Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 1 of 8

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1 Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., v. Plaintiffs, STATE OF TEXAS, et al., CIVIL ACTION NO. SA-11-CA-360-OLG-JES-XR [Lead case] Defendants. IN SUPPORT OF PROPOSED SCHEDULING ORDER Defendants Rick Perry, in his official capacity as Governor, John Steen, in his official capacity as Secretary of State, and the State of Texas (collectively Defendants ) file this limited response to address one issue asserted in Plaintiffs Advisory In Support of Scheduling Order. The Plaintiffs Advisory asserts that Plaintiffs anticipate only one evidentiary proceeding related to the 2011 plans. Pls. Advisory in Supp. of Proposed Scheduling Order at 4, ECF No Defendants maintain that the 2011 and 2013 redistricting matters should be adjudicated in a unified trial, but regardless of how the trial is structured, the Plaintiffs underestimate the time necessary to conduct additional proceedings related to the 2011 redistricting case. IN SUPPORT OF PROPOSED SCHEDULING ORDER PAGE 1

2 Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 2 of 8 Plaintiffs have moved to add approximately 400 documents, from the Section 5 trial in Washington, D.C. to the record in this case, over Defendants objection. See Pls. Joint Mot. For Leave to Reopen R., ECF No These documents consist of over ten original or supplemental expert reports, numerous s involving multiple recipients and authors, and additional maps. In addition, one Plaintiff has already communicated an intention to potentially call approximately a half-dozen witnesses, including witnesses who testified in the Section 5 proceedings, in the supplemental proceedings in this matter. Moreover, the various Plaintiffs amended complaints rely heavily on the D.C. district court s vacated Section 5 opinion, which the Defendants did not have the opportunity to challenge on appeal. Although the opinion is void and of no effect, Plaintiffs will presumably attempt to prove the same points in this case that Texas had the burden to disprove in the Section 5 case. In addition to the large volume of evidence the existing Plaintiffs seek to introduce, the United States has recently intervened as a new plaintiff and asserted its own claims against the 2011 redistricting plans. See USA s Compl. in Intervention, ECF No As the Court has recognized, the Defendants must have an opportunity to mount a defense against the new allegations, the new evidence (if admitted), and the new party that are now involved in the case against the State s 2011 redistricting plans. See Order at 4, ECF No. 887 (Sept. 6, 2013) (noting that Defendants would have an opportunity to respond to Plaintiffs supplemental evidence, by crossexamination or otherwise, and the opportunity to offer their own supplemental evidence in response to the evidence being offered by Plaintiffs ). Defendants intend IN SUPPORT OF PROPOSED SCHEDULING ORDER PAGE 2

3 Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 3 of 8 to respond fully and vigorously by presenting live witnesses and additional documentary evidence on the 2011 plans in response to Plaintiffs new allegations and new evidence. In short, there is additional work to be done to address the issues that are now before this Court. As this Court recognized in its Order of September 6, 2013: Another round of fact and expert discovery may be necessary to adequately prepare the case for a second trial. Experts will need to supplement or amend their prior opinions and present same to the Court. There may be additional fact witnesses that will need to testify in person, if possible, or by video deposition if they are unable to testify in person. There will be additional documentary evidence, including approximately 400 exhibits that were previously used in the D.C. preclearance proceedings. Evidentiary challenges will need to be resolved. Oral arguments will be presented. A second trial or series of evidentiary hearings will need to be held. The Court will then begin its review of all the evidence from the first trial in this case, the second trial in this case, and any additional evidence (from the D.C. case or otherwise) that may be presented by submission. Order at 19-20, ECF No. 886 (Sept. 6, 2013). This will take more time, both in and out of court, than the Plaintiffs' proposed schedule provides. Although it is impossible to gauge with certainty the time needed to address the multiple issues raised in Plaintiffs supplementation, additional proceedings will require substantially more than the Plaintiffs contemplated one evidentiary proceeding. Pls. Advisory at 4, ECF No The State estimates that additional proceedings on the 2011 plans will require something closer to one week in court. Defendants do not expect that the preparation for such a hearing can be completed in the timeframe set forth in Plaintiffs proposed IN SUPPORT OF PROPOSED SCHEDULING ORDER PAGE 3

