts.

8 DistrictViewer is the Texas Legislative Council's Internet-based application that interactively displays aU public maps and reports. It is available to anyone with Internet access and includes access to all benchmark plans, as well.
9 RedAppl is the Texas Legislative Council's district modeling software. It was installed in legislators' offices as well as in public terminals in the Texas Legislative Council's offices.
9

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 52 of 54
On April 27, 2011 the Senate Committee on Redistricting held a public hearing to consider the Plan and receive public input. The bill was voted out of committee and considered by the full Senate on April 29, 2011. When the Texas Senate passed the proposed SBOE plan, only 3 Senators voted against the Plan.
Proper notice for all hearings was provided in compliance with the Rules of the Texas House of Representatives and the Texas Senate. The following links are for the hearing notices, minutes, and witness lists for each of the hearings on the proposed Plan:
House Redistricting Committee Hearings: Hearing on March 15, 2011
Notice http://www.legis.state.tx.us/tlodocs/82R/schedules/html/C0802011031509001.htm Minutes http://www.capitol.state.tx.us/tlodocs/82R/minutes/pdf/C080201103150goo1.PDF Witness List http://www.capitol.state.tx.us/tlodocs/82R/witlistmtg/pdf/Co80201103150goo1.PDF
Hearing on March 25, 2011
Notice http://www.capitol.state.tx.us/tlodocs/82R/schedules/pdf/Co802011032509001.PDF Minutes http://www.capitol.state.tx.us/tlodocs/82R/minutes/pdf/C080201103250g001.PDF Witness List http://www.capitol.state.tx.us/tlodocs/82R/witlistmtgfpdffC080201103250g00l.PDF
Hearing on April 1, 2011 at 3:00pm
Notice http://www.capito1.state.tx.us/tlodocs/82R/schedules/pdf/Co802011040115001.PDF Minutes http://www.capitol.state.tx.us/tlodocs/82R/minutes/pdf/C080201104011500l.PDF
Hearing on April 1, 2011 at T30pm
Notice http://www.capitol.state.tx.us/tlodocs/82R/schedules/pdf/Co80201104011g301.PDF Minutes http://www.capitol.state.tx.usftlodocs/82R/minutes/pdf/C080201104011g301.PDF
10

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 53 of 54

Senate Committee on Redistricting Hearings: Hearing on April 27, 2011
Notice http://www.capitol.state.tx.us/tlodocs/82R/schedules/html/C6252011042708001.HT M Minutes http://www.capitol.state.tx.us/tlodocs/82R/minutes/htmllC6252011042708001.HTM Witness List http://www.capitol.state.tx.us/tlodocs/82R/witlistmtg/html/C6252011042708001.HT M

51.28(g)(1) Public Availability of Submission
On July 19, 2011, the Attorney General issued a press release informing the public that the State filed a declaratory judgment action seeking preclearance of the Plan from the United States District Court for the District of Columbia. The State's press release also announced that this informal submission was provided to DOJ. A copy of that press release can be found online at www.texasattorneygeneral.gov. Members of the public were informed that they may provide comment by contacting the Office of the Attorney General via e-mail at redistricting@oag.state.tx.us or via telephone at (800)252-8011.

51.28(g)(2) Electronic Availability of Submission

The Attorney General has made the data included in this submission available on the OAG's website at www.texasattorneygeneral.gov.

51.28(h) Minority Group Contacts

The following individuals reside in the State of Texas, are familiar with the proposed change, and were active in the political process by which the Plan was adopted:

Nina Perales Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476
Luis Figueroa Mexican American Legal Defense and Education Fund

110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476
Gary Bledsoe Texas NAACP 1107 E. 11th Street, Suite A Austin, Texas 78702 (512) 322-9547 The Honorable Mike Villarreal

11

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-1 Filed 07/19/11 Page 54 of 54

Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0532
The Honorable Stefanie Carter Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0454
The Honorable Eric Johnson Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0586
The Honorable Ruth Jones McClendon Texas House of Representatives P.O. Box 2910 Au~tin, Texa~ 78768-2910 (512) 463-0708

The Honorable Ryan Guillen Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0416
The Honorable Aaron Pefia Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 (512) 463-0426
The Honorable Mario Gallegos, Jr. Texas Senate P.O. Box 12068 Austin, Texas 78711 (512) 463-0106
The Honorable Carlos Uresti Texas Senate P.O. Box 12068 Austin, Texas 78711 (512) 463-0119

12

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-2 Filed 07/19/11 Page 1 of 3
ATTACHMENT 2

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-2 Filed 07/19/11 Page 2 of 3

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-3 Filed 07/19/11 Page 1 of 3
ATTACHMENT 3

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-3 Filed 07/19/11 Page 2 of 3

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-3 Filed 07/19/11 Page 3 of 3

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-4 Filed 07/19/11 Page 1 of 3
ATTACHMENT 4

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-4 Filed 07/19/11 Page 2 of 3

BUR..'\,'ET': 24 "

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-4 Filed 07/19/11 Page 3 of 3

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-5 Filed 07/19/11 Page 1 of 3
ATTACHMENT 5

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-5 Filed 07/19/11 Page 2 of 3

'. WILLIAMSON"
" "'VB
HAYS

u.s. Congressional Districts
112th Congress (2011-2012)
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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-5 Filed 07/19/11 Page 3 of 3

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Case 1:11-cv-01303-RMC-TBG-BAH Document 1-6 Filed 07/19/11 Page 1 of 2

CIVIL COVER SHEET

JS-44 Rev. 2/11 DC)

N - 1- \~S

1I -(a-)-P-L-A--IN-T--IF-F-S---------------------------------- 1D-E-F-E-N-D-A--N-T-S------------------------------------

;State of Texas, Office of the Attorney General

: :United States of Amerrca and Eric Holder, Jr., in his

:

,

' :official capacity as Attorney General of the United States:

I- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - _ _ _ _ _ _ 1I I_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1I

(b) COl 'II Y OF RESllXNCE OF FIRST L1STLD PLAINTIFF ([XC[PT IN IT.S. PLAIN'IIFF CAS[S)

Travis County, TX

COUN

1'1'

OF

RESIDENC(EINOFLJ.f~l.RPSLlALIINSTTIEFDF

DEFENDANl CASES ONLY)

District of Columbg

NOTE IN LAND CONDEMNATION CASES. USE THE LOCA nON OF THE TRACT OF

LANDINYOLYED

---------------------------------------------- (e) /\TTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)

.lTTIlO1l,TC,\!(' fTr TJ" .. , ......... " . .

:Davld Schenck, Deputy Attorney General for Legal Counsel 'J Reed Clay, Jr , Special Assistant and Senior Counsel :209 W 14th Street 'PO Box 12548 :Austln, TX 78711-2548 1'5- 1_2_-9_3_6-_1_ 34_2____________________________________ .. _I

Case: 1: 11-cv-01303 ~ssigned To : Collyer, Rosemary M. ~ssign. Date: 7/19/2011
Description: 3-Judge Court

II. BASIS OF JURISDICTION
(PLACE AN x IN ONE BOX ONL Y)

III CITIZE,,~nlr VI' rKII'ICIPAL PARTIES (PLACE AN x IN ONE BOX
FOR PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY!

0
~

I 1I S (jovernment "Iamtd'!'
2 lJ S Government Dct'endant

0 3 Federal QuestIOn (U S GO\emmenl Not a Party)
0 4 DTverslty (IndTcate CltTzenshlp of Parties In Item Ill)

CttTZen ofthlo> State

PTF OFT
0 I0I

0 0 CItizen of Another State

2

2

CTtTzen or Sublect of a Foreign Country

0 303

PTF

OFT

Incorporated or Pnnctpal Place of Busmcs, 111 This State

0 4

0 4

0 Incorporated and PrlncTpal Place

5

of BUSiness In Another State

0 5

Foreign Nation

0 6 06

IV. CASE ASSIGNMENT AND NATURE OF SUIT

(Place a X in one category, A-N, that best represents your cause of action and one in a corresponding Nature of Suit)

o A. Antitrust
o -'10 Antitrust
I •
I

o B. Personal Injury/
Malpractice

D 3\0 Airplane

D o o

315 Airplane Product Liability
320 Assault, Libel & Slander 330 Federal Employers Liability

ooooD

340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 '\10tor Vehicle Product Liability 360 Other Personal Injury

ooo

362 Medical Malpractice 365 Product Liability 368 Asbestos Product Liability

o C. Administrative Agency
Review
o 151 Medicare Act

oSocial Security; 861 HIA «1395fl)

D 862 Black Lung (923)

o o D

863 DIWC!DIWW (405(g) 864 SSID Title XVI 865 RSI (405(g)

oOther Statutes 891 Agricultural Acts

ooD

892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act

CJ 890 Other Statutor)' Actions (If

Administrative Agency is Involved)

o D. Temporary Restraining
Order/Preliminary Injunction
Any nature of suit from any category may be selected for this category of case assignment.
*(If Antitrust, then A governs)*

C> E. General Civil (Other) ,
I Real Pro pert\' 0210 Land (ondemnation : 0220 Foreclosure .
0 230 Rent, Lease & Ejectment 0 240 \'orts to LInd 0 245 I ort Product Liahility 0290 All Other Real Property
Personal Property 0370 Other Fraud 0 371 Truth in Lending 038() Other Personal Property Damage 0385 Property Damage Product Liability

OR

o

Bankruptcy 0422 Appeal 28 USC 158 0423 Withdrawal 28 llSC 157

Prisoner Petitions 0535 Death Penalty
o 540 Mandamus & Other o 550 Civil Rights o 555 Prison Condition

oProperty Rights 820 Copyrights
o0830 Patent 840 Trademark

Federal Tax Suits 0870 Taxes (liS plaintiff or
defendant 0871 IRS-Third Party 26
liSe 7609

F. Pro Se General Civil
Forfeitu re/Penalty 0 610 Agriculture 0620 Other Food &Drug 0 625 [)rug Related Seizure
of Property 21 liSe 881 0630 Liquor La ... s 0640 RR & Truck 0650 Airline Regs 0660 Occupational
Safety!Health 0690 Other
Other Statutes 0 400 State Reapportionment 0430 Banks & Banking 0450 Commerce/ICC
Rates/etc. 0460 Deportation

0 462
0465
0470

Naturalization Application Other Immigration Action~
Racketeer Influenced & Corrupt Organizations

0480 Consumer Credit
0 490 Cable/Satellite TV
0 810 Selective Service
0 850 Securities/Commodities! Exchange
0 875 Customer Challenge 12 lISC 3410

0 900 Appeal of fee determination under equal access to Justice

0 950 Constitutionality of State Statutes 0890 Other Statutory Action~ (if
not administrative agency

review or Privacy Act

Case 1:11-cv-01303-RMC-TBG-BAH Document 1-6 Filed 07/19/11 Page 2 of 2

~.------~--------------~,-------
o G. Habeas Corpus/ o H. r.mployment

o I. FOIAIPRIVACY o J. Student Loan

2255
D 530 Habeas Corpus-General D 510 MotionlVacate Sentence D 463 Habeas Corpus - Alien
Detainee

Discrimination
D 442 Civil Rights-Employment
(criteria: race, gender/sex, national origin, discrimination, disability

ACT
D 895 Freedom of Information Act D 890 Other Statutory Actions
(if Privacy Act)

D 152 Recovery of Defaulted
Student Loans
(excluding veterans)

age, religion, retaliation)

*(If pro se, select this deck)'

*(If pro se, select this deck)'

o K. LaborlERISA
(non-employment)
D 710 Fair Labor Standards Act D 720 Labor/Mgmt. Relations D 730 Labor/Mgmt. Reporting &
Disclosure Act
D 740 Labor Railway Act D 790 Other Labor Litigation D 791 Empl. Ret. Inc. Security Act

o L. Other Civil Rights
(non-employment)
D 441 \;oting (if not Voting Rights
Act)
D 443 Housing/Accommodations D 444 Welfare D 440 Other Civil Rights D 445 American wlDisabilities-
Employment
D 446 Americans w/Disabilities-
Other

o M. Contract

~N. Three-Judge Court

D 110 Insurance

@ 441 Civil Rights-Voting

D 120 Marine

(if Voting Rights Act)

D 130 Miller Act D 140 Negotiable Instrument D 150 Recovery of Overpayment &

Enforcement of Judgment

D 153 Recovery of Overpayment of

Veteran's Benefits
D 160 Stockholder's Suits

D 190 Other Contracts

D 195 Contract Product Liability

D 196 Franchise

V. ORIGIN
U{)(!f, I Original 0 Proceeding

2 Removed from State Court

o 3 Remanded from Appellate Court

o 4 Reinstated or Reopened

o 5 Transferred from another district (specify)

o 6 Multi district Litigation

o 7 Appeal to District Judge from Mag. Judge

__ ~t\J~S_E;, 9f_~~n9.~tlCn:E;, Ttl I:; !}.§.J~IY![~~1AT'yJ.LUj\lPJ<:F._'YI1[S:JI_\.:QlL 113I:; nLl~G t\~!.> }YIiIH b_B_RJ!1;I:: ~1.tlT_E_I\1.EJ\'.LQt:. <';1 l1S_E.:.t 1
1 2 USC Section 1973c (Section 5)

VII. REQUESTED IN

CHECK IF rHIS IS A CLASS

COMPLAINT

D

ACTION UNDER F R C P 23

DEMAND $ ~ ____________ : Check YES~fdemanded

JURY DEMAND:

YES L-J NO

VIII. RELATED CASE(S) IF ANY

(See instruction)

0 YES

NO

DATE July 18, 2011

SIGNATlJRE OF ATTORNEY OF RECORD

INSTRlJCTlONS FOR COMPLETING CIVIL COVER SHEET JS-44 Authonty for Civil Cover Sheet

rhe JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleadings or other papers as reqUired by law, except as proVided by local rules of court ThiS form, approved by the JudicIal Conference orthe United States In September 1974, IS reqUired for the use of the Clerk of Court tClr the purpose oflnillating the Civil docket sheet Consequently a Civil cover sheet IS submitted to the Clerk of Court tar each Civil complaint flied Listed below are lipS for completing the clvli cover sheet rhese lipS COinCide With the Roman Numerals on the Cover Sheet

I.

COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence Use 11001 to mdlcate plamtltTls reSIdent of

Washington, DC, 88888 IfplamtltTls reSIdent of the United States but not of Wash mgton, DC, and 99999 IfplamtltTls outSIde the Umted States

III.

CITIZENSHIP OF PRINCIPAL PARTIES ThIS sectIOn IS completed Q!!]y If dlverSlly of Clllzenshlp was selected as the BaSIS of Junsdlctlon under Secl10n

II

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IV.
VI. VIII.

CASE ASSIGNMENT AND NATURE OF SUIT The assIgnment of aJudge to your case wlil depend on the category you select that best represents the ~ cause ofacllon found m your complamt You may select only ~ category You must also select ~ corresponding nature of SUIt found under the category of case
CAUSE OF ACTION Cite the US Clvli Statute under whIch you are filmg and wnte a bnefstatement of the pnmary cause
RELATED CASES, IF ANY If you mdlcated that there IS a related case, you must complete a related case form, whIch may be obtamed from the Clerk's Office

Because of the need tar accurate and complete mformatlOn, you should ensure the accuracy of the mformatlon proVIded pnor to slgnmg the form

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 11 Filed 08/16/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

STATE OF TEXAS,

)

)

Plaintiff,

)

)

v.

)

)

)

UNITED STATES OF AMERICA and )

ERIC H. HOLDER, in his official

)

capacity as Attorney General of the

)

United States

)

)

Defendants.

)

)

Civil Action No. 11-1303 (RMC-TBGBAH)

ORDER Before the Court is the Motion to Intervene as Defendants filed by Wendy Davis, Marc Veasey, John Jenkins, Vicki Bargas and Romeo Munoz (“Movants”). Movants seek to intervene either as of right, see Fed. R. Civ. P. 24(a)(2), or permissively, see Fed. R. Civ. P. 24(b)(1). The parties oppose intervention as of right, but agree that permissive intervention may be proper in this matter. Accordingly, upon consideration of the motion, the parties’ memoranda, and the entire record herein, it is hereby ORDERED that the Motion to Intervene as Defendants pursuant to Federal Rule of Civil Procedure 24(b)(1) [Dkt # 5] is GRANTED; it is further ORDERED that defendant-intervenors Wendy Davis, Marc Veasey, John Jenkins, Vicki Bargas and Romeo Munoz shall file their Answer to the Complaint no later than August 24, 2011.

Case 1:11-cv-01303-RMC-TBG-BAH Document 11 Filed 08/16/11 Page 2 of 2

SO ORDERED Date: August 16, 2011

/s/ THOMAS B. GRIFFITH United States Circuit Judge
/s/ ROSEMARY M. COLLYER United States District Judge
/s/ BERYL A. HOWELL United States District Judge

-2-

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 32 Filed 09/08/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

STATE OF TEXAS,

)

)

Plaintiff,

)

)

v.

)

)

)

UNITED STATES OF AMERICA and )

ERIC H. HOLDER, in his official

)

capacity as Attorney General of the

)

United States

)

)

Defendants.

)

)

Civil Action No. 11-1303 (RMC-TBGBAH)

ORDER Before the Court are Motions to Intervene as Defendants filed by the Mexican American Legislative Caucus of the Texas House of Representatives [Dkt. # 13]; Greg Gonzales, Lisa Aguilar, Daniel Lucio, Victor Garza, Blanca Garcia, Josephine Martinez, Katrina Torres, and Nina Jo Baker, a group of Hispanic and African-American voters residing in Texas [Dkt. #14]; the Texas Legislative Black Caucus [Dkt. # 16]; the Texas Latino Redistricting Task Force [Dkt. # 17]; and the Texas State Conference of NAACP Branches, Juanita Wallace, Rev. Bill Lawson, Howard Jefferson, Ericka Cain, Nelson Linder, and Reginald Lillie [Dkt. # 28], (collectively “Movants”). Movants seek to intervene either as of right, see FED. R. CIV. P. 24(a)(2), or permissively, see FED. R. CIV. P. 24(b)(1). The Plaintiff opposes intervention on either grounds. The Defendants oppose intervention as of right, but do not oppose permissive intervention by the Movants. Upon consideration of the motions, the parties’ memoranda, and the entire record herein, it is hereby

Case 1:11-cv-01303-RMC-TBG-BAH Document 32 Filed 09/08/11 Page 2 of 2

ORDERED that the Motions to Intervene as Defendants pursuant to Federal Rule of Civil Procedure 24(b)(1) [Dkt. ## 13, 14, 16, 17, 28] are GRANTED; it is further
ORDERED that all defendant-intervenors shall file Answers to the Complaint no later than September 15, 2011.
SO ORDERED.

Date: September 8, 2011

/s/ THOMAS B. GRIFFITH United States Circuit Judge
/s/ ROSEMARY M. COLLYER United States District Judge
/s/ BERYL A. HOWELL United States District Judge

-2-

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 65 Filed 10/07/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

STATE OF TEXAS,

)

)

Plaintiff,

)

)

v.

)

)

)

UNITED STATES OF AMERICA and )

ERIC H. HOLDER, in his official

)

capacity as Attorney General of the

)

United States, et al.

)

)

Defendants.

)

)

Civil Action No. 11-1303 (RMC-TBGBAH)

ORDER Before the Court is a Motion to Intervene filed by the Texas Democratic Party and its Chairman, Boyd Richie ( collectively “TDP”). TDP seeks to intervene either as of right, see FED. R. CIV. P. 24(a)(2), or permissively, see FED. R. CIV. P. 24(b)(1). The State of Texas opposes intervention on either ground. The Defendants United States and Attorney General Holder oppose intervention as of right, but do not oppose permissive intervention by TDP. TDP seeks to intervene because it speculates that while this action is pending, alteration to election deadlines for the 2012 primary and general elections in Texas may be necessary. TDP argues that this Court lacks jurisdiction to alter election deadlines, and it claims a unique interest in those deadlines as it will administer primary elections. TDP fails to meet the standard for intervention as of right because its does not claim an interest in the property or transaction that is the subject of this action. See FED. R. CIV. P. 24(a)(2). A party may make a claim for intervention as of right where (1) its motion is timely,

Case 1:11-cv-01303-RMC-TBG-BAH Document 65 Filed 10/07/11 Page 2 of 2

(2) it has an interest in the subject of the action, (3) the disposition of the action will impair or

impede its ability to protect that interest, and (4) its interest is not adequately represented by

existing parties. See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003). TDP

does not allege an interest in the subject of this action, whether Texas’s electoral redistricting

plans comply with Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. Rather, its claim is that

this Court does not have jurisdiction to issue certain types of equitable relief in this case. Such a

claim is premature. TDP’s entry into this case would not be “compatible with efficiency.” See

Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967).

TDP, likewise, does not allege a claim “that shares with the main action a

common question of law or fact,” and therefore does not meet the threshold for permissive

intervention. FED. R. CIV. P. 24(b)(1)(B).

Upon consideration of the foregoing, it is

ORDERED that the Motion to Intervene [Dkt. # 48] is DENIED without

prejudice.

SO ORDERED.

Date: October 7, 2011

/s/ THOMAS B. GRIFFITH United States Circuit Judge

/s/ ROSEMARY M. COLLYER United States District Judge

/s/ BERYL A. HOWELL United States District Judge
-2-

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 106 Filed 11/08/11 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

STATE OF TEXAS,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES OF AMERICA, and )

ERIC H. HOLDER, in his official

)

capacity as Attorney General of the

)

United States

)

)

Defendants, and

)

)

Wendy Davis, et. al.,

)

)

Intervenor-Defendants. )

)

Civil Action No. 11-1303 (RMC-TBG-BAH)

ORDER

Plaintiff State of Texas seeks summary judgment and a declaration that (1) the State’s

proposed redistricting plans for the U.S. House of Representatives, the Texas House of Representatives, and the Texas State Senate1 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 and otherwise fully comply with Section 5 of the Voting Rights Act of 1965, as amended,

42 U.S.C. § 1973c; and (2) that the State’s redistricting plans for the U.S. House of Representatives,

Texas House of Representatives, and Texas State Senate may be implemented without delay.

The three-judge panel appointed to hear the case received extensive briefing and held

lengthy oral argument on November 2, 2011. If any one of the plans is not precleared by this Court

1 Without challenge to the State’s redistricting plan for the Texas State Board of Education, the Court gave preclearance to that plan by Order dated September 22, 2011.

Case 1:11-cv-01303-RMC-TBG-BAH Document 106 Filed 11/08/11 Page 2 of 2

at this stage in the proceedings, the District Court for the Western District of Texas must designate a substitute interim plan for the 2012 election cycle by the end of November.2 See Perez v. Texas,

No. 11-360, Am. Order [Dkt. # 391] (W. D. Tex. Oct. 4, 2011) (consolidated action). Therefore, the

Court issues its Order promptly and will issue a memorandum opinion hereafter.

Having carefully considered the entire record and the parties’ arguments, the Court

finds and concludes that the State of Texas used an improper standard or methodology to determine

which districts afford minority voters the ability to elect their preferred candidates of choice and that

there are material issues of fact in dispute that prevent this Court from entering declaratory judgment

that the three redistricting plans meet the requirements of Section 5 of the Voting Rights Act. See

42 U.S.C. 1973c.

Accordingly, it is hereby

ORDERED that the Motion for Summary Judgment [Dkt. # 41] is DENIED.

SO ORDERED.

Date: November 8, 2011

/s/ THOMAS B. GRIFFITH United States Circuit Judge

/s/ ROSEMARY M. COLLYER United States District Judge

/s/ BERYL A. HOWELL United States District Judge
2 On November 7, 2011, the District Court for the Western District of Texas issued an order modifying the election schedule in Texas and changing the date pursuant to which prospective candidates for office may first file an application for a place on the Primary Ballot to November 28, 2011. See Perez v. Texas, No. 11-360, Am. Order [Dkt. # 489] (W. D. Tex. Nov. 7, 2011) (consolidated action).

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

STATE OF TEXAS,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES OF AMERICA, and )

ERIC H. HOLDER, in his official

)

capacity as Attorney General of the

)

United States

)

)

Defendants, and

)

)

Wendy Davis, et. al.,

)

)

Intervenor-Defendants. )

)

Civil Action No. 11-1303 (TBG-RMC-BAH)

MEMORANDUM OPINION Before: GRIFFITH, Circuit Judge, COLLYER & HOWELL, District Judges.
COLLYER, District Judge: In the summer of 2011, the Texas legislature redrew the boundaries for voting districts in the State to account for the report of the 2010 Census that its population had grown in the last decade by more than four million people, about two-thirds of whom are Hispanic. As required by Section 5 of the Voting Rights Act, Texas has asked this Court for a declaratory judgment that its redistricting plans have neither the purpose nor the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. The United States contends that the proposed congressional and State House districts

adversely affect the voting rights of Hispanics. Various Intervenors assert the same claim as the United States, but some of them target the plans for the State Senate as well.
On November 8, 2011, this Court denied summary judgment to Texas because: 1) Texas used an improper standard and/or methodology to determine which districts afford minority voters the ability to elect their candidates of choice; and 2) material facts remain in dispute regarding whether the plans in fact comply with Section 5 of the Voting Rights Act. Order [Dkt # 106]. This Opinion provides our analysis.
I. FACTS A. Procedural Background On July 19, 2011, Texas filed the instant complaint for declaratory judgment that redistricting plans1 it adopted to govern elections for the U.S. House of Representatives (“Congressional Plan”), the State House of Representatives (“State House Plan”), the State Senate (“State Senate Plan”) (collectively the “Plans”), and the State Board of Education complied with Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. The United States and several of the Intervenors2 (collectively with the United States, the “Defendants”) filed answers challenging the Congressional Plan, the State House Plan, and the State Senate Plan. No one
1 Redistricting is a process by which national, state, and local voting districts are redrawn, normally after each national census because of population changes over the intervening decade. 2 This Court has granted seven parties status as Defendant-Intervenors. Each Intervenor contests various aspects of one to three of the plans in their capacity as individual voters, state elected representatives, or civil rights advocacy groups. The Davis Intervenors are Texas State Senators and representatives from districts in the Fort Worth area. The Mexican American Legislative Caucus is a caucus group in the Texas House of Representatives. The Gonzales Intervenors are a group of Hispanic and Black voters residing in Texas. The Texas Legislative Black Caucus is composed of seventeen members of the Texas House of Representatives. The Texas Latino Redistricting Task Force is a group of Hispanic organizations focusing on redistricting and voter registration. The Texas State Conference of NAACP Branches and the League of United Latin American Citizens are civil rights and advocacy groups concerned with minority voting rights in Texas.
2

challenges the redistricting plans for the State Board of Education.3 Texas moved for summary
judgment on September 14, 2011. The parties engaged in swift discovery, filed briefs and
exhibits, and presented oral argument to this Court on November 2, 2011.
A three-judge court in the Western District of Texas is currently hearing
constitutional challenges and challenges under Section 2 of the Voting Rights Act to these same
redistricting Plans. Mindful of the fact that our refusal to grant preclearance would require that
court to draw interim plans because of election-related deadlines in Texas, this Court issued an
order denying summary judgment on all three Plans on November 8, 2011. See Dkt. # 106; see
also Perez v. Texas, No. 5:11-360, Am. Order [Dkt. # 391] (W. D. Tex. Oct. 4, 2011)
(consolidated action); Davis v. Perry, No. 5:11-788, Am. Order [Dkt. # 15] (W. D. Tex. Oct. 4,
2011). The Court now issues its Memorandum Opinion explaining its reasoning.
B. Statutory Background
The Voting Rights Act of 1965 (“VRA”), Pub. L. No. 89-110, 79 Stat. 437
(codified as amended at 42 U.S.C. § 1973 et seq.), was enacted to counteract attempts by states
and local jurisdictions to evade the Reconstruction Amendments’ prohibitions on racial discrimination in voting.4 Litigation and court orders had been slow and often ineffective in
3 The Texas State Board of Education (“BOE”) is composed of fifteen single-member districts. Texas claimed that the benchmark plan for the BOE contained three Hispanic “opportunity” districts, with a Hispanic Citizen Voting Age Population (“HCVAP”) of greater than fifty percent, and two Black “opportunity” districts, with a Black Voting Age Population (“BVAP”) of greater than thirty percent. In the proposed BOE plan, Texas states that there are also three Hispanic “opportunity” districts that have an HCVAP of greater than fifty percent, and two Black “opportunity” districts with BVAPs of greater than thirty percent. This Court provided the parties another opportunity to object to preclearance of the proposed BOE plan during a teleconference held on September 21, 2011. After no party voiced opposition, this Court entered declaratory judgment in favor of Texas on that plan on September 22, 2011. See Minute Entry Order (Sept. 22, 2011). Consequently, the BOE plan is not in contention here. 4 The VRA was extended in 1975 to cover members of language minority groups, such as Hispanics. Through reference to 42 U.S.C. § 1973b(f)(2) in both subsections (a) and (b), Section 5 extends its protection to language minority groups:
3

curbing the egregious abuses that jurisdictions had used to impede minority voters in the exercise of their constitutionally protected rights. South Carolina v. Katzenbach, 383 U.S. 301, 313-14 (1966). The VRA contains a set of “sterner and more elaborate measures” that Congress found necessary to fight the “insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” Id. at 309.
The VRA contains a complex remedial scheme “aimed at areas where voting discrimination has been most flagrant.” Id. at 315. These targeted, temporary remedial measures apply to a state or local political body that is a “covered” jurisdiction as defined by Section 4(b) of the VRA, i.e., one that has been found, according to a statutory formula, to have engaged in voting discrimination. See 42 U.S.C. § 1973b(b); Riley v. Kennedy, 553 U.S. 406, 413 (2008). Section 5 is one of those temporary remedial measures. It was enacted as “a response to a common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as the old ones had been struck down.” Beer v. United States, 425 U.S. 130, 140 (1976) (quoting H.R. REP. No. 94-196, at 57-58 (1970)).
Section 5 requires covered jurisdictions to obtain preclearance for any changes to voting qualifications, requirements, standards, practices, or procedures either administratively from the Attorney General or from the District Court for the District of Columbia. Section 5 places the burden of proof on the covered jurisdiction to show that the planned change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of
No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group. 42 U.S.C. § 1976b(f)(2).
4

race or color, or [membership in a language minority group].” 42 U.S.C. § 1973c(a). Subsection
1973c(b) of the statute further provides that:
Any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or [membership in a language minority group], to elect their preferred candidates of choice denies or abridges the right to vote . . . .
Id. § 1973c(b). The goal of subsection 1973c(b) “is to protect the ability of such citizens to elect
their preferred candidates of choice.” Id. § 1973c(d). In addition, the statute further explains
that “[t]he term ‘purpose’. . . shall include any discriminatory purpose.” Id. § 1973c(c). No
change to a voting practice or procedure, including an electoral redistricting plan, see Miller v.
Johnson, 515 U.S. 900, 905-06 (1995), may be implemented until preclearance is granted. Reno
v. Bossier Parish School Bd. (Bossier I), 520 U.S. 471, 477-78 (1997).
Section 5 originally was intended to be in effect for only five years, but Congress has re-authorized it four times, most recently in 2006 for twenty-five years.5 Nw. Austin Mun.
Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2510 (2009). During the 2006 reauthorization,
Congress amended the statute to clarify what it meant by “effect” and “purpose” under Section 5,
Shelby Cnty. v. Holder, No. 10-cv-651, 2011 WL 4375001, at *10-11 (D.D.C. Sept. 21, 2011),
and added language to emphasize that a Section 5 inquiry must focus on whether a proposed
change will “diminish[]” the ability of minority voters “to elect their preferred candidates of
choice.” 42 U.S.C. § 1973c(b), (d); H.R. REP. NO. 109-478, at 46 (2006) (“Thus, in amending
Section 5 to add a new subsection (b), the Committee makes clear that in making preclearance
5 On July 27, 2006, President George W. Bush signed into law the Fannie Lou Hamer, Rosa Parks, & Coretta Scott King Voting Rights Reauthorization & Amendments Act of 2006 (“2006 Amendments”), Pub. L. No. 109-246, 120 Stat. 577 (2006). This legislation was passed by a vote of 390-33 by the U.S. House of Representatives, and 98-0 by the Senate.
5

determinations under Section 5, the comparative ‘ability [of the minority community] to elect preferred candidates of choice’ is the relevant factor to be evaluated . . . .” (alterations in original)).6 Speaking broadly, Congress proscribed “any” change that would have such an “effect” because such a change “denies or abridges the right to vote.” 42 U.S.C. § 1973c(b). Thus, a covered jurisdiction will not meet the requirements of Section 5 when a proposed change to a voting procedure or plan would have a retrogressive effect on the “ability” of minority voters to elect candidates of their choice. Id.
The 2006 Amendments also proscribe “any” change that “has the purpose of” diminishing the ability of minority voters to elect candidates of their choice. Congress sought to ensure that “purpose” was no longer limited to a “retrogressive purpose,” as the Supreme Court had held in Reno v. Bossier (Bossier II), 528 U.S. 320 (2000), see 42 U.S.C. § 1973c(b)-(c); H.R. REP. NO. 109-478, at 46, but covered more broadly “any discriminatory purpose.” 42 U.S.C. § 1973c(c) (emphasis added).
Defendants challenge both the effect of and the purpose behind Texas’ redistricting Plans. In particular, this lawsuit focuses on the Plans’ effect on Hispanic and Black voters in Texas and whether these Plans were enacted with a discriminatory purpose aimed at such voters. For the purposes of the VRA, Hispanic citizens are treated as members of a language minority group. See 42 U.S.C. § 1973l(c)(3) (“‘[L]anguage minority group’ means persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.”).
6 The House Committee on the Judiciary reported H.R. 9, the Fannie Lou Hamer, Rosa Parks, & Coretta Scott King Voting Rights Reauthorization & Amendments Act of 2006, out of Committee by a vote of 33-1. There was no dissenting minority opinion to the Committee Report.
6

1. “Effects” Analysis The Section 5 evaluation of whether a new procedure has “the effect of denying or abridging the right to vote” is not a question of constitutional law but of statutory construction, and is dependent on congressional intent. Beer, 425 U.S. at 139-40. By enacting Section 5, Congress aimed to guarantee that minorities’ new gains in political participation would not be undone. Id. at 140-41. Thus, the Supreme Court has found that the “purpose of [Section] 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Id. at 141 (emphasis added); see 42 U.S.C. § 1973c(d) (“The purpose of [§ 1973(b)] is to protect the ability of such [minority] citizens to elect their preferred candidates of choice.”). Determining whether a new voting plan diminishes the ability to elect and thus has a retrogressive effect on minority voting rights necessarily requires a comparison between the voting plan in place and the proposed plan. Bossier I, 520 U.S. at 478. A covered jurisdiction’s existing plan serves as the “benchmark” against which the “‘effect’ of voting changes is measured.” Id. The Supreme Court has instructed that Section 5 is not ameliorative and the focus of its retrogression analysis is on “freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory.” Beer, 425 U.S. at 140 (quoting H.R. REP. NO. 94-196, at 57-58) (internal quotation marks omitted). If a plan does not increase the degree of discrimination against a minority voting population, it is entitled to preclearance. City of Lockhart v. United States, 460 U.S. 125, 134-35 (1987). For example, plans that preserve or actually increase minority voting strength should be precleared unless they have a discriminatory purpose. See Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (quoting Lockhart, 460 U.S. at 134
7

n.10; Bush v. Vera, 517 U.S. 952, 983 (1996)); Beer, 425 U.S. at 141 (holding that an “ameliorative new legislative apportionment cannot violate [Section] 5 unless . . . [it] so discriminates on the basis of race or color as to violate the Constitution”).
Beer described Section 5 as requiring covered jurisdictions to protect minority groups’ “effective exercise of the electoral franchise,” which meant the “ability of minority groups to participate in the political process and to elect their candidate of choice.” 425 U.S. at 141 (emphasis added). Although the Supreme Court used this phrase in subsequent decisions, it was not until Georgia v. Ashcroft that the Court provided further explanation of its reasoning. Georgia v. Ashcroft placed greater emphasis on minority participation in electoral politics, holding that a “court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice” but should look to the “totality of the circumstances” regarding voter participation, including “the extent of the minority group’s opportunity to participate in the political process.” 539 U.S. at 479-80 (emphasis added). Using this analysis, the Court stated that Section 5 accommodates choices by covered jurisdictions among systems of representation when redistricting, i.e., a jurisdiction may create “safe” majority-minority districts that may “virtually guarantee the election of a minority group’s preferred candidate”; it may create districts where a coalition of voters “will help to achieve the electoral aspirations of the minority group”; or it may add “influence districts,” where minorities play a “substantial, if not decisive, role in the electoral process.” Id. at 480-83. The Supreme Court concluded that the lower court’s retrogression analysis had focused too much on decreases in the Black population in majority-minority districts and had not properly credited increases in coalition and influence districts under Georgia’s proposed redistricting plan, which could offset potential losses in majority-minority districts. Id. at 486-87.
8

Congress disagreed with this analysis and amended Section 5 in response to Georgia v. Ashcroft during the VRA’s 2006 reauthorization. See H.R. REP. NO. 109-478, at 45; S. REP. NO. 109-295, at 18 (2006); see also LaRoque v. Holder, 650 F.3d 777, 794 (D.C. Cir. 2011); Shelby Cnty., 2011 WL 4375001, at *11. The 2006 Amendments clarified that Congress intended a Section 5 inquiry to focus on whether a proposed voting change will diminish the “ability [of minority citizens] to elect preferred candidates of choice.” H.R. REP. NO. 109-478, at 46 (emphasis added). Thus, Congress specified that any change that has the effect of diminishing citizens’ ability to elect a candidate of their choice on account of race, color, or membership in a language minority group “denies or abridges the right to vote” within the meaning of Section 5. 42 U.S.C. § 1973c(b); H.R. REP. NO. 109-478, at 46.
By these Amendments, Congress sought to make clear that it was not enough that a redistricting plan gave minority voters “influence”; a plan cannot diminish their ability to elect candidates. The House Report opined that leaving the Georgia v. Ashcroft standard in place would encourage states to disperse minority voters into different voting districts under an “influence” label and that gains made by minority voters in districts where they were represented by the candidate of their choice would be jeopardized. H.R. REP. NO. 109-478, at 45.
2. “Purpose” Analysis Section 5 also prohibits covered jurisdictions from implementing a plan that is enacted with the “purpose” of “denying or abridging the right to vote on account of race, color, or [membership in a language minority].” 42 U.S.C. § 1973c. In Bossier II, the Supreme Court held that a plan animated by a discriminatory purpose could nonetheless merit preclearance if its purpose was something other than to diminish a minority group’s ability to elect their preferred candidates. The government conceded that the plan proffered by the covered jurisdiction did not
9

have a retrogressive effect on the voting ability of the minority population. 528 U.S. at 324. The government argued that the Court should nonetheless deny preclearance because facts demonstrated that the plan was enacted with discriminatory intent. Id. at 328. In a 5-4 decision, the Supreme Court concluded that “the ‘purpose’ prong of § 5 covers only retrogressive dilution.” Id. In other words, Section 5 only prohibited plans that were enacted with the purpose to reduce minorities’ ability to elect — whether or not retrogression actually occurred. Section 5 did not, however, “prohibit preclearance of a redistricting plan enacted with a discriminatory but non-retrogressive purpose.” Id. at 341.
In the 2006 Amendments, Congress clarified that the “purpose” requirement of Section 5 prohibits not only voting plans enacted with a retrogressive purpose, but also plans devised with “any discriminatory purpose.” 42 U.S.C. § 1973c(c). The House Report characterized Bossier II as a severe limitation on the reach of the “purpose” prong, through which “Congress [had] sought to prevent covered jurisdictions from enacting and enforcing voting changes made with a clear racial animus, regardless of the measurable impact of such discriminatory changes.” H.R. REP. NO. 109-478, at 42. According to the House Report, Congress intended to restore the pre-Bossier II discriminatory purpose standard:
Voting changes that “purposefully” keep minority groups “in their place” have no role in our electoral process and are precisely the types of changes Section 5 is intended to bar. To allow otherwise would be contrary to the protections afforded by the 14th and 15th [A]mendment[s] and the VRA. Thus, by clarifying that any voting change motivated by any discriminatory purpose is prohibited under Section 5, the Committee seeks to ensure that the “purpose” prong remains a vital element to ensuring that Section 5 remains effective.
10

Id. at 43. To that end, Congress endorsed the framework in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), to determine “whether voting changes submitted for preclearance were motivated by a discriminatory purpose.” Id. Prior to Bossier II, courts had relied upon the factors set forth in Arlington Heights to assess whether a covered jurisdiction’s proposed change to its voting procedures was based upon a discriminatory purpose. See Arizona v. Reno, 887 F. Supp. 318, 322 (D.D.C. 1995); Busbee v. Smith, 549 F. Supp. 494, 516-17 (D.D.C. 1982), aff’d, 459 U.S. 1166 (1983). Indeed, Bossier I instructed lower courts conducting a Section 5 analysis to “look to . . . Arlington Heights for guidance,” where the Court had “set forth a framework for analyzing ‘whether invidious discriminatory purpose was a motivating factor’ in a government body’s decisionmaking.” 520 U.S. at 488 (quoting Arlington Heights, 429 U.S. at 266). The legislative history to the 2006 Amendments and reauthorization of the VRA demonstrate congressional agreement with that approach.
Arlington Heights was not a Voting Rights Act case. It involved the refusal of the Village of Arlington Heights, Illinois, to re-zone a tract of land for low-income housing, which was challenged as a violation of the Equal Protection Clause of the Fourteenth Amendment. In reaching its decision in favor of the Village, the Supreme Court identified multiple factors to assess whether the Village’s purpose was discriminatory. 429 U.S. at 267-68. The Court cautioned that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 266; see also Hunt v. Cromartie, 526 U.S. 541, 546 (1999) (describing such an inquiry as “an inherently complex endeavor”).
“[A]n important starting point,” the Court directed, is to consider whether the challenged action “bears more heavily on one race than another.” Arlington Heights, 429 U.S. at
11

266 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)) (internal quotation marks omitted).
In “easy” cases, “a clear pattern, unexplainable on grounds other than race, emerges from the
effect of the state action even when the governing legislation appears neutral on its face.” Id.
(citations omitted). That said, absent a pattern of discrimination which is “stark,” an action’s
“impact alone is not determinative, and the Court must look to other evidence.” Id. (footnote
omitted). Courts should consider “[t]he historical background of the decision . . . particularly if
it reveals a series of official actions taken for invidious purposes”; “[t]he specific sequence of
events leading up [to] the challenged decision [which] also may shed some light on the
decisionmaker’s purposes”; and “[t]he legislative or administrative history,” which can be
“highly relevant . . . where there are contemporary statements by members of the decisionmaking
body, minutes of its meetings, or reports.” Id. at 267-68.
C. Parties’ Arguments Regarding the Legal Standard to Measure Retrogressive Effect
Texas and the Defendants contest the standard for measuring whether a proposed
redistricting plan would have a retrogressive effect on minority voters’ ability to elect their
candidates of choice. Texas relies on voting population demographics alone. In both its
benchmark and proposed plans, Texas counted as ability districts, which it calls “opportunity districts,” 7 those districts in which Blacks make up forty percent of the voting-age population
and Hispanics make up fifty percent of the citizen voting-age population. Texas omitted
7 Texas’ use of “opportunity district” connotes a measure of uncertainty that is not supported by the language of the VRA. “Opportunity” denotes conditions that are “favorable” to such an outcome. See WEBSTER’S INTERNATIONAL NEW DICTIONARY 1583 (3d ed. 2002) (defining “opportunity” as “a combination of circumstances, time, and place suitable or favorable for a particular activity or action” (emphasis added)). The statutory standard is whether minorities have an “ability to elect” a preferred candidate. An “ability” denotes the “the physical, mental, or legal power to perform,” id. at 3, a concept that requires a greater degree of certainty that an event can occur. Thus, in line with the language of Section 5, this Court references “ability districts” as districts that afford minority voters the electoral power protected under Section 5. This term is used both for districts that have afforded minority voters the ability to elect their preferred candidate in the past and those that predictively will do so in the future.
12

consideration of all other factors. The United States, joined by all Intervenors, argues for a multi-factored “functional” analysis, which starts with an examination of voting-age population but also analyzes additional factors. See Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011).
Texas contends that the 2006 Amendments to Section 5 provide that covered jurisdictions need only maintain those districts where minority voters can control the election and posits that majority-minority districts are best suited to accomplish this goal. Texas relied on voting-age population statistics to ensure that its proposed redistricting Plans were not retrogressive. Texas explains that each of its Plans maintains at least the same number of districts as in the benchmark plans in which a specified minority constitutes a percentage of eligible voters sufficient to determine the outcome of elections. Texas sets this percentage at more than fifty percent of the citizen voting-age population for Hispanics (“HCVAP”) and forty percent of the voting-age population for Blacks (“BVAP”) in the State. Texas “defines ‘ability to elect’ districts based upon . . . demographic data indicating [that] a [single] cohesive racial or ethnic group has the ability to elect candidates of their choice — whether or not the candidate receives support from other voters in the district.” Pl.’s Reply [Dkt. # 92] at 27. Thus, Texas’ arguments that its Plans have no retrogressive effect are solely based upon data measuring minority voting-age population.
Defendants challenge this logic and its results. All Defendants ask this Court to conclude, consistent with the guidance issued by the DOJ in 2011 (“2011 DOJ Guidance”), that there is no single measure that determines minorities’ ability to elect:
In determining whether the ability to elect exists in the benchmark plan and whether it continues in the proposed plan, the Attorney General does not rely on any predetermined or fixed demographic
13

percentages at any point in the assessment.” See [2011 DOJ Guidance]. Determining whether the ability to elect exists “requires a functional analysis of the electoral behavior within the particular jurisdiction or election district.” Id. Besides population, this includes an examination of election history and voting patterns within the jurisdiction, voter registration and turnout information.8
U.S. Mem. [Dkt. # 79] at 6; see Intervenors’ Joint Mem. [Dkt # 74] at 7.
Although the United States relies on the multi-factored 2011 DOJ Guidance, the
test it offered to measure retrogression, while more comprehensive than Texas’ approach, still
relied upon a limited set of data. Using data compiled by the State, the United States’ expert, Dr.
Lisa Handley, performed a functional election analysis in which she assessed data on statewide
elections and elections within specific voting districts in order to identify which districts afford
minority voters the ability to elect. She then recompiled data on certain statewide elections
based upon the proposed new boundaries of voting districts and determined how often minority-
preferred candidates would succeed in the redrawn districts. The United States used this data to
assert that minority groups’ ability to elect would be lost in certain proposed congressional and
State House districts.
The Intervenors also take issue with Texas’ view that all districts where Hispanic
voters constitute a majority of the citizen voting-age population or Black voters constitute forty
8 The 2011 DOJ Guidance indicates that the DOJ also assesses: whether minority concentrations are fragmented among different districts; whether minorities are overconcentrated in one or more districts; whether alternative plans satisfying the jurisdiction’s legitimate governmental interests exist, and whether they were considered; whether the proposed plan departs from objective redistricting criteria set by the submitting jurisdiction, ignores other relevant factors such as compactness and contiguity, or displays a configuration that inexplicably disregards available natural or artificial boundaries; and, whether the plan is inconsistent with the jurisdiction’s stated redistricting standards.
76 Fed. Reg. 7470-01, at 7472.
14

percent of the voting-age population are ipso facto “ability to elect” districts. They advocate for

a multi-factored approach that accounts for:



the size of a district’s minority population considering citizenship rates;

 voting-age population and voter registration;



the extent of racially polarized voting;



the presence of electoral coalitions involving minority voters;



the role of incumbency in past elections;

 factors that affect turnout rates by race; and



recent electoral trends.

Intevenors’ Joint Mem. at 6-7.

All Defendants contend that Section 5 protections are not limited to districts

where a single minority group has the ability to elect its candidate of choice, but extend to

districts where one group of minority voters joins together with voters of a different racial or

language background to elect the minority voters’ candidate of choice. The United States points

to language in the House Report accompanying the 2006 Amendments explaining that Section 5

protects minorities’ ability to elect candidates of choice either “directly or coalesced with other

voters.” U.S. Mem. at 14 (quoting H.R. REP. NO. 109-478, at 46). Defendants urge this Court to

conclude that the proposed Plans are retrogressive because they do not account for the loss of

coalition districts, while Texas contends that such districts are not protected under the VRA.

Defendants also argue that where, as in Texas, a proposed plan contains an

increased number of voting districts, the percentage of minority ability districts in the proposed

plan should be measured against the percentage of minority ability districts in the benchmark

15

plan. Defendants ask this Court to find that the Congressional Plan is retrogressive because it increases the number of electoral districts (in significant part because of the increase in the Hispanic population in Texas), but allegedly does not increase the number of ability districts for Hispanic voters.
Finally, the Intervenors, most specifically the Texas Legislative Black Caucus (“TLBC”), the League of United Latin American Citizens (“LULAC”), and the Texas State Conference of NAACP Branches, assert that Section 5 not only protects against the diminishment of an existing ability to elect, but also the diminishment of an emerging ability to elect. These Intervenors contend that Section 5’s retrogression standard must include an assessment of whether redistricting forestalls emerging minority electoral opportunities in benchmark districts. They argue that, because a retrogression analysis under Section 5 in some measure looks to the future effect of changes in voting practices, it must protect against the reduction of predictable future gains in minority voting strength.
D. Parties’ Arguments Regarding the Contested Plans Applying their own respective retrogression analyses, the parties dispute the alleged retrogressive effect that Texas’ proposed restricting Plans will have on minority voters’ ability to elect their candidates of choice. The parties’ comparison of the benchmark plans, i.e., the most recent electoral plans in effect for the U.S. House of Representatives, Texas State Senate, and Texas House of Representatives,9 with Texas’ proposed redistricting Plans leads
9 Texas identified the following benchmark plans. For the U.S. House of Representatives, the State identified plan C100, which was implemented in 2006 by the U.S. District Court for the Eastern District of Texas in LULAC v. Perry, 457 F. Supp. 2d. 716 (E.D. Tex. 2006). For the Texas House of Representatives, it identified plan H100, which was implemented in 2001 by the same district court in Balderas v. Texas, No. 01-158, Final Judgment [Dkt # 458] (E.D. Tex. Nov. 28, 2001). For the Texas State Senate, it identified plan S100, which was implemented in 2001 after it received preclearance from the DOJ.
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them to dispute which districts should be counted as minority ability districts in both the benchmark and proposed Plans.10
1. The Congressional Plan In its analysis of the benchmark congressional districts, Texas identified, out of a total of thirty-two districts, seven Hispanic ability districts, each of which allegedly has an HCVAP of more than fifty percent.11 Texas concedes that under the proposed Congressional Plan, Congressional District (“CD”) 27 would no longer be an ability district for Hispanics. Texas counters that this loss is more than offset by two new Hispanic ability districts: approximately 71.7 percent of the citizen voting age population of CD 34 will be Hispanic; 51.9 percent of CD 35 will be as well. As a result, Texas asserts that its proposed Congressional Plan will add one Hispanic ability district, increasing the number of Hispanic ability districts from seven to eight. The proposed Congressional Plan will thus, according to Texas, ameliorate rather than retrogress Hispanic voting power in the State. Texas also asserts that Black voting power in the State will be enhanced under the Congressional Plan. Currently, only CD 18 has a BVAP of more than forty percent. With the new plan, CD 30 will also.12 The United States agrees that the proposed Congressional Plan does not retrogress Black voting power, and appears to credit Texas with three (not just two) Black ability
10 For example, Texas identified eight minority ability districts in the benchmark congressional plan while the United States identified ten. Likewise, Texas identified forty-three minority ability districts in the benchmark plan for the Texas House while the United States identified fifty. 11 Texas identified Congressional Districts 15, 16, 20, 23, 27, 28, and 29 as Hispanic ability districts in the benchmark. 12 Without explaining its relevance, Texas also points out that CD 9, which has a more than thirty percent but less than forty percent BVAP, will maintain that percentage under the proposed plan.
17

congressional districts in the Congressional Plan. According to the United States, CDs 9, 18, and 30 are, and will remain, Black ability districts in both the benchmark and the proposed plan. The United States argues, however, that Hispanic voting power will retrogress under the proposed Congressional Plan because: 1) Texas’ Congressional Plan does not create any new Hispanic ability districts, despite a significant increase in the Hispanic population and four new congressional districts in the State; and 2) CD 23, which Texas counts as a Hispanic ability district under the benchmark, would not be an ability district in the proposed plan.
Both the United States and Texas agree that the proposed Congressional Plan would include at least seven Hispanic ability districts (CDs 15, 16, 20, 28, 29, 34, and 35) and that CD 27, which was a Hispanic ability district under the benchmark, would lose this status. The parties dispute the status of CD 23 under the proposed plan. Although both agree that CD 23 is a Hispanic ability district under the benchmark, they disagree as to its status under the proposed plan. Texas asserts that CD 23 will continue to be a Hispanic ability district in the proposed plan because it will have an HCVAP of 58.5 percent. The United States argues that CD 23’s new boundaries, which will allegedly include Hispanics with lower voter turnout, will actually decrease Hispanic voter participation and diminish their ability to elect. However, the United States agrees that the alleged addition of CDs 34 and 35 as Hispanic ability districts in the proposed Congressional Plan would provide Texas with seven total Hispanic ability districts under the proposed plan.
The Gonzales Intervenors argue that CD 25 should be counted in the benchmark as a minority ability district and that the proposed Congressional Plan has a retrogressive effect on this district. They argue, with no opposition from Texas, that Hispanic, Black, and fifty percent of White voters in CD 25 have voted cohesively in support of minority preferred
18

candidates. But CD 25 will lose large numbers of minority voters in the proposed plan, and these voters will be replaced by an influx of White voters whose voting behavior differs substantially from the Whites who voted with minorities in the benchmark.
Finally, the United States and several Intervenors assert that the proposed Congressional Plan is retrogressive because it fails to recognize adequately the significance of the Hispanic contribution to Texas’ population growth in the last decade. According to the 2010 Census, the population of the State has grown by over four million people since 2000, of which approximately two-thirds are Hispanics. This population surge has resulted in a gain of four seats in the U.S. House of Representatives, increasing the number of Texas delegates from thirtytwo to thirty-six, an increase unprecedented for a state fully covered by Section 5. U.S. Mem. at 22 n.9. Despite the historic increase in the number of congressional seats, these Defendants argue that Texas drafted a redistricting plan that creates no new Hispanic ability districts. They argue that this is sufficient evidence that the proposed Congressional Plan is retrogressive, because maintaining at seven the number of Hispanic ability districts in the face of this surge in Hispanic population would reduce the proportion of Hispanic ability districts in Texas’ congressional delegation.13 Texas responds that a redistricting plan that preserves the preexisting number of minority ability districts will always satisfy Section 5’s retrogression standard.
13 The United States and the Latino Redistricting Task Force Intervenors calculate that Hispanic voters have the ability to elect preferred candidates in 21.9 percent of the benchmark districts but only in 19.4 percent of the districts in the Congressional Plan.
19

2. The Texas House of Representatives Plan In the benchmark plan for the Texas House of Representatives, Texas identifies thirty districts out of a total of 150 that have an HCVAP of more than fifty percent, which, by Texas’ measure, afford Hispanic citizens the ability to elect their candidates of choice.14 According to Texas, the proposed State House Plan will also have thirty districts that have an HCVAP of more than fifty percent, allegedly maintaining the same number of Hispanic ability districts as in the benchmark. Texas concedes that State House District (“HD”) 33, which is currently a Hispanic ability district under the benchmark plan, will no longer be such a district in the proposed State House Plan. Texas claims, however, that “new” HD 148 will offset that loss. With regard to the Black minority population, Texas identifies eleven districts in the benchmark plan that have a BVAP of more than forty percent, and twelve districts with the same BVAP of more than forty percent in the proposed State House Plan. The proposed plan adds HD 27 as a new Black ability district. Based on these population statistics, Texas contends that its proposed State House Plan will not have a retrogressive effect on the ability of Hispanic or Black voters to elect their candidates of choice to the Texas House of Representatives. The United States and several Intervenors, however, disagree. Notably, the United States does not believe the proposed State House Plan would retrogress Black voting power.15 However, according to the United States and several Intervenors, the State House Plan would retrogress Hispanic voting power. Based on its retrogression analysis, the United States
14 The thirty Hispanic ability districts that Texas identifies in the House benchmark plan are districts 31, 33-43, 7480, 104, 116, 117-119, 123-125, 140, 143, and 145. 15 The United States identifies twelve Black ability districts under the benchmark plan, 22, 95, 100, 109-111, 131, 139, 141, 142, 146, and 147. It identifies HD 27 as a new Black ability district in the proposed State House Plan, which brings its count of such districts to thirteen under the proposed plan.
20

identifies thirty-four Hispanic ability districts under the benchmark plan, of which three or four will allegedly be lost in the proposed State House Plan.16
Additionally, Dr. Handley opines that of four “coalition districts” in the benchmark, where minorities have been able to elect their candidates of choice by uniting with other minority groups, two — HD 149 and HD 27 — will be lost. In HD 149, a coalition of Hispanic, Black, and Asian voters has repeatedly elected its candidate of choice since 2004, but that ability would be lost under the proposed State House Plan. Although Dr. Handley also identified HD 27 as a coalition district in the benchmark, she noted that it would change to a Black ability district under the proposed plan. Due to alleged fracturing in these districts, the United States anticipates a loss of four to five minority ability districts, i.e., HDs 33, 35, 41, 117, and 149, in the State House Plan.
As noted, most Intervenors agree with the United States. In addition, Intervenors TLBC, LULAC, and the Texas State Conference of NAACP Branches argue that, under the State House Plan, minority voting power would be diminished in HDs 26, 101, 106, and 144, each of which was on the verge of becoming a minority ability district under the benchmark.
3. The Texas State Senate Plan Out of a total of thirty-one State Senate districts, Texas identifies seven Hispanic ability districts under the benchmark plan in which there is an HCVAP of greater than fifty
16 The United States asserts that Hispanic voters would lose the ability to elect their candidate of choice in HDs 33, 35, and 117 due to the reconfiguration of the Hispanic population in each district and racially polarized voting. Additionally, the government states that Hispanic voters may also lose their ability to elect in HD 41. The government’s expert was “unable to make a determination” regarding this district. U.S. Mem., Ex. 4 [Dkt. # 79-6] at 1 n.1 (Handley House Report). Texas argues that HDs 35, 41, and 117 will remain majority-minority, although there will be a decrease in HCVAP in HDs 35 and 41.
21

percent,17 and claims the same number based on the same districts in the proposed State Senate Plan. Additionally, Texas identifies two Black ability districts with a BVAP of more than forty percent under the benchmark plan, each of which remains such in the proposed State Senate Plan.18 The United States has similarly concluded that the proposed State Senate Plan is not retrogressive.
However, the Davis Intervenors allege that the State Senate Plan is retrogressive because it fractures Black and Hispanic communities that have formed a working coalition to elect their candidate of choice in Senate District (“SD”) 10.19 This is not a district deemed by Texas or the United States to be a minority ability district in the benchmark plan. However, the Intervenors claim both that it was an ability district in the benchmark and that, due to alleged fracturing of SD 10’s minority communities in the proposed State Senate Plan, minority voters in this district will no longer be able to elect their candidate of choice. Texas “refutes any argument that [SD] 10 was ‘dismantled’” and further states that SD 10 “in both the benchmark plan and [the proposed plan] is a crossover district, and not even a particularly strong one. Such districts are not protected under the VRA.” Texas Reply to Senate [Dkt. # 90] at 5.
Another group of Intervenors — TLBC, LULAC, and the Texas State Conference of NAACP Branches — argues that the proposed State Senate Plan will retrogress minority voters’ ability to elect in SD 15. These Intervenors allege that the combined Black and Hispanic
17 The Hispanic ability districts that Texas identifies in the State Senate benchmark plan are districts 6, 19-21, 26, 27, and 29. 18 The Black ability districts that Texas identifies in the State Senate benchmark plan are districts 13 and 23. 19 The Davis Intervenors provide a statement from County Commissioner Roy Brooks that Black and Hispanic leaders “deliberately and aggressively recruited Wendy Davis to run in 2008 . . . . To elect our candidate of choice, Blacks and Hispanics had to come together and vote together, which we did.” Davis Statement of Facts [Dkt. # 762] at ¶ 4. The Davis Intervenors allege that Senator Davis was elected with ninety-nine percent of the Hispanic and Black vote and that she only received thirty percent of the White vote. Id. at ¶ 6.
22

percentage of total population in proposed SD 15 decreases from 72.3 percent to 66.7 percent and that such a decrease will be electorally significant. Texas argues in response that “[SD] 15 was not a protected district under the benchmark because it was not a majority-minority district.”20 Texas Reply to Senate at 4. According to Texas, “In both the benchmark and [the proposed plan], [SD] 15 is a coalition district” and “such districts are not protected.” Id.
II. STANDARD FOR SUMMARY JUDGMENT Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255; Talavera, 638 F.3d at 308. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its
20 The HCVAP of benchmark SD 15 is twenty-four percent and the BVAP is 26.2 percent, thus, this district is not a majority-minority district for either group individually.
23

favor. Id. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
III. ANALYSIS A. Summary Judgment is Inappropriate Because Texas Used an Incorrect
Standard to Measure Retrogression Texas urges this Court to rely solely on voter demographic data to identify majority-minority districts and to count only such districts as minority ability districts. This Court cannot oblige. We find that a simple voting-age population analysis cannot accurately measure minorities’ ability to elect and, therefore, that Texas misjudged which districts offer its minority citizens the ability to elect their preferred candidates in both its benchmark and proposed Plans. Since Texas used the wrong standard, there are material facts in dispute about which districts are minority ability districts in the benchmark and proposed Plans. On this record, we cannot determine whether the Plans will have a retrogressive effect on Texas’ minority citizens’ ability to elect. Beginning with Beer, the Supreme Court has addressed the relationship between majority-minority districts and a minority group’s ability to elect, but has never suggested that the inquiry required by Section 5 can be satisfied by examining only the number of majorityminority districts. In fact, the Court has acknowledged that the inquiry is a complex undertaking. See Georgia v. Ashcroft, 539 U.S. at 480 (“The ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine.”); see also Holder v. Hall, 512 U.S. 874, 883-84 (1994) (plurality opinion) (“[T]here may be difficulty in determining whether a proposed change would cause retrogression . . . .”). Defendants correctly argue that population demographics provide only a valid starting point, and demonstrating that Hispanics or
24

another minority group constitute a citizen voting-age majority in a district may well not suffice, on its own, to demonstrate that they have the ability to elect. See, e.g., League of United Latin Am. Citizens v. Perry (LULAC), 548 U.S. 399, 428 (2006) (observing that “it may be possible for a citizen voting-age majority to lack real electoral opportunity”). Texas has been able to provide no authority to support its reliance on a single-factor test, and we decline to depart from the clear guidance of the Supreme Court’s Section 5 precedent that assessing retrogression is a multifaceted, fact-specific inquiry.
In rejecting Texas’ standard, this Court starts with the 2006 Amendments to Section 5. The fundamental question is whether any change proposed by Texas “will have the effect of diminishing the ability” of minorities “to elect” their preferred candidates. 42 U.S.C. § 1973c(b). Should there be any doubt, Congress emphasized that the “purpose” of § 1973c(b) is “to protect the ability” of minority citizens “to elect their preferred candidates.” Id. § 1973c(d). Clearly, “ability to elect” is the statutory watchword.
In making its Amendments, Congress sought to restore the “ability to elect” standard promulgated by the Supreme Court in Beer. H.R. REP. NO. 109-478, at 45-46 (“[A] change should be denied preclearance under Section 5 if it diminishes the ability of minority groups to elect their candidates of choice. Such was the standard of analysis articulated by the Supreme Court in Beer v. United States . . . .”); see Beer, 425 U.S. at 141 (stating that the Section 5 standard “can only be fully satisfied by determining . . . whether the ability of minority groups to participate in the political process and to elect their choices to office is . . . affected”). The House of Representatives identified significant benefits to minority communities under the Beer standard. H.R. REP. NO. 109-478, at 45-46. In addition, the House Report specifically commented that “[v]oting changes that leave a minority group less able to elect a preferred
25

candidate of choice, either directly or when coalesced with other voters, cannot be precleared under Section 5.” Id. at 46 (emphasis added).
Thus, “being able” or “having the power” to elect — in the past (the benchmark) and the future (a proposed redistricting plan) — is what matters under Section 5. This Court concludes that a review of redistricting plans under Section 5 must be concerned with the functioning of the electorate, i.e., whether minority voters will be “effective [in their] exercise of the electoral franchise.” Beer, 425 U.S. at 141.
Texas perceives “ability” and “opportunity” as interchangeable, but they represent different concepts that serve different purposes. In its motion, Texas identifies minority “opportunity districts” as significant under Section 5. An “opportunity” to elect is meaningful under Section 2 of the VRA, but not necessarily under Section 5.
Section 2 is violated upon a showing that minorities “have less opportunity than other members of the electorate to . . . elect representatives of their choice.” 42 U.S.C. § 1973(b). Section 2 “was designed as a means of eradicating voting practices that minimize or cancel out the voting strength and political effectiveness of minority groups”; thus, it “bars all States and their political subdivisions from maintaining” any voting practice that, inter alia, dilutes the votes of minority citizens. Bossier I, 520 U.S. at 479 (internal quotation marks and citation omitted). A plaintiff claiming vote dilution under Section 2 must satisfy the three “Gingles factors:” 1) the minority group is sufficiently large and geographically compact to constitute a majority in a single member district; 2) the group is politically cohesive; and 3) there is sufficient bloc voting by the White majority to defeat the minority preferred candidate. Id. at 479-80 (citing Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986)). Under the first Gingles factor, a plaintiff must show that a sufficient minority population is present to have the potential or
26

opportunity to elect its preferred representative in a single member district. Bartlett v. Strickland, 129 S. Ct. 1231, 1243 (2009) (plurality opinion) (citing Gingles, 478 U.S. at 50 n.17). That is, Section 2 concerns itself with the possibility of a minority group’s present, but unrealized, opportunity to elect. See Bossier I, 520 U.S. at 480 (“Because the very concept of vote dilution implies – and, indeed, necessitates – the existence of an ‘undiluted’ practice against which the fact of dilution may be measured, a § 2 plaintiff must also postulate a reasonable alternative voting practice to serve as the benchmark ‘undiluted’ voting practice.”). Without such a showing, there can be neither wrong nor remedy. Bartlett, 129 S. Ct. at 1243 (citing Growe v. Emison, 507 U.S. 25, 41 (1993)).
Under Section 2, demographic data is necessarily geared towards identifying minority voters’ “opportunity” to elect. Thus, because Texas equates “opportunity” and “ability” districts, it relies on data analysis pertinent to Section 2 to sustain its analysis of retrogressive effect under Section 5. However, population demographics alone will not fully reveal whether minority citizens’ ability to elect is or will be present in a voting district. Demographics alone cannot identify all districts where the effective exercise of the electoral franchise by minority citizens is present or may be diminished under a proposed plan within the meaning of Section 5.21 See, e.g., LULAC, 548 U.S. at 428.
The question of retrogressive effect under Section 5 looks at gains that have already been realized by minority voters and protects them from future loss. A Section 5 claim requires a determination of how and where minority citizens’ ability to elect is currently present in a covered jurisdiction and how it will manifest itself in a proposed plan. This requires
21 Section 2 challenges are most often concerned with vote dilution claims. This Court uses case law from Section 2 in this Section 5 analysis only as it speaks to circumstances that adversely impact minority citizens’ ability to elect.
27

identifying districts in which minority citizens enjoy an existing ability to elect and comparing the number of such districts in the benchmark to the number of such districts in a proposed plan to measure the proposed plan’s effect on minority citizens’ voting ability. See Bossier I, 520 U.S. at 478 (“Retrogression, by definition, requires a comparison of a jurisdiction’s new voting plan with its existing plan.”). Determining where and how the ability to elect is present is a careful inquiry. This Court finds that the simple voting-age population statistics used by Texas are insufficient, and we cannot be confident that Texas has properly identified existing ability districts in its benchmark or future ability districts under the proposed Plans. Therefore, this Court can neither count the former nor compare them to the latter. There are no easy shortcuts in this inquiry. In particular, language minority status or race does not constitute a simple proxy for partisan preference in gauging the ability to elect. See, e.g., Bush v. Vera, 517 U.S. at 968 (“[T]o the extent that race is used as a proxy for political characteristics, a racial stereotyping requiring strict scrutiny is in operation.”).
B. The Correct Legal Standard Governing Retrogression Analysis 1. Ability-to-Elect Factors
If population statistics alone are insufficient to determine the existence and location of ability districts, what factors are relevant to an inquiry into retrogressive effect under Section 5? Below we outline the types of factors that are relevant for this analysis. Our list of factors is not exhaustive. It merely highlights the kinds of factors missing from the standard Texas used to seek preclearance.
At the outset, a court addressing a proposed voting plan under Section 5 must determine whether there is cohesive voting among minorities and whether minority/White polarization is present in the jurisdiction submitting the plan. See, e.g., Georgia v. Ashcroft, 539
28

U.S. at 485 (“[I]t is of course true that evidence of racial polarization is one of many factors relevant in assessing whether a minority group is able to elect a candidate of choice . . . .”). Polarized voting occurs when minority and White communities cast ballots along racial or language minority lines, voting in blocs. See H.R. REP. NO. 109-478, at 20. Polarized voting between minorities and Whites often renders minority voters powerless to elect their candidate of choice because White voters will not cross over to elect a minority-preferred candidate. Id. Furthermore, polarized voting often signals that minority communities in fact prefer different candidates than the majority and helps to identify districts in which minority voters are effective in electing their candidates of choice.
Next, this Court agrees with all parties that population statistics are significant and an important starting point for a retrogression analysis. Drawing a district with a “safe” minority population can essentially guarantee electoral success for minority voters, regardless of challenges posed by racially polarized voting. See Georgia v. Ashcroft, 539 U.S. at 480-81 (noting that “majority-minority districts may virtually guarantee the election of a minority group’s preferred candidates in those districts”). Even when voting is polarized, a minority group that constitutes a supermajority in a district will likely have the ability to elect its chosen candidate. 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.22
22 The Supreme Court found a figure of sixty-five percent of total population to be reasonable to achieve a majority of eligible minority voters in a district. United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 164 (1977). In a similar vein, the three-judge court in Mississippi v. United States, 490 F. Supp. 569 (D.D.C. 1979), assessing a Section 5 challenge, found that:
Low black voter registration and voter turn-out combined with racial bloc voting make it necessary for an electoral district in Mississippi to contain a substantial
29

Where such a circumstance is present, there would be no need to make further inquiries into
minority voters’ ability to elect. However, when there is no supermajority in a district, a Section
5 analysis must go beyond mere population data to include factors such as minority voter
registration, minority voter turnout, election history, and minority/majority voting behaviors.23
Determining that minorities have an ability to elect based solely on their numbers
in the voting population of a district cannot account for the most fundamental concern of Section
5: the effect past discrimination has on current electoral power. 42 U.S.C. § 1973b(b); see Riley,
553 U.S. at 412 (noting that a jurisdiction is covered under Section 5 if among other things, “on
one of three specified coverage dates . . . it maintained a literacy requirement or other ‘test or
device’ as a prerequisite to voting”). As the Intervenors note, historical discrimination against
Hispanics in Texas has, in some areas of the State, continued to depress their educational and
economic conditions such that the mere attainment of citizen voting-age status might have no
real effect on their ability to elect representatives of choice. See Latino Redistricting Task
majority of black eligible voters in order to provide black voters with an opportunity to elect a candidate of their choice. It has been generally conceded that, barring exceptional circumstances such as two white candidates splitting the vote, a district should contain a black population of at least 65 percent or a black VAP [voting age population] of at least 60 percent to provide black voters with an opportunity to elect a candidate of their choice.
490 F. Supp. at 575. Likewise, the Seventh Circuit used a minority population figure of sixty-five percent in a Section 2 case to identify when minorities are an “effective majority,” i.e., whether they have a “realistic opportunity to elect officials of their choice” in a district. Ketchum v. Byrne, 740 F.2d 1398, 1410-15 (7th Cir. 1984). Ketchum reached its figure by reasoning from a simple voting majority and augmenting it by five percent to account for low voter registration among minority voters, five percent for low voter turnout, and five percent for youthful population. Id. at 1415. If Ketchum had started with voting-age population, it would not have added five percent for the youthful portion of the minority population. Id. 23 Texas asks this Court to set the percentage for a “safe” district at forty percent BVAP and fifty percent HCVAP. This Court has already noted that, standing alone, these percentages are insufficient to establish the existence of an ability district. Texas’ expert seems to agree. Dr. John Alford reports that Hispanic voters will have an ability to elect in a district in which the number of registered Hispanic voters exceeds fifty percent. U.S. Mem., Ex. 6 [Dkt. # 79-8] at 4 (Report of Dr. John Alford). In contrast, Texas relied on (citizen) voting-age population statistics alone. Texas’ reliance on a forty percent BVAP and not a BVAP greater than fifty percent suggests that Texas also recognizes the importance of factors beyond majority status in determining which districts will provide minority voters the ability to elect.
30

Force’s Statement of Material Facts in Dispute [Dkt. # 78-1] at ¶ 257 (“Lower levels of education, income, and earnings have the lingering effect of lowering Latino [electoral] participation rates, including registering and voting.”). The Supreme Court has also noted that “the political, social, and economic legacy of past discrimination for Latinos in Texas may well hinder their ability to participate effectively in the political process.” LULAC, 548 U.S. at 440 (internal quotation marks and citations omitted). Such a background requires a more complicated retrogression analysis than Texas wants this Court to approve, but it is part and parcel of discerning whether minority voters will be effective in their exercise of the electoral franchise. Because the statutory watchword is “ability to elect,” data that pertains to actual minority citizen voting strength must be analyzed for each relevant district.
In particular, minority voter registration and minority voter turnout can be important indicators of whether historical barriers to minorities’ ability to elect have been eradicated.24 For example, the Senate Committee on the Judiciary found during the 2006 reauthorization of the VRA that Latino voters nationwide turned out and voted at rates significantly lower than White voters. In addition, the Committee found that in Texas, while 41.5 percent of Latinos were registered to vote, only approximately 29.3 percent turned out in the 2004 election. See S. REP. NO. 109-295, at 11. Such findings underscore why Texas’ reliance on a bare majority-minority district cannot be used to determine an ability district under Section 5. Given its history, Texas cannot overlook education and employment levels affecting minority electoral participation and remnants of historic discrimination that may continue to affect voting in some areas of the State. Minority voter registration and turnout, together with other evidence
24 Texas provided some such data in its motion and reply brief, but made no arguments regarding its significance for a retrogression inquiry. It continued to rely on population statistics to argue that its Plans do not have a retrogressive effect.
31

of election results and minority voting behavior, will supplement any court’s analysis of
population trends when counting ability districts in the benchmark and proposed plans.
Other factors are also relevant in the determination of whether past gains in
minority citizens’ ability to elect will be diminished by “any” change in voting practices.
Although the Supreme Court has never outlined all factors relevant to this inquiry, it has
emphasized that retrogression analysis “is often complex in practice to determine.” Georgia v.
Ashcroft, 539 U.S. at 480. We conclude that the type of factors relevant to this complex inquiry
may include the number of registered minority voters in redrawn districts; population shifts
between or among redrawn districts that diminish or enhance the ability of a significant,
organized group of minority voters to elect their candidate of choice; an assessment of voter
turnout in a proposed district; to the extent discernible, consideration of future election patterns
with respect to a minority preferred candidate; and new ability districts that would offset any lost ability district.25
Although Intervenors urge this Court to find retrogression when redistricting
dismantles a voting district in which a minority group was on the cusp of achieving majority
status, this Court will not consider this as a factor in our retrogression analysis. The argument
25 Nonetheless, it may be that retrogression in a proposed plan is unavoidable. Population losses or shifts can decrease minority voter participation. States and other political jurisdictions legitimately consider geographic (e.g., mountains, water courses) and political (e.g., county lines, city lines) boundaries in drawing election districts. In some circumstances, a non-retrogressive redistricting plan may not be possible given other legitimate constraints on electoral maps. This Court agrees with the comment in the 2011 DOJ Guidance:
There may be circumstances in which the jurisdiction asserts that, because of shifts in population or other significant changes since the last redistricting (e.g., residential segregation and demographic distribution of the population within the jurisdiction, the physical geography of the jurisdiction, the jurisdiction’s historical redistricting practices, political boundaries, such as cities or counties, and/or state redistricting requirements), retrogression is unavoidable. 76 Fed. Reg. 7470-01, at 7472.
32

that the VRA protects predictable future gains in minority electoral power is directly at odds with
Section 5’s purpose to protect against retrogressive effect. See Beer, 425 U.S. at 140 (Section 5
was enacted “to shift the advantage of time and inertia from the perpetrators of the evil to its
victim, by freezing election procedures in the covered areas unless the changes can be shown to
be nondiscriminatory.” (internal quotation marks and citations omitted)). Redistricting can have
no retrogressive effect on an ability to elect that has not yet been realized. City of Pleasant
Grove v. United States, 479 U.S. 462 (1987), cited by TLBC, LULAC, and the Texas State
Conference of NAACP Branches, does not change this assessment. As discussed further below,
Pleasant Grove was a discriminatory purpose case. 479 U.S. at 471-72. The decision did not
address whether it would be retrogressive to suppress emerging voting strength in a redistricting
effort. In line with Beer and the language of Section 5, this Court finds that evidence of
preventing an emerging ability to elect from crystallizing will not support the contention that a
plan has an impermissible retrogressive effect under Section 5.
Finally, Texas argues that the United States’ analysis of retrogression, reflected in
the 2011 DOJ Guidance, is elusive and expensive. We disagree. Although our analysis is not
identical to the 2011 DOJ Guidance, it shares many factors. The 2011 Guidance is consistent with the guidance DOJ has been issuing to assess retrogressive effect for the past two decades.26
26 The relevant DOJ guidance memoranda are those issued in 2001 and 1987. In those policy statements, the DOJ (in different administrations and under different Attorneys General) listed factors exceedingly similar, if not identical, to the ones that the DOJ currently asserts are relevant to a Section 5 retrogression analysis. Compare Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S. § 1973c, 66 Fed. Reg. 5412-01, at 5413 (Jan. 18, 2001) with 76 Fed. Reg. 7470-01, at 7471. In the 2001 Guidance Memorandum, the DOJ stated that it would begin its retrogression analysis by compiling all relevant census data; such data was “the important starting point” for administrative evaluation of benchmark and proposed plans. See 66 Fed. Reg. 5412-01, at 5413 (indicating that DOJ would review “additional demographic and election data” to assess the “actual effect” of proposed changes on minority populations and explicitly mentioning, as it did in 2011, that it believed that “election history and voting patterns within the jurisdiction, voter registration and turnout information, and other similar information are very important” to a VRA retrogression analysis). A Notice issued by the DOJ in
33

Covered jurisdictions, including Texas, have been able to preclear voting plans under its various iterations. 27 Thus, despite Texas’ arguments to the contrary, this Court is hard-pressed to find
that a multi-factored test — dependent on population analyses and other factors — is too new,
too expensive, or too complex for covered jurisdictions to follow.
2. Coalition Districts
In counting ability districts, Texas ignored those in which coalitions of minority
voters and coalitions of minority and White voters formed to support the minority-preferred
candidate. But Section 5 requires such consideration in determining whether minorities have the
ability to elect preferred candidates. The statute states no preference for how the minority group
is able to elect its preferred candidate, whether by cohesive voting by a single minority group or by coalitions made up of different groups.28 Indeed, the Supreme Court has recognized the value
of voting coalitions formed by minority voters:
[T]here are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice . . . . [M]inority voters are not immune from the obligation to pull, haul, and trade to find common political ground.
1987 was very similar. See Revision of Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, 52 Fed. Reg. 486-01 (Jan. 6, 1987). DOJ noted in 1987 that many covered jurisdictions, much like Texas before this Court, had urged it to adopt a retrogression standard that could be “applied to submitted changes in a fairly mechanical way,” but the DOJ declined to adopt such an approach because it would be unrealistic to shorten “[a] Section 5 determination [that] is . . . based on the appraisal of a complex set of facts that do not readily fit a precise formula for resolving the preclearance issues.” Id. at 486. 27 See Pl.’s Mem.[Dkt. # 41] at 3 (“[I]n 2003 the [Texas] Legislature decided to take up redistricting again and enacted a congressional redistricting plan. That plan was precleared by the Department of Justice . . . .”). 28 The House Report on the 2006 Amendments clearly recognized that coalition districts can work to form an ability district, see H.R. REP. NO. 109-478, at 46, and, while the Senate emphasized majority-minority districts, it did not distinguish or discard minority coalition districts. See S. REP. NO. 109-295, at 17.
34

Georgia v. Ashcroft, 539 U.S. at 481 (quoting Johnson v. De Grandy, 512 U.S. 997, 1020
(1994)) (internal quotation marks omitted). It is simply a fact of political life that in certain
districts, a single minority group may not have the ability to achieve desired electoral outcomes
independently, but could elect its preferred candidate if it formed either a crossover district by
“attract[ing] sufficient crossover votes from white voters,” Voinovich v. Quilter, 507 U.S. 146, 154 (1993), or a coalition district by partnering with another minority group.29
Texas contends that the 2006 Amendments that overruled Georgia v. Ashcroft
also rejected the idea that coalition politics should be taken into account under Section 5. This
argument has no support in the text of the Amendments themselves and misreads the legislative
history. Congress only took issue with Georgia v. Ashcroft to the extent that it held that states
could trade “influence” districts for prior “ability” districts without issue under Section 5. See
H.R. REP. NO. 109-478, at 44 (“[T]he Supreme Court would allow the minority community’s
own choice of preferred candidates to be trumped by political deals struck by State legislators
purporting to give ‘influence’ to the minority community. . . . Permitting these trade-offs is
inconsistent with the original and current purpose of Section 5.”). Congress never found that coalition districts could not provide minority citizens with the ability to elect.30
29 Dicta in Bartlett v. Strickland, a Section 2 case, differentiated between minority citizens’ “own choice” and the choice made by a coalition. 129 S. Ct. at 1244; see also Voinovich, 507 U.S. at 154 (comparing crossover districts to “influence” districts). This Court clarifies that coalition districts for Section 5 purposes are those in which the candidate voted into office by the coalition is the minority-preferred candidate, whether that candidate is a member of the minority or not. Identification of the minority preferred candidate is a factual question. 30 In the Senate Report to the 2006 Amendments, Senator Jon Kyl wrote separately “to explain why [he] believe[s] that Congress cannot require that state or local governments create or retain influence or coalition districts.” S. REP. NO. 109-295, at 22 (Additional views of Senator Kyl). Senator Kyl’s individual views regarding the scope of protection afforded to minorities under Section 5 do not change this Court’s analysis, or call into question the legislative intent regarding the 2006 Amendments. First, the Senate Report carries little weight as a piece of legislative history or evidence of legislative intent. As noted by Senator Patrick Leahy and others, the Senate Report was filed a week after the Act had been passed by both houses of Congress. The Senate Report was not considered by Congress prior to a vote on the legislation, and Congress did not adopt or affirm its findings. Indeed, “post-
35