4 Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 4 of 8 scheduling order. Defendants urge the Court to adopt a reasonable schedule for a single, unified trial in the summer of However, Defendants submit that if the Court accepts Plaintiffs proposal for a bifurcated schedule, such schedule must include additional time to allow for adequate preparation to litigate the new claims raised against the 2011 redistricting plans. Dated: October 11, 2013 Respectfully submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy Attorney General for Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General /s/ Patrick K. Sweeten PATRICK K. SWEETEN Chief, Special Litigation Division Texas Bar No P.O. Box 12548, Capitol Station Austin, TX (512) (512) (fax) ATTORNEYS FOR THE STATE OF TEXAS, RICK PERRY, AND JOHN STEEN IN SUPPORT OF PROPOSED SCHEDULING ORDER PAGE 4

5 Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 5 of 8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this filing was sent on October 11, 2013, via the Court s electronic notification system and/or to the following counsel of record: DAVID RICHARDS Richards, Rodriguez & Skeith LLP 816 Congress Avenue, Suite davidr@rrsfirm.com RICHARD E. GRAY, III Gray & Becker, P.C. 900 West Avenue, Suite / (facsimile) Rick.gray@graybecker.com ATTORNEYS FOR PLAINTIFFS PEREZ, DUTTON, TAMEZ, HALL, ORTIZ, SALINAS, DEBOSE, and RODRIGUEZ JOSE GARZA Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas garzpalm@aol.com MARK W. KIEHNE RICARDO G. CEDILLO Davis, Cedillo & Mendoza McCombs Plaza 755 Mulberry Ave., Ste. 500 San Antonio, TX / (facsimile) mkiehne@lawdcm.com rcedillo@lawdcm.com GERALD H. GOLDSTEIN DONALD H. FLANARY, III Goldstein, Goldstein and Hilley 310 S. St. Mary s Street San Antonio, TX / (facsimile) ggandh@aol.com donflanary@hotmail.com PAUL M. SMITH, MICHAEL B. DESANCTIS, JESSICA RING AMUNSON Jenner & Block LLP 1099 New York Ave., NW Washington, D.C J. GERALD HEBERT 191 Somervelle Street, # 405 Alexandria, VA hebert@voterlaw.com JESSE GAINES P.O. Box Fort Worth, TX gainesjesse@ymail.com ATTORNEYS FOR PLAINTIFFS QUESADA, MUNOZ, VEASEY, HAMILTON, KING and JENKINS LUIS ROBERTO VERA, JR. Law Offices of Luis Roberto Vera, Jr Riverview Towers San Antonio, Texas lrvlaw@sbcglobal.net IN SUPPORT OF PROPOSED SCHEDULING ORDER PAGE 5

6 Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 6 of 8 JOAQUIN G. AVILA P.O. Box Seattle, WA / (facsimile) jgavotingrights@gmail.com ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS NINA PERALES MARISA BONO Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX / (facsimile) nperales@maldef.org mbono@maldef.org MARK ANTHONY SANCHEZ ROBERT W. WILSON Gale, Wilson & Sanchez, PLLC 115 East Travis Street, Ste San Antonio, TX / (facsimile) masanchez@gws-law.com rwwilson@gws-law.com ATTORNEYS FOR TEXAS LATINO REDISTRICTING TASK FORCE, CARDENAS, JIMENEZ, MENENDEZ, TOMACITA AND JOSE OLIVARES, ALEJANDRO AND REBECCA ORTIZ JOHN T. MORRIS 5703 Caldicote St. Humble, TX JOHN T. MORRIS, PRO SE GEORGE JOSEPH KORBEL Texas Rio Grande Legal Aid, Inc North Main San Antonio, TX korbellaw@hotmail.com ATTORNEYS FOR INTERVENOR- PLAINTIFF LEAGUE OF UNITED LATIN AMERICAN CITIZENS ROLANDO L. RIOS Law Offices of Rolando L. Rios 115 E Travis Street, Suite 1645 San Antonio, TX rrios@rolandorioslaw.com ATTORNEY FOR INTERVENOR- PLAINTIFF HENRY CUELLAR GARY L. BLEDSOE Law Office of Gary L. Bledsoe 316 W. 12 th Street, Ste / (facsimile) garybledsoe@sbcglobal.net ATTORNEY FOR INTERVENOR- PLAINTIFFS TEXAS STATE CONFERENCE OF NAACP BRANCHES, TEXAS LEGISLATIVE BLACK CAUCUS, EDDIE BERNICE JOHNSON, SHEILA JACKSON- LEE, ALEXANDER GREEN, HOWARD JEFFERSON, BILL LAWSON, and JUANITA WALLACE VICTOR L. GOODE Asst. Gen. Counsel, NAACP 4805 Mt. Hope Drive Baltimore, MD / (facsimile) vgoode@naacpnet.org ATTORNEY FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES IN SUPPORT OF PROPOSED SCHEDULING ORDER PAGE 6