Texas also cites Bartlett v. Strickland to argue that the Supreme Court has rejected the notion that a Section 5 analysis can take political coalitions into account, but Bartlett is not a Section 5 case and does not deal with coalition districts. See 129 S. Ct. at 1242-43 (stating that the Court did not address “coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition’s choice”). Like Section 2 cases before it, a plurality of the Court in Bartlett held that a compact minority group needs to have the potential (“opportunity”) to constitute a majority in a district for there to be a Section 2 violation. Id. at 1244 (“Only once, in dicta, has this Court framed the first Gingles requirement as anything other than a majorityminority rule.”). Thus, the Bartlett Court held that Section 2 does not require states to create potential crossover districts to ensure equal electoral opportunity for minority voters because nothing in Section 2 grants special protection to minority citizens’ “right[] to form political coalitions.” Id. at 1243. Yet, freedom from an obligation to create a crossover district under Section 2 does not equate to freedom to ignore the reality of an existing crossover district in which minority citizens are able to elect their chosen candidates under Section 5.
Since coalition and crossover districts provide minority groups the ability to elect a preferred candidate, they must be recognized as ability districts in a Section 5 analysis of a benchmark plan. Coalition and crossover districts that continue unchanged into a proposed plan must be counted as well. Our recognition that crossover and coalition districts are ability districts in a benchmark plan is rooted in the fact that there must be discrete data, by way of election returns, to confirm the existence of a voting coalition’s electoral power. For example,
passage legislative history is a contradiction in terms. Any after-the-fact attempts to re-characterize the legislation’s language and effects [cannot] be credited.” S. REP. NO. 109-225, at 55 (Additional views of Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin). Second, as explained below, the statutory text and the Supreme Court’s jurisprudence regarding Section 5 make clear that crossover and minority coalition districts provide minority citizens the ability to elect their candidates of choice.
36

evidence that a coalition had historical success in electing its candidates of choice would
demonstrate that the minority voters in that district had, and would continue to have, an ability to
elect their preferred candidates. Proving the existence of a coalition district will require more
exacting evidence than would be needed to prove the existence of a majority-minority district as
demonstrating past election performance is vital to showing the existence of an actual coalition
district.
By contrast, a state creating a “new” crossover or coalition district simply
anticipates, or hopes, that the minority population in the new district will align politically and
coalesce with other groups of voters to elect its candidates of choice. It would be extremely
difficult to confirm that minority voters would indeed have the ability to elect in the newly
formed district.31 Since potential new crossover-coalition districts are “subject to [this] high
degree of speculation and prediction,” Bartlett, 129 S. Ct. at 1245, they can rarely be deemed
ability districts in a proposed plan.
3. Retrogression in Proportional Versus Absolute Terms
The Defendants argue that retrogression should be assessed on a plan-wide basis,
contending that a relative overall decrease in minority citizens’ share of electoral districts is
31 Indeed, a state’s attempt to create future crossover districts may lead to the creation of “influence” districts that Georgia v. Ashcroft approved and Congress rejected in the 2006 Amendments. In Georgia v. Ashcroft, the Court approved Georgia’s creation of new influence and coalition districts in proposed redistricting plans to offset the loss of majority-minority districts in the benchmark. 539 U.S. at 487. Specifically, the Supreme Court stated that Georgia had probably met its burden of demonstrating non-retrogression because its strategy of increasing Black voting strength by “‘unpacking’ minority voters in some districts to create more influence and coalitional districts [was] apparent.” Id. As part of the 2006 reauthorization of the VRA, Congress rejected Georgia’s proposition that creation of influence and coalition districts may be used to offset other losses of a minority population’s voting power, specifically amending Section 5 to “make[] clear that . . . the comparative ‘ability [of the minority community] to elect preferred candidates of choice’ is the relevant factor to be evaluated when determining whether a voting change has a retrogressive effect.” H.R. REP. NO. 109-478, at 46. The House Report to the 2006 Amendments explained the “concern[] . . . that ‘[m]inority influence is nothing more than a guise for diluting minority voting strength’” and that “leaving the Georgia standard in place would encourage States to spread minority voters under the guise of ‘influence’ and would effectively shut minority voters out of the political process.” Id. at 45.
37

retrogressive. According to this argument, Texas’ failure to draw one or more additional Hispanic ability districts in the Congressional Plan is retrogressive in the face of the Hispanic population growth in Texas that is in large measure responsible for the State’s four new congressional seats. In support, they cite Georgia v. Ashcroft: “[I]n examining whether [a] new plan is retrogressive, the inquiry must encompass the entire statewide plan as a whole.” 539 U.S. at 479. But that language does not support the Defendants’ argument. It was speaking to a state’s ability under Section 5 to offset the loss of an ability district in one area of a state by the gain of a new ability district elsewhere. Id.
Texas relies on Abrams v. Johnson, 521 U.S. 74 (1997), which rejected the idea that the addition of electoral districts necessarily requires the addition of minority ability districts. In Abrams, Georgia gained a single new congressional district because of a population increase. This new district was not a minority ability district. The plaintiffs argued that the new plan was retrogressive because by failing to draw the new district as an ability district, the percentage of majority Black districts in the State decreased from ten percent to nine percent. 521 U.S. at 97. The Supreme Court rejected the argument, stating that if it found retrogression on such facts, “each time a State with a majority-minority district was allowed to add one new district because of population growth, it would have to be majority-minority. This the Voting Rights Act does not require.” Id. at 97-98.
The United States distinguishes Abrams, relying on the substantial growth in Texas’ Hispanic population, Texas’ four new congressional seats (an unprecedented number for States fully covered by Section 5),32 and the new provisions of the 2006 Amendments. It urges
32 Notably, after the 1990 Census, Texas gained three additional congressional seats in response to which it created two new majority Black districts and a majority Hispanic district “with a view to complying with the Voting Rights
38

this Court to limit Abrams to its facts, arguing that although a state need not add a new ability district for each new district, under the facts of this case it was retrogressive for Texas not to add any new ability districts.
This Court concludes that Abrams does not control. Although Abrams is clear that the VRA does not require there to be a new minority ability district for every new congressional seat, it does not hold that a state’s failure to draw new minority districts can never be retrogressive. Nevertheless, this Court concludes that Texas’ failure to draw new Hispanic ability districts to match the growth of its Hispanic population was not retrogressive. Section 5 is limited to preventing “[s]tates from undoing or defeating the rights recently won” by minorities, Beer, 425 U.S. at 140 (quoting H.R. REP. NO. 91-397, at 8) (internal quotation marks omitted); it does not require states to add additional protections, id. (quoting H.R. REP. NO. 94196, at 57-58) (internal quotation marks omitted), or to create new minority districts in proportion to increases in the minority group’s population. Id. at 137 n.8 (“This Court has, of course, rejected the proposition that members of a minority group have a federal right to be represented in legislative bodies in proportion to their number in the general population.”). Here, where Texas’ percentage gain in congressional seats (12.5%) is similar to Georgia’s percentage gain in Abrams (10%), we see no need to require of Texas what the Supreme Court did not require of Georgia.
Although Texas’ alleged failure to account for the significant increase of the Hispanic population in the State does not establish retrogression, it is relevant to the Court’s evaluation of whether the Congressional Plan was enacted with discriminatory purpose. A
Act.” See Bush v. Vera, 517 U.S. at 957. All three districts, however, were found to be the product of an unconstitutional racial gerrymander. Id. at 979-86.
39

redistricting plan that does not increase a minority group’s voting power, despite a significant
growth in that minority group’s population, may provide significant circumstantial evidence that the plan was enacted with the purpose of denying or abridging that community’s right to vote.33
Cf. City of Pleasant Grove, 479 U.S. at 471 (“Section 5 looks not only to the present effects of
changes, but to their future effects as well . . . . Likewise, an impermissible purpose under § 5 may relate to anticipated as well as present circumstances.”).34 The Defendants are therefore
incorrect as to the form, but not necessarily as to the substance of their argument. A state’s
failure to account for a minority group’s population growth that results in additional electoral
seats, while not conclusive of an unlawful retrogressive effect under Section 5, may be
nonetheless highly relevant and probative to the purpose inquiry.
33 Based upon its identification of minority ability districts, the United States contends that nearly half a million Hispanics would lose their ability to elect in the proposed Congressional Plan. 34 In City of Pleasant Grove, an “all-white enclave in an otherwise racially mixed area of Alabama,” sought preclearance for the annexation of two parcels of land, one vacant and another containing a few white residents. 479 U.S. at 465. The three-judge district court declined to grant preclearance, concluding that the jurisdiction had failed to demonstrate that the annexations did not have the purpose of abridging the minority population’s right to vote. The Supreme Court affirmed the three-judge court, concluding that there was sufficient evidence to support the allegation that the city was annexing non-Black areas but refusing to annex Black areas. Despite the fact that there were “no black voters in Pleasant Grove” and the annexations therefore could not have an effect on Black voting in the city, the Court explained:
[A]n impermissible purpose under § 5 may relate to anticipated as well as present circumstances . . . . Common sense teaches that appellant cannot indefinitely stave off the influx of black residents and voters . . . . One means of thwarting this process is to provide for the growth of a monolithic white voting block, thereby effectively diluting the black vote in advance. This is just as impermissible a purpose as the dilution of present black voting strength. To hold otherwise would make appellant's extraordinary success in resisting integration thus far a shield for further resistance. Nothing could be further from the purposes of the Voting Rights Act. Id. at 471-72 (citations omitted).
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C. Discriminatory Purpose
Summary judgment is also not appropriate because Texas has failed to
demonstrate that the Plans do not have the purpose of “denying or abridging the right to vote on
account of race or color, or [membership in a language minority group].” Texas argues that its
legislators had no animus towards any racial or language minority group but acted from purely
partisan motives in drawing its redistricting Plans. Texas further argues that significant
federalism concerns would be raised if a federal court were to examine the actions of its State
legislature.35 The United States responds that a discriminatory purpose that violates Section 5
does not always require an intent to target a minority group but can include a plan enacted in a
discriminatory manner, even if designed to achieve a permissible aim.36 The Intervenors present
35 Texas does not challenge the constitutionality of Section 5, see Complaint [Dkt. # 1], but relies on the Constitution as a shield. Texas argues that the 2006 Amendments only forbid states from making those changes that would themselves violate the Fourteenth Amendment’s guarantee of equal protection and the Fifteenth Amendment’s guarantee that the right to vote shall not be “denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S. CONST. amend XIV, § 2; id. amend. XV, § 1. A simple comparison of Section 5 and these Reconstruction-era Amendments shows that they do not track and Texas’ contention cannot be accepted wholesale. The Fifteenth Amendment does not protect language-minority voters and the Fourteenth Amendment does not apply to a language minority qua language minority. See Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (“Language, by itself, does not identify members of a suspect class.”); but see Olagues v. Russoniello, 797 F.2d 1511, 1521 (9th Cir. 1986) (distinguishing Soberal-Perez v. Heckler and stating that a non-English speaking classification is facially neutral but is, for all practical purposes, a classification based on race and national origin and therefore suspect), vacated as moot, 484 U.S. 806 (1987). Thus, while both Amendments are relevant to the legitimacy of a redistricting plan as to other minorities, they are not determinative and provide only guidance as to language minorities, such as Hispanics.
36 The United States cites Judge Kozinski’s opinion concurring in part and dissenting in part in Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990), for this proposition:
Assume you are an anglo [sic] homeowner who lives in an all-white neighborhood. Suppose, also, that you harbor no ill feelings toward minorities. Suppose further, however, that some of your neighbors persuade you that having an integrated neighborhood would lower property values and that you stand to lose a lot of money on your home. On the basis of that belief, you join a pact not to sell your house to minorities. Have you engaged in intentional racial and ethnic discrimination? Of course you have. Your personal feelings toward minorities don’t matter; what matters is that you intentionally took actions calculated to keep them out of your neighborhood.
918 F.2d at 778 n.1.
41

some evidence supporting their claims of discriminatory purpose, but also suggest that further discovery is needed. At oral argument, Texas contended that, even if taken as true, the evidence presented by the United States and Intervenors is insufficient to prove discriminatory intent.
We conclude that there are genuine issues of material fact regarding whether the Plans were enacted with discriminatory intent. As discussed earlier, the 2006 Amendments make illegal any changes to voting qualifications, requirements, standards, practices, or procedures that are adopted or pursued in order to deny or abridge the right to vote “on account of” a particular characteristic protected by the statute. 42 U.S.C. § 1973c(a)-(c). As the Supreme Court reminds us in Arlington Heights, “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” 429 U.S. at 266; see also Cromartie, 526 U.S. at 546 (“The task of assessing a jurisdiction’s motivation, however, is not a simple matter; on the contrary, it is an inherently complex endeavor . . . .”). Such an intensely fact-driven inquiry is typically difficult to resolve at the summary judgment stage.
The United States asserts that there is ample circumstantial evidence of discriminatory purpose with regard to the State House and Congressional Plans that raises a genuine dispute of material facts. Likewise, the Intervenors challenge the Plans overall, their general impact on Hispanic voters,37 the rushed sequence of events that preceded their adoption, procedural and substantive departures from past practice, and treatment of specific districts and communities within each Plan.
37 For example, there are allegedly no new Hispanic ability districts in the Congressional Plan, despite Hispanics’ substantial population growth in Texas. The Gonzales Intervenors allege, however, that although Whites now constitute 45.3 percent of the State’s population, Whites are a majority of the voting-age population in twenty-five out of thirty-six congressional districts, an increase from twenty-two in the benchmark.
42

Texas only countered arguments from the United States and those Intervenors that challenge the State Senate Plan. In its brief and at oral argument, Texas offered three responses to Defendants’ claims of discriminatory purpose: 1) the State’s obligation to its own Constitution, which specifically bans unnecessarily dividing counties to form voting districts, see TEX. CONST. art. III, § 26; 2) political logic: Hispanics are Democrats, Democrats are the party out of power in the State, and, therefore, it is politics not illegal animus that accounts for any alleged circumstantial evidence of discriminatory purpose38; and 3) affidavit testimony by Texas legislators and their staff that no discriminatory purpose was espoused by any member of the Texas Legislature, any staff, or anyone else when offering redistricting proposals. Yet Texas has not disputed many of the Intervenors’ specific allegations of discriminatory intent. This Court concludes that the United States and Intervenors have provided sufficient evidence to preclude summary judgment and to require further review of the claims of discriminatory purpose directed to all three Plans.
IV. CONCLUSION Section 5 requires a multi-factored, functional approach to gauge whether a redistricting plan will have the effect of denying or abridging minority citizens’ ability to elect representatives of their choice. It does not lend itself to formalistic inquiry and complexity is inherent in the statute. The ability to elect can rarely be measured by a simple statistical yardstick, as is the essence of Texas’ approach. Defendants also challenge all three Plans as discriminatory in purpose, but genuine disputes of material fact preclude summary judgment on
38 But see Bush v. Vera, 517 U.S. at 968 (“[T]o the extent that race is used as a proxy for political characteristics, a racial stereotyping requiring strict scrutiny is in operation.”).
43

this record. For these reasons, the motion for summary judgment filed by the State of Texas was denied.

Date: December 22, 2011

/s/ THOMAS B. GRIFFITH United States Circuit Judge
/s/ ROSEMARY M. COLLYER United States District Judge
/s/ BERYL A. HOWELL United States District Judge

44

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 231 Filed 08/28/12 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

STATE OF TEXAS,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES OF AMERICA, and )

ERIC H. HOLDER, in his official

)

capacity as Attorney General of the

)

United States

)

)

Defendants, and

)

)

Wendy Davis, et. al.,

)

)

Intervenor-Defendants. )

)

Civil Action No. 11-1303 (TBG-RMC-BAH)

FINAL JUDGMENT

For the reasons stated in the Memorandum Opinion filed simultaneously with this

Judgment, it is

ORDERED AND ADJUDGED that Plaintiff’s request to enter declaratory

judgment that Plans C185, S148, and H283 have neither the purpose nor the effect of denying or

abridging the right to vote on account of race, color, or membership in a language minority group

within the meaning of Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, is DENIED; and it

is

FURTHER ORDERED AND ADJUDGED that FINAL JUDGMENT is

ENTERED in favor of Defendants on Counts II, III, and IV of the Complaint; and it is

FURTHER ORDERED AND ADJUDGED that pursuant to a Minute Order of

this Panel issued on September 22, 2011, Plaintiff’s request to enter declaratory judgment on

Case 1:11-cv-01303-RMC-TBG-BAH Document 231 Filed 08/28/12 Page 2 of 2

Count I of the Complaint is GRANTED and FINAL DECLARATORY JUDGMENT is ENTERED in favor of the State of Texas with respect to the Texas State Board of Education electoral redistricting plan.

Date: August 28, 2012

/s/ THOMAS B. GRIFFITH United States Circuit Judge
/s/ ROSEMARY M. COLLYER United States District Judge
/s/ BERYL A. HOWELL United States District Judge

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 236 Filed 10/24/12 Page 1 of 1

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

October 23,2012

William K. Suter Clerk of the Court (202) 479-3011

Clerk United States District Court for the District of Columbia United States Courthouse 3rd & Constitution Avenue, NW Washington, DC 20001

Re: Texas v. United States, et al. No. 12-496 (Your No. 11-1303)

Dear Clerk:
An appeal in the above-entitled case was filed in this Court October 19, 2012 and placed on the docket October 23,2012, as No. 12-496.

Sincerely,

by

£

.6A.ooA_ _- -

Erik Fossu Case Analyst

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 253 Filed 07/29/13 Page 1 of 3

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

July 29, 2013

William K. Suter Clerk of the Court (202) 479-3011

Clerk United States District Court
for the District of Columbia 333 Constitution Avenue, Northwest Washington, DC 20001

Re: Texas v. United States, et al. No. 12-496 (Your docket No. 11-1303)

Dear Clerk:
Attached please find a certified copy of the judgment of this Court in the above-entitled case.

Sincerely, WILLIAM K. SUTER, Clerk

By
Elizabeth Brown Judgments/Mandates Clerk

Enc. cc:

Paul D. Clement, Esq. Mark A. Posner, Esq. Solicitor General

Nina Perales, Esq. Paul M. Smith, Esq.

Case 1:11-cv-01303-RMC-TBG-BAH Document 253 Filed 07/29/13 Page 2 of 3

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

July 29, 2013

William K. Suter Clerk of the Court (202) 479-3011

Mr. Paul D. Clement Bancroft PLLC 1919 M Street, N.W., Suite 470 Washington, DC 20036

Re: Texas v. United States, et al. No. 12-496

Dear Mr. Clement:

Today, a certified copy of the judgment of this Court in the above-entitled case was emailed to the Clerk of the United States District Court for the District of Columbia.

The appellant is given recovery of costs in this Court as follows:

Clerk’s costs:

$300.00

This amount may be collected from the appellees.

Sincerely, WILLIAM K. SUTER, Clerk

By
Elizabeth Brown Judgments/Mandates Clerk

cc: Nina Perales, Esq. Paul M. Smith, Esq. Clerk, USDC for the District of Columbia (Your docket No. 11-1303)

Mark A. Posner, Esq. Solicitor General

Case 1:11-cv-01303-RMC-TBG-BAH Document 253 Filed 07/29/13 Page 3 of 3

Supreme Court of the United States

No.

12-496

TEXAS, v.
UNITED STATES, ET AL.

Appellant

ON APPEAL FROM the United States District Court for the District of Columbia. THIS CAUSE having been submitted on the statement as to jurisdiction, the motion to affirm, the motion to affirm in part, and the motion to dismiss or affirm. ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the above court is vacated with costs, and the case is remanded to the United States District Court for the District of Columbia for further consideration in light of Shelby County v. Holder, 570 U.S. ___ (2013), and the suggestion of mootness of appellees Wendy Davis, et al. IT IS FURTHER ORDERED that the appellant Texas recover from United States, et al. Three Hundred Dollars ($300.00) for costs herein expended.

June 27, 2013

Clerk’s costs:

$300.00

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 255 Filed 12/03/13 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

STATE OF TEXAS,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES OF AMERICA, and )

ERIC H. HOLDER, in his official

)

capacity as Attorney General of the

)

United States

)

)

Defendants, and

)

)

Wendy Davis, et. al.,

)

)

Defendant- Intervenors. )

)

Civil Action No. 11-1303 (TBG-RMC-BAH)

MEMORANDUM AND ORDER Two motions are before the court. First, Plaintiff the State of Texas moves to dismiss as moot all claims asserted in its original complaint. Texas Mot. [Dkt. # 239]. Second, a number of the Defendant-Intervenors have moved for leave to file amended answers containing a counterclaim based on Section 3(c) of the Voting Rights Act (VRA), 42 U.S.C. § 1973a(c). Def.Intervenors Mot. [Dkt. # 241]. We grant Texas’s motion to dismiss all of its claims and deny Defendant-Intervenors’ motion for leave to amend their answers and assert a counterclaim. Texas brought this action seeking a declaratory judgment that four proposed redistricting plans had neither the purpose nor the effect of denying or abridging the right to vote on account of race or language minority under Section 5 of the VRA, 42 U.S.C. § 1973c. See Texas v. United States, 887 F. Supp. 2d 133, 138-39 (D.D.C. 2012), vacated and remanded, 133 S. Ct. 2885 (2013). After a bench trial, we concluded that none of the three contested plans (the
1

Case 1:11-cv-01303-RMC-TBG-BAH Document 255 Filed 12/03/13 Page 2 of 6
defendants did not object to the fourth) merited preclearance and therefore denied Texas its requested declaratory relief. See id. at 178. Texas appealed directly to the Supreme Court (per 42 U.S.C. § 1973c(a)), which was then considering Shelby County v. Holder, 133 S. Ct. 2612 (2013), a facial constitutional challenge to the coverage formula defining which states and political subdivisions were subject to VRA Section 5.
On June 23, 2013, while Texas’s appeal was pending and before the Supreme Court had announced its decision in Shelby County, the Texas legislature adopted a new set of redistricting plans supported by the Governor of Texas that replaced those challenged in this litigation. On June 24, Defendant-Intervenors asked the Supreme Court to dismiss Texas’s appeal as moot in light of those superseding plans. See Mot. of Appellee-Intervenors To Dismiss Appeal as Moot, Texas v. United States, 133 S. Ct. 2885 (2013) (No. 12-496). On June 25, the Supreme Court announced its opinion in Shelby County, holding the VRA’s coverage formula unconstitutional, thereby removing all previously covered jurisdictions, including Texas, from the preclearance regime of Section 5. See 133 S. Ct. at 2631. On June 27, the Supreme Court vacated our judgment and remanded this case to us “for further consideration in light of Shelby County v. Holder . . . and the suggestion of mootness of [Defendant-Intervenors].” Texas v. United States, 133 S. Ct. at 2885.
On July 3, 2013, Texas filed the motion before us, asking that we dismiss all claims in its original complaint. Noting that Shelby County removed the requirement of preclearance and that Texas had enacted new redistricting plans, Texas argues, much as Defendant-Intervenors had before the Supreme Court, that its claims before this court have become moot, “thus eliminating any basis for this Court’s jurisdiction.” Texas Mot. at 2. Within hours, Defendant-Intervenors filed a motion of their own that seeks “leave to amend their answers in this action and to assert a
2

Case 1:11-cv-01303-RMC-TBG-BAH Document 255 Filed 12/03/13 Page 3 of 6
counterclaim against the [S]tate of Texas pursuant to Section 3(c) of the Voting Rights Act.” Def.-Intervenors Mot. at 1. The United States does not oppose Texas’s voluntary dismissal of its claims, see U.S. Resp. to Texas Mot. [Dkt. # 247], and suggests that ongoing litigation in the Western District of Texas (Perez v. Perry, No. 5:11-cv-360) is a better vehicle for DefendantIntervenors’ pursuit of Section 3(c) relief, see U.S. Resp. to Def.-Intervenors Mot. [Dkt. # 248].
We agree with Texas that its claims were mooted by Shelby County and the adoption of superseding redistricting plans. A claim becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). In this suit, Texas sought a declaratory judgment that its 2011 redistricting plans complied with Section 5 of the VRA. See Texas Compl. [Dkt. # 1] at 1. Of course, Texas did not implement those plans but replaced them, and Shelby County relieved Texas of the need to seek preclearance. The sole issue presented in this case ceased to be “live” in June. Neither party has a “legally cognizable interest” in our determining whether the superseded plans comply with the now-inapplicable Section 5. Indeed, answering that question now would entail “precisely the sort of advisory opinion against which the mootness doctrine sets its face, as we do ours.” Tenn. Gas Pipeline Co. v. Fed. Power Comm’n, 606 F.2d 1373, 1381 (D.C. Cir. 1979).
Defendant-Intervenors offer several arguments against mootness, but none is persuasive. First, they emphasize that the Supreme Court did not order us to dismiss the case as moot. Def.Intervenors Opp’n [Dkt. # 252] at 2. This reads too much into the Court’s summary vacatur and remand of our judgment. In fact, the Court instructed us to consider both the effect of Shelby County and the mootness argument Defendant-Intervenors themselves had raised before the
3

Case 1:11-cv-01303-RMC-TBG-BAH Document 255 Filed 12/03/13 Page 4 of 6
Court. See 133 S. Ct. at 2885. Having followed that instruction, we conclude that Texas’s claims are moot.
Second, Defendant-Intervenors suggest we cannot rely upon the abandonment of the 2011 redistricting plans because “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case.” Def.-Intervenors Opp’n at 3 (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)). But that argument does not fit the facts of our case. The voluntary cessation of conduct challenged in a lawsuit is relevant to a suggestion of mootness when a defendant attempts to moot a plaintiff’s claim, not when a plaintiff itself changes course in a manner that precludes it from obtaining any meaningful relief. See Already, LLC, 133 S. Ct. at 727. In any event, there is more at work here than the Texas legislature’s decision to abandon the 2011 plans. The decision in Shelby County dismantled the legal framework that called for preclearance of Texas’s redistricting plans in the first place. That alone rendered Texas’s claim for declaratory relief moot.
Third, Defendant-Intervenors note that they intend to move for attorneys’ fees. Def.Intervenors Opp’n at 4-5. We fail to see how that speaks to mootness. As one of the cases cited by Defendant-Intervenors shows, they will remain free to seek attorneys’ fees after dismissal. See Comm’rs Court of Medina Cnty., Tex. v. United States, 683 F.2d 435, 438 (D.C. Cir. 1982) (defendant-intervenors in VRA preclearance suit moved for attorneys’ fees after district court dismissed suit as moot).
Our conclusion that we must dismiss Texas’s claims—the only claims that presently exist in this action—in turn affects our consideration of Defendant-Intervenors’ request for leave to amend their answers and assert a counterclaim. That request is effectively a request to initiate a new lawsuit in which Defendant-Intervenors are the plaintiffs and Texas the defendant. But
4

Case 1:11-cv-01303-RMC-TBG-BAH Document 255 Filed 12/03/13 Page 5 of 6

while Texas was statutorily required to bring its preclearance action here in the District of

Columbia, see 42 U.S.C. § 1973c(a), this would not be the proper venue for Defendant-

Intervenors to bring a VRA action against Texas, see 28 U.S.C. § 1391(b). Improper venue does

not deprive a federal court of jurisdiction, but if Defendant-Intervenors brought the type of claim

they wish to assert against Texas as an original action in this court, we would transfer it to the

Western District of Texas per 28 U.S.C. § 1406(a). And even were venue not technically

improper here, in these circumstances we would exercise our discretion under 28 U.S.C. §

1404(a) to effect the transfer, much as this court has done in other VRA cases. See Reaves v. U.S.

Dep’t of Justice, 355 F. Supp. 2d 510, 516-17 (D.D.C. 2005) (three-judge court) (transferring,

sua sponte, VRA action against South Carolina to the District of South Carolina under § 1404);

cf. Little v. King, 768 F. Supp. 2d 56, 64-68 (D.D.C. 2011) (granting Alabama Attorney

General’s motion to transfer VRA claim to the Middle District of Alabama under § 1404).

Therefore, rather than grant Defendant-Intervenors’ motion for leave to amend their pleadings

only to immediately transfer the case, we will simply deny their motion. Defendant-Intervenors

remain free to seek their desired relief in a more appropriate forum.

For the foregoing reasons, it is

ORDERED that Texas’s motion to dismiss its claims [Dkt. # 239] is GRANTED; and it

is

FURTHER ORDERED that Defendant-Intervenors’ motion for leave to amend their

answers and assert a counterclaim [Dkt. # 241] is DENIED. This is a final appealable order.

See Fed. R. App. P. 4(a). This case is closed.

Date: December 3, 2013

/s/ THOMAS B. GRIFFITH United States Circuit Judge

5

Case 1:11-cv-01303-RMC-TBG-BAH Document 255 Filed 12/03/13 Page 6 of 6 /s/
ROSEMARY M. COLLYER United States District Judge
/s/ BERYL A. HOWELL United States District Judge
6

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,
Plaintiff,
v.
UNITED STATES OF AMERICA, and ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States,
Defendants, and
WENDY DAVIS, et al.,
Defendant-Intervenors.

) ) ) ) ) ) ) ) ) Civil Action No. 11-1303 (RMC) ) ) ) ) ) ) ) ) )

OPINION This matter presents a case study in how not to respond to a motion for attorney fees and costs. At issue is whether defendant-intervenors, who prevailed in Voting Rights Act litigation before a three-judge panel, may recoup attorney fees and costs even though the Supreme Court vacated that opinion in light of the Supreme Court’s subsequent decision in a different lawsuit that declared a section of the Voting Rights Act unconstitutional. A quick search of the Federal Reporter reveals the complexity of this narrow question. Yet, rather than engage the fee applicants, Plaintiff Texas basically ignores the arguments supporting an award of fees and costs. In a three-page filing entitled “Advisory,” Texas trumpets the Supreme Court’s decision, expresses indignation at having to respond at all, and presumes that the motion for attorney fees is so frivolous that Texas need not provide further briefing in opposition unless

1

requested. Such an opposition is insufficient in this jurisdiction. Circuit precedent and the Local Rules of this Court provide that the failure to respond to an opposing party’s arguments results in waiver as to the unaddressed contentions, and the Court finds that Texas’s “Advisory” presents no opposition on the applicable law. Accordingly, the Court will award the requested fees and costs.
I. FACTS Following the 2010 Census, Texas redrew its State and congressional voting districts to account for its growing population and new congressional seats, see U.S. Const. art. I, § 2, cl. 3; U.S. Const. amend. XIV, § 2, and to comply with the principle of one-person, onevote, see Georgia v. Ashcroft, 539 U.S. 461, 488 n.2 (2003) (citing Reynolds v. Sims, 377 U.S. 533 (1964)). The new voting districts could not take immediate effect, however. At the time the redistricting plans were enacted, the State fell within the coverage formula of Section 4(b) of the Voting Rights Act of 1965 (VRA), 42 U.S.C. §§ 1973, et seq., and, therefore, was required under Section 5 of the VRA to obtain approval, or “preclearance,” of its redistricting plans from the Attorney General of the United States or a three-judge panel of this Court, see id. § 1973c(a). Texas did not seek administrative preclearance but instead filed suit in this Court on July 19, 2011. See Compl. [Dkt. 1]. The lawsuit sought approval for redistricting plans the Texas Legislature had drawn for the U.S. House of Representatives (Plan C185), the Texas House of Representatives (Plan H283), the Texas Senate (Plan S148), and the Texas State Board of Education. Texas sought a declaratory judgment that all Plans complied with Section 5 of the VRA because they neither had “the purpose nor . . . effect of denying or abridging the right to vote on account of race, color, or [language minority group].”1 42 U.S.C. § 1973c(a).
1 In 1975, Congress extended the VRA to cover members of language minority groups. See 42
2

Properly convened as a three-judge panel, id.; 28 U.S.C. § 2284, this Court had
jurisdiction pursuant to 42 U.S.C. § 1973c and 28 U.S.C. §§ 1346(a)(2), 2201. The United States
opposed preclearance of Plans C185 and H283. In addition, seven parties intervened as defendants, each of whom opposed preclearance of one or more of Texas’s redistricting Plans.2
No party, however, objected to the plan for the Texas State Board of Education. Therefore, on
September 22, 2011, the Court entered judgment in favor of Texas on that Plan, permitting its
immediate implementation. See Sept. 22, 2011 Minute Order; see also Texas, 887 F. Supp. 2d at
138 n.1.
After denying Texas’s motion for summary judgment and ordering expedited
discovery, the three-judge Court conducted a bench trial over a two-week period in January
2012. The United States and Defendant-Intervenors argued against preclearance, presenting
evidence at trial and submitting post-trial briefing. Texas, 887 F. Supp. 2d at 139. The
opposition to the Plans, however, was not uniform. For instance, the United States, the Texas
Latino Redistricting Task Force, and the Gonzales Intervenors all presented expert reports and
testimonies concerning retrogression. Id. at 141. Only the Davis Intervenors, Texas NAACP
Intervenors, the League of Urban Latin American Citizens, and the Texas Legislative Black
Caucus argued that Plan S148 should be denied preclearance due to the retrogressive manner in
U.S.C. § 1973b(f)(2); see also id. § 1973l(c)(3) (defining the terms “language minorities” and “language minority groups”). 2 The parties intervened in their capacities as “individual voters, elected state representatives, or civil rights advocacy groups.” Texas v. United States, 887 F. Supp. 2d 133, 138 n.2 (D.D.C. 2012), vacated and remanded, 133 S. Ct. 2885 (2013). Specifically, they were Texas State senators and representatives from districts in the Fort Worth area (collectively, Davis Intervenors); two legislative caucuses of the Texas House of Representatives (the Mexican American Legislative Caucus and the Texas Legislative Black Caucus); a group of Hispanic and African-American voters in Texas (collectively, Gonzales Intervenors); and three organizations concerned about minority voting rights, redistricting, or voter registration (the Texas State Conference of NAACP Branches, the League of United Latin American Citizens, and the Texas Latino Redistricting Task Force). Id.
3

which the Texas Legislature had drawn State Senate District 10 (Fort Worth).3 See id. at 162. Texas presented its own expert testimony and argued vigorously for approval of all three Plans. The upshot was a “voluminous trial record” that fleshed out the controversies. Id. at 139.
The three judges of this Court were not the only judicial officers wrestling with redistricting Plans C185, H283, and S148. Several parties, including many of the DefendantIntervenors in the instant litigation, had instituted suit against Texas in the Western District of Texas under Section 2 of the VRA, 42 U.S.C. § 1973(a).4 Before a three-judge panel in the Western District of Texas, those parties argued that Plans C185, H283, and S148 violated Section 2 because all three Plans discriminated against minority voters by diluting their voting strength in certain areas of Texas. Perry v. Perez, 132 S. Ct. 934, 940 (2012) (per curiam). Although the three-judge panel in Texas withheld judgment until this Court resolved the preclearance litigation, it adopted interim plans for the 2012 election because the redistricting Plans had not been precleared and the State could not use its prior voting districts, now malapportioned because of population growth. See id. The Texas court imposed a set of interim maps, which were later adjusted after the Supreme Court vacated them due to various errors not pertinent here. See id. at 943-44.
On August 28, 2012, this Court denied Texas’s motion for declaratory judgment, finding that Plans C185, S148, and H283 did not merit preclearance because Texas had not carried its burden of showing that those Plans did “not have the purpose or effect of denying or
3 These Defendant-Intervenors also argued that Plan S148 was enacted with discriminatory intent. Id. at 162. 4 Section 2 provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .” 42 U.S.C. § 1973(a).
4

abridging the right to vote on account of race, color, or membership in a language minority group under [S]ection 5 of [VRA].” See Texas, 887 F. Supp. 2d at 178. Specifically, the Court found that Texas had failed to overcome evidence of the retrogressive effect of Plans C185 and H283 and evidence of discriminatory purpose in enacting Plan C185 and Senate District 10 in Plan S148. Id. at 162, 178. Throughout its Opinion, this Court made clear that it was relying on the evidence offered at trial by all parties, including Defendant-Intervenors.
On October 19, 2012, Texas appealed this Court’s decision to the Supreme Court. Thereafter, between June 21 and 23, 2013, the Texas Legislature repealed and replaced Plans C185, H283, and S148 with new maps. The Texas Legislature passed three separate statutes that redrew the State’s voting districts in a manner that closely mirrored the second set of interim plans ordered by the Perez Court. See Davis Mot. for Fees [Dkt. 256] at 10. The Governor of Texas signed these new plans into law on June 26, 2013. Id. at 11.
On June 25, 2013, after Texas legislative action and one day before the Governor signed the three new redistricting plans into law, the Supreme Court issued Shelby County v. Holder, 133 S. Ct. 2612 (2013). Shelby County involved a constitutional challenge to Section 4 of the VRA. The Supreme Court held that because the coverage formula in Section 4(b) was based on stale data and distinguished among the States in an unconstitutional manner, it “can no longer be used as a basis for subjecting jurisdictions to preclearance.” Id. at 2631. Then, on June 27, 2013, one day after Texas replaced Plans C185, S148, and H283, the Supreme Court vacated and remanded this Court’s opinion that had denied preclearance to Texas. The Davis Intervenors had immediately moved in the Supreme Court for dismissal of Texas’s appeal as moot in light of the formal adoption of new voting plans by the Texas Legislature, and the Supreme Court instructed this Court to consider both Shelby County and the Davis Intervenors’
5

“suggestion of mootness” on remand. Texas, 133 S. Ct. at 2885. On July 3, 2013, Texas moved to dismiss this lawsuit as moot in light of Shelby
County. See Pl. Mot. to Dismiss [Dkt. 239]. All Defendant-Intervenors argued against the motion, and several asked for leave to file a counterclaim against Texas under Section 3(c) of the VRA, 42 U.S.C. § 1973a(c). The Court found that both Shelby County and Texas’s enactment of superseding redistricting plans mooted the controversy. See Dec. 3, 2013 Mem. & Order [Dkt. 255] at 4. It also noted that dismissal of the suit as moot would not preclude DefendantIntervenors from seeking attorney fees. See id. Accordingly, the Court granted Texas’s motion to dismiss and closed the case. On January 22, 2014, the three-judge Court dissolved itself and remanded the matter to this single judge for further proceedings. See Jan. 22, 2014 Order [Dkt. 263].
The Davis Intervenors, Gonzales Intervenors, and Texas State Conference of NAACP Branches (collectively, Fee Applicants) now move for attorney fees and costs.5 They contend that they are prevailing parties and are entitled to fees and costs under the VRA. The Davis Intervenors seek a total reimbursement of $466,680.36, see Davis Mot. for Fees at 2, the Gonzales Intervenors seek a total reimbursement of $597,715.60, see Gonzales Mot. for Fees [Dkt. 257] at 2, and the Texas State Conference of NAACP Branches seeks a total reimbursement of $32,374.05, see Texas State Conference of NAACP Branches Mot. for Fees [Dkt. 258] at 1.
Texas has not filed a brief in opposition to the pending motions. Instead, Texas filed a three-page “Advisory” that begins and ends with Shelby County. See Advisory [Dkt. 259]. Texas writes that, in light of Shelby County, the State was wrongly subjected to
5 Fee Applicants timely filed their motions for attorney fees pursuant to the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 54(d)(2)(B)(i).
6

preclearance in the first place. As a result, Texas contends, the participation of DefendantIntervenors in this VRA litigation only served to “aggravat[e] the unconstitutional burden of preclearance and delay[] [Texas’s] reapportionment efforts following the 2010 Census.” Id. at 2. Texas adds that “[t]he only basis upon which the Intervenors could conceivably have claimed prevailing-party status” was the three-judge Court’s denial of preclearance, which the Supreme Court vacated on appeal. Id. Confident in its Advisory, Texas makes no additional arguments and asserts an intention to say no more unless required to do so. Id. at 3 (“Shelby County requires immediate denial of all motions for fees and costs, and the State does not intend to respond unless requested to do so by the Court.”).
II. ANALYSIS The merits of the instant litigation were tried to a three-judge Court under the VRA, and that Court fulfilled its mandate when it entered its judgment. Section 5 of the VRA requires matters to be “heard and determined by a court of three judges” only to the extent required by 28 U.S.C. § 2284, see 42 U.S.C. § 1973c(a). Section 2284, in turn, permits “[a] single judge . . . [to] conduct all proceedings except the trial, and enter all orders permitted by the rules of civil procedure except as [otherwise] provided . . . .” 28 U.S.C. § 2284(b)(3). Here, the three-judge panel fulfilled its statutory purpose. The question of fees and costs is an ancillary matter and is properly resolved by the district court judge to whom the case was assigned initially. See, e.g., Pub. Serv. Comm’n of Mo. v. Brashear Freight Lines, Inc., 312 U.S. 621, 625 (1941) (noting that a single district judge, rather than a three-judge panel, should have resolved a motion for damages that was filed after the three-judge panel had ruled on an injunction application for which the three-judge panel had been convened); Hamilton v. Nakai, 453 F.2d 152, 161 (9th Cir. 1971) (holding that a single judge could decide an ancillary issue because the
7

three-judge court had issued its judgment and therefore “had fulfilled the statutory purpose for which the two additional judges had been called”); Allen v. Cnty. Sch. Bd. of Prince Edward Cnty., Va., 249 F.2d 462, 464 (4th Cir. 1957) (finding post-judgment motion requesting deadline for compliance with three-judge court’s desegregation order was properly resolved by single district court judge).
Turning to the first principles of attorney fee awards, parties in the United States ordinarily bear their own attorney fees regardless of the outcome of the litigation. Fresh Kist Produce, LLC v. Choi Corp., 362 F. Supp. 2d 118, 125 (D.D.C. 2005) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602-03 (2001), superseded in part by statute, Open Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (codified at 5 U.S.C. § 552(a)(4)(E) (2009))). There are exceptions, however, to this socalled “American Rule.” For instance, the American Rule does not apply where there is an explicit statutory basis for awarding fees. Id. (citing Alyeska Pipeline Serv. Co. v. The Wilderness Soc’y, 421 U.S. 240, 257 (1975), superseded by statute on other grounds, Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. No. 106-274, §4(d), 114 Stat. 803, 804 (codified at 42 U.S.C. § 1988(b) (2000))).
If a party establishes that it is entitled to attorney fees, then the question becomes whether the fees sought are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789, 795-805 (2002). The standard metric for determining the reasonableness of a fee request is the “lodestar method.” 6 As discussed infra, such a calculation “produces an award that roughly approximates the fee that
6 The “lodestar” approach to fee awards was established by the Supreme Court in Hensley, and is the approach followed by the federal courts in most fee award disputes. See Gisbrecht, 535 U.S. at 802.
8

the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010).
A. Fee Applicants’ Entitlement to Fees and Costs Fee Applicants contend that statutory fee shifting provisions apply here.
Specifically, they seek attorney fees under § 1973l(e) of the VRA, 42 U.S.C. § 1973l(e), and subsection (b) of 42 U.S.C. § 1988. Both provisions contain similar language and identical legislative purposes. See Donnell v. United States, 682 F.2d 240, 245 n.7 (D.C. Cir. 1982). The former states that “[i]n any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs,” 42 U.S.C. § 1973l(e), while the latter permits a court, “in its discretion, . . . [to] allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs,” 42 U.S.C. § 1988(b). Both provisions are designed to “encourag[e] private litigants to act as ‘private attorneys general’ in seeking to vindicate the civil rights laws.” Donnell, 682 F.2d at 245. As a result, the two provisions are construed alike. Id. at 245 n.7 (citing Riddell v. Nat’l Democratic Party, 624 F.2d 539, 543 (5th Cir. 1980)); see also Buckhannon, 532 U.S. at 603 n.4 (recognizing that § 1973l(e) and § 1988(b) have been interpreted in a consistent manner).
Requests for attorney fees pursuant to § 1973l(e) and § 1988(b) generally implicate two questions of law. The first is whether the party seeking recovery of attorney fees is a prevailing party. If so, then a fee award ordinarily should be granted. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989) (observing that a party that prevails in § 1988 litigation
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“ordinarily” is entitled to attorney fees (internal quotations and citation omitted)); Donnell, 682 F.2d at 245 (“[T]he legislative history [of § 1973l(e)] makes clear that a prevailing party usually should recover fees.”). The second is whether a court should exercise its discretion not to award attorney fees because there are “special circumstances [that] would render such an award unjust.” Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968).
1. Prevailing Party Precedent The phrase “prevailing party” is a legal term of art, Buckhannon, 532 U.S. at 603, which has been addressed by the Supreme Court in multiple decisions. See, e.g., Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989) (“A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendent lite or at the conclusion of the litigation.”); Hewitt v. Helms, 482 U.S. 755, 760 (1987) (“[P]laintiff [must] receive at least some relief on the merits of his claim before he can be said to prevail.”). The Supreme Court most recently grappled with the concept in Buckhannon. There, interpreting the fee-shifting provisions of the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3613(c)(2), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205,7 the Supreme Court explained that a prevailing party is “one who has been awarded some relief by the court,” Buckhannon, 532 U.S. at 603, resulting in a “judicially sanctioned change in the legal relationship of the parties,” id. at 605. Buckhannon excluded from its definition instances in which the objective of a lawsuit is achieved because a defendant voluntarily changes its conduct. Terming it the “catalyst
7 The fee-shifting provisions of the Fair Housing Amendment Act and the Americans with Disabilities Act are similar to 42 U.S.C. § 1973l(e) and 42 U.S.C. § 1988(b). The Fair Housing Amendments Act provides that “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee and costs”, 42 U.S.C. § 3613(c)(2), while the Americans with Disabilities Act states that “the court . . . , in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee, including litigation expenses and costs,” 42 U.S.C. § 12205.
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theory” of fees recovery, id. at 601, the Supreme Court reasoned that such a basis for recovery is not connected to the clear meaning of “prevailing party,” id. at 605. Neither the legislative history of similar fee-shifting provisions, such as the Civil Rights Attorney’s Fee Awards Act, id. at 607, nor the Court’s precedents supported a “holding that the term ‘prevailing party’ authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties,” id. at 605. Even more troublesome to the Supreme Court was the fact that the catalyst theory permits litigants to recover attorney fees for “nonfrivolous but nonetheless potentially meritless lawsuit[s].” Id. at 606. Not only are such recoveries without “the necessary judicial imprimatur,” id. at 605, but they discourage voluntary changes in conduct, id. at 608. Accordingly, the Supreme Court held that voluntary changes in conduct disassociated from judicial action are similar to a “reversal of a directed verdict,” a finding of constitutional infirmity “unaccompanied by judicial relief,” and other nonjudicial modifications of actual conditions, none of which permits recovery of attorney fees.8 Id. at 605-06 (internal quotations and citations omitted).
Since Buckhannon, the D.C. Circuit has adopted a three-part test for adjudicating prevailing-party status. Prevailing-party status turns on whether there is “(1) . . . a court-ordered change in the legal relationship of the parties; (2) [a] judgment . . . in favor of the party seeking the fees; and (3) [a] judicial pronouncement . . . accompanied by judicial relief.” Green Aviation Mgmt. Co. v. FAA, 676 F.3d 200, 203 (D.C. Cir. 2012) (internal quotation marks and citation omitted). Markedly, only the latter two prongs are relevant when a defendant is the party
8 Through the Open Government Act of 2007, Congress superseded Buckhannon and reinstated the catalyst theory of attorney fee recovery only for fee awards under the Freedom of Information Act, 5 U.S.C. § 552. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 525 (D.C. Cir. 2011).
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seeking attorney fees.9 Id. at 204. Buckhannon expressly recognized only two appropriate bases for awarding
attorney fees––judgments on the merits and settlements enforced through consent decrees. Buckhannon, 532 U.S. at 605 (“We have only awarded attorney’s fees where the plaintiff has received a judgment on the merits, or obtained a court-ordered consent decree.” (internal citations omitted)). Prevailing-party status in this jurisdiction, however, is not so limited. Under the D.C. Circuit’s construction of Buckhannon, a litigant in this jurisdiction need only establish that s/he received “some form of judicial relief, not necessarily a court-ordered consent decree or a judgment on the merits.” Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C. Cir. 2010). The D.C. Circuit has recognized that, under certain circumstances, prevailing-party status may result from a favorable jurisdictional ruling, a grant of preliminary injunction, or even a judicially-sanctioned stipulation. Id. (citing with approval District of Columbia v. Jeppsen ex rel. Jeppsen, 514 F.3d 1287, 1290 (D.C. Cir. 2008); Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 945 (D.C. Cir. 2005); Carbonell v. INS, 429 F.3d 894, 895-96, 899 (9th Cir. 2005)).
2. Fee Applicants’ Arguments Although each Fee Applicant moves separately for attorney fees, their arguments
9 In Oil, Chemical, & Atomic Workers International Union v. Department of Energy, 288 F.3d 452 (D.C. Cir. 2002), superseded by statute on other grounds, Open Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, as recognized in Summers v. Department of Justice, 569 F.3d 500, 503 (D.C. Cir. 2009), the D.C. Circuit ruled that when interpreting a fee-shifting provision courts should give the phrase “prevailing party” the same construction as it does in other fee-shifting provisions “unless there is some good reason for doing otherwise,” id. at 455. Overcoming this presumption is difficult. Green Aviation, 676 F.3d at 202 (explaining that this Circuit “has joined other circuits in acknowledging that the burden of establishing good reason not to apply Buckhannon is not easily met” (internal alterations, citation, and quotations omitted)). Neither Texas nor the Fee Applicants argue that Buckhannon should not control the meaning of “prevailing party” in 42 U.S.C. § 1973l(e) or 42 U.S.C. § 1988(b).
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for prevailing-party status largely overlap and can be summarized.10 Fee Applicants state that
they joined the litigation to oppose preclearance for Plans C185, H283, and/or S148. This Court
first denied preclearance to Texas on summary judgment, with the result that the District Court in
the Western District of Texas imposed interim maps that re-drew some voting districts.
Following a trial before this Court at which all parties presented demonstrative evidence, expert
reports, and testimony, the Court found that Plans C185, H283, and S148 violated the VRA. It,
therefore, denied preclearance. Fee Applicants argue that this result was enshrined into law in
June 2013, when Texas repealed Plans C185, H283, and S148 and enacted new redistricting
plans that were substantially similar to the interim maps drawn by the three-judge panel in Texas.
Because Texas never used Plans C185, H283, or S148 for any actual voting (primary or general
election) and all Plans were rejected by the Court and replaced by Texas, Fee Applicants contend
that they achieved not just some judicial relief, but rather, all of the relief that they sought.
Outraged that Fee Applicants would dare to request fees, Texas responds with its
Advisory. Texas posits that the three-judge Court’s denial of preclearance is “[t]he only basis
upon which the intervenors could conceivably . . . claim[] prevailing-party status,” Advisory at 2,
but that the decision does not support a fee award because it “was vacated on appeal,” id. Texas
10 Unlike the Davis Intervenors and the Texas State Conference of NAACP Branches, the Gonzales Intervenors rely primarily on Commissioners Court of Medina County, Texas v. United States, 683 F.2d 435 (D.C. Cir. 1982), in arguing their prevailing-party status. The Gonzales Intervenors contend that a judgment denying preclearance gives rise to a presumption that any defendants who intervened are prevailing parties. Further, the Gonzales Intervenors argue that, even without such a presumption, they fit within Medina County’s two-prong test for determining prevailing-party status. Medina County, however, is a “catalyst theory” fee award case that predates Buckhannon. See 683 F.2d at 440 (describing the applicable test for prevailing party status as whether “the party . . . substantially received the relief sought, and . . . [whether] the lawsuit . . . [was] a catalytic, necessary, or substantial factor in attaining the relief” (emphasis added)). Although neither the Supreme Court nor the D.C. Circuit has overruled Medina County explicitly, its continuing validity in light of Buckhannon is uncertain, and here, immaterial to the Court’s determination of Fee Applicants’ prevailing-party status.
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asserts that Shelby County must be given full retroactive effect and this Court has no choice but to deny Fee Applicants’ motions for attorney fees. Id. at 2-3 (citing Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993); Landsgraf v. USI Film Prods., 511 U.S. 244, 279 n.32 (1994)).
3. Fee Applicants Are Prevailing Parties The Advisory filed by Texas has narrowed the dispute greatly. Texas rests entirely on Shelby County. Its sole contention is that the Supreme Court, as a matter of fact and law, erased the three-judge Court’s opinion, and, consequently, Fee Applicants’ successes before that Court. In essence, Texas believes that Shelby County establishes that the entirety of the preclearance process, including this Court’s denial of preclearance, was a constitutional “affront” and nullity. In short, Texas points to Shelby County and declares checkmate. Texas does not address Defendant-Intervenors’ argument that they achieved the relief they sought because Texas discarded the challenged Plans and adopted different redistricting plans. In fixating on Shelby County, Texas blinds itself to the procedures of this Court. The Local Rules of the Court provide that: Within 14 days of the date of service or at such other time as the Court may direct, an opposing party shall serve a memorandum of points a nd a uthorities i n oppos ition t o t he m otion. If s uch a memorandum is not filed within the prescribed time, the court may treat the motion as conceded. D.D.C. Local Civil Rule 7(b). This Rule “is a docket-management tool that facilitates efficient and effective resolution of motions by joining of issues.” Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004). It applies not only to instances where a litigant entirely fails to oppose a motion but also where a party files an opposition that addresses only some of the arguments raised in the underlying motion. In the latter instance, it is well-established that courts may deem the unaddressed arguments as conceded. See Hopkins v. Women’s Div., Gen.
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Bd. of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It is well understood in this
Circuit that when a [non-movant] files an opposition to a motion . . . addressing only certain
arguments raised by the [movant], a court may treat those arguments that the [non-movant] failed
to address as conceded.” (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997))); CSX
Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1996); see also
Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997) (explaining that
the Circuit “honors . . . [a district court’s] enforcement of the rule” that “absence of a response
[is] . . . a basis for treating the motion as conceded”).
Texas does not dispute that Fee Applicants were prevailing parties prior to the
Supreme Court’s issuance of Shelby County and subsequent vacatur and remand of this Court’s
opinion denying preclearance. Notably, this Circuit has found that parties who intervene as
defendants in VRA litigation are eligible for fee awards,11 see Medina Cnty., 683 F.2d at 440;
Donnell, 682 F.2d at 246, and Fee Applicants contend that the three-judge Court’s denial of
preclearance rendered them prevailing parties under Buckhannon, as interpreted by the D.C.
Circuit. Texas makes no argument whatsoever that Shelby County upended the eligibility of Fee
11 Judge John D. Bates recently denied Shelby County’s motion for attorney fees, finding that its (ultimately successful) lawsuit was at odds with the policy rationale of the VRA’s fee-shifting provision. Shelby Cnty. v. Holder (Shelby Cnty. II), Civ. No. 10-651, 2014 WL 2200898, at *10 (D.D.C. May 28, 2014). Assuming that Shelby County’s lawsuit was the “sort of action or proceeding” for which § 1973l(e) permits attorney fee awards, id. (internal quotations omitted), Judge Bates determined that the County was not entitled to fees under the “demanding . . . standard” set forth in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), Shelby Cnty. II, 2014 WL 2200898, at *10. Judge Bates opined that “the purpose of section 1973l(e) is to encourage private attorneys general to bring lawsuits vindicating individual voting rights,” id., whereas Shelby County’s suit sought to undermine VRA rights, id. at *16 (citing Christiansburg, 434 U.S. at 418).
Judge Bates’ opinion is inapposite to the facts of this case. Fee Applicants intervened, in the manner of private attorneys general, to protect core rights established under the VRA prior to the Supreme Court’s issuance of Shelby County. As the analysis in the text demonstrates, Fee Applicants were successful in preventing Texas’s use of redistricting Plans C185, H283, and S148 and the State adopted three new redistricting plans for elections subsequent to June 2013.
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Applicants for fee awards, the applicability of Buckhannon, or the prevailing-party status of Fee Applicants at the time the Court denied preclearance to Texas and thereafter, when Texas enacted new redistricting maps. Thus, the Court finds that Texas has waived any argument as to these issues.
Having conceded that Fee Applicants were prevailing parties prior to Shelby County, Texas’s only argument against an award of fees and costs here is that Shelby County effectively stripped Fee Applicants of their victory. Texas’s opposition, however, overlooks National Black Police Association v. District of Columbia Board of Elections & Ethics, 168 F.3d 525 (D.C. Cir. 1999) and Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986). In National Black Police Association, various plaintiffs sought an injunction against campaign contribution limits for certain local elections. 168 F.3d at 526-27. The district court enjoined the initiative as violative of the First Amendment, and fifty-two days later, the D.C. City Council repealed the challenged contribution limits. Id. at 527. On appeal, the D.C. Circuit deemed the matter moot in light of the Council’s repeal and vacated the district court’s judgment. The district court then awarded attorney fees to plaintiffs, holding that “despite the eventual mootness of the case . . . . the injunction changed the legal relationship of the parties, and contributors were able to make substantial contributions that otherwise would not have been legal.” Id. The D.C. Circuit agreed. “The fact that the case was moot by the time of the appeal [did] not alter the fact that the injunction altered the legal relationship between the parties when it was issued . . . .” Id. at 528. It was of no moment to the D.C. Circuit that the plaintiffs would have realized their goal fiftytwo days later when the Council repealed the initiative. “The plaintiffs secured a real-world vindication of their First Amendment rights” regardless of subsequent events. Id. Accordingly, the “district court properly found that the plaintiffs were prevailing parties because at the time
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judgment was entered, the injunction altered the legal relationship between the parties.” Id. at 529.
Similarly, in Grano, plaintiffs obtained an injunction that delayed the demolition of an historical site pending a public referendum. 783 F.2d at 1107-08. The D.C. Circuit affirmed the district court’s finding that the plaintiffs were prevailing parties despite the fact that the vote to preserve the site was invalidated. Id. at 1109. The Circuit reasoned that the public referendum would have had no chance to preserve the building at all if the building were razed before the election. In other words, the Grano plaintiffs “faced two hurdles[:] [t]hey successfully surmounted the first by holding off the demolition until the election . . . . [and] [a]lthough their goal of ensuring that the result of the election would have legal effect was subsequently blocked in another court, they nonetheless succeeded in the aspect of their claims that brought them into federal court . . . .” Id. Significantly, the D.C. Circuit subsequently has observed that “[t]he injunction [in Grano] produced a lasting change in the parties’ legal circumstances and gave the plaintiffs the precise relief that they had sought.” Thomas v. Nat’l Sci. Found., 330 F.3d 486, 493 (D.C. Cir. 2003).
Here, Texas does not dispute that this Court’s denial of preclearance altered the legal relationship between it and Fee Applicants. Nor does Texas dispute that on June 26, 2013, it repealed the very voting maps for which it had sought preclearance and replaced them with redistricting maps that were substantially similar to the voting districts ordered by the District Court in Texas. Although the Supreme Court ultimately vacated this Court’s opinion, neither Shelby County nor the vacatur erased the real-world vindication that Fee Applicants had achieved. In line with this Circuit’s precedents and those in other courts of appeals, the Court finds that Defendant-Intervenors did not lose prevailing-party status due to subsequent mootness.
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See Thomas, 330 F.3d at 493; Nat’l Black Police Ass’n, 168 F.3d at 528; Grano, 783 F.2d at 1108-09; see also Thomas v. Bryant, 614 F.3d 1288, 1294 (11th Cir. 2010) (“[W]hen plaintiffs clearly succeeded in obtaining the relief sought before the district court and an intervening event rendered the case moot on appeal, plaintiffs are still ‘prevailing parties’ for the purposes of attorney’s fees for the district court litigation.” (quoting Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009) (internal quotation marks omitted))); Palmer v. City of Chicago, 806 F.2d 1316, 1321 (7th Cir. 1986) (assuming without deciding that it is possible for a party to “win” even though “after some relief has been obtained[,] the case becomes moot––is in effect interrupted before it can reach its normal conclusion (unless the [prevailing party] caused it to become moot)”); cf. UFO Chuting of Haw., Inc. v. Smith, 508 F.3d 1189, 1197 (9th Cir. 2007) (“[W]hen ‘a party . . . achieves the objective of its suit by means of an injunction issued by the district court[, it] is a prevailing party in that court, notwithstanding the fact that the case becomes moot, through no acquiescence by the defendant, while the order is on appeal.’” (quoting Dahlem v. Bd. of Educ. of Denver Pub. Sch., 901 F.2d 1508, 1512 (10th Cir. 1990))).
This result is not inconsistent with the analysis in Lewis v. Continental Bank Corp., 494 U.S. 472 (1990). Lewis involved two Florida statutes that prohibited an out-of-state holding company from operating an industrial savings bank in Florida. Continental Bank challenged the statutes as unconstitutional under the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, and sought an injunction to order the State Comptroller to process its application for an industrial savings bank. Lewis, 494 U.S. at 475. The district court granted the relief requested, and Florida then amended the statutes, which materially altered the legal landscape. Id. Florida moved to amend the district court judgment on the grounds of mootness and Continental Bank moved for attorney fees under 42 U.S.C. § 1988. The district court denied both motions. Id.
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On appeal, the Eleventh Circuit found that the case was not moot, affirmed the lower court decision on different grounds, and remanded for further analysis on the fee petition. Id. at 476. Shortly before the Eleventh Circuit decision issued, however, Congress adopted the Competitive Equality Amendments Act of 1987, Pub. L. No. 100-86, 101 Stat. 552, which expanded the definition of “bank” and distinctly mooted the Continental Bank lawsuit. Lewis, 494 U.S. at 476. Florida petitioned the Eleventh Circuit for rehearing, but the Circuit denied the request, awarded attorney fees, and remanded to the district court to calculate the award. Id. at 476-77.
The Supreme Court granted certiorari to Florida and held that the federal legislation had mooted the case. Id. at 477-80. It found that Continental Bank no longer had any “stake in the outcome” because of changes in the law. Id. at 478. As to any fee recovery, the Supreme Court observed that “[s]ince the judgment below [was] vacated on the basis of an event that mooted the controversy before the Court of Appeals’ judgment issued, Continental was not, at that stage, a ‘prevailing party’ as it must be to recover fees under § 1988.” Id. at 483 (emphasis added). It added, “[w]hether Continental [could] be deemed a ‘prevailing party’ in the District Court, even though its judgment was mooted after being rendered but before the losing party could challenge its validity on appeal, is a question of some difficultly that . . . . [w]e decline to resolve . . . . as well as the related question whether . . . fees are available in a Commerce Clause challenge.” Id. (citation omitted).
As the Ninth Circuit has since observed, Lewis “did not hold that a party automatically loses its prevailing party status when the appeal becomes moot before a Court of Appeals reaches final judgment.” UFO Chuting, 508 F.3d at 1197 n.8. “Rather, [it] . . . reaffirmed established case law requiring a prevailing party to obtain a direct and
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substantial benefit.” Id. Fee Applicants obtained a direct and substantial benefit as well: redistricting Plans C185, H283, and S148 were never implemented; Texas repealed the challenged Plans and adopted new plans; and the Governor formally executed the legislation replacing the Plans one day before the Supreme Court vacated and remanded this Court’s denial of preclearance. Given this timing of events, Shelby County did not strip Defendant-Intervenors of their rights to seek fees. This conclusion is consistent with Lewis and follows the law of the D.C. Circuit and other courts of appeals that have found that subsequent mootness does not necessarily obviate a litigant’s prevailing-party status.
4. Absence of Special Circumstances Having found Fee Applicants are prevailing parties, the Court turns to whether special circumstances would render an award unjust. This question requires an evaluation of several factors. One consideration is “whether the net result is [such] . . . that it would be stretching the imagination to consider the result a ‘victory’ in the sense of vindicating the rights of the fee claimants.” Medina Cnty., 683 F.2d at 442-43. “If the victory can fairly be said to be only a pyrrhic one, then an award of fees would presumably be inappropriate.” Id. at 443. A related consideration is the impact that the party seeking attorney fees had on the litigation. Where fee applicants are intervenors, a court considers whether they timely intervened,12 whether their participation was necessary to protect their interests and further the policies embodied in the relevant statutory scheme, Miller, 706 F.2d at 343, and whether they had an “independent impact on the particular outcome of the case,” Medina Cnty., 683 F.2d at 443.
12 The D.C. Circuit has noted that the analysis of the contributions of an intervenor, for purposes of attorney fees, is akin to the analysis that is conducted when intervention is first sought. Accordingly, “the District Court should not reevaluate its decision on this issue unless new evidence has arisen.” Miller v. Staats, 706 F.2d 336, 343 n.40 (D.C. Cir. 1983) (citing Medina Cnty., 683 F.2d at 443).
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The “special circumstances” exception to an award of fees is a gloss on § 1973l(e) and § 1988. That is, the exception is “a judicially created concept, not mentioned in any of the fee award statutes.” Maloney v. City of Marietta, 822 F.2d 1023, 1027 (11th Cir. 1987). As a result, the exception is “narrowly construed so as not to interfere with the congressional purpose in passing [fee-shifting] statutes.” Martin v. Heckler, 773 F.2d 1145, 1150 (11th Cir. 1985) (en banc), abrogated on other grounds by Tex. State Teachers Ass’n, 489 U.S. 782.
Fee Applicants set forth in detail the efforts that they undertook to oppose Plans C185, H283, and S148. They explain the necessity of their intervention, describe the resources that they expended at every stage in the proceedings, and recount the witnesses and evidence that they presented at trial. Texas makes no effort to rebut Fee Applicants’ facts or arguments. Accordingly, the Court finds no special circumstances and that Texas concedes there are no special circumstances that would render an award of attorney fees to Fee Applicants unjust.13 See CSX Transp., Inc., 82 F.3d at 482-83; Hopkins, 238 F. Supp. 2d at 178.
B. Reasonableness of Defendant-Intervenors’ Request In this Circuit, “[t]he usual method of calculating reasonable attorney’s fees is to
multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). A fee applicant bears the burden of demonstrating that the claimed rate and number of hours are reasonable. Blum v. Stenson, 465 U.S. 886, 897 (1984); Covington v.
13 Fee Applicants also argue an alternate theory of prevailing-party status, i.e., because this threejudge Court denied summary judgment to Texas, the Perez Court imposed interim redistricting maps and Fee Applicants may recover fees and costs in this Court. Fee Applicants reason that “[n]othing in Buckhannon requires that the judicial relief relied upon for prevailing party status be received in the same case in which fees are sought . . . .” Davis Mot. for Fees at 21. In light of Fee Applicants’ significant participation in this case and Texas’s concessions, the Court has no need to rule on this argument.
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District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). Fee applications must “include contemporaneous time records of hours worked
and rates claimed, plus a detailed description of the subject matter of the work with supporting documents, if any.” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989). A fee applicant may satisfy its burden of demonstrating that its time was reasonably spent by submitting “‘sufficiently detailed information about the hours logged and the work done’ that permits the district court to ‘make an independent determination whether or not the hours claimed are justified.’” Cobell v. Norton, 231 F. Supp. 2d 295, 305 (D.D.C. 2002) (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)). The applicant need not, however, “present the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney.” Id. at 306. Billing descriptions can be read in context, with clarification coming from surrounding billing entries as well as the docket. Heard v. District of Columbia, Civ. No. 02–296, 2006 WL 2568013, at *14-15 (D.D.C. Sept. 5, 2006).
The Court need not tarry long on the reasonableness of the fees sought because Texas has presented no argument contesting any aspect of them. Fee Applicants have submitted sufficiently detailed information about the hours their attorneys spent working on this matter as well as the specific work performed. See Davis Mot. for Fees at 24-35; Id., Exs. A-L; Gonzales Mot. for Fees at 11-15; Id., Decl. of John Devaney [Dkt. 257-3], Exs. A-C; Id., Decl. of Renea Hicks [Dkt. 257-7], Ex. A; Texas State Conference of NAACP Branches Mot. for Fees at 2-3; Id., Ex [Dkt. 258-1]. Further, they have adequately explained the hourly rates of their attorneys. Because Texas makes no argument whatsoever in opposition, the Court finds that Texas concedes the reasonableness of the attorney fees that Fee Applicants seek. See CSX Transp., Inc., 82 F.3d at 482-83; Hopkins, 238 F. Supp. 2d at 178.
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The Court likewise easily finds that Fee Applicants are entitled to recover the litigation costs that they request. See Davis Mot. for Fees at 36-37; Id., Ex. M; Gonzales Mot. for Fees at 15-16; Texas State Conference of NAACP Branches Mot. for Fees at 3. Section 1973l(e) of the VRA explicitly permits prevailing parties to recoup costs. See 42 U.S.C. § 1973l(e) (“In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, . . . reasonable expert fees[] and other reasonable litigation expenses as part of the costs.”). Texas mounts no challenge to the categories or amounts for which DefendantIntervenors seek recovery. Nor does Texas argue that such an award would be unreasonable. Accordingly, the Court finds that Texas also concedes the reasonableness of the costs and experts fees that Fee Applicants seek. See CSX Transp., Inc., 82 F.3d at 482-83; Hopkins, 238 F. Supp. 2d at 178.
III. CONCLUSION The Advisory submitted by the State of Texas fails to recognize that the limited holding of Shelby County did not resolve the issues here. The Advisory entirely ignores the legal arguments raised by Fee Applicants concerning their rights as prevailing parties. Confident in its position, Texas informs the Court that it will not further “respond unless requested to do so.” Advisory at 3. The onus, however, is not on the Court to request opposition from a sophisticated party before rendering its decision. Texas has had every chance to oppose the fees and costs that Fee Applicants seek since the applications. It instead opted to file a three-page Advisory that ignored every argument of Fee Applicants except the applicability of Shelby County. In accord with the precedents of this Circuit and others, the Court finds that Fee Applicants are prevailing parties before this Court and eligible to recover attorney fees and costs.
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The Court further finds that the fees and costs they seek are uncontested and reasonable. The Court will award $466,680.36 to the Davis Intervenors, $597,715.60 to the Gonzales Intervenors, and $32,374.05 to the Texas State Conference of NAACP Branches. A memorializing Order accompanies this Opinion.

Date: June 18, 2014

/s/ ROSEMARY M. COLLYER United States District Judge

24

 </s> Case 1:11-cv-01303-RMC-TBG-BAH Document 266 Filed 06/18/14 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,
Plaintiff,
v.
UNITED STATES OF AMERICA, and ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States,
Defendants, and
WENDY DAVIS, et al.,
Defendant-Intervenors.

) ) ) ) ) ) ) ) ) Civil Action No. 11-1303 (RMC) ) ) ) ) ) ) ) ) )

ORDER For the reasons set forth in the Opinion filed simultaneously with this Order, it is hereby ORDERED that the Motion for Fees, Expenses, and Costs of DefendantIntervenors Wendy Davis, et al., Dkt. 256, the Motion for Fees and Expenses of DefendantIntervenors Greg Gonzales, et al., Dkt. 257, and the Motion for Fees, Expenses, and Costs of Defendant-Intervenors Texas State Conference of NAACP Branches, et al., Dkt. 258, are GRANTED; and it is FURTHER ORDERED that Plaintiff must remit $466,680.36 to DefendantIntervenors Wendy Davis for fees and costs, $597,715.60 to Defendant-Intervenors Greg Gonzales for fees and costs, and $32,374.05 to Defendant-Intervenors Texas State Conference of NAACP Branches for fees and costs; and it is
1

Case 1:11-cv-01303-RMC-TBG-BAH Document 266 Filed 06/18/14 Page 2 of 2
FURTHER ORDERED that all disbursements shall occur no later than July 2, 2014; and it is
FURTHER ORDERED this is a final appealable order. See Fed. R. App. P. 4(a).

Date: June 18, 2014

/s/ ROSEMARY M. COLLYER United States District Judge

2

 </s> UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,
Plaintiff,
v.
UNITED STATES OF AMERICA, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States,
Defendants, and
WENDY DAVIS, et al.,
Defendant-Intervenors.

) ) ) ) ) ) ) ) ) Civil Action No. 11-1303 (RMC) ) ) ) ) ) ) ) ) )

MEMORANDUM OPINION

This motion for appellate attorney’s fees comes at the end of long and complex

litigation under the Voting Rights Act. As Texas appealed the decision of a three-judge court in

the United States District Court for the District of Columbia that certain of its 2011 redistricting

plans could not be approved, the Supreme Court decided that the provision of the Voting Rights

Act requiring Texas to obtain such approval was unconstitutional. Nonetheless, to the State’s

consternation, this Court granted attorney’s fees as “prevailing parties” to Intervenor-Defendants

who had challenged the new Texas district maps. Defendant-Intervenors now seek attorney’s

fees for their successful defense of the first fee award on appeal. The Court will grant in part and

deny in part their motion.

I. BACKGROUND After the 2010 Census, the State of Texas enacted redistricting plans for the Texas House of Representatives, the Texas Senate, and the United States House of Representatives to reflect its growing population and new congressional seats. At that time, Texas was covered by Section 5 of the Voting Rights Act of 1965, 52 U.S.C. § 10304(a), which required covered jurisdictions seeking to change any voting procedure to obtain either administrative preclearance from the Attorney General or judicial preclearance from a three-judge court in the United States District Court for the District of Columbia. 52 U.S.C. § 10304(a). The purpose of preclearance was to ensure that a proposed change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color,” 52 U.S.C. § 10304(a), or language minority, id. § 10303. The State of Texas sought a declaratory judgment that its proposed redistricting plans had neither the purpose nor the effect of denying or abridging the right to vote on account of race, color or language minority. The Federal Government opposed preclearance of the redistricting maps for the U.S. House of Representatives and for the Texas State House of Representatives but not the redistricting map for the Texas State Senate. Seven parties were granted Defendant-Intervenor status, each of whom challenged aspects of all three maps as individual voters, elected State senators or representatives, or civil rights advocacy groups. After a two-week bench trial, the three-judge court determined that Texas had acted with discriminatory purpose or effect and denied preclearance to all three redistricting plans, in whole or in part. See Texas v. United States, 887 F. Supp. 2d 133, 138-39 (D.D.C. 2012). Texas immediately filed a petition for certiorari to the Supreme Court, which was opposed by the Federal Government and Defendant-Intervenors. Before the Supreme Court
2

addressed the three-judge court opinion in Texas v. United States, the Court invalidated Section 4 of the Voting Rights Act, which required Texas, among other political bodies, to submit to preclearance. See Shelby County v. Holder, 133 S. Ct 2612 (2013). The Supreme Court then vacated and remanded the decision in Texas v. United States to the three-judge district court panel to decide whether the case was moot. Texas moved to dismiss all claims as moot in light of Shelby County. The three-judge court agreed that the case was mooted both by Shelby County and by the State’s adoption of superseding redistricting plans, and so it was dismissed. See Mem. and Order [Dkt. 255].
The three-judge court then dissolved. See Order [Dkt. 263]. The case was returned to the undersigned, who had served on the three-judge court and to whom the case was originally assigned by random draw.
Three of the Defendant-Intervenors (hereinafter “Intervenors”) thereupon sought reimbursement for costs and legal fees incurred in the litigation before the District Court. See Davis Mot. [Dkt. 256], Gonzales Mot. [Dkt. 257], NAACP Mot. [Dkt. 258]. The Davis Intervenors are Texas State senators and representatives from voting districts in the Fort Worth area. The Gonzales Intervenors are a group of Hispanic and Black Texas voters. The Texas State Conference of NAACP Branches is a civil rights advocacy group concerned with minority voting rights in Texas.
Texas opposed in an Advisory, arguing that Intervenors were not prevailing parties for purposes of attorney’s fees. See Advisory [Dkt. 259]. On June 18, 2014, this Court granted Intervenors’ motion for attorney’s fees, after finding that they were prevailing parties and that the Texas Advisory had waived most of the state’s rights to argue otherwise about fee entitlement or amount. The D.C. Circuit affirmed. See Texas v. United States, 49 F. Supp. 3d 27
3

(D.D.C. 2014), aff’d, 798 F.3d 1108 (D.C. Cir. 2015). When Texas appealed the D.C. Circuit decision on fees, the Supreme Court denied certiorari. Texas v. Davis, 136 S. Ct. 981 (2016). Intervenors subsequently filed the instant motion for attorney’s fees in the Circuit to recover fees and costs incurred in defending the fee award before both the Circuit and the Supreme Court. The D.C. Circuit remanded the motion because “[t]he motions and accompanying responses raise fact questions about the appropriate rates and hours for appellate work done by intervenors’ counsel” that are best determined by the district court. D.C. Cir. Order 3/17/2015 [Dkt. 273]. The matter returned to the undersigned Judge.
II. LEGAL STANDARDS Once a party has established that it is entitled to attorney’s fees, a court must determine whether the fees sought are reasonable. In doing so, courts traditionally apply a threepart analysis: “(1) determination of the number of hours reasonably exp[e]nded in litigation; (2) determination of a reasonable hourly rate or ‘lodestar’;1 and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1517 (D.C. Cir. 1988) (citing Blum v. Stenson, 465 U.S. 886 (1984)). To determine a reasonable hourly rate, courts consider three elements: “(1) the attorney’s billing practices, (2) the attorney’s skill, experience, and reputation and (3) the prevailing market rates in the relevant community.” Reed v. District of Columbia, 843 F.3d 517, 521 (D.C. Cir. 2016) (internal quotation marks and citation omitted).
1 The “lodestar” method, established by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 434 (1983), is determined by multiplying “the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984). It is the approach followed by most federal courts in fee award disputes. See Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002).
4

Parties seeking fee awards must offer evidence, in addition to the attorney’s own affidavit, to demonstrate that the fees requested “are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Covington v. District of Columbia, 57 F.3d 1101, 1108 (D.C. Cir. 1995) (quoting Blum, 465 U.S. at 896 n. 11). Fee applications must “produce data concerning the prevailing market rates in the relevant community for attorneys of reasonably comparable skill, experience, and reputation.” Id.
In determining the reasonable number of hours expended by attorneys, there must be a “good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
III. ANALYSIS Intervenors rely on the explicit provision in the Voting Rights Act awarding attorney’s fees to prevailing parties who challenge a voting plan or procedure. See 42 U.S.C. § 1988(b). There is no longer any question but that Intervenors are prevailing parties and are entitled to an award of reasonable attorney’s fees for their work before the D.C. Circuit and the Supreme Court; that question was definitively settled by the D.C. Circuit in Texas v. United States, 798 F.3d 1108 (D.C. Cir. 2015) (affirming the district court’s grant of attorney’s fees), and the Supreme Court’s refusal to hear the Texas petition for certiorari. Texas v. Davis, 136 S. Ct. 981 (2016).2 Texas challenges the hourly rates billed for certain counsel for the Davis
2 To clarify for the reader, the Court mentions Intervenors’ status as prevailing parties only because the parties’ briefs on fees were submitted to the D.C. Circuit prior to the petition for certiorari filed by Texas and its denial by the Supreme Court, which resolved the issue. At the time its brief was filed, Texas still hoped for success and argued that Intervenors were not entitled to fees, despite the D.C. Circuit decision to the contrary. Opp’n to Mot. For Attorney Fees [Dkt. 281] at 2-3. On remand, the Court invited further briefing but no party thought it necessary. See Court’s Minute Order 3/22/2016.
5

Intervenors on both the appeal to the D.C. Circuit and their opposition to certiorari; and the hourly rates for certain counsel for the Gonzales Intervenors for work on the appeal to the D.C. Circuit. Texas “does not object to the requested hourly rates of the individuals representing the NAACP Appellees.” Opp’n to Mot. for Attorney Fees [Dkt. 281] at 12; see also Opp’n to Supp. Mot. for Attorney’s Fees [Dkt. 284] at 1.
In summary, Texas argues that the hourly rates for all counsel and support staff for the Davis and Gonzales Intervenors should be limited to the Laffey Matrix3 for fees used by the District of Columbia Office of the U.S. Attorney (USAO). In addition, Texas challenges the number of hours billed for certain work by the Gonzales Intervenors.
All Intervenors contend that Texas waived any argument that the USAO Laffey Matrix should be used by failing to raise the objection during the litigation over trial fees. In general, under the law-of-the-case-doctrine, “a court involved in later phases of a lawsuit should not re-open questions decided . . . by that court or a higher one in earlier phases.” Crocker v. Peidmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995). This principle does not apply in the current circumstances, in which the fee dispute involves appellate litigation, for which no previous award has been made. See Murchison v. Inter-City Mortg. Corp. Profit Sharing & Pension Plans, 503 F. Supp. 2d 184, 191 (D.D.C. 2007) (order regarding trial fees not law-ofthe-case for post-trial litigation); see also Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 63-64 (D.C. Cir. 2015) (fees in settlement order not law-of-the-case for fees for later stage of litigation).
A. Hourly Rates for the Davis and Gonzales Intervenors
3 The Laffey Matrix is an attorney’s fee matrix developed in Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983). It is discussed in greater detail below.
6

In determining the prevailing market rate, fee applicants may submit their own survey of prevailing market rates or attorney’s fee matrices, which “provide a useful starting point” in calculating the prevailing market rate. Covington, 57 F.3d at 1109. The Laffey Matrix is the most commonly used fee matrix in determining fees for complex federal litigation in the D.C. Circuit. It was developed to reflect prevailing rates for work done in 1981-1982 in Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds, Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (1988). The Laffey Matrix has since been updated several times, leading to competing matrices, two of which are relevant to this case.
The first Laffey Matrix, known as the USAO Laffey Matrix, is maintained and updated by the United States Attorney’s Office for the District of Columbia. See USAO Laffey Matrix 2015-2017, available at https://www.justice.gov/usao-dc/file/889176/download. The USAO Laffey Matrix adjusts the original 1980s rates to account for inflation by using the Consumer Price Index for All Urban Consumers (CPI-U) of the United States Bureau of Labor Statistics. The CPI-U measures prices across several commodities in a specific geographic area, in this case, the Washington D.C. Metropolitan Area. The second Laffey Matrix, known as the LSI Laffey Matrix, relies on the Legal Services Index of the Bureau of Labor Statistics, which provides national legal rates adjusted for inflation, rather than local and generalized cost data. See LSI Laffey Matrix, available at http://www.laffeymatrix.com/see.html.
Intervenors ask for fees that reflect their billing rates to private clients while Texas argues that the USAO Matrix should govern. In response, Intervenors insist that if a Laffey Matrix is to be applied, the more generous LSI Matrix — based on legal rates on a
7

national basis, not general commodities in the local area (including much more than legal rates) — is more appropriate.
Both Matrices have been approved in this District and the selection of one over the other depends on whether fee applicants have shown that their preferred Matrix reflects prevailing rates for comparable work. In Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir. 2015), the D.C. Circuit vacated and remanded an award of attorney’s fees under the LSI Matrix for litigation under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., because the fee applicants had failed to produce evidence that the LSI Matrix rates were in line with prevailing rates for other IDEA litigation. Id. at 104-05. On remand, the District Court found that “‘there is a submarket in which attorneys’ hourly fees are generally lower than the rates in either of the Laffey Matrices.’” Eley v. District of Columbia, No. 11-cv-309 (BAH), 2016 WL 4435187, at *8 (D.D.C. Aug. 22, 2016) (quoting Salazar, 809 F.3d at 64). Nonetheless that court awarded fees under the USAO Matrix because it found that IDEA litigation is complex federal litigation.4 Id. Using reasoning similar to that in Eley, Heller v. District of Columbia, 832 F. Supp. 2d 32, 47-48 (D.D.C. 2011), relied on the USAO Matrix for a fee award to small law firms conducting complex federal litigation because, it concluded, the LSI Matrix is based on rates for the District of Columbia’s largest law firms and should not be used for smaller firms that generally charge at lower rates.
In Salazar, the D.C. Circuit affirmed an award of attorney fees under the LSI Matrix following litigation of a class action on behalf of Medicaid claimants under 42 U.S.C. §
4 Courts in this District have different opinions on whether IDEA litigation is sufficiently complex to warrant the use of a Laffey matrix. Compare McAllister v. District of Columbia, 21 F. Supp. 3d 94, 108-10 (D.D.C. 2014) (no) and Merrick v. District of Columbia, 134 F. Supp. 3d 328, 339 (D.D.C. 2015) (yes).
8

1983. Salazar, 809 F.3d 58. The Salazar court noted that there was no evidence that the fee applicants were part of a submarket in which attorneys’ rates were generally lower, and therefore analyzed prevailing rates for complex federal litigation in Washington, D.C. generally. Id. at 64. Salazar reviewed copious evidence “regarding prevailing market rates for complex federal litigation” including an affidavit of the economist who developed the LSI Laffey Matrix explaining why it “is a better measure of the change in prices for legal services in Washington, D.C. than the USAO update to the Laffey Matrix.” Id. In addition, Salazar cited evidence of “billing rates tables demonstrating the difference between average national law firm rates and the LSI update to the Laffey Matrix, as well as the difference between average national law firm rates and the USAO update to the Laffey Matrix.” Id. at 65. Based on this evidence, Salazar concluded that “[f]or the same experience level in the same time frame, the LSI updated rate was closer to the average national law firm rate.” Id.
Intervenors request hourly rates based on the actual rates they charge private fullpaying clients. While “an attorney’s usual billing rate is presumptively the reasonable rate” this is only so when the “rate is in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Kattan by Thomas v. District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum, 465 U.S. at 895 n. 11). Intervenors have presented affidavits and biographies of their attorneys, time records, and the National Law Journal Billing Survey of 2014. See Exhibits to Mot. for Attorney Fees [Dkt. 280]. This evidence does not satisfactorily establish that the billing rates for all of Intervenors’ counsel are the prevailing market rates for similar services in Voting Rights Act litigation for attorneys with comparable skills and reputation.
9

There is no doubt that the litigation involved in this case was complex federal litigation. Indeed, Texas does not dispute that fact. Before the Supreme Court, Plaintiffs relied on experienced Supreme Court advocates and succeeded in persuading the Court to decline to review Intervenors’ fee awards for trial-level work, as to which Texas had conceded much in its Advisory. See Texas v. Davis, 136 S. Ct. 981 (denying certiorari); see also Texas v. United States, 798 F.3d 1108 (affirming denial of fees).
Balancing all of these factors and case precedents, especially the skills and reputations of the attorneys involved, the Court finds that the appropriate prevailing market rate is provided by the LSI Laffey Matrix. In fact, Intervenors’ proposed rates are generally in line with the LSI Matrix, and therefore the Court finds them to be reasonable, with three exceptions. First, the Davis Intervenors seek a rate of $1,100 (2014) and $1,150 (2015) per hour for the work of Paul Smith, a partner at Jenner & Block who has over 30 years of experience; the LSI Matrix suggests top rates of $789 (2014) and $796 (2015) per hour for attorneys with more than 20 years of experience.5 Second, the Davis Intervenors seek an hourly rate of $650 in both 2014 and 2015 for J. Gerard Hebert, a nationally renowned subject-matter expert on the Voting Rights Act with over 40 years of experience and who contributed substantially to the litigation, a rate that is less than the LSI Matrix for an attorney with his years of experience. Third, the Davis Intervenors seek $325 (2014) and $355 (2015) per hour for the work of Cheryl L. Olson, a nonattorney at Jenner & Block, while the LSI Matrix rates for a non-attorney are $195 (2014) and $196 (2015) per hour. Accordingly, the Court will award fees to the Davis Intervenors for the
5 The LSI Laffey Matrix provides rates for each year running from June 1 to May 31 of the following year, rather than from January to December of the same year. The Court will use the period from June 1, 2014 to May 31, 2015 for the 2014 rates and the period from June 1, 2015 to May 31, 2016 for the 2015 rates.
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work of Mr. Paul and Mr. Hebert at the rates under the LSI Matrix for attorneys with over 20 years of experience in each year $789 (2014) and $796 (2015) and for the work of Ms. Olson at the rates under the LSI Matrix for non-attorneys in each year $179 (2014) and $180 (2015).
B. Hours Billed to the Gonzales Intervenors In order to satisfy the burden of justifying the number of hours billed, fee
applicants must provide supporting documentation “of sufficient detail and probative value to enable a court to determine with a high degree of certainty that such hours were actually and reasonably expended.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004) (citations omitted). Such documentation can consist of “contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of the work with supporting documents, if any.” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989). The fact that Defendant-Intervenors were prevailing parties for the purposes of this fee application “may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved.” Hensley, 461 U.S. at 436. As Hensley noted, “[c]ases may be overstaffed, and the skill and experience of lawyers vary widely” and therefore “counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Id. at 434.
The Gonzales Intervenors request attorneys’ fees for 96.6 total hours. Mot. for Attorney Fees at 7. Texas objects to certain hours billed to the Gonzales Intervenors for three filings. Opp’n to Mot. for Attorney Fees at 13-14. First, Texas objects to 7.6 hours in attorney fees for preparing a motion for extension of time that was never filed to respond to the State’s motion for summary reversal. Id. at 14-15. Second, Texas objects to 48.2 attorney hours and 2.1
11

staff hours for work on the Gonzales Intervenors’ response to the State’s motion for summary reversal. Texas argues that these Intervenors largely adopted the Davis Intervenors’ brief and that their attorneys’ work was duplicative and unnecessary. Id. at 15-16. Third, Texas challenges 30.5 hours billed for work on the Intervenors’ joint brief before the D.C. Circuit on the merits. Texas argues that the Davis Intervenors billed 100 hours for the same brief and the attorney hours billed to the Gonzales Intervenors are duplicative and unnecessary. Id. at 16-17.
Conscious of the Supreme Court’s words that “trial courts need not, and indeed should not, become green-eyeshade accountants,” Fox v. Vice, 563 U.S. 826, 383 (2011), and bearing in mind that the “essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection,” id., the Court finds that the hours billed on behalf of the Gonzales Intervenors in opposing the Texas motion for summary reversal before the D.C. Circuit and attorney work on the joint brief on the merits are reasonable. The question of whether a single judge court had the authority to issue a fee award was not trivial and the hours expended were not unreasonable. Similarly, the Gonzales Intervenors’ attorneys’ role in drafting portions of the merits brief in the D.C. Circuit is legitimate time spent in this litigation. On the other hand, the Court finds that the 7.6 hours billed for preparing a motion for extension of time that was never filed were unnecessary, did not reasonably add to the litigants’ success, and would not have been billed to a private client who carefully checks its fee statements. The attorney fees sought for these hours by the Gonzales Intervenors hours will not be awarded.
IV. CONCLUSION For the foregoing reasons, the Court will award fees to the Davis Intervenors for the work of attorneys Paul Smith and J. Gerard Hebert at the rates consistent with the LSI Laffey Matrix of $789 (2014) and $796 (2015) per hour. The Court will award fees to the Davis
12

Intervenors for the work of non-attorney Cheryl L. Olson at a rate consistent for non-attorneys under the LSI Laffey Matrix of $179 (2014) and $180 (2015) per hour. The Court will reduce the fee award to the Gonzales Intervenors by 7.6 hours for work done on a motion for extension of time that was never filed. The remaining hours and rates requested by Intervenors are reasonable and shall be granted. A memorializing order accompanies this opinion.