7 Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 7 of 8 MAX RENEA HICKS Law Office of Max Renea Hicks 101 West Sixth Street Suite /512/ (facsimile) ATTORNEY FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, MILTON GERARD WASHINGTON, and SANDRA SERNA STEPHEN E. MCCONNICO SAM JOHNSON S. ABRAHAM KUCZAJ, III Scott, Douglass & McConnico One American Center 600 Congress Ave., 15th Floor / (facsimile) smcconnico@scottdoug.com sjohnson@scottdoug.com akuczaj@scottdoug.com ATTORNEYS FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BALAKUMAR PANDIAN, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, ELIZA ALVARADO, JOSEY MARTINEZ, JUANITA VALDEZ-COX, LIONOR SOROLA- POHLMAN, MILTON GERARD WASHINGTON, NINA JO BAKER, and SANDRA SERNA KAREN M. KENNARD 2803 Clearview Drive Austin, TX (512) / (facsimile) karen.kennard@ci.austin.tx.us ATTORNEY FOR PLAINTIFF CITY OF AUSTIN ROBERT NOTZON 1507 Nueces Street / (facsimile) robert@notzonlaw.com ALLISON JEAN RIGGS ANITA SUE EARLS Southern Coalition for Social Justice 1415 West Highway 54, Ste. 101 Durham, NC / (facsimile) anita@southerncoalition.org ATTORNEYS FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES, EARLS, LAWSON, WALLACE, and JEFFERSON DONNA GARCIA DAVIDSON PO Box Austin, TX / (facsimile) donna@dgdlawfirm.com FRANK M. REILLY Potts & Reilly, L.L.P. P.O. Box 4037 Horseshoe Bay, TX / (facsimile) reilly@pottsreilly.com ATTY FOR DEFENDANT STEVE MUNISTERI CHAD W. DUNN K. SCOTT BRAZIL Brazil & Dunn 4201 FM 1960 West, Suite 530 Houston, TX / (facsimile) chad@brazilanddunn.com scott@brazilanddunn.com ATTORNEYS FOR INTERVENOR- DEFS TEXAS DEMOCRATIC PARTY and BOYD RICHIE IN SUPPORT OF PROPOSED SCHEDULING ORDER PAGE 7

8 Case 5:11-cv OLG-JES-XR Document 925 Filed 10/11/13 Page 8 of 8 ROBERT L. PITMAN, JOCELYN SAMUELS, T. CHRISTIAN HERREN, JR., TIMOTHY F. MELLETT, BRYAN SELLS, JAYE ALLISON SITTON DANIEL J. FREEMAN MICHELLE A. MCLEOD U.S. Department of Justice Civil Rights Division, Voting Rights Room 7254 NWB 950 Pennsylvania Avenue, N.W. Washington, D.C (202) ; (202) ATTORNEYS FOR THE UNITED STATES DAVID ESCAMILLA Travis County Asst. Attorney P.O. Box 1748 Austin, TX (512) david.escamilla@co.travis.tx.us ATTORNEY FOR PLAINTIFF TRAVIS COUNTY /s/ Patrick K. Sweeten PATRICK K. SWEETEN IN SUPPORT OF PROPOSED SCHEDULING ORDER PAGE 8