Date: March 30, 2017

/s/ ROSEMARY M. COLLYER United States District Judge

13

 </s> Texas v. U.S., 798 F.3d 1108 (2015) 418 U.S.App.D.C. 387
KeyCite Yellow Flag - Negative Treatment Distinguished by Washington Alliance of Technology Workers v. United States Department of Homeland Security, D.C.Cir., June 8, 2018
798 F.3d 1108 United States Court of Appeals,
District of Columbia Circuit.
State of TEXAS, Appellant v.
UNITED STATES of America, et al., Appellees.
No. 14–5151. |
Argued April 21, 2015. |
Decided Aug. 18, 2015.
Synopsis Background: State of Texas brought action seeking declaratory judgment that its newly enacted redistricting plans for United States House of Representatives, Texas House of Representatives, and Texas Senate, complied with Voting Rights Act (VRA). Voters, elected state representatives, and civil rights advocacy groups intervened as defendants. After bench trial, three-judge panel of the District Court, 887 F.Supp.2d 133, entered judgment for defendants. The Supreme ––– U.S. ––––, 133 S.Ct. 2885, 186 L.Ed.2d 930, granted certiorari, vacated judgment, and remanded for further consideration in light of intervening Supreme Court decision. On remand, the three-judge panel of District Court dismissed action as moot in light of state's enactment of superseding redistricting plans, and remanded to single judge for further proceedings. The United States District Court for the District of Columbia, 49 F.Supp.3d 27, granted intervenor's motion for attorney fees, and state appealed.
Holdings: The Court of Appeals, Millett, Circuit Judge, held that:
[1] state waived argument that intervenors were not prevailing parties, and

[2] Supreme Court's decision in Shelby County v. Holder did not make state prevailing party.
Affirmed.
West Headnotes (7)
[1] Federal Courts Procedural Matters
Court of Appeals reviews district court's decision enforcing its local rules for abuse of discretion.
5 Cases that cite this headnote
[2] Federal Courts Costs and attorney fees
Court of Appeals reviews district court's decision on motion for attorney fees for abuse of discretion.
2 Cases that cite this headnote
[3] Federal Civil Procedure Local rules of District Courts
Because district court's local rules have force of law, all lawyers and litigants are duty bound to comply with them.
6 Cases that cite this headnote
[4] Federal Civil Procedure Response, reply, and surreply;reply and
surreply briefs Discretion to enforce local rule governing submission of responses to motions lies wholly with district court. U.S.Dist.Ct.Rules D.C., Rule 7(b).
3 Cases that cite this headnote

[5] Federal Courts

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

1

Texas v. U.S., 798 F.3d 1108 (2015) 418 U.S.App.D.C. 387
Costs and attorney fees State waived for appellate review claim that intervenors in action seeking declaratory judgment that legislative redistricting plans complied with Voting Rights Act (VRA) were not prevailing parties and, thus, were not entitled to attorney fee award under the VRA or civil rights statute, where state did not comply with district court's local rule requiring party opposing motion to timely serve and file memorandum of points and authorities in opposition to motion, but instead filed three-page “Advisory” declaring that it was prevailing party and did not intend to respond to motions for attorney fees unless requested to do so by court. 42 U.S.C.A. § 1988(b); 42 U.S.C.A. § 1973l(e) (Transferred); U.S.Dist.Ct.Rules D.C., Rule 7(b).
7 Cases that cite this headnote
[6] Election Law Prevailing party
United States Supreme Court's intervening decision in Shelby County v. Holder, striking down coverage formula contained in Voting Rights Act (VRA), did not make state prevailing party in its action seeking declaratory judgment that its legislative redistricting plans complied with VRA, and thus did not prevent intervenors that opposed plans from recovering their attorney fees, even though Supreme Court had vacated and remanded matter for further consideration in light of Shelby County, where state chose to seek judicial preclearance rather than administrative preclearance, and did so expressly on assumption of VRA's preclearance requirement's constitutionality. 42 U.S.C.A. § 1988(b); 42 U.S.C.A. § 1973l(e) (Transferred).
2 Cases that cite this headnote
[7] Courts Operation and effect in general

Supreme Court order granting review, vacating the judgment below, and remanding for further consideration in light of some intervening development has no precedential weight, and does not dictate how lower court should rule on remand.
1 Cases that cite this headnote
*1109 Appeal from the United States District Court for the District of Columbia (No. 1:11–cv–01303).
Attorneys and Law Firms
Matthew H. Frederick, Deputy Solicitor General, Office of the Attorney General for the State of Texas, argued the cause for *1110 appellant. On the briefs were Ken Paxton, Attorney General, Scott A. Keller, Solicitor General, Adam W. Aston, Deputy Solicitor General, and Arthur C. D'Andrea, Assistant Solicitor General.
Paul M. Smith argued the cause for appellees. With him on the brief were Jessica Ring Amunson, Mark P. Gaber, John M. Devaney, Marc Erik Elias, Robert S. Notzon, J. Gerald Hebert, Renea Hicks, and Chad W. Dunn.
Before: MILLETT and PILLARD, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge:
**389 The State of Texas appeals the district court's award of attorneys' fees to three intervenors in Texas's lawsuit under Section 5 of the Voting Rights Act, 52 U.S.C. § 10304. Rather than file a memorandum of points and authorities opposing the three separate motions for attorneys' fees as expressly required by court rules, Texas filed a three-page “Advisory” that presented only a brief contention that the Supreme Court's invalidation of Section 4 of the Voting Rights Act in Shelby County v. Holder, –––U.S. ––––, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), automatically made Texas

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

2

Texas v. U.S., 798 F.3d 1108 (2015)
418 U.S.App.D.C. 387 a “prevailing party.” Beyond that, Texas offered no response to the arguments in the parties' motions and ignored complicating procedural factors in the case. In its “Advisory,” Texas also declared that it would not participate any further in its own lawsuit unless “requested to do so” by the district court.

383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Section 2 of the Act, which applies nationwide, bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of **390 *1111 any citizen * * * to vote on account of race or color [or membership in a language minority group].” 52 U.S.C. § 10301(a).

Applying one of its local rules, the district court held that Texas had conceded virtually all of the issues relevant to the motions for attorneys' fees by deliberately choosing not to address them. Rejecting Texas's cursory “Advisory” argument, the district court granted the motions and awarded fees. We affirm because “the discretion to enforce this rule lies wholly with the district court,” FDIC v. Bender, 127 F.3d 58, 68 (D.C.Cir.1997), and Texas forfeited any challenge to the district court's exercise of that discretion by failing to even mention the issue in its opening brief in this court.
I
Legal Framework
District of Columbia District Court Rule 7(b) District Court Local Rule 7(b) requires that any party opposing a motion must “serve and file a memorandum of points and authorities in opposition to the motion,” and that “[i]f such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded.” D.D.C. Local Rule 7(b). “The rule is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant's arguments, the court may treat the unaddressed arguments as conceded.” Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C.Cir.2014) (citing Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003)). “Such a concession acts as [a] waiver, such that a party cannot raise a conceded argument on appeal.” Id. (internal quotation marks and brackets omitted).

Section 5, which applies only to certain jurisdictions, provides that, “[w]henever” a covered jurisdiction seeks to change any voting procedure, it must first obtain administrative preclearance from the Attorney General or judicial preclearance from a three-judge court in the United States District Court for the District of Columbia. 52 U.S.C. § 10304. A jurisdiction may obtain preclearance only if it proves that its change in voting procedures “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color [or membership in a language minority group].” Id. § 10304(a). Section 4 provides criteria, commonly known as the “coverage formula,” that determine which jurisdictions are subject to the preclearance requirement. See id. § 10303(b); see also Shelby County, 133 S.Ct. at 2619–2620.
In Shelby County, the Supreme Court declared Section 4's coverage formula unconstitutional. See 133 S.Ct. at 2630–2631. The Court was explicit that it was “issu[ing] no holding on § 5 itself, only on the coverage formula.” Id. at 2631.
The Voting Rights Act also includes an attorneys' fees provision that states: “In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.” 52 U.S.C. § 10310(e).
Factual and Procedural Background

The Voting Rights Act Congress enacted the Voting Rights Act of 1965, Pub.L. No. 89–110, 79 Stat. 437, “to banish the blight of racial discrimination in voting[.]” South Carolina v. Katzenbach,

Following the 2010 census, the Texas Legislature enacted redistricting plans for the Texas House of Representatives, the Texas Senate, and the United States House of Representatives. At the time, Texas was a covered

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Texas v. U.S., 798 F.3d 1108 (2015) 418 U.S.App.D.C. 387 jurisdiction under Section 5 of the Voting Rights Act, so it had to obtain administrative or judicial preclearance before any redistricting plan could take effect. Texas chose to file suit before a three-judge panel of the United States District Court for the District of Columbia, rather than to seek administrative preclearance. See Texas v. United States, 887 F.Supp.2d 133, 138 (D.D.C.2012).
In its complaint, Texas sought a declaratory judgment that its redistricting plans complied with Section 5. Texas made no challenge to the constitutionality of either Section 5's preclearance requirement or Section 4's coverage formula. Complaint 1, J.A. 66 (“This complaint is filed under the assumption that Section 5 complies with the United States Constitution.”). Texas purported initially to “reserve all applicable legal claims * * * pending” the district court's “decisions in Shelby County, Ala. v. Holder, No. 10– 00651 [ ] (D.D.C.), and Laroque v. Holder, No. 10– 00561 (D.D.C.),” two cases in which different plaintiffs had challenged Section 5's constitutionality. Complaint 1– 2, J.A. 66–67. But when the district court asked Texas whether it wanted to amend its complaint to include any constitutional claims, 12/7/2011 Tr. at 32, ECF No. 113, Texas told the court that it did not want to do so because it was “eager” to go to trial on its preclearance claim “as early as possible,” 12/12/2011 Tr. at 6, 10, ECF No. 114.
The United States opposed preclearance of the congressional and state house plans, but not the state senate plan. Texas, 887 F.Supp.2d at 138. The district court permitted seven parties to intervene as defendants to oppose preclearance, and their objections collectively challenged all three plans. Id. at 138 & n. 2. Three of those intervenors are appellees: two groups of **391 *1112 Texas voters and office-holders and the Texas Conference of NAACP Branches (collectively, “Intervenors”).
After conducting a two-week trial, the district court agreed with the Intervenors and denied preclearance of all three plans on August 28, 2012. Texas, 887 F.Supp.2d at 138–139. The court found that Texas's congressional and state house maps both had a discriminatory effect in certain districts, id. at 153, and that the congressional map “was motivated, at least in part, by discriminatory intent,” id. at 161, 166. Disagreeing with both Texas and the Justice Department, the court also concluded that the state senate

map “was enacted with discriminatory purpose” as to a particular district. Id. at 166.
While the preclearance proceedings were ongoing, a different three-judge district court in the Western District of Texas was considering Section 2 and constitutional challenges to Texas's redistricting maps that had been brought by various plaintiffs, including three of the intervenor groups from the D.C. preclearance case. See Davis v. Perry, No. SA–11–CA–788, 2011 WL 6207134 (W.D.Tex.2011); Perez v. Perry, No. 5:11–cv–00360– OLG–JES–XR, 2011 WL 10948652 (W.D.Tex.2011). Because the D.C. preclearance suit was not resolved in time for the 2012 primaries and general election, the Texas district court imposed interim plans to govern those elections under the standards dictated by Perry v. Perez, ––– U.S. ––––, 132 S.Ct. 934, 181 L.Ed.2d 900 (2012). See Texas, 887 F.Supp.2d at 139; see also Davis v. Perry, No. SA–11–CV–788, 2011 WL 6207134, at *1 (W.D.Tex. Nov. 23, 2011); Perez v. Perry, 835 F.Supp.2d 209, 211 (W.D.Tex.2011).
After the D.C. district court denied preclearance of Texas's redistricting plans, and while Texas's appeal from that ruling was pending in the Supreme Court, Texas Governor Rick Perry called a special session of the Texas Legislature to repeal and replace the challenged plans. On June 23, 2013, the Legislature adopted plans largely mirroring those that the Texas district court had imposed on an interim basis. Governor Perry signed the new redistricting plans into law on June 26, 2013.
On June 24, 2013, one of the intervenor groups from the preclearance case filed a motion asking the Supreme Court to dismiss Texas's appeal as moot based on the Legislature's repeal of the maps that were the subject of the litigation. The next day—one day before Governor Perry signed those plans into law—the Supreme Court issued its opinion in Shelby County, holding unconstitutional the coverage formula contained in Section 4 of the Voting Rights Act. 133 S.Ct. at 2631.
On June 27, 2013—four days after the Texas Legislature's adoption of new redistricting plans and after those plans had already taken effect—the Supreme Court vacated the D.C. district court's order denying Texas preclearance, and “remanded for further consideration in light of Shelby

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Texas v. U.S., 798 F.3d 1108 (2015) 418 U.S.App.D.C. 387 County v. Holder * * * and the suggestion of mootness” of one of the intervenor groups. Texas v. United States, ––– U.S. ––––, 133 S.Ct. 2885, 186 L.Ed.2d 930 (2013) (mem.); J.A. 431.
On remand, Texas filed a motion to dismiss the preclearance action as moot, arguing that both the enactment of new redistricting maps and Shelby County eliminated any basis for the court's jurisdiction. The three-judge district court agreed and dismissed the case, concluding that Texas's “claims were mooted by Shelby County and the adoption of superseding redistricting plans.” J.A. 434. The court added that the Intervenors would “remain free to seek attorneys' fees after dismissal.” J.A. 435. The Intervenors did just that by promptly filing **392 *1113 three separate motions for attorneys' fees.
Texas did not file an opposition to those motions. Instead, it filed a three-page “Advisory” declaring that it was the prevailing party based on Shelby County and that “the State d[id] not intend to respond” to the motions for attorneys' fees “unless requested to do so by the Court.” J.A. 798–800. The Advisory did not mention the legislative repeal of Texas's redistricting plans and presented no response to Intervenors' argument that this repeal, and the mootness it caused before the judgment denying preclearance was vacated, rendered them prevailing parties. Following the dissolution of the three-judge district court, the pending motions for attorneys' fees were remanded to a single district judge for resolution.
The district court entered an order on June 18, 2014, awarding the requested attorneys' fees. The court concluded that Texas's “Advisory” “present[ed] no opposition on the applicable law,” Texas v. United States, 49 F.Supp.3d 27, 31 (D.D.C.2014), and held that, under Local Rule 7(b), “Texas has waived any argument as to” “the eligibility of Fee Applicants for fee awards * * * or the prevailing-party status of Fee Applicants at the time the Court denied preclearance to Texas and thereafter, when Texas enacted new redistricting maps,” Texas, 49 F.Supp.3d at 39–40.

II
Analysis
Texas's Waiver and Double Forfeiture [1] [2] We review the district court's decision enforcing its local rules for abuse of discretion. Bender, 127 F.3d at 67. We also review a district court's decision on a motion for attorneys' fees for abuse of discretion. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C.Cir.2011). A “district court abuses its discretion if it did not apply the correct legal standard ... or if it misapprehended the underlying substantive law.” Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C.Cir.1995) (internal quotation marks omitted; ellipsis in original). We examine any such legal questions de novo. Brayton, 641 F.3d at 524.
The Intervenors sought attorneys' fees under 52 U.S.C. § 10310(e), and 42 U.S.C. § 1988(b), both of which authorize fee awards in certain civil rights cases to the “prevailing party.” See Donnell v. United States, 682 F.2d 240, 245 & n. 7 (D.C.Cir.1982) (both provisions “encourag[e] private litigants to act as ‘private attorneys general’ in seeking to vindicate the civil rights laws” and “should be construed similarly”).
In its opening brief, Texas presents a bevy of arguments for why none of the Intervenors is a “prevailing party” within the meaning of those statutes. The problem is that Texas did not raise a single one of those arguments in the district court. Instead, its Advisory trumpeted Shelby County and declared that to be the end of the story, as a matter of law. Given that deliberate refusal to join the issues raised by the motions, the district court applied Local Rule 7(b) and concluded that Texas had waived any argument that Intervenors were not prevailing parties “at the time the Court denied preclearance to Texas and thereafter, when Texas enacted new redistricting maps.” Texas, 49 F.Supp.3d at 40.
Local Rule 7(b) advises litigants that “the Court may treat [a] motion as conceded” if the party opposing a motion fails timely to “serve and file a memorandum of points and authorities in opposition to the motion.” D.D.C. Local

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Texas v. U.S., 798 F.3d 1108 (2015) 418 U.S.App.D.C. 387 Rule 7(b). The rule “is a docket-management tool that facilitates efficient and effective resolution of motions by requiring the prompt joining of issues,” **393 *1114 Fox v. American Airlines, Inc., 389 F.3d 1291, 1294 (D.C.Cir.2004), and judicious enforcement of the rule “ ensures * * * that litigants argue their causes on a level playing field,” id. at 1295 (quoting English–Speaking Union v. Johnson, 353 F.3d 1013, 1021 (D.C.Cir.2004)). In applying Rule 7(b) to Texas's “Advisory,” the district court explained that the rule “applies not only to instances where a litigant entirely fails to oppose a motion but also where a party files an opposition that addresses only some of the arguments raised in the underlying motion,” and that in “the latter instance, * * * courts may deem the unaddressed arguments as conceded.” Texas, 49 F.Supp.3d at 39; see, e.g., Institute For Policy Studies v. CIA, 246 F.R.D. 380, 386 n. 5 (D.D.C.2007) (“[W]here a party files an opposition to a motion and addresses only certain arguments raised by the movant, this court routinely treats the unaddressed arguments as conceded pursuant to Local Rule 7(b).”). 1
[3] Had Texas bothered to challenge the district court's interpretation or enforcement of Local Rule 7(b) by arguing the issue in this court, it would have faced an uphill climb. Rules are rules, and basic fairness requires that they be applied evenhandedly to all litigants. Rule 7(b) (or its materially identical predecessor, Local Rule 108(b)) has been in force for nearly three decades, see Graetz v. District of Columbia Public Schools, Civ. A. No. 86–293, 1987 WL 8527, at *1 (D.D.C. March 3, 1987), so Texas was on full and fair notice of its application both when it initiated its preclearance lawsuit and when it chose to submit its “Advisory” at the attorneys' fee stage. Because a district court's local rules “have ‘the force of law,’ ” Hollingsworth v. Perry, 558 U.S. 183, 191, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010) (quoting Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 73 L.Ed. 243 (1929)), the State of Texas—like all lawyers and litigants—is “duty bound to comply with them,” In re Jarvis, 53 F.3d 416, 422 (1st Cir.1995).
We have repeatedly held, moreover, that a material failure to follow the rules in district court can doom a party's case. See, e.g., Geller v. Randi, 40 F.3d 1300, 1303– 1304 (D.C.Cir.1994) (“When Geller failed to respond,

he conceded a violation of Rule 11 under Local Rule 108(b) [Local Rule 7(b)'s predecessor]; he cannot now argue the merits of his Rule 11 defense.”); Frito–Lay, Inc. v. Willoughby, 863 F.2d 1029, 1033–1034 (D.C.Cir.1988) (failure to designate and reference triable facts under Federal Rule of Civil Procedure 56(c) and Local Rule 108(h) was fatal to appellant's opposition to motion for summary judgment).
[4] [5] Local Rule 7(b) has received the same respect: “[A]s we have often observed, ‘[w]here the district court relies on the absence of a response as a basis for treating the motion as conceded, we honor its enforcement of the rule.’ ” Fox, 389 F.3d at 1295 (quoting Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997)). “[T]he discretion to enforce this rule lies wholly with the district court.” Bender, 127 F.3d at 68 (D.C.Cir.1997). And “we have yet to find that a district court's enforcement of this rule **394 *1115 constituted” an abuse of that discretion. Wannall, 775 F.3d at 428 (internal quotation marks omitted). We will not do so for the first time here.
In deferring to the district court's enforcement of its local rule requiring the timely filing of oppositions that actually address the contentions of the movant, we are in good company. Local Rule 7.1(b) of the Central District of Illinois, for example, is materially identical to the rule at issue here, and it too has been enforced by deeming as conceded any of a movant's arguments to which the opposing party fails to respond. See Stanciel v. Gramley, 267 F.3d 575, 578–580 (7th Cir.2001) (district court “was well within its discretion” when it enforced its Local Rule 7.1(b) by deeming unaddressed issues to be conceded, which led to partial dismissal of plaintiff's claims). The district court in Stanciel explained—and the Seventh Circuit agreed—that the court had no obligation to “perform * * * legal research for [the opposing party].” 267 F.3d at 578. So too here. 2
Texas's tactical choice in district court has distinct appellate repercussions as well. We are “a court of review, not one of first view,” United States v. Best, 961 F.2d 964, 1992 WL 96354, at *3 (D.C.Cir.1992) (unpublished), so we rarely entertain arguments on appeal that were not first presented to the district court, see, e.g., Pettaway

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Texas v. U.S., 798 F.3d 1108 (2015) 418 U.S.App.D.C. 387 v. Teachers Ins. & Annuity Ass'n of America, 644 F.3d 427, 437 (D.C.Cir.2011) (refusing to consider claim that district court violated a local rule because appellant failed to make that argument before the district court). And we can find no instance when we made an exception to that rule because the party's chosen strategy of backhanding the issues in district court backfired.
Texas's decision not to argue—or even mention—the Rule 7(b) issue in its opening brief has made an already arduous appellate climb Sisyphean. As an appellate court, we sit not “as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before [us].” Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (Scalia, J.). Because Texas failed to challenge the district court's enforcement of Rule 7(b) in its opening brief, any challenge to the central ground on which the district court disposed of this case is forfeited and we will not address it. See Fox v. Government of District of Columbia, No. 14–7042, 794 F.3d 25, 30, 2015 WL 4385290, at *4 (D.C.Cir. July 17, 2015) (appellant forfeited challenge to dispositive issue by failing to argue it in her opening **395 *1116 brief); Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 418 (D.C.Cir.1996) (An issue is “barred from consideration by this court” when the appellant “d[oes] not raise the issue in its opening brief.”); Natural Resources Defense Council, Inc. v. EPA, 25 F.3d 1063, 1071 n. 4 (D.C.Cir.1994) (“We have said before, and we say again, that ordinarily we will not consider arguments raised for the first time in a reply brief [.]”) (quoting Pennsylvania Elec. Co. v. FERC, 11 F.3d 207, 209 (D.C.Cir.1993)). So the long and the short of it is that the bulk of Texas's arguments is waived and forfeited twice over.
The Impact of Intervening Legislation and Shelby County The sole argument that Texas did present in its Advisory and in its opening brief here—and thus the only argument that is properly preserved for review—is that the Supreme Court's decision in Shelby County made Texas the prevailing party in this case as a categorical matter of law the instant the Supreme Court announced its decision. To support its claim, Texas points to the Supreme Court's June 27, 2013 order that vacated the district court's judgment denying Texas preclearance and “remanded * * * for further consideration in light of

Shelby County v. Holder * * * and the suggestion of mootness of appellees[.]” Texas, 133 S.Ct. at 2885; J.A. 431. That order, Texas maintains, demonstrates that the Supreme Court decided that Texas had won its appeal and was necessarily the prevailing party for attorneys' fees purposes.
[6] Texas is mistaken. First, Texas bears little resemblance to a prevailing party. Texas chose to seek judicial preclearance rather than administrative preclearance, and did so expressly on the assumption of the preclearance requirement's constitutionality. To say that Texas “prevailed” in this suit because a different litigant in a different suit won on different grounds that Texas specifically told the district court it would not raise is, to say the least, an unnatural use of the word “prevailing.” It certainly is not a definition that the district court was legally bound to adopt without any elucidating argument by Texas.
Second, Texas's argument misconstrues the Supreme Court's June 27th order. Under the Supreme Court's “grant, vacate, and remand” (“GVR”) practice, the Court issues a single order granting review, vacating the judgment below, and remanding for further consideration in light of some intervening development (often a Supreme Court decision). As the Supreme Court has explained, a GVR order is “potentially appropriate” when
intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation[.]
Lawrence v. Chater, 516 U.S. 163, 167, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) (per curiam).
[7] Importantly, it is well-settled that a GVR has no precedential weight and does not dictate how the lower

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Texas v. U.S., 798 F.3d 1108 (2015) 418 U.S.App.D.C. 387 court should rule on remand. See Tyler v. Cain, 533 U.S. 656, 666 n. 6, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (“We also reject Tyler's attempt to find support in our [GVR] disposition. * * * Our order * * * was not a final determination on the merits.”); In re Sealed Case, 246 F.3d 696, 699 (D.C.Cir.2001) (“[A GVR order] may indicate a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, [but] it does not **396 *1117 amount to a final determination on the merits.”) (internal quotation marks and citations omitted); see also Henry v. City of Rock Hill, 376 U.S. 776, 777, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964) (“The South Carolina Supreme Court correctly concluded that our earlier [GVR] did not amount to a final determination on the merits.”).
The Supreme Court's June 27th order is plainly a GVR. True, there is no “grant” of a certiorari petition by Texas, but that is only because Texas did not file a petition for writ of certiorari; it appealed directly to the Supreme Court. See 52 U.S.C. § 10304(a) (authorizing “appeal” of three-judge district court's judgment directly to the Supreme Court). The Supreme Court's order in this case mirrors precisely how vacate-and-remand orders have been framed in other direct appeals to the Supreme Court. 3
Third, even if Texas thought the import of Shelby County obvious, the Supreme Court's disposition suggests otherwise. “It simply indicated that, in light of intervening developments, there was a reasonable probability that the Court of Appeals would reject a legal premise on which it relied and which may affect the outcome of the litigation.” Tyler, 533 U.S. at 666 n. 6, 121 S.Ct. 2478. Because that disposition “did not amount to a final determination on the merits,” Henry, 376 U.S. at 777, 84 S.Ct. 1042 it did not dictate any particular result on remand. It certainly did not declare Texas the victor.
Fourth, Texas assails the district court's reliance on the State's mooting of the case through legislative repeal and replacement of its redistricting plans. In so doing, the district court hewed to this circuit's caselaw authorizing the award of attorneys' fees to parties who obtain a favorable judgment that is vacated on appeal because

a subsequent legislative enactment moots the case. See National Black Police Ass'n v. District of Columbia Board of Elections & Ethics, 168 F.3d 525, 528 (D.C.Cir.1999) (upholding award of attorneys' fees where plaintiffs obtained a favorable district court judgment that was vacated as moot following legislative repeal of the law at issue while the appeal was pending). Texas argues that this case is different because Shelby County mooted its case the moment the Supreme Court announced the opinion, and so the Texas Legislature's repeal of the redistricting plans, which happened a day before Shelby County but did not take effect until signed by the Governor two days later, could not have mooted the case.
Texas never made that argument in the district court. The State's three-page Advisory did not cite National Black Police Association or any of the other cases on which the Intervenors based their claim of prevailing-party status and addressed the intervening legislative enactment. Indeed, **397 *1118 the Advisory did not even mention mootness, the proper legal test for prevailing-party status, or a single precedent on attorneys' fees. The district court thus applied Local Rule 7(b) and concluded that Texas had waived any argument that Intervenors were not prevailing parties as of the date of Texas's enactment of new redistricting plans. Texas, 49 F.Supp.3d at 39– 40. And Texas has not challenged that waiver finding on appeal.
Texas, moreover, is wrong to argue now that its legislative adoption of new voting districts did not contribute to mooting the case. Rather, Texas was right the first time when, in moving to dismiss its suit as moot following the Supreme Court's remand, it argued that both the state legislation and Shelby County mooted the case. J.A. 403– 404 (arguing that the Texas Legislature's enactment of new redistricting plans “on June 23, 2013,” combined with the Shelby County decision two days later, together eliminated “any basis for this Court's jurisdiction”). The three-judge district court agreed with Texas that its “claims were mooted by Shelby County and the adoption of superseding redistricting plans.” J.A. 434. Beyond that, any questions concerning how the short time between those two events affected the Intervenors' status as prevailing parties is an issue that Texas chose to leave entirely unaddressed in district court, and thus it has forfeited its arguments on that issue here.

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Texas v. U.S., 798 F.3d 1108 (2015) 418 U.S.App.D.C. 387
Fifth, Shelby County could not have instantly mooted Texas's case as a categorical matter of law. As a formal matter, Supreme Court judgments on review of a federal court decision do not take effect until at least 25 days after they are announced, when the Court issues a certified copy of its opinion and judgment in lieu of a formal mandate. See SUP.CT. R. 45. Parties may file a petition for rehearing during that 25–day period, SUP.CT. R. 44, which “result[s] in an automatic stay of judgment or mandate unless the Court otherwise specifically directs,” S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice 830 (10th ed.2013); see SUP.CT. R. 45. When the Court wants its judgment to take effect sooner, it says so. Perry, 132 S.Ct. at 944 (“The judgment shall issue forthwith.”); Purcell v. Gonzalez, 549 U.S. 1, 6, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) ( “Pursuant to this Court's Rule 45.3, the Clerk is directed to issue the judgment in these cases forthwith.”). The judgment in Shelby County did not issue until July 29, 2013, over a month after Texas's new redistricting maps took effect. See Shelby County v. Holder, No. 12–96, Docket.
Nor was it at all settled that Texas could benefit from Shelby County in this case, given that Texas told the district court directly that it was not challenging the constitutionality of the preclearance regime. And even if Texas had preserved a challenge to Section 5, the Supreme Court did not invalidate Section 5; it only invalidated the formula used to determine which jurisdictions would be required to seek preclearance. It was thus an open question—one that Texas chose not to litigate and that the

adoption of Texas's new maps mooted—whether Texas had waived the application of Shelby County to its case. 4
*1119 **398 In short, various procedural and substantive complexities close the door on Texas's claim that Shelby County instantly resolved the attorneys' fees question in this case. Texas could have addressed those complexities by briefing them in an opposition to the Intervenors' motions for attorneys' fees, but chose not to do so. Texas also could have challenged the district court's enforcement of its local rule to bar consideration of those issues on appeal, but it chose not to do that in its opening brief either. Texas gets no second bite at the apple now. What little argument Texas did advance in its “Advisory” provides an insufficient basis for overturning the district court's award of attorneys' fees.
III
Conclusion
The district court's order awarding attorneys' fees to the Intervenors is affirmed.
So ordered.
All Citations
798 F.3d 1108, 418 U.S.App.D.C. 387

Footnotes

1

A member of our court has questioned whether Local Rule 7(b) may properly be applied to deem as conceded an

unopposed motion for summary judgment. See Grimes v. District of Columbia, No. 13–7038, 794 F.3d 83, 96–98, 2015

WL 4430157, at *11–13 (D.C.Cir. July 21, 2015) (Griffith, J., concurring) (arguing that such an application of Rule 7(b)

conflicts with Federal Rule of Civil Procedure 56 and that, in an appropriate case, reconsideration of circuit precedent may

be warranted). That concern is not implicated here because this case does not involve a motion for summary judgment

under Federal Rule of Civil Procedure 56 and, in any event, Texas has forfeited any similar challenge to the district court's

interpretation or application of Local Rule 7(b), see infra pp. 1115–16.

2

Every circuit, in fact, defers to their district courts' interpretation and enforcement of local rules. See, e.g., Crowley v.

L.L. Bean, Inc., 361 F.3d 22, 25 (1st Cir.2004) (A district court's interpretation and application of local procedural rules

receives “a special degree of deference—above and beyond the traditional standards of decisionmaking and appellate

oversight[.]”); Whitfield v. Scully, 241 F.3d 264, 270–271 (2d Cir.2001) (“We accord considerable deference to the district

court's interpretation of its own Local Rule.”); Government of Virgin Islands v. Mills, 634 F.3d 746, 750 (3d Cir.2011)

(same); Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir.2007) (same); Jackson v. Beard, 828 F.2d 1077, 1079 (4th

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Texas v. U.S., 798 F.3d 1108 (2015)

418 U.S.App.D.C. 387 Cir.1987) (same); In re Adams, 734 F.2d 1094, 1102 (5th Cir.1984) (same); Martinez v. Thrifty Drug & Discount Co., 593

F.2d 992, 994 (10th Cir.1979) (same); Clark v. Housing Auth. of City of Alma, 971 F.2d 723, 727 (11th Cir.1992) (same);

S.S. v. Eastern Kentucky Univ., 532 F.3d 445, 451 (6th Cir.2008) (similar); Northwest Bank & Trust Co. v. First Illinois

Nat'l Bank, 354 F.3d 721, 725 (8th Cir.2003) (similar); Smith v. Village of Maywood, 970 F.2d 397, 400 (7th Cir.1992)

(similar); see also Genentech, Inc. v. Amgen, Inc., 289 F.3d 761, 774 (Fed.Cir.2002) (“This court defers to the district

court when interpreting and enforcing local rules[.]”). The federal court system could not fairly function otherwise.

3

See, e.g., Cantor v. Personhuballah, ––– U.S. ––––, 135 S.Ct. 1699, 191 L.Ed.2d 671 (2015) (mem.) (“On appeal from the

United States District Court for the Eastern District of Virginia. Judgment vacated, and case remanded to the United States

District Court for the Eastern District of Virginia for further consideration in light of Alabama Legislative Black Caucus v.

Alabama, 575 U.S. –––– [135 S.Ct. 1257, 191 L.Ed.2d 314] (2015).”); James v. FEC, ––– U.S. ––––, 134 S.Ct. 1806, 188

L.Ed.2d 755 (2014) (mem.) (“Appeal from the United States District Court for the District of Columbia. Judgment vacated,

and case remanded to the United States District Court for the District of Columbia for further consideration in light of

McCutcheon v. Federal Election Comm'n, [––– U.S. ––––, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014) ].”); Texas v. Holder,

––– U.S. ––––, 133 S.Ct. 2886, 186 L.Ed.2d 930 (2013) (mem.) (“On appeal from the United States District Court for the

District of Columbia. Judgment vacated, and case remanded to the United States District Court for the District of Columbia

for further consideration in light of Shelby County v. Holder, ––– U.S. ––––, 133 S.Ct. 2612 [186 L.Ed.2d 651] (2013).”).

4

After this case was briefed, the Fifth Circuit denied attorneys' fees in Davis v. Abbott, 781 F.3d 207 (5th Cir.2015). Texas

has not argued that the Fifth Circuit's decision bears on anything in this case. And that decision would be of no help to

Texas had it tried. The Fifth Circuit grounded its decision on the district court's inability to decide the merits of the Section

5 claim because, on that issue, the court only “had jurisdiction to * * * defer to the district court in D.C.”Id. at 217. Nor had

that district court evaluated the merits of the plaintiffs' Section 2 or constitutional claims. Those plaintiffs thus were not

prevailing parties eligible for attorneys' fees because they “failed to achieve judicially-sanctioned relief that sufficiently

addressed the merits of any of their claims.” Id. at 219. Here, by contrast, the Intervenors obtained a final judgment on the

merits, after a two-week trial and accompanied by a lengthy opinion, that was broader than even the Justice Department

had sought. That is the type of judicial relief on the merits that provides a proper basis for an award of attorneys' fees.

See Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 605,

121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (identifying judgments on the merits and court-ordered consent decrees).

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

10

 </s> 11/1/2017

District of Columbia live database
3JUD-PANEL,CLOSED,STAYED,TYPE-N
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:11-cv-01303-RMC-TBG-BAH

STATE OF TEXAS v. UNITED STATES OF AMERICA et al Panel: Judge Rosemary M. Collyer
Circuit Judge Thomas B. Grifﬁth Chief Judge Beryl A. Howell Case in other court: 14-05151 Cause: 42:1983 Civil Rights Act

Date Filed: 07/19/2011 Date Terminated: 08/29/2012 Jury Demand: None Nature of Suit: 441 Voting Jurisdiction: U.S. Government Defendant

Plaintiff STATE OF TEXAS

represented by Angela Veronica Colmenero OFFICE OF THE ATTORNEY GENERAL 209 W. 14th Street 8th Floor Austin, TX 78701 (512) 463-9917 Email: angela.colmenero@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

David John Schenck OFFICE OF THE ATTORNEY GENERAL 209 West 14th Street 8th Floor Austin, TX 78701 (512) 936-1342 Fax: (214) 969-5100 Email: david.schenck@oag.state.tx.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Hamilton Frederick OFFICE OF THE ATTORNEY GENERAL Ofﬁce of the Solicitor General P.O. Box 12548 209 W 14th Street 7th Floor Austin, TX 78701 (512) 936-6407 Fax: (512) 474-2697 Email: matthew.frederick@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Scott A. Keller OFFICE OF THE TEXAS ATTORNEY
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District of Columbia live database
GENERAL 209 West 14th Street 7th Floor (MC 059) Austin, TX 78701 (512) 936-2725 Fax: (512) 474-2697 Email: scott.keller@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam K Mortara BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 54 West Hubbard Street Suite 300 Chicago, IL 60654 (312) 494-4469 Fax: (312) 494-4440 Email: adam.mortara@bartlit-beck.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ashley C Keller BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 54 West Hubbard Street Suite 300 Chicago, IL 60654 (312) 494-4400 Fax: (312)494-4440 Email: ashley.keller@bartlit-beck.com PRO HAC VICE ATTORNEY TO BE NOTICED
John M Hughes BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP 1899 Wynkoop Street 8th Floor Denver, CO 80202 (303) 592-3113 Email: john.hughes@bartlit-beck.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan F. Mitchell 11505 Georgian Oaks Dr. Austin, TX 78739 (703) 314-9276 Email: jfmitchell@mac.com TERMINATED: 04/20/2015

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

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V. Defendant UNITED STATES OF AMERICA

District of Columbia live database
represented by Bryan L. Sells U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Room RWB 7264 Washington, DC 20530 (202) 353-0792 Email: bryan.sells@usdoj.gov ATTORNEY TO BE NOTICED

Daniel J. Freeman U.S. DEPARTMENT OF JUSTICE Voting Section, Civil Rights Division 950 Pennsylvania Avenue, NW NWB Room 7203 Washington, DC 20530 (202) 305-4355 Email: daniel.freeman@usdoj.gov ATTORNEY TO BE NOTICED

Janie Allison Sitton U.S. DEPARTMENT OF JUSTICE Civil Rights Division, Voting Section 950 Pennsylvania Avenue, NW Room NWB 7266 Washington, DC 20530 (202) 305-4143 Fax: (202) 307-3961 Email: jaye.sitton@usdoj.gov ATTORNEY TO BE NOTICED

Michelle Andrea McLeod DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530 (800) 253-3931 Fax: (202) 307-3961 Email: michelle.mcleod@usdoj.gov ATTORNEY TO BE NOTICED

Olimpia E. Michel U.S. DEPARTMENT OF JUSTICE Voting Section 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 305-0056 Email: olimpia.michel@usdoj.gov ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Thornton Russell Nobile U.S. DEPARTMENT OF JUSTICE Civil Rights Division
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Defendant ERIC H. HOLDER, JR. in his ofﬁcial capacity as Attorney General of the United States

District of Columbia live database
950 Pennsylvania Avenue, NW Washington, DC 20530 202-307-1190 Email: t.russell.nobile@usdoj.gov ATTORNEY TO BE NOTICED
represented by Bryan L. Sells (See above for address) ATTORNEY TO BE NOTICED
Daniel J. Freeman (See above for address) ATTORNEY TO BE NOTICED
Janie Allison Sitton (See above for address) ATTORNEY TO BE NOTICED
Michelle Andrea McLeod (See above for address) ATTORNEY TO BE NOTICED
Olimpia E. Michel (See above for address) ATTORNEY TO BE NOTICED
Thornton Russell Nobile (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Defendant WENDY DAVIS Senator
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

represented by John M. Devaney PERKINS COIE LLP 700 13th Street, NW Suite 600 Washington, DC 20005 (202) 434-1624 Fax: (202) 654-9124 Email: jdevaney@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Gerald Hebert LAW OFFICES OF JOSEPH GERALD HEBERT 191 Somervelle Street Suite 405 Alexandria, VA 22304 (703) 628-4673 Fax: (202) 736-2222
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District of Columbia live database
Email: ghebert@campaignlegalcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001 (202) 639-6060 Fax: (202) 639-6066 Email: psmith@jenner.com TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chad W. Dunn BRAZIL & DUNN 4201 Cypress Creek Parkway Suite 530 Houston, TX 77068 (281) 580-6310 Fax: (281) 580-6362 Email: chad@brazilanddunn.com ATTORNEY TO BE NOTICED

Jessica Ring Amunson JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001 (202) 639-6023 Fax: (202) 661-4993 Email: jamunson@jenner.com ATTORNEY TO BE NOTICED

Intervenor Defendant
MARC VEASEY Representative

Mark P. Gaber CAMPAIGN LEGAL CENTER 1411 K Street NW Suite 1400 Washington, DC 20005 (202) 736-2202 Fax: (202) 136-2222 Email: mgaber@campaignlegalcenter.org TERMINATED: 06/13/2017 ATTORNEY TO BE NOTICED
represented by Joseph Gerald Hebert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

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District of Columbia live database
(See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chad W. Dunn (See above for address) ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant JOHN JENKINS

Mark P. Gaber (See above for address) TERMINATED: 06/13/2017 ATTORNEY TO BE NOTICED
represented by Joseph Gerald Hebert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chad W. Dunn (See above for address) ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant VICKI BARGAS

Mark P. Gaber (See above for address) TERMINATED: 06/13/2017 ATTORNEY TO BE NOTICED
represented by Joseph Gerald Hebert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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District of Columbia live datAabTasTe ORNEY TO BE NOTICED

Chad W. Dunn (See above for address) ATTORNEY TO BE NOTICED

Jessica Ring Amunson (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant ROMEO MUNOZ

Mark P. Gaber (See above for address) TERMINATED: 06/13/2017 ATTORNEY TO BE NOTICED
represented by Joseph Gerald Hebert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES ("MALC")

Chad W. Dunn (See above for address) ATTORNEY TO BE NOTICED
Jessica Ring Amunson (See above for address) ATTORNEY TO BE NOTICED
Mark P. Gaber (See above for address) TERMINATED: 06/13/2017 ATTORNEY TO BE NOTICED
represented by Mark A. Posner LAWYERS' COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662-8389 Fax: (202) 783-0857 Email: mposner@lawyerscommittee.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Joaquin Avila LAW OFFICE OF JOAQUIN G. AVILA
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District of Columbia live datLabAaseW OFFICE OF JOAQUIN G. AVILA
P.O. Box 33687 Seattle, WA 98133 (206) 724-3731 PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant GREG GONZALES

Jose Garza LAW OFFICE OF JOSE GARZA 7414 Robin Rest Drive San Antonio, TX 98209 (210) 392-2856 Email: garzpalm@aol.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John M. Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Hamilton PERKINS COIE, LLP 1201 Third Avenue Seattle, WA 98101 (206) 359-8000 PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Erik Elias PERKINS COIE LLP 700 13th Street, NW Suite 600 Washington, DC 20005 (202) 628-6600 Fax: (202) 434-1690 Email: melias@perkinscoie.com ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Renea Hicks LAW OFFICES OF MAX RENEA HICKS 101 West Sixth Street Suite 504 Austin, TX 78701 (512) 480-8231 Fax: (512) 480-9105 PRO HAC VICE ATTORNEY TO BE NOTICED
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District of Columbia live database

Intervenor Defendant LISA AGUILAR

represented by John M. Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Hamilton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Erik Elias (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant DANIEL LUCIO

Renea Hicks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John M. Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Hamilton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Erik Elias (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Renea Hicks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
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VICTOR GARZA

District of Columbia live database
represented by John M. Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Hamilton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Erik Elias (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant BLANCA GARCIA

Renea Hicks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John M. Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Hamilton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Erik Elias (See above for address) ATTORNEY TO BE NOTICED

Renea Hicks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant

JOSEPHINE MARTINEZ

represented by John M. Devaney

(See above for address)

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

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District of Columbia live dat(aSbaesee above for address)
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Hamilton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Erik Elias (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant KATRINA TORRES

Renea Hicks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John M. Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Hamilton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Erik Elias (See above for address) ATTORNEY TO BE NOTICED

Renea Hicks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant

NINA JO BAKER

represented by John M. Devaney

(See above for address)

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

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District of Columbia live datAabTasTe ORNEY TO BE NOTICED

Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Hamilton (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Marc Erik Elias (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant
TEXAS LEGISLATIVE BLACK CAUCUS

Renea Hicks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John M. Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
TEXAS LATINO REDISTRICTING TASK FORCE

John Kent Tanner 3743 Military Road, NW Washington, DC 20015 (202) 503-7696 Email: john.k.tanner@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nina Perales MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway Suite 300 San Antonio, TX 78205 (210) 224-5476 Fax: 210-224-5382 Email: nperales@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Jorge Martin Castillo FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP One New York Plaza 24th Floor New York, NY 10004
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District of Columbia live datNabaeswe York, NY 10004
(212) 859-8439 Email: jorge.castillo@friedfrank.com PRO HAC VICE ATTORNEY TO BE NOTICED

Karen M. Soares FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP 801 17th Street, NW Washington, DC 20006 (202) 639-7266 Fax: (202) 639-7003 Email: karen.soares@friedfrank.com ATTORNEY TO BE NOTICED

Karolina J. Lyznik MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND 110 Broadway Suite 300 San Antonio, TX 78205 (210) 224-5476 Email: klyznik@maldef.org TERMINATED: 11/08/2013 PRO HAC VICE

Marisa Bono MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 110 Broadway Suite 300 San Antonio, TX 78205 (210) 224-5476 Fax: (210) 224-5382 Email: mbono@maldef.org PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant TEXAS STATE CONFERENCE OF NAACP BRANCHES
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Rebecca McNeill Couto MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND 110 Broadway Suite 300 San Antonio, TX 78205 (210) 224-5476 Fax: (210) 224-5382 Email: rcouto@maldef.org TERMINATED: 02/08/2013 PRO HAC VICE
represented by John M. Devaney (See above for address) LEAD ATTORNEY
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Intervenor Defendant JUANITA WALLACE

District of Columbia live database
ATTORNEY TO BE NOTICED
Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stephen Notzon LAW OFFICE OF ROBERT S. NOTZON 1502 West Avenue Austin, TX 78701 (512) 474-7563 Fax: (512) 852-4788 Email: robert@notzonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allison Jean Riggs SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 West Highway 54 Suite 101 Durham, NC 27707 (919) 323-3380 x 117 Fax: (919) 323-3942 Email: allison@southerncoalition.org PRO HAC VICE ATTORNEY TO BE NOTICED
Gary L. Bledsoe LAW OFFICES OF GARY L. BLEDSOE AND ASSOCIATES 316 West 12th Street Suite 307 Austin, TX 78701 (512) 322-9992 Fax: (512) 322-0840 Email: garybledsoe@sbcglobal.net PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Stephen Notzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

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District of Columbia live database
Allison Jean Riggs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant
BILL LAWSON Rev.

Gary L. Bledsoe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stephen Notzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison Jean Riggs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant HOWARD JEFFERSON

Gary L. Bledsoe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stephen Notzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison Jean Riggs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gary L. Bledsoe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

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Intervenor Defendant ERICKA CAIN

District of Columbia live database
represented by Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stephen Notzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison Jean Riggs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant NELSON LINDER

Gary L. Bledsoe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Stephen Notzon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison Jean Riggs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant REGINALD LILLIE

Gary L. Bledsoe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Paul March Smith (See above for address) TERMINATED: 06/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?117805484632006-L_1_0-1

Robert Stephen Notzon (See above for address)
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District of Columbia live database
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison Jean Riggs (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant
LEAGUE OF UNITED LATIN AMERICAN CITIZENS

Gary L. Bledsoe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by John M. Devaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Gerald Hebert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ray Velarde 1216 Montana Avenue El Paso, TX 79902 (915) 532-6003 Email: velardelaw2005@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant TEXAS DEMOCRATIC PARTY
Movant BOYD RICHIE in his capacity as Chair of the Texas

Luis Roberto Vera , Jr. LAW OFFICES OF LUIS ROBERTO VERA, JR. & ASSOCIATES Riverview Towers Building 111 Soledad Suite 1325 San Antonio, TX 78205-22660 (210) 225-3300 Email: lrvlaw@sbcglobal.net PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Chad W. Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Chad W. Dunn (See above for address)

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Democratic Party
Movant MICHAEL IDROGO

District of Columbia live database
LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MICHAEL IDROGO 317 West Rosewood Avenue San Antonio, TX 78212 PRO SE

Date Filed 07/19/2011
07/19/2011 07/20/2011 07/20/2011 07/21/2011 07/21/2011 07/27/2011 07/27/2011
08/03/2011 08/08/2011 08/11/2011 08/16/2011

# Docket Text
1 COMPLAINT against ERIC H. HOLDER, JR, UNITED STATES OF AMERICA ( Filing fee $ 350, receipt number 4616040839) ﬁled by STATE OF TEXAS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Civil Cover Sheet) (rdj) (Entered: 07/20/2011)
SUMMONS (2) Issued as to ERIC H. HOLDER, JR, UNITED STATES OF AMERICA, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 07/20/2011)
2 MOTION to Convene Three-Judge Court by STATE OF TEXAS (rdj) (Entered: 07/20/2011)
3 NOTICE of Filing by STATE OF TEXAS re 2 MOTION to Convene Three-Judge Court (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Schenck, David) (Entered: 07/20/2011)
4 ORDER granting 2 Motion to Convene Three-Judge Court. Signed by Judge Rosemary M. Collyer on July 21, 2011. (cdw) (Entered: 07/21/2011)
5 MOTION to Intervene as Defendants by WENDY DAVIS, MARC VEASEY, JOHN JENKINS, VICKI BARGAS, ROMEO MUNOZ (Attachments: # 1 Proposed Answer, # 2 Text of Proposed Order)(znmw, ) (Entered: 07/22/2011)
6 RESPONSE re 5 MOTION to Intervene ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Unpublished Orders)(Freeman, Daniel) (Entered: 07/27/2011)
7 USCA ORDER ﬁled in USCA on 07/27/11 FOR DESIGNATION OF JUDGES TO SERVE ON THREE-JUDGE DISTRICT COURT: designating Circuit Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell to hear and determine this case. The U.S. Circuit Court Judge to preside over this case. (ds) (Entered: 07/27/2011)
8 Memorandum in opposition to re 5 MOTION to Intervene ﬁled by STATE OF TEXAS. (Attachments: # 1 Text of Proposed Order)(Schenck, David) (Entered: 08/03/2011)
9 REPLY to opposition to motion re 5 MOTION to Intervene ﬁled by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY. (Hebert, Joseph) (Entered: 08/08/2011)
10 MOTION to Expedite and Statement of Points and Authorities in Support by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order)(Schenck, David) (Entered: 08/11/2011)
11 ORDER granting 5 Motion to Intervene as Defendants pursuant to Federal Rule of Civil Procedure 24(b)(1). Defendant-Intervenors shall ﬁle an Answer to the Complaint no later

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than August 24, 2011. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 8/16/2011.(lcrmc1) (Entered: 08/16/2011)

08/16/2011

Set/Reset Deadlines/Hearings: Defendant-Intervenors answer to complaint due by 8/24/2011. (cdw) (Entered: 08/17/2011)

08/17/2011

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 8/17/2011. (cdw) (Entered: 08/17/2011)

08/17/2011

Set/Reset Deadlines/Hearings: Telephone Conference set for 9/21/2011 at 4:30 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 08/17/2011)

08/17/2011

12 Defendant-Intervenors' ANSWER to 1 Complaint, by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY.(Hebert, Joseph) (Entered: 08/17/2011)

08/17/2011

MINUTE ORDER: Pursuant to the telephone conference held on August 17, 2011, the United States shall ﬁle its Answer to the Complaint no later than 3:00 p.m. on September 19, 2011. The parties shall meet and confer on scheduling prior to the next telephone conference with the Court. Plaintiff shall ﬁle its Motion for Summary Judgment no later than September 14, 2011. A telephone status conference is scheduled for September 21, 2011, at 4:30 p.m. Signed by Judge Rosemary M. Collyer on 8/17/2011.(lcrmc1) (Entered: 08/17/2011)

08/17/2011

13 MOTION to Intervene as a defendant by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (Attachments: # 1 Memorandum in Support, # 2 Exhibit Answer, # 3 Exhibit 7.1 Certiﬁcate, # 4 Text of Proposed Order) (jf, ) (Entered: 08/18/2011)

08/17/2011

Set/Reset Deadlines/Hearings: USA's Answer to complaint due by 9/19/2011. Plaintiff's Summary Judgment motions due by 9/14/2011. Telephone Conference set for 9/21/2011 at 4:30 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 08/18/2011)

08/17/2011

14 MOTION to Intervene as Defendants by GREG GONZALES, LISA AGUILAR, DANIEL LUCIO, VICTOR GARZA, BLANCA GARCIA, JOSEPHINE MARTINEZ, KATRINA TORRES, NINA JO BAKER (Attachments: # 1 Memorandum in Support, # 2 Exhibit Answer, # 3 Text of Proposed Order)(jf, ) (Entered: 08/19/2011)

08/21/2011

15 RESPONSE re 13 MOTION to Intervene ﬁled by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, 14 MOTION to Intervene ﬁled by JOSEPHINE MARTINEZ, BLANCA GARCIA, DANIEL LUCIO, KATRINA TORRES, GREG GONZALES, LISA AGUILAR, NINA JO BAKER, VICTOR GARZA by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY. (Hebert, Joseph) Modiﬁed event title on 8/22/2011 (znmw, ). (Entered: 08/21/2011)

08/22/2011

16 MOTION to Intervene as a Defendant by TEXAS LEGISLATIVE BLACK CAUCUS (Attachments: # 1 Proposed Answer, # 2 Text of Proposed Order)(znmw, ) (Entered: 08/22/2011)

08/22/2011

17 MOTION to Intervene as a Defendant by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Declaration - Karolina Lyznik, # 2 Exhibit A, # 3 Exhibit B Proposed Answer, # 4 Corporate Disclosure Statement, # 5 Text of Proposed Order) (znmw, ) (Additional attachment(s) added on 8/23/2011: # 6 Memorandum in Support) (znmw, ). (Entered: 08/22/2011)

08/23/2011

18 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Kevin J. Hamilton, :FirmPerkins Coie LLP, :Address- 1201 Third Avenue, Suite 4800, Seattle, WA 98101-3099. Phone No. - 206.359.8000. Fax No. - 206.359.9000 by LISA AGUILAR, NINA JO

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08/24/2011
08/24/2011 08/26/2011 08/26/2011 08/31/2011
08/31/2011 09/02/2011 09/05/2011 09/06/2011

District of Columbia live database
BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Attachments: # 1 Declaration Declaration of Kevin Hamilton, # 2 Proposed Order Pro Hac Vice K. Hamilton)(Devaney, John) (Entered: 08/23/2011)
19 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Renea Hicks, :Firm- Law Ofﬁces of Max Renea Hicks, :Address- 101 West 6th Street, Suite 504, Austin, Texas, 78701. Phone No. - (512) 480-8231. Fax No. - (512) 480-9105 by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Attachments: # 1 Declaration Declaration of Renea Hicks, # 2 Proposed Order Pro Hac Vice Renea Hicks) (Devaney, John) (Entered: 08/23/2011)
20 ERRATA and Corrected Pages by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES 14 MOTION to Intervene ﬁled by JOSEPHINE MARTINEZ, BLANCA GARCIA, DANIEL LUCIO, KATRINA TORRES, GREG GONZALES, LISA AGUILAR, NINA JO BAKER, VICTOR GARZA. (Attachments: # 1 Exhibit Exhibit 1: Corrected Pages)(Devaney, John) (Entered: 08/24/2011)
21 RESPONSE re 17 MOTION to Intervene, 16 MOTION to Intervene, 13 MOTION to Intervene, 14 MOTION to Intervene ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Freeman, Daniel) (Entered: 08/24/2011)
22 Memorandum in opposition to re 17 MOTION to Intervene, 16 MOTION to Intervene, 13 MOTION to Intervene, 14 MOTION to Intervene ﬁled by STATE OF TEXAS. (Schenck, David) (Entered: 08/26/2011)
23 NOTICE of Appearance by John M. Devaney on behalf of LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Devaney, John) (Entered: 08/26/2011)
24 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Rebecca M. Couto, :FirmMALDEF, :Address- 110 Broadway, Suite 300, San Antonio, Texas 78205. Phone No. 210-224-5476. Fax No. - 210-224-5382 by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Declaration of Rebecca M. Couto in Support of Motion for Pro Hac Vice Appearance, # 2 Text of Proposed Order)(Perales, Nina) (Entered: 08/31/2011)
25 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Marisa Bono, :FirmMALDEF, :Address- 110 Broadway, Suite 300, San Antonio, Texas 78205. Phone No. 210-224-5476. Fax No. - 210-224-5382 by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Declaration of Marisa Bono in Support of Motion for Pro Hac Vice Appearance, # 2 Text of Proposed Order)(Perales, Nina) (Entered: 08/31/2011)
26 REPLY to opposition to motion re 14 MOTION to Intervene ﬁled by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES. (Devaney, John) (Entered: 09/02/2011)
27 REPLY to opposition to motion re 16 MOTION to Intervene, 13 MOTION to Intervene Joint Reply by TLBC and MALC to Plaintiff;s Oppositionot Intervention ﬁled by TEXAS LEGISLATIVE BLACK CAUCUS. (Tanner, John) (Entered: 09/05/2011)
28 MOTION to Intervene as Defendants by TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE, BILL LAWSON, HOWARD JEFFERSON,

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09/08/2011 09/08/2011
09/08/2011 09/08/2011 09/08/2011 09/08/2011
09/08/2011 09/09/2011
09/12/2011
09/14/2011

District of Columbia live database
ERICKA CAIN, NELSON LINDER, REGINALD LILLIE (Attachments: # 1 Text of Proposed Order)(znmw, ) (Entered: 09/06/2011)
29 REPLY to opposition to motion re 17 MOTION to Intervene in Further Support ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 09/06/2011)
30 ERRATA Correction by TEXAS LATINO REDISTRICTING TASK FORCE 29 Reply to opposition to Motion ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 09/07/2011)
31 ERRATA Statement of Correction by TEXAS LATINO REDISTRICTING TASK FORCE 29 Reply to opposition to Motion ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 09/07/2011)
32 ORDER granting 13 14 16 17 28 Motions to Intervene as Defendants pursuant to Federal Rule of Civil Procedure 24(b)(1). All Defendant-Intervenors shall ﬁle Answers to the Complaint no later than September 15, 2011. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 9/8/2011. (lcrmc1) (Entered: 09/08/2011)
33 ANSWER to 1 Complaint, by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES.(rdj) (Entered: 09/08/2011)
34 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES identifying Corporate Parent NONE for MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES. (rdj) (Entered: 09/08/2011)
35 ANSWER to 1 Complaint, by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES.(rdj) (Entered: 09/08/2011)
36 ANSWER to 1 Complaint, by TEXAS LEGISLATIVE BLACK CAUCUS.(rdj) (Entered: 09/08/2011)
37 ANSWER to 1 Complaint, by TEXAS LATINO REDISTRICTING TASK FORCE.(rdj) (Entered: 09/08/2011)
38 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by TEXAS LATINO REDISTRICTING TASK FORCE identifying Corporate Parent NONE for TEXAS LATINO REDISTRICTING TASK FORCE. (rdj) (Entered: 09/08/2011)
39 ANSWER to 1 Complaint, by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE.(rdj) (Entered: 09/08/2011)
MINUTE ORDER granting 18 19 24 25 Motions for Leave to Appear Pro Hac Vice. Attorneys Kevin J. Hamilton, Renea Hicks, Rebecca M. Couto and Marisa Bono are now admitted pro hac vice to this Court for this matter. Signed by Judge Rosemary M. Collyer on 9/9/11. (lcrmc1) (Entered: 09/09/2011)
40 MOTION to Intervene as a Defendant by LEAGUE OF UNITED LATIN AMERICAN CITIZENS (Attachments: # 1 Memorandum in Support, # 2 Certiﬁcate of Service, # 3 Text of Proposed Order, # 4 Proposed Answer, # 5 Corporate Disclosure Statement) (znmw, ) (Entered: 09/12/2011)
41 MOTION for Summary Judgment Statement of Material Facts in Support and

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Memorandum of Points and Authorities in Support by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30a, # 32 Exhibit 30b, # 33 Exhibit 31a, # 34 Exhibit 31b, # 35 Exhibit 32a, # 36 Exhibit 32b, # 37 Exhibit 33a, # 38 Exhibit 33b, # 39 Exhibit 34a, # 40 Exhibit 34b, # 41 Exhibit 34c, # 42 Exhibit 34d, # 43 Exhibit 35, # 44 Exhibit 36)(Schenck, David) (Entered: 09/14/2011)

09/15/2011

42 ANSWER to 1 Complaint by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES.(Devaney, John) (Entered: 09/15/2011)

09/19/2011

43 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jose Garza, :Firm- Law Ofﬁce of Jose Garza, :Address- 7414 Robin Rest Drive, San Antonio, TX 98209. Phone No. - 210.392.2856. by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (Attachments: # 1 Declaration Declaration of Jose Garza, # 2 Text of Proposed Order)(Posner, Mark) (Entered: 09/19/2011)

09/19/2011

44 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Joaquin Avila, :Firm- Law Ofﬁce of Joaquin Avila, :Address- P.O. Box 33687, Seattle, Washington 98133. Phone No. - 206.724.3731. by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (Attachments: # 1 Declaration Joaquin Avila, # 2 Text of Proposed Order)(Posner, Mark) (Entered: 09/19/2011)

09/19/2011

45 ANSWER to 1 Complaint, by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA.(Freeman, Daniel) (Entered: 09/19/2011)

09/19/2011

46 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Allison Riggs, :FirmSouthern Coalition for Social Justice, :Address- 1415 West Highway 54, Suite 101, Durham, NC 27707. Phone No. - 919-323-3380. Fax No. - 919-323-3942 by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Notzon, Robert) (Entered: 09/19/2011)

09/19/2011

47 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Gary L. Bledsoe, :FirmLaw Ofﬁces of Gary L. Bledsoe and Associates, :Address- 316 West 12th Street, Suite 307 Austin, Texas 78701. Phone No. - 5123229992. Fax No. - 5213220840 by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Notzon, Robert) (Entered: 09/19/2011)

09/19/2011

48 MOTION to Intervene by TEXAS DEMOCRATIC PARTY, BOYD RICHIE (Attachments: # 1 Text of Proposed Order)(jf, ) (Entered: 09/20/2011)

09/21/2011

49 RESPONSE re 40 MOTION to Intervene, 48 MOTION to Intervene ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Freeman, Daniel) (Entered: 09/21/2011)

09/21/2011

50 Notice re 48 MOTION to Intervene (Amending Certiﬁcate of Conference) by BOYD RICHIE, TEXAS DEMOCRATIC PARTY (Dunn, Chad) Modiﬁed on 9/22/2011 to correct event(rdj). (Entered: 09/21/2011)

09/21/2011

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone

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District of Columbia live database
Conference held on 9/21/2011. (Court Reporter: Bowles Reporting Services) (cdw) (Entered: 09/23/2011)
MINUTE ORDER. The Court ENTERS DECLARATORY JUDGMENT in favor of the State of Texas with respect to the Texas State Board of Education electoral redistricting plan and ﬁnds that such plan has neither the purpose nor the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group within the meaning of Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. The Court further ORDERS that the electoral redistricting plan for the Texas State Board of Education may be implemented immediately. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 9/22/2011. (lcrmc1) (Entered: 09/22/2011)
MINUTE ORDER granting 43 44 46 47 Motions for Leave to Appear Pro Hac Vice. Attorneys Jose Garza, Joaquin Avila, Allison J. Riggs, and Gary L. Bledsoe are now admitted pro hac vice to this Court for this matter. Signed by Judge Rosemary M. Collyer on 9/22/2011. (lcrmc1) (Entered: 09/22/2011)
51 SCHEDULING ORDER. Parties shall ﬁle a list of districts in Texas that are the subject of dispute in this litigation and notice to the Court of the identity of Defendant-Intervenors' administrative representative no later than 5 p.m. on September 23, 2011. All discovery shall be completed no later than October 25, 2011. Defendants' oppositions to Plaintiff's Motion for Summary Judgment shall be ﬁled no later than October 25, 2011; replies shall be ﬁled no later than October 31, 2011. See attached Order for further details. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 9/22/2011. (lcrmc1) (Entered: 09/22/2011)
Set/Reset Deadlines/Hearings: List due by 5:00 PM on 9/23/2011. Plaintiff's Rule 26(a) (2) due by 10/3/2011. Defendant's Rule 26(a)(2) due by 10/8/2011. Discovery closes 10/25/2011. Response to Motion for Summary Judgment due by 10/25/2011. Reply to Motion for Summary Judgment due by 10/31/2011. (cdw) (Entered: 09/23/2011)
52 NOTICE of Davis-Veasey Intervenors' Statement of Position Regarding Senate Districts by VICKI BARGAS, WENDY DAVIS, ROMEO MUNOZ, MARC VEASEY (Hebert, Joseph) (Entered: 09/23/2011)
MINUTE ORDER scheduling oral argument on 41 Plaintiff's Motion for Summary Judgment for November 2, 2011 at 9:30 a.m. in Courtroom 8. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 9/23/2011. (lcrmc1) (Entered: 09/23/2011)
53 Civil Statement and Identiﬁcation of Issues. (Freeman, Daniel) (Entered: 09/23/2011)
54 NOTICE of Administrator Designation by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Hebert, Joseph) (Entered: 09/23/2011)
Set/Reset Deadlines/Hearings: Motion Hearing set for 11/2/2011 at 9:30 AM in Courtroom 8, Prettyman Building, 2nd Floor, before Judge Rosemary M. Collyer. (cdw) (Entered: 09/26/2011)
55 ORDER granting 40 Motion to Intervene as Defendant by the League of United Latin American Citizens ("LULAC") pursuant to Federal Rule of Civil Procedure 24(b)(1). LULAC shall ﬁle an Answer to the Complaint no later than October 6, 2011. See attached Order for further details. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 9/29/2011. (lcrmc1) (Entered: 09/29/2011)
Set/Reset Hearings: Telephone Conference set for 9/30/2011 at 10:30 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 09/29/2011)

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District of Columbia live database
Set/Reset Deadlines/Hearings: LULAC's answer to complaint due by 10/6/2011. (cdw) (Entered: 09/29/2011)
MINUTE ORDER. Pursuant to the telephone status conference held in open court on 9/30/2011, the United States shall ﬁle, no later than 5 p.m. E.S.T. on October 3, 2011, a list of elections on which it has based its conclusions in the Identiﬁcation of Issues 53 that Texas's electoral redistricting plans will have a retrogressive effect on the ability of minority voters to elect their candidates of choice. It is FURTHER ORDERED that those Defendant-Intervenors who agree with the United States' analysis regarding Texas's noncompliance with Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, shall ﬁle a notice of joinder in the United States' opposition and shall not provide separate brieﬁng on those issues. Signed by Judge Rosemary M. Collyer on 9/30/2011. (lcrmc1) (Entered: 09/30/2011)
56 WITHDRAWN PURSUANT TO NOTICE FILED 10/3/11.....MOTION for Trial by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Attachments: # 1 Text of Proposed Order)(Devaney, John) Modiﬁed on 10/3/2011 (rdj). (Entered: 09/30/2011)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 9/30/2011. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 10/03/2011)
57 WITHDRAWAL of Motion by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES. (Devaney, John) (Entered: 10/03/2011)
58 NOTICE of Elections Considered by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Attachments: # 1 Ex. 1, # 2 Ex. 2, # 3 Ex. 3, # 4 Ex. 4, # 5 Ex. 5, # 6 Ex. 6, # 7 Ex. 7, # 8 Ex. 8, # 9 Ex. 9, # 10 Ex. 10, # 11 Ex. 11, # 12 Ex. 12)(Freeman, Daniel) (Entered: 10/03/2011)
59 Memorandum in opposition to re 48 MOTION to Intervene ﬁled by STATE OF TEXAS. (Schenck, David) (Entered: 10/03/2011)
60 NOTICE Identiﬁcation of Expert Witness by STATE OF TEXAS (Attachments: # 1 Exhibit Alford CV)(Schenck, David) (Entered: 10/03/2011)
61 NOTICE of Designation of Expert Witness by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Attachments: # 1 Exhibit)(Hebert, Joseph) (Entered: 10/06/2011)
62 NOTICE of Identiﬁcation of Expert Witness by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Attachments: # 1 Exhibit)(Devaney, John) (Entered: 10/07/2011)
63 NOTICE of Expert Designation by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (Attachments: # 1 Exhibit Kousser CV) (Posner, Mark) (Entered: 10/07/2011)
64 NOTICE of Designation of Expert Witnesses by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Handley CV, # 2 Exhibit Arrington CV)(Freeman, Daniel) (Entered: 10/07/2011)
65 ORDER denying without prejudice the 48 Motion to Intervene by the Texas Democratic Party and Boyd Richie. See attached Order for further details. Signed by Judge Thomas

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B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 10/7/2011. (lcrmc1) (Entered: 10/07/2011)
66 NOTICE of Designation of Expert Witnesses by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, REGINALD LILLIE, NELSON LINDER, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE (Attachments: # 1 Exhibit Exhibit A Saenz CV, # 2 Exhibit Exhibit B Korbel CV, # 3 Exhibit Exhibit C Murray CV)(Riggs, Allison) (Entered: 10/08/2011)
67 NOTICE of Identiﬁcation of Expert Witnesses by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Exhibit Engstrom CV, # 2 Exhibit Flores CV, # 3 Exhibit Chapa CV, # 4 Exhibit Chapa Report, # 5 Exhibit Chapa Trial Testimony, # 6 Exhibit Gonzalez Baker CV, # 7 Exhibit Gonzalez Baker Report, # 8 Exhibit Tijerina CV, # 9 Exhibit Tijerina Expert Report, # 10 Exhibit Tijerina Trial Testimony)(Perales, Nina) (Entered: 10/08/2011)
68 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jorge M. Castillo, :FirmFried, Frank, Harris, Shriver & Jacobson LLP, :Address- One New York Plaza, New York, New York 10004. Phone No. - 212-859-8000. Fax No. - 212-859-4000 by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Declaration of Jorge M. Castillo, # 2 Text of Proposed Order)(Perales, Nina) (Entered: 10/12/2011)
70 NOTICE of Appearance by Karen M. Soares on behalf of TEXAS LATINO REDISTRICTING TASK FORCE (znmw, ) (Entered: 10/13/2011)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 10/12/2011. (cdw) (Entered: 10/13/2011)
69 ERRATA - Declaration of Jorge M. Castillo by TEXAS LATINO REDISTRICTING TASK FORCE 68 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jorge M. Castillo, :Firm- Fried, Frank, Harris, Shriver & Jacobson LLP, :Address- One New York Plaza, New York, New York 10004. Phone No. - 212-859-8000. Fax No. - 212-8594000 ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 10/13/2011)
MINUTE ORDER granting 68 Motion for Leave to Appear Pro Hac Vice. Attorney Jorge M. Castillo is now admitted pro hac vice to this Court for this matter. Signed by Judge Rosemary M. Collyer on 10/13/2011. (lcrmc1) (Entered: 10/13/2011)
71 TRANSCRIPT OF PROCEEDINGS before Judge Rosemary M. Collyer. Telephonic Conference held on 9/21/2011; Page Numbers: 1-60. Date of Issuance:10/14/2011. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464-1083,
For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at ww.dcd.uscourts.gov.
Redaction Request due 11/3/2011. Redacted Transcript Deadline set for 11/13/2011. Release of Transcript Restriction set for 1/11/2012.(znmw, ) (Entered: 10/14/2011)

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72 NOTICE of Filing of Expert Report of John Alford, Ph.D. by STATE OF TEXAS re 60 Notice (Other) (Attachments: # 1 Declaration Expert Report of John Alford, Ph.D.) (Schenck, David) (Entered: 10/14/2011)
MINUTE ORDER directing the Defendants to submit three courtesy copies of their oppositions to Plaintiff's motion for summary judgment no later than 3:00 p.m. on October 26, 2011. Each copy should be in a three-ring binder with tabbed exhibits. This Order does not apply to any notices of joinder in the United States' opposition. The ﬁling date for all oppositions remains October 25, 2011. Signed by Judge Rosemary M. Collyer on 10/24/2011.(lcrmc1) (Entered: 10/24/2011)
Set/Reset Deadlines/Hearings: Response to Motion for Summary Judgment due by 10/25/2011. PLEASE MAKE NOTE OF THIS DEADLINE. (cdw) Modiﬁed on 10/24/2011 cdw). Modiﬁed on 10/24/2011 (cdw). (Entered: 10/24/2011)
73 NOTICE of Appearance by Thornton Russell Nobile on behalf of UNITED STATES OF AMERICA (Nobile, Thornton) (Entered: 10/25/2011)
74 Memorandum in opposition to re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support Jointly ﬁled by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, ROMEO MUNOZ, TEXAS LATINO REDISTRICTING TASK FORCE, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE. (Posner, Mark) (Entered: 10/25/2011)
75 Memorandum in opposition to re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support Second Memorandum Jointly ﬁled by LEAGUE OF UNITED LATIN AMERICAN CITIZENS, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES. (Attachments: # 1 Declaration Dr. J. Morgan Kousser, # 2 Exhibit Kousser CV)(Posner, Mark) (Entered: 10/25/2011)
76 Memorandum in opposition to re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support ﬁled by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY. (Attachments: # 1 Memorandum in Support oints and Authorities, # 2 Statement of Facts Material Facts in Dispute, # 3 Text of Proposed Order, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17, # 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21A, # 25 Exhibit 21B, # 26 Exhibit 21C, # 27 Exhibit 22A, # 28 Exhibit 22B, # 29 Exhibit 22C, # 30 Exhibit 23, # 31 Exhibit 24, # 32 Exhibit 25, # 33 Exhibit 26, # 34 Exhibit 27, # 35 Exhibit 28, # 36 Exhibit 29, # 37 Exhibit 30, # 38 Exhibit 31)(Hebert, Joseph) (Entered: 10/25/2011)
77 Memorandum in opposition to re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support ﬁled by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES. (Attachments: # 1 Text of Proposed Order, # 2 Declaration, # 3 Exhibit Exhibits 1-19, # 4 Exhibit Exhibits 20-30)(Devaney, John) (Entered: 10/25/2011)

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78 Memorandum in opposition to re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Attachments: # 1 Statement of Material Facts Still in Dispute)(Perales, Nina) (Entered: 10/25/2011)

10/25/2011

79 Memorandum in opposition to re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Exhibit Benchmark and Proposed Maps, # 4 Exhibit TLC Guidance, # 5 Exhibit Giberson Depo, # 6 Exhibit Handley House Report, # 7 Exhibit Downton Depo, # 8 Exhibit Alford Report, # 9 Exhibit Arrington Report, # 10 Exhibit Perez Tr Transcript, # 11 Exhibit V Gonzales Decl, # 12 Exhibit Longoria Decl, # 13 Exhibit Martinez Fischer Decl, # 14 Exhibit Hochberg Decl, # 15 Exhibit Winkler Decl, # 16 Exhibit Handley Cong Report, # 17 Exhibit Ruiz Mendelsohn Decl, # 18 Exhibit Rodriguez Decl, # 19 Exhibit RPV Analysis C23, # 20 Exhibit Solomons Depo, # 21 Exhibit Interiano Depo, # 22 Exhibit Pena Depo, # 23 Exhibit Farias Decl, # 24 Exhibit Garza Depo, # 25 Exhibit Floor Debate, # 26 Exhibit Coleman Decl, # 27 Exhibit Cantu Decl, # 28 Exhibit Hernandez Decl, # 29 Exhibit Rosas Decl, # 30 Exhibit Veasy Decl, # 31 Exhibit Martinez Fischer Depo, # 32 Exhibit Veasy Depo, # 33 Text of Proposed Order)(Freeman, Daniel) (Entered: 10/26/2011)

10/25/2011

80 Memorandum in opposition to re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support ﬁled by TEXAS LEGISLATIVE BLACK CAUCUS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit)(Tanner, John) (Entered: 10/26/2011)

10/25/2011

83 LARGE ADDITIONAL ATTACHMENT(S) by TEXAS LATINO REDISTRICTING TASK FORCE 78 Memorandum in Opposition, ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 29, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 45.1, # 47 Exhibit 45.2, # 48 Exhibit 45.3, # 49 Exhibit 45.4, # 50 Exhibit 45.5, # 51 Exhibit 45.6, # 52 Exhibit 45.7, # 53 Exhibit 45.8, # 54 Exhibit 45.9, # 55 Exhibit 45.10, # 56 Exhibit 45.11, # 57 Exhibit 45.12, # 58 Exhibit 45.13, # 59 Exhibit 45.14, # 60 Exhibit 45.15, # 61 Exhibit 45.16, # 62 Exhibit 45.17, # 63 Exhibit 45.18, # 64 Exhibit 45.19, # 65 Exhibit 46, # 66 Exhibit 47, # 67 Exhibit 48, # 68 Exhibit 49, # 69 Exhibit 50, # 70 Exhibit 51, # 71 Exhibit 52, # 72 Exhibit 53, # 73 Exhibit 54, # 74 Exhibit 55, # 75 Exhibit 56, # 76 Exhibit 57, # 77 Exhibit 58, # 78 Exhibit 59, # 79 Exhibit 60)(znmw, ) (Entered: 10/27/2011)

10/26/2011

81 NOTICE of Errata by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA re 79 Memorandum in Opposition,,,,, (Attachments: # 1 Exhibit Truan Decl, # 2 Exhibit J Gonzalez Decl, # 3 Exhibit Downton Deposition, # 4 Exhibit Perez Transcript)(Freeman, Daniel) (Entered: 10/26/2011)

10/26/2011

82 MOTION for Extension of Time to File by TEXAS LEGISLATIVE BLACK CAUCUS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit)(Tanner, John) (Entered: 10/26/2011)

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MINUTE ORDER granting nunc pro tunc to October 25, 2011 82 Texas Legislative Black Caucus' Motion for Extension of Time to File. Defendant-Intervenor Texas Legislative Black Caucus shall ﬁle the two exhibits attached to this motion as a supplement to its 80 Memorandum in Opposition no later than October 27, 2011. Signed by Judge Rosemary M. Collyer on 10/27/2011. (lcrmc1) (Entered: 10/27/2011)

10/27/2011

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 10/27/2011. (cdw) (Entered: 10/27/2011)

10/27/2011

84 ORDER setting schedule for oral argument on the 41 Plaintiff State of Texas's Motion for Summary Judgment. This argument will take place at 9:30 a.m. on November 2, 2011 in Courtroom No. 9. Parties should note the change in Courtroom. See attached Order for further details. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 10/27/2011. (lcrmc1) (Entered: 10/27/2011)

10/28/2011

85 Unopposed MOTION to Amend/Correct 83 Large Additional Attachment(s), Large Additional Attachment(s), Large Additional Attachment(s), Large Additional Attachment(s), Large Additional Attachment(s), Large Additional Attachment(s), Large Additional Attachment(s), 78 Memorandum in Opposition, by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Text of Proposed Order, # 2 Corrected Opposition, # 3 Redline, # 4 Appendix Appendix Cover, # 5 Exhibit 2 [Corrected], # 6 Exhibit 47 [Corrected], # 7 Exhibit 49 [Corrected], # 8 Exhibit 51 [Corrected], # 9 Exhibit 53 [Corrected], # 10 Exhibit 61, # 11 Exhibit 62, # 12 Exhibit 63, # 13 Exhibit 64, # 14 Exhibit 65, # 15 Exhibit 66, # 16 Exhibit 67, # 17 Exhibit 68, # 18 Exhibit 69, # 19 Exhibit 70, # 20 Exhibit 71, # 21 Exhibit 72, # 22 Exhibit 73, # 23 Exhibit 74, # 24 Exhibit 75, # 25 Exhibit 76, # 26 Exhibit 77)(Perales, Nina) (Entered: 10/28/2011)

10/28/2011

86 ERRATA by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA 79 Memorandum in Opposition,,,,, ﬁled by UNITED STATES OF AMERICA, ERIC H. HOLDER, JR.. (Attachments: # 1 Exhibit Combined CD23 RPV (Ex. 17))(Freeman, Daniel) (Entered: 10/28/2011)

10/28/2011

87 AFFIDAVIT : Declaration of Timothy F. Mellett by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Freeman, Daniel) (Entered: 10/28/2011)

10/31/2011

88 Unopposed MOTION for Leave to Supplement the Record re 79 Memorandum in Opposition,,,,, by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Attachments: # 1 Declaration Sells Declaration, # 2 Exhibit Alford Deposition)(Freeman, Daniel) (Entered: 10/31/2011)

10/31/2011

89 NOTICE of errata by TEXAS LEGISLATIVE BLACK CAUCUS (Attachments: # 1 Errata)(Tanner, John) (Entered: 10/31/2011)

10/31/2011

MINUTE ORDER granting 85 Defendant-Intervenor Texas Latino Redistricting Task Force's Motion to Amend/Correct. The corrected exhibits and memorandum ﬁled by the Defendant-Intervenor with this Motion are accepted as part of its 78 Opposition to the Plaintiff State of Texas's Motion for Summary Judgment. Signed by Judge Rosemary M. Collyer on 10/31/2011. (lcrmc1) (Entered: 10/31/2011)

10/31/2011

MINUTE ORDER granting 88 Defendant United States' Motion for Leave to Supplement the Record. The exhibits ﬁled with this Motion are accepted as part of the 79 United States' Opposition to the Plaintiff State of Texas's Motion for Summary Judgment. Signed by Judge Rosemary M. Collyer on 10/31/2011. (lcrmc1) (Entered: 10/31/2011)

10/31/2011

90 REPLY to opposition to motion re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support Reply in Support of Summary Judgment as to Defendant Intervenors' Senate Claims ﬁled by

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STATE OF TEXAS. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Schenck, David) (Entered: 10/31/2011)

10/31/2011

91 Unopposed MOTION for Leave to File Excess Pages by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order)(Schenck, David) (Entered: 10/31/2011)

11/01/2011

92 REPLY to opposition to motion re 41 MOTION for Summary Judgment Statement of Material Facts in Support and Memorandum of Points and Authorities in Support ﬁled by STATE OF TEXAS. (Schenck, David) (Entered: 11/01/2011)

11/01/2011

93 LARGE ADDITIONAL ATTACHMENT(S) by STATE OF TEXAS 92 Reply to opposition to Motion ﬁled by STATE OF TEXAS. (Attachments: # 1 Exhibit 2010 General Election Race Summary, # 2 Exhibit Census Data by County, # 3 Exhibit CVAP by County, # 4 Exhibit Ethnic Make-up House Senate, # 5 Exhibit Vote Records - HB 150, # 6 Exhibit Vote Records - SB 4, # 7 Exhibit Vote Records - SB 31, # 8 Exhibit Report by Lisa Handley, # 9 Exhibit Deposition of Alford.Section 5, # 10 Exhibit 9A Deposition of Alford.Section 2)(Schenck, David) (Entered: 11/01/2011)

11/01/2011

94 LARGE ADDITIONAL ATTACHMENT(S) Exhibits 10-19 by STATE OF TEXAS 92 Reply to opposition to Motion ﬁled by STATE OF TEXAS. (Attachments: # 1 Exhibit Deposition of Aliseda, # 2 Exhibit Deposition of Arrington, # 3 Exhibit Deposition of Doug Davis, # 4 Exhibit Deposition of Downton, # 5 Exhibit Deposition of Garza, # 6 Exhibit Deposition of Handley, # 7 Exhibit Deposition of Hunter, # 8 Exhibit Deposition of Interiano, # 9 Exhibit Expert Report Kousser-Part 1, # 10 Exhibit Expert Report Kousser-Part 2)(Schenck, David) (Entered: 11/01/2011)

11/01/2011

95 LARGE ADDITIONAL ATTACHMENT(S) Exhibits 20-29 by STATE OF TEXAS 92 Reply to opposition to Motion ﬁled by STATE OF TEXAS. (Attachments: # 1 Exhibit Expert Report - Kousser-Part 3, # 2 Exhibit Expert Report-Kousser-Part 4, # 3 Exhibit Expert Report of Alford, # 4 Exhibit Expert Report of Ansolabehere, # 5 Exhibit Expert Reports of Engstrom, # 6 Exhibit Expert Reports of Lichtman, # 7 Exhibit Expert Reports of Murray, # 8 Exhibit Rebuttal Report of Alford, # 9 Exhibit Rebuttal Report of Engstrom, # 10 Exhibit RVPA S148-District 6)(Schenck, David) (Entered: 11/01/2011)

11/01/2011

96 LARGE ADDITIONAL ATTACHMENT(S) Exhibits 30-39 by STATE OF TEXAS 92 Reply to opposition to Motion ﬁled by STATE OF TEXAS. (Attachments: # 1 Exhibit RVPA S148-Districts 13, 19, 20, 21, 23, 26, 27, 28, # 2 Exhibit RVPA C100-District 23, 27, # 3 Exhibit RVPA C185-District 23, 27, 34, 35, # 4 Exhibit RVPA S100-District 6, # 5 Exhibit RVPA S100-District 13, # 6 Exhibit VPA S100-District 19, # 7 Exhibit RVPA S100-District 20, # 8 Exhibit RVPA S100-District 21, # 9 Exhibit RVPA S100-District 23, # 10 Exhibit RVPA S100-District 26)(Schenck, David) (Entered: 11/01/2011)

11/01/2011

97 LARGE ADDITIONAL ATTACHMENT(S) Exhibits 40-44 by STATE OF TEXAS 92 Reply to opposition to Motion ﬁled by STATE OF TEXAS. (Attachments: # 1 Exhibit RVPA S100-District 27, # 2 Exhibit RVPA S100-District 29, # 3 Exhibit H100-Part 1, # 4 Exhibit H100-Part 2, # 5 Exhibit H100-Part 3)(Schenck, David) (Entered: 11/01/2011)

11/01/2011

98 LARGE ADDITIONAL ATTACHMENT(S) Exhibits 45-47 by STATE OF TEXAS 92 Reply to opposition to Motion ﬁled by STATE OF TEXAS. (Attachments: # 1 Exhibit RVPA H283 - Part 1, # 2 Exhibit RVPA H283 - Part 2, # 3 Exhibit RVPA H283 - Part 3) (Schenck, David) (Entered: 11/01/2011)

11/01/2011

99 LARGE ADDITIONAL ATTACHMENT(S) Exhibits 48-49 by STATE OF TEXAS 92 Reply to opposition to Motion ﬁled by STATE OF TEXAS. (Attachments: # 1 Exhibit Downton Transcript Excerpts, # 2 Exhibit Excerpts from Davis Deposition)(Schenck, David) (Entered: 11/01/2011)

11/01/2011

MINUTE ORDER granting 91 Plaintiff State of Texas's Motion for leave to ﬁle excess

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pages. The State of Texas may exceed the page limit set forth in Local Rule 7(e) in its Replies in support of its 41 Motion for Summary Judgment. Signed by Judge Rosemary M. Collyer on 11/1/2011. (lcrmc1) (Entered: 11/01/2011)

11/01/2011

100 NOTICE of Appearance by Michelle Andrea McLeod on behalf of ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (McLeod, Michelle) (Entered: 11/01/2011)

11/02/2011

101 NOTICE of Appearance by Janie Allison Sitton on behalf of UNITED STATES OF AMERICA (Sitton, Janie) (Entered: 11/02/2011)

11/02/2011

102 NOTICE of Appearance by Olimpia E. Michel on behalf of UNITED STATES OF AMERICA (Michel, Olimpia) (Entered: 11/02/2011)

11/02/2011

Minute Entry for proceedings held before Judges Rosemary M. Collyer, Beryl L. Howell, and Thomas B. Grifﬁth: Motion Hearing held on 11/2/2011 re 41 Motion for Summary Judgment ﬁled by STATE OF TEXAS. Motion heard and taken under advisement. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 11/04/2011)

11/04/2011

103 NOTICE of Davis-Intervenors' Advisory Regarding Completion of Interim Remedial Hearings by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Hebert, Joseph) (Entered: 11/04/2011)

11/04/2011

105 Letter from David John Schenck "Let this be ﬁled" by Judge R.M. Collyer. (rdj) (Entered: 11/08/2011)

11/07/2011

104 NOTICE of Second Advisory to Court Regarding Changed Election Deadlines by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Attachments: # 1 Exhibit Order of November 4, 2011, # 2 Exhibit Amended Order of November 7, 2011)(Hebert, Joseph) (Entered: 11/07/2011)

11/08/2011

106 ORDER denying 41 Plaintiff State of Texas's Motion for Summary Judgment. See attached Order for further details. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 11/8/2011. (lcrmc1) (Entered: 11/08/2011)

11/15/2011

MINUTE ORDER directing the parties to meet and confer and submit no later than November 22, 2011: 1) a proposed discovery schedule, if one is needed; 2) a proposal for the length of trial; and 3) proposed procedures for trial. Signed by Judge Rosemary M. Collyer on 11/15/2011. (lcrmc1) (Entered: 11/15/2011)

11/15/2011

Set/Reset Deadlines/Hearings: Proposed discovery schedule, proposal for the length of trial, and proposed procedures for trial due by 11/22/2011. (cdw) (Entered: 11/17/2011)

11/22/2011

107 RESPONSE TO ORDER OF THE COURT re Order, of November 15, 2011 ﬁled by STATE OF TEXAS. (Schenck, David) (Entered: 11/22/2011)

11/22/2011

108 Joint MOTION to Hold in Abeyance and Reply to the Court's November 15 Order by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order)(Freeman, Daniel) (Entered: 11/22/2011)

11/22/2011

109 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Karolina J. Lyznik, :FirmMALDEF, :Address- 110 Broadway, Suite 300, San Antonio, Texas 78205. Phone No. 210-224-5476 Ext. 209. by TEXAS LATINO REDISTRICTING TASK FORCE (Perales, Nina) (Entered: 11/22/2011)

11/22/2011

110 RESPONSE TO ORDER OF THE COURT re MINUTE Order, ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (See Docket Entry 108 to view document. Counsel is instructed to docket the Response as a separate docket entry in the future) (rdj) (Entered: 11/23/2011)

11/30/2011

MINUTE ORDER granting 109 Texas Latino Redistricting Task Force's Motion for

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Leave to Appear Pro Hac Vice. Attorney Karolina J. Lyznik is now admitted pro hac vice to this Court for this matter. Signed by Judge Rosemary M. Collyer on 11/30/2011. (lcrmc1) (Entered: 11/30/2011)

12/01/2011

111 Memorandum in opposition to re 108 Joint MOTION to Hold in Abeyance and Reply to the Court's November 15 Order ﬁled by STATE OF TEXAS. (Schenck, David) (Entered: 12/01/2011)

12/05/2011

Set/Reset Deadlines/Hearings: Telephone Conference set for 12/7/2011 at 2:30 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 12/05/2011)

12/07/2011

MINUTE ORDER setting brieﬁng schedule. The United States and DefendantIntervenors shall submit any supplemental briefs on the question of the appropriate benchmark plans in this case no later than 5:00 p.m. E.S.T. on December 12, 2011. The State of Texas shall ﬁle any response no later than 5:00 p.m. E.S.T. on December 14, 2011. A telephone conference call is set in this matter for 3:00 p.m. on December 12, 2011. Signed by Judge Rosemary M. Collyer on 12/7/2011. (lcrmc1) (Entered: 12/07/2011)

12/07/2011

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 12/7/2011. (Court Reporter Bowles: Reporting Services (cdw) (Entered: 12/09/2011)

12/08/2011

Set/Reset Deadlines/Hearings: Telephone Conference set for 12/12/2011 3:00 PM before Judge Rosemary M. Collyer. (cdw) (Entered: 12/08/2011)

12/12/2011

MINUTE ORDER vacating the brieﬁng schedule set by the Court on December 7, 2011. Signed by Judge Rosemary M. Collyer on 12/12/2011. (lcrmc1) (Entered: 12/12/2011)

12/12/2011

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 12/12/2011. A further Telephone Conference is set for 12/15/2011 at 10:45 AM before Judge Rosemary M. Collyer. (Court Reporter: Bowles Reporting Services) (cdw) (Entered: 12/13/2011)

12/13/2011

MINUTE ORDER. Due to the Court's schedule, the post-trial closing argument scheduled for February 10, 2012 is vacated. Closing argument will take place on February 3, 2012 at 2:00 p.m. Signed by Judge Rosemary M. Collyer on 12/13/2011. (lcrmc1) (Entered: 12/13/2011)

12/13/2011

112 SECOND SCHEDULING ORDER. All discovery requests shall be served no later than December 16, 2011. All answers to discovery requests are due no later than December 23, 2011. Trial will begin on January 17, 2012 and end on January 26, 2012. Written direct testimony of witnesses testifying the week of January 17, 2012 shall be ﬁled no later than January 10, 2012; written direct testimony of witnesses testifying the week of January 23, 2012 shall be ﬁled no later than January 17, 2012; written testimony of witnesses that will not testify at trial shall be ﬁled no later than January 26, 2012. A telephone status conference is set for December 15, 2011 at 10:45 a.m. E.S.T. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 12/13/2011. (lcrmc1) (Entered: 12/13/2011)

12/13/2011

Set/Reset Deadlines/Hearings: Discovery closes 12/23/2011. Bench Trial set for 1/17/2012 at 9:00 AM in Courtroom 8 before Judge Rosemary M. Collyer. Telephone Conference set for 12/15/2011 10:45 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 12/14/2011)

12/13/2011

Set/Reset Deadlines/Hearings: Post-trial Closing Argument set for 2/3/2012 at 2:00 PM in Courtroom 8 before Judge Rosemary M. Collyer. (cdw) (Entered: 12/14/2011)

12/15/2011

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone

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Conference held on 12/15/2011. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 12/16/2011)
Set/Reset Deadlines/Hearings: Telephone Conference set for 12/16/2011 at 4:00 PM before Judge Rosemary M. Collyer. Telephone Conference set for 12/20/2011 at 11:30 AM before Judge Rosemary M. Collyer. (cdw) (Entered: 12/16/2011)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 12/16/2011. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 12/16/2011)
113 TRANSCRIPT OF PROCEEDINGS before Judge Rosemary M. Collyer. Telephonic Conference held on 12/7/2011; Page Numbers: 1-36. Date of Issuance:12/19/2011. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464-1083,
For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at ww.dcd.uscourts.gov.
Redaction Request due 1/9/2012. Redacted Transcript Deadline set for 1/19/2012. Release of Transcript Restriction set for 3/18/2012.(znmw, ) (Entered: 12/20/2011)
114 TRANSCRIPT OF PROCEEDINGS before Judge Rosemary M. Collyer. Telephonic Conference held on 12/12/2011; Page Numbers: 1-50. Date of Issuance:12/19/2011. Court Reporter/Transcriber Bowles Reporting Service, Telephone number (860) 464-1083,
For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at ww.dcd.uscourts.gov.
Redaction Request due 1/9/2012. Redacted Transcript Deadline set for 1/19/2012. Release of Transcript Restriction set for 3/18/2012.(znmw, ) (Entered: 12/20/2011)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 12/20/2011. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 12/21/2011)
115 MEMORANDUM OPINION by Judge Rosemary M. Collyer in which Circuit Judge Thomas B. Grifﬁth and District Judge Beryl A. Howell join. The accompanying 106 Order denying Plaintiff's 41 Motion for Summary Judgment was issued on November 8, 2011. (lcrmc1) (Entered: 12/22/2011)
116 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- ADAM K. MORTARA,

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:Firm- Bartlit Beck Herman Palenchar & Scott LLP, :Address- 54 West Hubbard Street, Suite 300, Chicago, Illinois 60654. Phone No. - (312) 494-4400. Fax No. - (312) 4944440 by STATE OF TEXAS (Attachments: # 1 Declaration, # 2 Text of Proposed Order) (Schenck, David) (Entered: 12/23/2011)
117 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- John M. Hughes, :FirmBartlit Beck Herman Palenchar & Scott LLP, :Address- 1899 Wynkoop Street, 8th Floor, Denver, Colorado 80202. Phone No. - (303) 592-3113. Fax No. - (303) 592-3140 by STATE OF TEXAS (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Schenck, David) (Entered: 12/23/2011)
118 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Ashley C. Keller, :FirmBartlit Beck Herman Palenchar & Scott LLP, :Address- 54 West Hubbard Street, Suite 300, Chicago, Illinois 60654. Phone No. - (312) 494-4400. Fax No. - (312) 494-4440 by STATE OF TEXAS (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Schenck, David) (Entered: 12/23/2011)
MINUTE ORDER setting brieﬁng schedule in light of the telephone conference call held in open court today. The parties shall ﬁle simultaneous briefs that shall not exceed 25 pages on issues of privilege no later than noon E.S.T. on December 28, 2011. Any responses shall be ﬁled no later than noon E.S.T. on December 30, 2011 and shall not exceed ten pages. It is further ORDERED that the parties shall ﬁle a joint notice identifying all witnesses that may testify at trial no later than December 28, 2011. This notice should further identify the witnesses that will have their direct testimonies preﬁled and will be made available for cross examination in open court; the witnesses that will testify in open court on both direct and cross examination; and the witnesses the parties expect to testify at the times that three judges will be present in the courtroom. Signed by Judge Rosemary M. Collyer on 12/23/2011. (lcrmc1) (Entered: 12/23/2011)
Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 12/23/2011. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 12/23/2011)
MINUTE ORDER granting 116 117 118 Motions for Leave to Appear Pro Hac Vice. Attorneys Adam K. Mortara, John M. Hughes, and Ashley C. Keller are now admitted pro hac vice to this Court for this matter. Signed by Judge Rosemary M. Collyer on 12/27/2011. (lcrmc1) (Entered: 12/27/2011)
119 MEMORANDUM by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY. (Attachments: # 1 Exhibit State's Response to Davis Discovery and Davis Discovery Requests, # 2 Exhibit State's Motion for Protective Order in Perez v. Perry, # 3 Exhibit Order Denying Motion for Protective Order, # 4 Exhibit Trial Transcript in Perez v. Perry, # 5 Exhibit Deposition Excerpts of 5 Senators and Doug Davis, # 6 Exhibit Senator Seliger Deposition, # 7 Exhibit Senator Birdwell Deposition, # 8 Exhibit Senator Shapiro Deposition, # 9 Exhibit Senator Huffman Deposition, # 10 Exhibit Senator Carona Deposition, # 11 Exhibit Doug Davis Deposition)(Hebert, Joseph) (Entered: 12/28/2011)
120 MEMORANDUM by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 12/28/2011)
121 MEMORANDUM re Order,,, by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Exhibit 1 (U.S. discovery requests), # 2 Exhibit Exhibit 2 (Texas discovery responses), # 3 Exhibit Exhibit 3 (deposition excerpts), # 4 Exhibit Exhibit 4 (declarations), # 5 Exhibit Exhibit 5 (trial transcript excerpts))(Sells, Bryan) (Entered: 12/28/2011)

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122 MEMORANDUM by STATE OF TEXAS. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E) (Schenck, David) (Entered: 12/28/2011)

12/28/2011

MINUTE ORDER deeming as timely all briefs ﬁled today, even if ﬁled after the noon deadline established by the December 23, 2011 order. Signed by Judge Rosemary M. Collyer on 12/28/2011. (KD) (Entered: 12/28/2011)

12/28/2011

123 NOTICE OF TRIAL WITNESSES (JOINT) by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Sells, Bryan) (Entered: 12/28/2011)

12/30/2011

124 REPLY re 122 Memorandum ﬁled by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY. (Hebert, Joseph) (Entered: 12/30/2011)

12/30/2011

125 REPLY re 122 Memorandum ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit 1 (Downton Deposition Excerpts), # 2 Exhibit 2 (Interiano Deposition Excerpts), # 3 Exhibit 3 (Archer Deposition Excerpts), # 4 Exhibit 4 (Teuber Complaint), # 5 Exhibit 5 (Interiano Deposition Excerpts))(Sells, Bryan) (Entered: 12/30/2011)

12/30/2011

126 MEMORANDUM by STATE OF TEXAS. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Schenck, David) (Entered: 12/30/2011)

12/30/2011

127 MOTION for Leave to File Excess Pages for Plaintiff's Response to Defendants' Memoranda on Privileges by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order)(Schenck, David) (Entered: 12/30/2011)

12/30/2011

MINUTE ORDER. In light of footnote 2 at page 3 of Plaintiff's Response, the Court orders Texas to produce under seal all documents as to which it claims only a legislative privilege forthwith. Signed by Judge Rosemary M. Collyer on 12/30/2011. (lcrmc2) (Entered: 12/30/2011)

01/02/2012

MINUTE ORDER granting 127 Motion for Leave to File Excess Pages. Signed by Judge Rosemary M. Collyer on 1/2/2012. (KD) (Entered: 01/02/2012)

01/02/2012 128 MEMORANDUM AND OPINION on privilege claims. Signed by Judge Rosemary M. Collyer on 1/2/2012. (KD) (Entered: 01/02/2012)

01/02/2012 129 ORDER on privilege claims. Signed by Judge Rosemary M. Collyer on 1/2/2012. (KD) (Entered: 01/02/2012)

01/04/2012 130 TRIAL SCHEDULING ORDER. Signed by Judge Rosemary M. Collyer on 1/4/2012. (lcrmc1) (Entered: 01/04/2012)

01/04/2012

131 MOTION Exclude Testimony of Arrington, Lichtman, Flores and Kousser by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A - Arrington Declaration and Expert Report, # 3 Exhibit B - Arrington Depo Transcripts, # 4 Exhibit C - Lichtman Expert Report, # 5 Exhibit D - Flores Expert Report, # 6 Exhibit E - Kousser Declaration and Expert Report (Perez))(Schenck, David) (Entered: 01/04/2012)

01/05/2012 132 MOTION to Modify Scheduling Order by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order)(Schenck, David) (Entered: 01/05/2012)

01/05/2012

MINUTE ORDER. Defendants shall ﬁle any opposition to 131 Plaintiff's Motion to Exclude Testimony no later than 5 p.m. on January 13, 2012. Signed by Judge Rosemary M. Collyer on 1/5/2012. (lcrmc1) (Entered: 01/05/2012)

01/05/2012 133 SUPPLEMENTAL MEMORANDUM to re 128 Memorandum & Opinion Supplemental Brief on Privilege ﬁled by STATE OF TEXAS. (Schenck, David) (Entered: 01/05/2012)

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MINUTE ORDER granting 132 Plaintiff's Motion to Modify the Trial Scheduling Order. Plaintiff may present an opening statement at trial on January 17, 2012. Any time used for an opening statement will be deducted from the time allotted to Plaintiff in paragraph 12 of the 130 Trial Scheduling Order. In light of Defendants' request, it is further ORDERED that the Defendants may ﬁle opening trial briefs no later than 5 p.m. on January 13, 2012. Such briefs shall not exceed ten pages. Signed by Judge Rosemary M. Collyer on 1/5/2012. (lcrmc1) (Entered: 01/05/2012)

01/05/2012

134 SUPPLEMENTAL MEMORANDUM to re 128 Memorandum & Opinion Supplemental Brief on Privilege ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Summary of Interracial Contests, # 2 Exhibit Interiano deposition excerpts, # 3 Exhibit Napier deposition excerpts)(Sells, Bryan) Modiﬁed on 1/6/2012 to correct linkage(rdj). (Entered: 01/05/2012)

01/06/2012

135 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Luis Roberto Vera, :FirmLaw Ofﬁces of Luis Roberto Vera, Jr. & Associates, :Address- Riverview Towers Bldg., 111 Soledad, Suite 1325, San Antonio, Texas 78205-22660. Phone No. - 210-225-330. Fax No. - 210-225-2060 by LEAGUE OF UNITED LATIN AMERICAN CITIZENS (Attachments: # 1 Exhibit DECLARATION)(Velarde, Ray) (Entered: 01/06/2012)

01/06/2012

136 ORDER vacating a portion of the Court's 128 Memorandum Opinion on privilege claims. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 1/6/2012. (lcrmc1) (Entered: 01/06/2012)

01/06/2012

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 1/6/2012. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 01/10/2012)

01/10/2012

137 NOTICE OF PRE-FILED DIRECT WRITTEN TESTIMONY by STATE OF TEXAS (Attachments: # 1 Exhibit Geren Declaration, # 2 Exhibit Solomons Declaration, # 3 Exhibit Margo Declaration, # 4 Exhibit Shapiro Declaration, # 5 Exhibit Seliger Declaration)(Schenck, David) (Entered: 01/10/2012)

01/10/2012 138 SECOND TRIAL SCHEDULING ORDER. Signed by Judge Rosemary M. Collyer on 1/10/2012. (lcrmc1) (Entered: 01/10/2012)

01/10/2012

139 NOTICE of Filing Pre-Filed Written Direct Testimony by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE (Attachments: # 1 Declaration Pre-Filed Written Direct Testimony of Congressman Alexander Green) (Riggs, Allison) (Entered: 01/10/2012)

01/11/2012

MINUTE ORDER granting 135 Motion for Leave to Appear Pro Hac Vice. Attorney Luis Roberto Vera is now admitted pro hac vice to this Court for this matter. Signed by Judge Rosemary M. Collyer on 1/11/2012. (lcrmc1) (Entered: 01/11/2012)

01/12/2012

140 NOTICE of Appearance by Chad W. Dunn on behalf of VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Dunn, Chad) (Entered: 01/12/2012)

01/13/2012

MINUTE ORDER denying 108 Defendants' Motion to Hold in Abeyance and denying 10 Plaintiff's Motion to Expedite as moot. Signed by Judge Rosemary M. Collyer on 1/13/2012. (lcrmc1) (Entered: 01/13/2012)

01/13/2012

141 TRIAL BRIEF on State Senate Plan by VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, REGINALD LILLIE, NELSON LINDER, ROMEO MUNOZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE

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CONFERENCE OF NAACP BRANCHES, MARC VEASEY, JUANITA WALLACE. (Hebert, Joseph) (Entered: 01/13/2012)

01/13/2012 142 TRIAL BRIEF by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 01/13/2012)

01/13/2012

143 TRIAL BRIEF by TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES. (Tanner, John) Modiﬁed on 1/13/2012 (rdj). (Entered: 01/13/2012)

01/13/2012 144 TRIAL BRIEF by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Freeman, Daniel) (Entered: 01/13/2012)

01/13/2012

145 TRIAL BRIEF (Pre-Trial) by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE. (Riggs, Allison) (Entered: 01/13/2012)

01/13/2012

146 Memorandum in opposition to re 131 MOTION Exclude Testimony of Arrington, Lichtman, Flores and Kousser ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Arrington Declaration, # 2 Exhibit Arrington Deposition Excerpt, # 3 Exhibit Arrington CV)(Sells, Bryan) (Entered: 01/13/2012)

01/13/2012 147 TRIAL BRIEF by NINA JO BAKER, VICTOR GARZA, GREG GONZALES, JOSEPHINE MARTINEZ. (Devaney, John) (Entered: 01/13/2012)

01/13/2012 148 NOTICE of Appearance by Matthew Hamilton Frederick on behalf of STATE OF TEXAS (Frederick, Matthew) (Entered: 01/13/2012)

01/13/2012 149 NOTICE of Appearance by Angela Veronica Colmenero on behalf of STATE OF TEXAS (Colmenero, Angela) (Entered: 01/13/2012)

01/13/2012

150 Memorandum in opposition to re 131 MOTION Exclude Testimony of Arrington, Lichtman, Flores and Kousser ﬁled by WENDY DAVIS, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, TEXAS LATINO REDISTRICTING TASK FORCE. (Attachments: # 1 Addendum A, # 2 Addendum B, # 3 Addendum C)(Perales, Nina) (Entered: 01/13/2012)

01/15/2012

151 REPLY to opposition to motion re 131 MOTION Exclude Testimony of Arrington, Lichtman, Flores and Kousser ﬁled by STATE OF TEXAS. (Mortara, Adam) (Entered: 01/15/2012)

01/16/2012

152 NOTICE of Submission of Expert Witness Reports and Pre-ﬁled Testimony by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Attachments: # 1 Declaration, # 2 Declaration)(Hebert, Joseph) (Entered: 01/16/2012)

01/16/2012

153 Unopposed MOTION for Extension of Time to File Supplemental Expert Reports by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Text of Proposed Order)(Perales, Nina) (Entered: 01/16/2012)

01/16/2012

154 NOTICE of Submission of Pre-Filed Direct Testimony of Dr. J. Morgan Kousser by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (Attachments: # 1 Declaration Dr. J. Morgan Kousser)(Posner, Mark) (Entered: 01/16/2012)

01/16/2012

Minute Entry for proceedings held before Judge Rosemary M. Collyer: Telephone Conference held on 1/16/2012. (cdw) (Entered: 01/17/2012)

01/17/2012 155 NOTICE of Pre-Filed Direct Testimony of Stephen Ansolabehere by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES,

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DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Attachments: # 1 Attachment, # 2 Attachment, # 3 Attachment)(Devaney, John) (Entered: 01/17/2012)

01/17/2012

156 NOTICE of Pre-Filed Written Direct Testimony by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Exhibit 1 - Report of Dr. Engstrom, Oct. 21, 2011, # 2 Exhibit 2 - Supplemental Report of Dr. Engstrom, Oct. 23, 2011, # 3 Exhibit 3 Curriculum/Vita of Dr. Engstrom, # 4 Exhibit 4 - Corrected Rebuttal Report of Dr. Engstrom, # 5 Exhibit 5 - Curriculum/Vita of Dr. Flores, # 6 Exhibit 6 - Expert Report of Dr. Flores, # 7 Exhibit 1 to Exh. 6 - Expert Report of Dr. Flores, # 8 Exhibit 2 to Exh. 6 Expert Report of Dr. Flores, # 9 Exhibit 3 to Exh. 6 - Expert Report of Dr. Flores, # 10 Exhibit 4 to Exh. 6 - Expert Report of Dr. Flores, # 11 Exhibit 5 to Exh. 6 - Expert Report of Dr. Flores, # 12 Exhibit 6 to Exh. 6 - Expert Report of Dr. Flores, # 13 Exhibit 8 to Exh. 6 - Expert Report of Dr. Flores, # 14 Exhibit 9 to Exh. 6 - Expert Report of Dr. Flores, # 15 Exhibit 10 to Exh. 6 - Expert Report of Dr. Flores, # 16 Exhibit 11 to Exh. 6 Expert Report of Dr. Flores, # 17 Exhibit 12 to Exh. 6 - Expert Report of Dr. Flores, # 18 Exhibit 13 to Exh. 6 - Expert Report of Dr. Flores, # 19 Exhibit 14 to Exh. 6 - Expert Report of Dr. Flores, # 20 Exhibit 16 to Exh. 6 - Expert Report of Dr. Flores, # 21 Exhibit 18 to Exh. 6 - Expert Report of Dr. Flores, # 22 Exhibit 19 to Exh. 6 - Expert Report of Dr. Flores)(Perales, Nina) (Entered: 01/17/2012)

01/17/2012

157 NOTICE of Filing Pre-ﬁled Written Direct Testimony by VICKI BARGAS, WENDY DAVIS, ROMEO MUNOZ, MARC VEASEY (Attachments: # 1 Declaration, # 2 Declaration)(Hebert, Joseph) (Entered: 01/17/2012)

01/17/2012

158 NOTICE Supplemental Regarding Pre-Filed Direct Testimony of Dr. J. Morgan Kousser by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES re 154 Notice (Other) (Attachments: # 1 Exhibit CV of Dr. J. Morgan Kousser)(Posner, Mark) (Entered: 01/17/2012)

01/17/2012

159 NOTICE of Filing Supplemental Report and Pre-Filed Testimony by TEXAS LEGISLATIVE BLACK CAUCUS (Attachments: # 1 Expert Report and Testimony, # 2 Map, Dallas 2000, # 3 Map Dallas 2010, # 4 Map, Harris 2000, # 5 Map, Harris 2010, # 6 Map, Tarrant 2000, # 7 Map, Tarrant 2010, # 8 Map, Travis 2000, # 9 Map, Travis 2010, # 10 H100 Dallas, # 11 H283 Dallas, # 12 H202 Dallas)(Tanner, John) (Entered: 01/17/2012)

01/17/2012

160 NOTICE of Pre-Filed Direct Testimony of David Escamilla by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Devaney, John) (Entered: 01/17/2012)

01/17/2012

161 NOTICE of Filing Pre-Filed Written Direct Testimony by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Exhibit A- Testimony of Rogene Calvert and Exhibit 632, # 2 Exhibit Exhibit B- Testimony of Scott Hochberg and Exhibit 659, # 3 Exhibit Exhibit C- Testimony of Abel Herrero and Exhibit 685, # 4 Exhibit Exhibit D- Dr. Handley's Expert Report on Proposed Texas House Plan, # 5 Exhibit Exhibit E- Dr. Handley's Expert Report on Proposed Texas Congressional Plan, # 6 Exhibit Exhibit F- Dr. Handley's Rebuttal Report to Supplemental Expert Report of Dr. John Alford, # 7 Exhibit Exhibit G- Dr. Handley's Curriculum Vita, # 8 Exhibit Exhibit H- Dr. Ted Arrington's Declaration, # 9 Exhibit Exhibit I- Dr. Arrington's Curriculum Vita)(Nobile, Thornton) (Entered: 01/17/2012)

01/17/2012

162 NOTICE of Filing Pre-Filed Direct Written Testimony by STATE OF TEXAS (Attachments: # 1 Exhibit 1 - Alford Direct Testimony, # 2 Appendix A to Alford Direct Testimony, # 3 Appendix B to Alford Direct Testimony, # 4 Appendix C to Alford Direct Testimony, # 5 Appendix D to Alford Direct Testimony)(Mortara, Adam) (Entered: 01/17/2012)

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Minute Entry for proceedings held before Judges Rosemary M. Collyer, Beryl L. Howell, and Thomas B. Grifﬁth: Bench Trial held on 1/17/2012. Plaintiff's Witnesses: Representative Todd Hunter, Gerardo Interiano, Representative Jose Aliseda, and Doug Davis. Bench Trial continued to 1/18/2012 at 8:15 AM in Courtroom 8 before Judges Rosemary M. Collyer, Beryl L. Howell, and Thomas B. Grifﬁth (Court Reporters: Crystal Pilgrim (AM) & Scott Wallace (PM)) (cdw) (Entered: 01/18/2012)
MINUTE ORDER granting 153 Defendants' Unopposed Motion for Extension of Time to File Pre-ﬁled Direct Testimony. Defendants shall ﬁle any pre-ﬁled direct testimony of their expert witnesses addressing information disclosed on or after December 31, 2011 no later than 6:00 p.m. on January 20, 2012. The Latino Redistricting Task Force may ﬁle the pre-ﬁled direct testimony of their expert described in this motion no later than 6:00 p.m. on January 20, 2012. These extensions shall not apply to the testimony of Dr. Richard Murray. Signed by Judge Rosemary M. Collyer on 1/18/2012. (lcrmc1) (Entered: 01/18/2012)
MINUTE ORDER granting in part and denying in part 131 Plaintiff's Motion to Exclude Testimony of Arrington, Lichtman, Flores and Kousser for the reasons given in open court on January 17, 2012. Signed by Judge Rosemary M. Collyer on 1/18/2012. (lcrmc1) (Entered: 01/18/2012)
Minute Entry for proceedings held before Judges Rosemary M. Collyer, Beryl A. Howell, and Thomas B. Grifﬁth: Bench Trial held on 1/18/2012. Plaintiff's Witnesses: Doug Davis & Ryan Downton. US/Intervenor Witnesses: Representative Marc Veasey, U.S. Representative Eddie Bernice Johnson, Alez Jiminez, Judge David Saucedo, Senator Jose Rodriguez, and Michael Siefert. Bench Trial continued to 1/19/2012 at 8:15 AM in Courtroom 8 before Judges Rosemary M. Collyer, Beryl A. Howell, and Thomas B. Grifﬁth (Court Reporters: Crystal Pilgrim (AM) & Scott Wallace (PM)) (cdw) (Entered: 01/18/2012)
163 NOTICE of Filing of Dr. Murray's Expert Report by HOWARD JEFFERSON, BILL LAWSON, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE (Attachments: # 1 Exhibit Expert Report)(Notzon, Robert) (Entered: 01/19/2012)
Minute Entry for proceedings held before Judges Rosemary M. Collyer, Beryl A. Howell, and Thomas B. Grifﬁth: Bench Trial held on 1/19/2012. US/Intervenor Witnesses: George Korbel, Jaime Longoria, Representative Garnet Coleman, Representative Dawnna Dukes. Bench Trial continued to 1/20/2012 at 8:15 AM in Courtroom 8 before Judges Rosemary M. Collyer, Beryl A. Howell, and Thomas B. Grifﬁth (Court Reporters: Crystal Pilgrim (AM) & Scott Wallace (PM)) (cdw) (Entered: 01/19/2012)
164 NOTICE Supplemental Declaration of Theodore S. Arrington by UNITED STATES OF AMERICA (Michel, Olimpia) (Entered: 01/20/2012)
165 ERRATA re 164 Supplemental Declaration of Theodore S. Arrington by UNITED STATES OF AMERICA. (Attachments: # 1 Supplement Supplemental Declaration of Theodore S. Arrington)(Michel, Olimpia) Modiﬁed to add link on 1/23/2012 (znmw, ). (Entered: 01/20/2012)
166 NOTICE of Submission of Addendum to Pre-Filed Direct Testimony of Dr. J. Morgan Kousser by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES re 154 Notice (Other) (Attachments: # 1 Supplement Addendum to Kousser Pre-Filed Testimony)(Posner, Mark) (Entered: 01/20/2012)
Minute Entry for proceedings held before Judges Rosemary M. Collyer, Beryl A. Howell, and Thomas B. Grifﬁth: Bench Trial held on 1/20/2012. US/Intervenor Witnesses:

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Senator Cindy Davis, Senator Rodney Ellis, U.S. Representative Alexander Green, Dr. Richard Murray, and Representative Burt Solomons. Bench Trial continued to 1/23/2012 at 9:00 AM in Courtroom 8 before Judges Rosemary M. Collyer and Beryl A. Howell. (Court Reporters: Crystal Pilgrim (AM) & Scott Wallace (PM)) (cdw) (Entered: 01/20/2012)

01/20/2012

167 NOTICE of Filing Supplemental Pre-Filed Written Direct Testimony by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Exhibit Supplemental Report of Dr. Henry Flores)(Perales, Nina) (Entered: 01/20/2012)

01/20/2012

168 NOTICE of Filing Supplemental Pre-Filed Written Direct Testimony by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Exhibit Rebuttal Report of Dr. Richard Engstrom)(Perales, Nina) (Entered: 01/20/2012)

01/23/2012

Minute Entry for proceedings held before Judges Rosemary M. Collyer and Beryl A. Howell: Bench Trial held on 1/23/2012. US/Intervenor Witnesses: Dr. Morgan Kousser, U.S. Representative Sheila Jackson Lee, and Dr. Theodore Arrington. Bench Trial continued to 1/24/2012 at 9:00 AM in Courtroom 8 before Judges Rosemary M. Collyer and Beryl A. Howell. (Court Reporters: Crystal Pilgrim (AM) & Scott Wallace (PM)) (cdw) (Entered: 01/23/2012)

01/23/2012

169 TRIAL BRIEF Regarding Use of General Election Data in Coalition and Crossover Districts by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES. (Devaney, John) (Entered: 01/23/2012)

01/24/2012

Minute Entry for proceedings held before Judges Rosemary M. Collyer and Beryl A. Howell: Bench Trial held on 1/24/2012. Plaintiff's Witnesses: Senator Kel Seliger, Professor John Alford, and Representative Joe Farias. Bench Trial continued to 1/25/2012 at 9:00 AM in Courtroom 8 before Judges Rosemary M. Collyer and Beryl A. Howell. (Court Reporters: Crystal Pilgrim (AM) & Scott Wallace (PM)) (cdw) (Entered: 01/26/2012)

01/25/2012

Minute Order vacating closing argument set for February 3, 2012. Closing argument will take place on January 31, 2012 at 9:30 a.m. in Courtroom 8. It is further ORDERED that post-trial briefs shall be submitted no later than February 6, 2012. The post-trial briefs by the Plaintiff State of Texas and the United States shall be limited to 30 pages each. The post-trial briefs by the Defendant-Intervenors shall be limited to 25 pages each. Signed by Judge Rosemary M. Collyer on 1/25/2012. (lcrmc1) (Entered: 01/25/2012)

01/25/2012

Minute Entry for proceedings held before Judges Rosemary M. Collyer and Beryl A. Howell: Bench Trial held on 1/25/2012. Plaintiff's Witnesses: Professor John Alford and Gerardo Interiano. US/Intervenor Witnesses: Dr. Richard Engstrom, Representative Scott Hochberg, and Dr, Stephen Ansolabehere. Bench Trial continued to 1/26/2012 at 9:00 AM in Courtroom 8 before Judges Rosemary M. Collyer and Beryl A. Howell. (Court Reporters: Crystal Pilgrim (AM) & Scott Wallace (PM)) (cdw) (Entered: 01/26/2012)

01/26/2012

170 NOTICE of Filing Designations/Supplemental Pre-Filed Written Direct Testimony by TEXAS LATINO REDISTRICTING TASK FORCE (Perales, Nina) (Entered: 01/26/2012)

01/26/2012

Minute Entry for proceedings held before Judges Rosemary M. Collyer and Beryl A. Howell: Bench Trial held on 1/26/2012. US/Intervenor Witness: Dr. Lisa Handley. Bench Trial continued to 1/31/2012 at 9:30 AM in Courtroom 8 before Judges Rosemary M. Collyer, Beryl A. Howell, and Thomas B. Grifﬁth. (Court Reporter: Crystal Pilgrim) (cdw) (Entered: 02/02/2012)

01/31/2012

Minute Entry for proceedings held before Judges Rosemary M. Collyer, Beryl A. Howell,

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and Thomas B. Grifﬁth: Bench Trial held on 1/31/2012. (Court Reporters: Crystal Pilgrim (AM) & Scott Wallace (PM)) (cdw) (Entered: 02/08/2012)

02/01/2012

171 NOTICE of Filing of Closing Argument Presentation by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Closing Argument Presentation)(Freeman, Daniel) (Entered: 02/01/2012)

02/01/2012

172 NOTICE of Filing Closing Argument Slide Presentation by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Hebert, Joseph) (Entered: 02/01/2012)

02/01/2012

MINUTE ORDER. As stated in open court on January 24, 2012, the 138 Second Trial Scheduling Order is amended. The parties proposed ﬁndings of fact are due no later than February 3, 2012. The Defendant-Intervenors may each submit their own proposed ﬁndings of fact that shall not exceed 50 pages in length. It is further ORDERED that the deadline for the parties to submit a set of stipulated facts is extended. As stated in open court on January 26, 2012, the parties shall ﬁle a set of stipulated facts no later February 2, 2012. Signed by Judge Rosemary M. Collyer on 2/1/12. (lcrmc1) (Entered: 02/01/2012)

02/01/2012

MINUTE ORDER. The Court directs the parties to comply fully with the page limits and brieﬁng schedule set in this matter so that it can be timely resolved and also notiﬁes the parties that this Court does not anticipate issuing any order within the next 30 days. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 2/1/2012. (lcrmc1) (Entered: 02/01/2012)

02/01/2012

173 NOTICE of Submission of PowerPoint Presentation Used in the Closing Arguments Before the Court by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (Attachments: # 1 Exhibit MALC Closing Argument PowerPoint)(Posner, Mark) (Entered: 02/01/2012)

02/01/2012

174 NOTICE of Filing Closing Argument PowerPoint Presentation by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Exhibit A - TLRTF Closing Argument PowerPoint)(Perales, Nina) (Entered: 02/01/2012)

02/01/2012

175 NOTICE of Filing of Closing Argument Presentation by STATE OF TEXAS (Attachments: # 1 Exhibit A - State of Texas Closing Argument Presentation)(Frederick, Matthew) (Entered: 02/01/2012)

02/01/2012

176 NOTICE of Filing of Closing Argument Presentation by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Attachments: # 1 Exhibit A Closing Argument Presentation)(Devaney, John) (Entered: 02/01/2012)

02/02/2012 177 STIPULATION of Facts (Joint) by STATE OF TEXAS. (Frederick, Matthew) (Entered: 02/02/2012)

02/02/2012

178 MOTION for Leave to File Supplement to Defendants' Trial Exhibit List and Notice of Errata by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 821- Flores Expert Report Filed in Perez v. Perry, # 2 Exhibit 822- Deposition of David Gardner, # 3 Exhibit 823- Chapa Expert Report Filed in Perez v. Perry, # 4 Exhibit 824- Kousser Expert R, # 5 Exhibit 826- Flores Expert Report Filed in Perez v. Perry, # 6 Exhibit 827Gonzalez Baker Expert Report Filed in Perez v. Perry, # 7 Exhibit 828- Tijerina Expert Report Filed in Perez v. Perry, # 8 Exhibit 1010- News Article: Texas Gains the Most Population Since the Census, # 9 Exhibit 1011- Red-100 Report for S100, # 10 Exhibit 1012- Red-100 Report for H100, # 11 Exhibit 1013- Red-M201 Report for Plan 01369H, # 12 Exhibit 1014- Attachments from Opposition to Summary Judgment Motion by TLBC, NAACP, and LULAC)(Nobile, Thornton) (Entered: 02/03/2012)

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179 MOTION for Leave to File Findings of Fact by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Text of Proposed Order, # 8 Proposed Findings of Fact Hispanic Population, # 9 Proposed Findings of Fact - Population Growth, # 10 Proposed Findings of Fact - District Characteristics)(Perales, Nina) (Entered: 02/03/2012)
180 MOTION to Take Judicial Notice of Census Data by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 1-- 2000 Census Data (Public Law 94-171), # 2 Exhibit 2-2010 Census Data (Public Law 94-171), # 3 Exhibit 3-- 2000 Citizen Voting Age Population Data (CVAP), # 4 Exhibit 4-- 1990 Census Data)(Nobile, Thornton) (Entered: 02/03/2012)
181 Proposed Findings of Fact by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE. (Riggs, Allison) (Entered: 02/03/2012)
182 Proposed Findings of Fact by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES. (Devaney, John) (Entered: 02/03/2012)
183 Proposed Findings of Fact by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES. (Garza, Jose) (Entered: 02/03/2012)
184 Proposed Findings of Fact by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ROMEO MUNOZ, MARC VEASEY. (Hebert, Joseph) (Entered: 02/03/2012)
185 Proposed Findings of Fact by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Freeman, Daniel) (Entered: 02/03/2012)
186 Proposed Findings of Fact by STATE OF TEXAS. (Frederick, Matthew) (Entered: 02/03/2012)
187 Proposed Findings of Fact by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 02/03/2012)
188 CERTIFICATE OF SERVICE by STATE OF TEXAS re 186 Proposed Findings of Fact. (Frederick, Matthew) (Entered: 02/04/2012)
189 NOTICE Summary of Expert Testimony by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Devaney, John) (Entered: 02/06/2012)
MINUTE ORDER granting 179 Texas Latino Redistricting Task Force's Motion for Leave to File additional ﬁndings of fact and to exceed the 50-page limit. Signed by Judge Rosemary M. Collyer on 2/6/2012. (KD) (Entered: 02/06/2012)
190 NOTICE of Filing Summary of Testimony and Reports of Dr. Allan J. Lichtman by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Hebert, Joseph) (Entered: 02/06/2012)
191 Proposed Findings of Fact by TEXAS LATINO REDISTRICTING TASK FORCE. (Hispanic Population) (Attachments: # 1 Population Growth, # 2 District Characteristics) (rdj) (Entered: 02/06/2012)
192 NOTICE expert report summary by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (Garza, Jose) (Entered: 02/06/2012)

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02/22/2012

District of Columbia live database
193 TRIAL BRIEF post trial brief by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES. (Garza, Jose) (Entered: 02/06/2012)
194 NOTICE Summary of Expert Testimony by TEXAS LEGISLATIVE BLACK CAUCUS (Tanner, John) (Entered: 02/06/2012)
195 TRIAL BRIEF Post Trial Brief by TEXAS LEGISLATIVE BLACK CAUCUS. (Tanner, John) (Entered: 02/06/2012)
196 NOTICE Summary of Expert Reports of Dr. Richard Engstrom by TEXAS LATINO REDISTRICTING TASK FORCE (Perales, Nina) (Entered: 02/06/2012)
197 NOTICE Summary of Expert Reports of Dr. Henry Flores by TEXAS LATINO REDISTRICTING TASK FORCE (Perales, Nina) (Entered: 02/06/2012)
198 TRIAL BRIEF Post-Trial Brief by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE. (Riggs, Allison) (Entered: 02/06/2012)
199 NOTICE Summary of Expert Reports of Dr. Richard Murray by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE (Riggs, Allison) (Entered: 02/06/2012)
200 NOTICE of Expert Summary of Dr. Theodore Arrington by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Freeman, Daniel) (Entered: 02/06/2012)
201 TRIAL BRIEF Post-Trial Brief by STATE OF TEXAS. (Mortara, Adam) (Entered: 02/06/2012)
202 NOTICE of Expert Summary of Dr. Lisa Handley by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Freeman, Daniel) (Entered: 02/06/2012)
203 TRIAL BRIEF by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Freeman, Daniel) (Entered: 02/06/2012)
204 TRIAL BRIEF Post Trial Brief by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES. (Devaney, John) (Entered: 02/06/2012)
205 TRIAL BRIEF Post-trial Brief by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ROMEO MUNOZ, MARC VEASEY. (Hebert, Joseph) (Entered: 02/06/2012)
206 TRIAL BRIEF Post-Trial Brief by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 02/07/2012)
207 TRIAL BRIEF Corrected Post-Trial Brief by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES. (Devaney, John) (Entered: 02/07/2012)
208 ERRATA Notice to Proposed Findings of Fact by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ROMEO MUNOZ, MARC VEASEY 184 Proposed Findings of Fact ﬁled by MARC VEASEY, WENDY DAVIS, VICKI BARGAS, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ROMEO MUNOZ, JOHN JENKINS. (Attachments: # 1 Exhibit)(Hebert, Joseph) (Entered: 02/13/2012)
209 NOTICE of Joint Advisory by NINA JO BAKER, VICKI BARGAS, WENDY DAVIS,

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03/13/2012 03/13/2012
03/13/2012

District of Columbia live database
GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ROMEO MUNOZ, MARC VEASEY (Hebert, Joseph) (Entered: 02/22/2012)
210 NOTICE of Advisory by TEXAS LATINO REDISTRICTING TASK FORCE (Perales, Nina) (Entered: 02/24/2012)
213 MOTION for Leave to Intervene by MICHAEL IDROGO "Let this be ﬁled" by Judge Rosemary M. Collyer.(rdj) (Entered: 03/01/2012)
211 NOTICE Certain Defendant-Intervenors' Notice of Texas Court's Order Adopting Interim Maps by LISA AGUILAR, NINA JO BAKER, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES (Attachments: # 1 Attachement A, # 2 Attachment B)(Devaney, John) (Entered: 02/29/2012)
212 NOTICE TO THE COURT REGARDING INTERIM REDISTRICTING PLANS by STATE OF TEXAS (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Frederick, Matthew) (Entered: 02/29/2012)
214 RESPONSE OF CERTAIN DEFENDANT-INTERVENORS TO THE ADVISORY OF DEFENDANT-INTERVENOR TEXAS LATINO REDISTRICTING TASK FORCE ﬁled by LISA AGUILAR, NINA JO BAKER, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DANIEL LUCIO, JOSEPHINE MARTINEZ, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES. (Attachments: # 1 Attachment 1)(Devaney, John) (Entered: 03/01/2012)
215 NOTICE ADVISORY REGARDING 2012 ELECTION SCHEDULE by STATE OF TEXAS (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Frederick, Matthew) (Entered: 03/01/2012)
MINUTE ORDER. In its February 24, 2012 Advisory, Dkt. # 210, Defendant-Intervenor Texas Latino Redistricting Task Force ("TLRTF") states that "CD 25 is an Anglo majority district in which Anglo voters dominate the Democratic primary...." Id. at 3. It is ORDERED that TLRTF shall submit, by 5:00 PM on March 13, 2012, a fuller explication of its reasoning for and the evidence behind its conclusion that "Anglo voters dominate the Democratic primary" in CD 25. Any other party wishing to submit views on this subject shall do so within the prescribed time-period. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 3/6/2012. (lcrmc1) (Entered: 03/06/2012)
216 NOTICE Memorandum Concerning Congressional District 25 by STATE OF TEXAS re Order,, (Mortara, Adam) (Entered: 03/13/2012)
217 RESPONSE TO ORDER OF THE COURT re Order,, March 6, 2012 Relating to Congressional District 25 ﬁled by LISA AGUILAR, NINA JO BAKER, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DANIEL LUCIO, JOSEPHINE MARTINEZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES. (Devaney, John) (Entered: 03/13/2012)
218 RESPONSE TO ORDER OF THE COURT re Order,, March 6 Order on CD 25 ﬁled by ERICKA CAIN, HOWARD JEFFERSON, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE. (Attachments: # 1 Exhibit Supplemental Analysis of Dr. Richard Murray)(Riggs, Allison) (Entered: 03/13/2012)

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219 NOTICE Response to the Court's Order of March 6, 2012 by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Perales, Nina) (Entered: 03/13/2012)

03/15/2012

220 MOTION for Leave to File Reply on Congressional District 25 Issue by LISA AGUILAR, NINA JO BAKER, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DANIEL LUCIO, JOSEPHINE MARTINEZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES (Attachments: # 1 Exhibit Exhibit 1)(Devaney, John) (Entered: 03/15/2012)

03/16/2012

MINUTE ORDER granting 220 Motion for Leave to File Reply on Congressional District 25. Defendant-Intervenors shall ﬁle the reply brief attached as Exhibit 1 to ECF No. 220 no later than March 19, 2012. Signed by Judge Rosemary M. Collyer on 3/16/2012. (lcrmc1) (Entered: 03/16/2012)

03/16/2012

221 REPLY re 219 Notice (Other) ﬁled by LISA AGUILAR, NINA JO BAKER, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DANIEL LUCIO, JOSEPHINE MARTINEZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES. (rdj) (Entered: 03/16/2012)

03/28/2012

222 MOTION for Leave to File Response to Gonzales Intervenors' Brief Regarding Congressional District 25 by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Perales, Nina) (Entered: 03/28/2012)

04/02/2012

MINUTE ORDER granting 222 the Texas Latino Redistricting Task Force's ("TLRTF") Motion for Leave to File a Response to Gonzales Intervenors' Brief Regarding Congressional District 25. TLRTF shall ﬁle the reply brief attached as Exhibit 1 to ECF. No. 222 no later than April 6, 2012. Signed by Judge Rosemary M. Collyer on 4/2/12. (lcrmc1) (Entered: 04/02/2012)

04/02/2012

223 RESPONSE to Gonzales Intervenors' Brief Regarding Congressional District 25 ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 04/02/2012)

07/05/2012

224 MOTION to Take Judicial Notice by LISA AGUILAR, NINA JO BAKER, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DANIEL LUCIO, JOSEPHINE MARTINEZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Devaney, John) (Entered: 07/05/2012)

07/19/2012

225 RESPONSE re 224 MOTION to Take Judicial Notice of the Results from the 2012 Texas Democratic Congressional Primary ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 07/19/2012)

07/19/2012

226 RESPONSE re 224 MOTION to Take Judicial Notice of the Results from the 2012 Texas Democratic Congressional Primary ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Perales, Nina) (Entered: 07/19/2012)

07/25/2012

227 REPLY to opposition to motion re 224 MOTION to Take Judicial Notice ﬁled by LISA AGUILAR, NINA JO BAKER, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, LEAGUE OF UNITED LATIN AMERICAN CITIZENS,

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DANIEL LUCIO, JOSEPHINE MARTINEZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES. (Devaney, John) (Entered: 07/25/2012)
MINUTE ORDER granting as conceded 178 Motion for Leave to File Supplement to Defendants' Trial Exhibit list. Signed by Judge Rosemary M. Collyer on 8/28/2012. (KD) (Entered: 08/28/2012)
228 ORDER granting 180 the Government's Motion to Take Judicial Notice of Census Data and denying 224 Intervenor's Motion to Take Judicial Notice. Signed by Judge Rosemary M. Collyer on 8/28/2012. (KD) (Entered: 08/28/2012)
229 ORDER denying 213 Motion to Intervene ﬁled by Michael Idrogo. Signed by Judge Rosemary M. Collyer on 8/28/2012. (KD) (Entered: 08/28/2012)
230 THREE JUDGE COURT OPINION. Signed by Circuit Judge Grifﬁth and District Judges Collyer and Howell on 8/28/2012. (KD) (Entered: 08/28/2012)
231 FINAL JUDGMENT. Final Judgment is entered in favor of Plaintiff on Count I and in favor or Defendants on Counts II, III, and IV. Signed by Circuit Judge Grifﬁth and District Judges Collyer and Howell on 12/28/2012. (KD) (Entered: 08/28/2012)
232 NOTICE of Appearance by Jonathan F. Mitchell on behalf of STATE OF TEXAS (Mitchell, Jonathan) (Entered: 08/30/2012)
233 ERRATA. Signed by Judge Thomas B. Grifﬁth, Judge Rosemary M. Collyer, and Judge Beryl A. Howell on 8/30/2012. (lcrmc1) (Entered: 08/30/2012)
234 NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES as to 231 Order by STATE OF TEXAS. Filing fee $ 455, receipt number 0090-3054449. Fee Status: Fee Paid. Parties have been notiﬁed. (Mitchell, Jonathan) Modiﬁed on 8/31/2012 to reﬂect that this case has been appealed to the Supreme Court of the United States and not the DC Circuit. (jeb, ). (Entered: 08/31/2012)
235 Unopposed MOTION to Hold in Abeyance Filing of Motions for Attorneys' Fees, Expenses and Costs with Supporting Points and Authorities by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, ROMEO MUNOZ, TEXAS LATINO REDISTRICTING TASK FORCE, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE (Attachments: # 1 Text of Proposed Order)(Hebert, Joseph) (Entered: 09/10/2012)
MINUTE ORDER granting 235 Defendant-Intervenors' Motion to Hold in Abeyance. Filing of any motions for attorneys' fees, expenses and costs is held in abeyance pending the outcome of the appeal of this matter. Signed by Judge Rosemary M. Collyer on 9/11/2012. (lcrmc1) (Entered: 09/11/2012)
236 SUPREME COURT OF THE UNITED STATES Case Number 12-496 for 234 Notice of Appeal to SUPREME COURT OF THE UNITED STATES, ﬁled by STATE OF TEXAS(rdj) (Entered: 10/26/2012)
237 MOTION to Withdraw as Attorney Rebecca Couto by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Text of Proposed Order)(Perales, Nina) (Entered: 02/08/2013)

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District of Columbia live database
MINUTE ORDER granting 237 Motion to Withdraw as Attorney as to Rebecca McNeill Couto. Signed by Judge Rosemary M. Collyer on 2/8/2013. (lcrmc2) (Entered: 02/08/2013)
238 LEAVE TO FILE DENIED - Letter to the Court from Robert Allensworth. "Leave to ﬁle DENIED", Signed by Judge Rosemary M. Collyer on 6/18/2013. This document is unavailable as the Court denied its ﬁling. (zrdj) (Entered: 06/20/2013)
246 NOTICE from the Supreme Court of the United States (rdj) (Entered: 07/23/2013)
239 MOTION to Dismiss by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order Order)(Mitchell, Jonathan) (Entered: 07/03/2013)
240 ENTERED IN ERROR.....MOTION to Amend/Correct Answer and Assert Counterclaim by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, BILL LAWSON, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, ROMEO MUNOZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE (Riggs, Allison) Modiﬁed on 7/3/2013 (rdj). (Entered: 07/03/2013)
241 MOTION to Amend/Correct Answer and Assert Counterclaim (Corrected with Attached Proposed Order) by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, ROMEO MUNOZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE (Attachments: # 1 Text of Proposed Order)(Riggs, Allison) (Entered: 07/03/2013)
NOTICE OF CORRECTED DOCKET ENTRY: re 240 MOTION to Amend/Correct Answer and Assert Counterclaim was entered in error and counsel reﬁled said pleading as entry 241 . (rdj) (Entered: 07/03/2013)
242 Unopposed MOTION for Extension of Time to File Response/Reply as to 241 MOTION to Amend/Correct Answer and Assert Counterclaim (Corrected with Attached Proposed Order) by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order)(Mitchell, Jonathan) (Entered: 07/12/2013)
MINUTE ORDER granting 242 Plaintiff's Unopposed Motion for Extension of Time to File Response to 241 Defendant-Intervenors' Motion for Leave to File Amended Answer and Counterclaim. Plaintiff shall ﬁle its response to Defendant-Intervenor's Motion for Leave to File Amended Answer and Counterclaim no later than July 22, 2013. Signed by Judge Rosemary M. Collyer on July 15, 2013. (lcrmc3) (Entered: 07/15/2013)
243 Unopposed MOTION for Extension of Time to File Response/Reply as to 239 MOTION to Dismiss by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, ROMEO MUNOZ, TEXAS LATINO REDISTRICTING TASK FORCE, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC

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District of Columbia live database
VEASEY, JUANITA WALLACE (Attachments: # 1 Text of Proposed Order)(Hebert, Joseph) (Entered: 07/15/2013)
244 Unopposed MOTION for Extension of Time to File Response/Reply as to 241 MOTION to Amend/Correct Answer and Assert Counterclaim (Corrected with Attached Proposed Order) by STATE OF TEXAS (Attachments: # 1 Text of Proposed Order)(Mitchell, Jonathan) (Entered: 07/15/2013)
Set/Reset Deadlines/Hearings: Response to 241 due by 7/22/2013. (cdw) (Entered: 07/16/2013)
MINUTE ORDER granting 243 Defendant-Intervenors' Unopposed Motion for Extension of Time to File Response to 239 Plaintiff's Motion to Dismiss. Defendants and DefendantIntervenors shall respond to Plaintiff's Motion to Dismiss no later than July 26, 2013. Signed by Judge Rosemary M. Collyer on July 16, 2013. (lcrmc3) (Entered: 07/16/2013)
MINUTE ORDER granting 244 Plaintiff's Second Unopposed Motion for Extension of Time to File Response to 241 Defendant-Intervenors' Motion for Leave to File Amended Answer and Counterclaim. Plaintiff shall ﬁle its response to Defendant-Intervenors' motion no later than July 26, 2013. Signed by Judge Rosemary M. Collyer on July 16, 2013. (lcrmc3) (Entered: 07/16/2013)
245 Unopposed MOTION for Extension of Time to File Response/Reply as to 241 MOTION to Amend/Correct Answer and Assert Counterclaim (Corrected with Attached Proposed Order) by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA (Attachments: # 1 Text of Proposed Order)(Freeman, Daniel) (Entered: 07/16/2013)
Set/Reset Deadlines/Hearings: Response to 239 due by 7/26/2013. (cdw) (Entered: 07/16/2013)
Set/Reset Deadlines/Hearings: Response to 241 due by 7/26/2013. (cdw) (Entered: 07/16/2013)
MINUTE ORDER granting 245 United States' Unopposed Motion for Extension of Time to File Response to 241 Defendant-Intervenors' Motion for Leave to File Amended Answer and Counterclaim. United States shall ﬁle its response to Defendant-Intervenors' motion no later than July 26, 2013. Signed by Judge Rosemary M. Collyer on July 16, 2013. (lcrmc3) (Entered: 07/16/2013)
Set/Reset Deadlines/Hearings: United States Response to 241 due by 7/26/2013. (cdw) (Entered: 07/17/2013)
247 RESPONSE re 239 MOTION to Dismiss ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Freeman, Daniel) (Entered: 07/25/2013)
248 RESPONSE re 241 MOTION to Amend/Correct Answer and Assert Counterclaim (Corrected with Attached Proposed Order) ﬁled by ERIC H. HOLDER, JR, UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit 1)(Freeman, Daniel) (Entered: 07/25/2013)
249 RESPONSE re 239 MOTION to Dismiss ﬁled by MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES. (Posner, Mark) (Entered: 07/26/2013)
250 RESPONSE re 239 MOTION to Dismiss ﬁled by TEXAS LATINO REDISTRICTING TASK FORCE. (Perales, Nina) (Entered: 07/26/2013)
251 RESPONSE re 241 MOTION to Amend/Correct Answer and Assert Counterclaim (Corrected with Attached Proposed Order) ﬁled by STATE OF TEXAS. (Attachments: #

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1 Text of Proposed Order)(Mitchell, Jonathan) (Entered: 07/26/2013)

07/26/2013

252 RESPONSE re 239 MOTION to Dismiss ﬁled by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, LEAGUE OF UNITED LATIN AMERICAN CITIZENS, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, ROMEO MUNOZ, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE. (Riggs, Allison) (Entered: 07/26/2013)

07/29/2013

253 SUPREME COURT JUDGMENT (certiﬁed copy) as to 234 Notice of Appeal to SUPREME COURT OF THE UNITED STATES, ﬁled by STATE OF TEXAS (rdj) (Entered: 07/29/2013)

11/07/2013

254 MOTION to Withdraw Karolina Lyznik Walters by TEXAS LATINO REDISTRICTING TASK FORCE (Attachments: # 1 Text of Proposed Order)(Lyznik, Karolina) (Entered: 11/07/2013)

11/07/2013

MINUTE ORDER granting 254 Motion to Withdraw as Attorney as to Karolina Lyznik Walters. Signed by Judge Rosemary M. Collyer on November 7, 2013. (lcrmc3) (Entered: 11/07/2013)

12/03/2013

255 THREE JUDGE COURT MEMORANDUM AND ORDER. Texas's 239 Motion to Dismiss is GRANTED and Defendant-Intervenors' 241 Motion for Leave to Amend Their Answers and Assert a Counterclaim is DENIED. This is a ﬁnal appealable order. See Fed. R. App. P. 4(a). This case is closed. Signed by Circuit Judge Grifﬁth and District Judges Collyer and Howell on December 3, 2013. (lcrmc3) (Entered: 12/03/2013)

12/17/2013

256 MOTION for Attorney Fees Expenses and Costs by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Text of Proposed Order)(Hebert, Joseph) (Entered: 12/17/2013)

12/17/2013

257 MOTION for Attorney Fees by GREG GONZALES (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Declaration John Devaney, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Declaration Renea Hicks, # 8 Exhibit A)(Devaney, John) (Entered: 12/17/2013)

12/17/2013

258 MOTION for Attorney Fees by HOWARD JEFFERSON, BILL LAWSON, NELSON LINDER, TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Notzon, Robert) (Entered: 12/17/2013)

12/20/2013

259 NOTICE Advisory by STATE OF TEXAS re 258 MOTION for Attorney Fees , 257 MOTION for Attorney Fees , 256 MOTION for Attorney Fees Expenses and Costs (Frederick, Matthew) (Entered: 12/20/2013)

12/27/2013

260 REPLY to opposition to motion re 256 MOTION for Attorney Fees Expenses and Costs ﬁled by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY. (Hebert, Joseph) (Entered: 12/27/2013)

01/07/2014 261 REPLY to opposition to motion re 257 MOTION for Attorney Fees ﬁled by GREG GONZALES. (Devaney, John) (Entered: 01/07/2014)

01/10/2014 262 NOTICE OF SUPPLEMENTAL AUTHORITY by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Attachments: # 1 Exhibit A)

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District of Columbia live database
(Hebert, Joseph) (Entered: 01/10/2014)
263 ORDER dissolving three-judge district court and remanding case to the Honorable Rosemary M. Collyer for all further proceedings. Signed by Circuit Judge Thomas B. Grifﬁth and District Judges Rosemary M. Collyer and Beryl A. Howell on January 22, 2014. (lcrmc3) (Entered: 01/22/2014)
264 NOTICE OF SUPPLEMENTAL AUTHORITY by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Attachments: # 1 Exhibit A Supplemental Authority)(Smith, Paul) (Entered: 05/29/2014)
265 MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on June 18, 2014. (lcrmc3) (Entered: 06/18/2014)
266 ORDER GRANTING 256 Motion for Attorney Fees of Defendant-Intervenors Wendy Davis, et al., 257 Motion for Attorney Fees of Defendant-Intervenors Greg Gonzales, et al., and 258 Motion for Attorney Fees of Defendant-Intervenors Texas State Conference of NAACP Branches, et al. Plaintiff must remit $466,680.36 to Defendant-Intervenors Wendy Davis for fees and costs, $597,715.60 to Defendant-Intervenors Greg Gonzales for fees and costs, and $32,374.05 to Defendant-Intervenors Texas State Conference of NAACP Branches for fees and costs. All disbursements shall occur no later than July 2, 2014. This is a ﬁnal appealable order. See Fed. R. App. P. 4(a). Signed by Judge Rosemary M. Collyer on June 18, 2014. (lcrmc3) (Entered: 06/18/2014)
267 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 265 Memorandum & Opinion, 266 Order on Motion for Attorney Fees,,,,,,,, by STATE OF TEXAS. Filing fee $ 505, receipt number 0090-3756368. Fee Status: Fee Paid. Parties have been notiﬁed. (Mitchell, Jonathan) (Entered: 06/23/2014)
268 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 267 Notice of Appeal to DC Circuit Court. (rdj) (Entered: 06/23/2014)
269 MOTION to Stay by STATE OF TEXAS (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Mitchell, Jonathan) (Entered: 06/23/2014)
270 ORDER GRANTING Plaintiff's 269 Motion to Stay. The 266 Order that the Court entered on June 18, 2014, is STAYED pending appeal. Texas is not required to ﬁle a supersedeas bond. Signed by Judge Rosemary M. Collyer on June 24, 2014. (lcrmc3) (Entered: 06/24/2014)
USCA Case Number 14-5151 for 267 Notice of Appeal to DC Circuit Court, ﬁled by STATE OF TEXAS. (erd) (Entered: 07/16/2014)
271 NOTICE of Appearance by Scott A. Keller on behalf of STATE OF TEXAS (Keller, Scott) (Entered: 04/20/2015)
272 NOTICE OF SUBSTITUTION OF COUNSEL by Scott A. Keller on behalf of STATE OF TEXAS Substituting for attorney Jonathan F. Mitchell (Keller, Scott) (Entered: 04/20/2015)
273 ORDER of USCA (certiﬁed copy) that the motions be remanded to the district court as to 267 Notice of Appeal to DC Circuit Court, ﬁled by STATE OF TEXAS. USCA Case Number 14-5151. (vt) (Entered: 03/17/2016)
276 MANDATE of USCA (certiﬁed copy) ORDERED and ADJUDGED that the judgment of the District Court's order awarding attorneys' fees to the Intervenor-appellees appealed from in this cause is hereby afﬁrmed, in accordance with the opinion of the court ﬁled

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District of Columbia live database
herein this date as to 267 Notice of Appeal to DC Circuit Court, ﬁled by STATE OF TEXAS. USCA Case Number 14-5151. (zrdj) (Entered: 03/22/2016)
274 NOTICE of Appearance by Jessica Ring Amunson on behalf of VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Amunson, Jessica) (Entered: 03/18/2016)
275 NOTICE of Appearance by Mark P. Gaber on behalf of VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Gaber, Mark) (Entered: 03/18/2016)
VACATED PURSUANT TO MINUTE ORDER FILED 3/22/2016.....MINUTE ORDER in light of 273 Order remanding motions to this Court. The parties shall meet, confer and ﬁle by April 1, 2016 a proposed brieﬁng schedule for said motions. Signed by Judge Rosemary M. Collyer on 3/18/2016. (lcrmc3) Modiﬁed on 3/22/2016 (zrdj). (Entered: 03/18/2016)
Set/Reset Deadlines/Hearings: Proposed Brieﬁng Schedule due by 4/1/2016. (cdw) (Entered: 03/21/2016)
MINUTE ORDER vacating previous Minute Order dated March 18, 2016. The parties shall ﬁle by April 1, 2016 their appellate briefs regarding attorneys' fees. If any party believes that additional brieﬁng is required, the party shall ﬁle by April 1, 2016 a notice stating the reason(s) why. Signed by Judge Rosemary M. Collyer on 3/22/2016. (lcrmc3) (Entered: 03/22/2016)
Set/Reset Deadlines/Hearings: Appellate Briefs due by 4/1/2016. Notice re additional brieﬁng due by 4/1/2016. (cdw) (Entered: 03/22/2016)
277 NOTICE / Joint Notice of Filing of Appellate Brieﬁng for Defendant-Intervenors' Motion and Supplemental Motion for Appellate Attorneys' Fees by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, ROMEO MUNOZ, STATE OF TEXAS, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Smith, Paul) (Entered: 03/28/2016)
280 MOTION for Attorney Fees by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, ROMEO MUNOZ, JUANITA WALLACE (zrdj) (Entered: 01/25/2017)
281 Memorandum in opposition to re 280 MOTION for Attorney Fees ﬁled by STATE OF TEXAS. (zrdj) (Entered: 01/25/2017)
282 REPLY to opposition to motion re 280 MOTION for Attorney Fees ﬁled by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, ROMEO MUNOZ, MARC VEASEY, JUANITA WALLACE. (zrdj) (Entered: 01/25/2017)
283 SUPPLEMENTAL MOTION for Attorney Fees by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL

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LAWSON, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, ROMEO MUNOZ, MARC VEASEY, JUANITA WALLACE (zrdj) (Entered: 01/25/2017)
284 Memorandum in opposition to re 283 MOTION for Attorney Fees ﬁled by STATE OF TEXAS. (zrdj) (Entered: 01/25/2017)
285 REPLY to opposition to motion re 283 MOTION for Attorney Fees ﬁled by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE. (zrdj) (Entered: 01/25/2017)
278 Unopposed MOTION to Amend/Correct 266 Order on Motion for Attorney Fees,,,,,,,, by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, ROMEO MUNOZ, TEXAS STATE CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE (Attachments: # 1 Exhibit A - Proposed Order)(Smith, Paul) (Entered: 04/22/2016)
279 ORDER granting 278 Unopposed Motion to Amend Order Awarding Attorneys Fees. Signed by Judge Rosemary M. Collyer on April 25, 2016. (cdw) (Entered: 04/26/2016)
MINUTE ORDER. Pursuant to the Court's Minute Order posted on March 22, 2016, the parties timely ﬁled their appellate briefs containing their arguments concerning attorneys' fees. They ﬁled a Notice 277 of ﬁling which was not lodged on the docket as a motion and thereby was not recognized as such. Now advised of the oversight, the Court shall request that the Clerk's Ofﬁce re-ﬁle the exhibits to the Notice as separate docket entries which shall be deemed ﬁled nunc pro tunc to March 28, 2016. Signed by Judge Rosemary M. Collyer on 1/25/2017. (lcrmc3) (Entered: 01/25/2017)
286 Unopposed MOTION to Withdraw as Attorney Paul M. Smith and Mark P. Gaber by VICKI BARGAS, WENDY DAVIS, JOHN JENKINS, ROMEO MUNOZ, MARC VEASEY (Attachments: # 1 Proposed Order)(Amunson, Jessica) (Entered: 03/15/2017)
287 MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 3/30/2017. (lcrmc3) (Main Document 287 replaced on 3/30/2017) (zcdw). (Entered: 03/30/2017)
288 ORDER granting in part and denying in part 280 Defendant-Intervenors Motion for Attorney Fees and 283 Supplemental Motion for Attorney Fees. Attorney fees shall be awarded to the Davis Intervenors for the work of attorneys Paul Smith and J. Gerard Hebert at rates of $789 (2014) and $796 (2015) per hour and for the work of non-attorney Cheryl L. Olson at a rate of $179 (2014) and $180 (2015) per hour. The fee award to the Gonzales Intervenors shall be reduced by 7.6 hours. The remaining hours and rates requested by Defendant-Intervenors are reasonable and are awarded without adjustment. Signed by Judge Rosemary M. Collyer on 3/30/2017. (lcrmc3) (Entered: 03/30/2017)
289 Unopposed MOTION to Amend/Correct 288 Order,, by LISA AGUILAR, NINA JO BAKER, VICKI BARGAS, ERICKA CAIN, WENDY DAVIS, BLANCA GARCIA, VICTOR GARZA, GREG GONZALES, HOWARD JEFFERSON, JOHN JENKINS, BILL LAWSON, REGINALD LILLIE, NELSON LINDER, DANIEL LUCIO, JOSEPHINE MARTINEZ, ROMEO MUNOZ, TEXAS LATINO REDISTRICTING TASK FORCE, TEXAS LEGISLATIVE BLACK CAUCUS, TEXAS STATE

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CONFERENCE OF NAACP BRANCHES, KATRINA TORRES, MARC VEASEY, JUANITA WALLACE (Attachments: # 1 Exhibit A - Proposed Order)(Amunson, Jessica) (Entered: 04/04/2017)
290 ORDER granting 289 Unopposed Motion to Amend Order Awarding Attorneys' Fees. Signed by Judge Rosemary M. Collyer on April 4, 2017. (cdw) (Entered: 04/05/2017)
MINUTE ORDER granting 286 Defendant-Intervenors' Unopposed Motion to Withdraw Paul M. Smith and Mark P. Gaber as Counsel. Signed by Judge Rosemary M. Collyer on 6/13/2017. (lcrmc3) (Entered: 06/13/2017)

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[CONTENT] July 19, 2011 | Texas | the United States | District Court | Section 5 | the Voting Rights Act ||| the Department of Justice | Texas ||| Texas ||| November 8, 2011 | the District Court | Thomas Griffith | Texas | Texas ||| 831 ||| 2d 244 ||| August 28, 2012 | the District Court | Texas | U.S. Congressional | State House | U.S. Congressional | State Senate ||| 887 | F. Supp ||| 2d 133 ||| Texas | the Supreme Court | the Voting Rights Act | Shelby County ||| June 25, 2013 | the Supreme Court | Shelby County</I | the Voting Rights Act | Section 4 ||| 570 | U.S. | 529 ||| The next day | Court | the District Court ||| 570 | U.S. | 928 ||| July 3, 2013 | Texas ||| two ||| First | June 23, 2013 | Texas | the Supreme Court | Shelby County</i> | Texas ||| Second | Shelby County</i> | VRA | Texas | Section 5 ||| Texas | two ||| December 3, 2013 | three | the District Court | Thomas B. Griffith | Court ||| & Order | Dec. 3 | 2013</a ||| December 17, 2013 | 1,096,770.01 ||| VRA | 42 | 42 | 1988 ||| Fifteenth Amendment ||| June 18, 2014 | the District Court | Rosemary M. Collyer ||| Texas | 11-1303 | RMC | 2014 | 2758597 | June 18 | 2014)</a ||| 1 | Rosemary | Texas | three ||| Texas | Advisory | Court ||| July 16, 2014 | Texas | the United States Court of Appeals ||| June 18 ||| August 18, 2015 | Patricia A. Millett | the United States Court of Appeals | the District Court’s ||| Millett | Texas | the District Court’s | the District Court’s ||| Millett | Texas | the Supreme Court’s | Shelby County</i> ||| Texas | second | Millett | the District Court’s ||| 798 | 1108 ||| the Court of Appeals | Texas | Supreme Court ||| 136 | 981 ||| March 17, 2016 | the Court of Appeals | Supreme Court | the District Court ||| almost a year | Collyer | March 30, 2017 ||| Collyer | under 42 | U.S.C. | § ||| Laffey Matrix | the D.C. Circuit ||| Collyer | the Laffey Matrix | one | 7.6 hours |||  [SUMMARY] On July 19, 2011, the state of Texas filed suit against the United States in the U.S. District Court for the District of Columbia under Section 5 of the Voting Rights Act. The state asked for a declaratory judgment, alleging that the Department of Justice inappropriately declared Texas's new districting plan to be retrogressive (that is, discriminatory, because it diluted minority voting power). Arguments focused primarily on the demographics of the state of Texas and its new districting map. On November 8, 2011, the District Court (Judge Thomas Griffith) denied Texas's motion for summary judgment, holding that Texas improperly relied solely on demographic data in formulating its plans and that there were genuine issues of material fact. 831 F. Supp. 2d 244. 

On August 28, 2012, the District Court held that Texas had not met its burden of showing that the new U.S. Congressional and State House plans were not retrogressive or its burden of proving that its U.S. Congressional and State Senate plans were not enacted with a discriminatory purpose, and therefore denied declaratory judgment. 887 F. Supp. 2d 133. Texas sought review in the Supreme Court, and the case was held while the constitutionality of the Voting Rights Act was under review in <I>Shelby County v. Holder</I>. 

On June 25, 2013, the Supreme Court held in the <I>Shelby County</I> case that the Voting Rights Act was unconstitutional in part, striking down Section 4 of the Act, the "coverage" provision, which controlled which jurisdictions were obligated to seek DOJ preclearance of voting-related changes. 570 U.S. 529. The next day, the Court vacated the opinion in this case and remanded the case to the District Court for the District of Columbia. 570 U.S. 928.

On July 3, 2013, Texas moved to dismiss as moot all claims brought in its original complaint. It advanced two arguments in support of dismissal. First, on June 23, 2013, while Texas's appeal was pending and before the Supreme Court had announced its decision in <i>Shelby County</i>, the Texas legislature adopted a new set of redistricting plans that replaced those challenged in this case. Second, <i>Shelby County</i> (which held the VRA's coverage formula unconstitutional) had removed Texas from the preclearance regime of Section 5. Texas argued that these two factors had mooted it claims. On December 3, 2013, a three-judge panel for the District Court for the District of Columbia (Judge Thomas B. Griffith writing for the Court) agreed that the controversy had been mooted, and dismissed all claims. <a href="http://clearinghouse.net/chDocs/public/VR-DC-1168-0012.pdf">Mem. & Order, Dec. 3, 2013</a>. 

On December 17, 2013, several parties (individual voters, elected state representatives, and civil rights advocacy groups) who had intervened as defendants earlier in the litigation moved for attorney fees and costs totaling $1,096,770.01. The intervenors argued that they were prevailing parties and thus entitled to fees and costs under the VRA-specifically, under § 1973l(e) of the VRA, 42 U.S.C. § 1973l(e), and subsection (b) of 42 U.S.C. § 1988. These sections allow courts to, at their discretion, award the prevailing party reasonable fees and costs if the underlying action was to enforce the voting guarantees of the Fourteenth or Fifteenth Amendment of the United States Constitution.

On June 18, 2014, the District Court (Judge Rosemary M. Collyer) granted the intervenors' motion for attorney fees and costs in full. <a href="http://clearinghouse.net/chDocs/public/VR-DC-1168-0013.pdf"><i>Texas v. United States</i>, Civil Action No. 11-1303 (RMC), 2014 WL 2758597, at *11 (D.D.C. June 18, 2014)</a>. Describing the issue as a "case study in how not to respond to a motion for attorney fees and costs," <i>id.</i> at *1, Judge Rosemary chastised Texas for failing to respond (other than by means of a three-page "Advisory" filing) to the intervenors' motion. Finding that Texas's "Advisory" filing presented no substantive legal opposition, the Court thus granted the motion.

On July 16, 2014, Texas appealed the order granting attorney fees to the United States Court of Appeals for the District of Columbia Circuit. The June 18 order was stayed pending this appeal. 

On August 18, 2015, the Judge Patricia A. Millett of the United States Court of Appeals for the District of Columbia Circuit issued an opinion affirming the District Court’s fee award. Judge Millett found that Texas failed to follow the District Court’s rules for responding to motions for attorneys’ fees and did not challenge the District Court’s use of its rules on appeal. Judge Millett proceeded to identify numerous flaws in Texas’ argument that the Supreme Court’s decision in <i>Shelby County</i> made the intervenors ineligible for attorneys’ fees. Concluding that “Texas gets no second bite at the apple now” after its procedural missteps, Judge Millett affirmed the District Court’s fee award. 798 F.3d 1108. 

After the Court of Appeals issued its opinion, the intervenors moved for additional attorneys’ fees to cover the costs of appeal, and Texas failed to secure Supreme Court review. 136 S. Ct. 981. On March 17, 2016, the Court of Appeals remanded the intervenor’s motion for additional attorneys’ fees, now augmented by the costs of opposing Supreme Court review, to the District Court for fact-finding.

After almost a year of litigation over the additional attorneys’ fees, Judge Collyer issued an order and opinion granting the intervenors most of their requested fees on March 30, 2017. Judge Collyer noted that prevailing parties challenging voting plans or procedures are entitled to attorneys’ fees under 42 U.S.C. § 1988(b). The parties disputed whether undetermined fees should be calculated using the intervenors’ attorneys’ rates from private practice or the more conservative Laffey Matrix, a “commonly used” tool in the D.C. Circuit. Judge Collyer selected a generous form of the Laffey Matrix as most appropriate given the skill of the intervenors’ attorneys and the complexity of the litigation but reduced one fee award by 7.6 hours for work on a motion that was never filed. 

The case is now closed. 