Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 1 of 12

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1 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., - and - Plaintiffs, EDDIE BERNICE JOHNSON, et al., - and - TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., v. Plaintiff Intervenors, RICK PERRY, et al., Defendants, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC, - and - Plaintiffs, HONORABLE HENRY CUELLAR, et al., v. Plaintiff Intervenors, STATE OF TEXAS, et al., Defendants CIVIL ACTION NO. SA-11-CA-360-OLG-JES-XR [Lead case] CIVIL ACTION NO. SA-11-CA-361-OLG-JES-XR [Consolidated case] 1

2 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 2 of 12 TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, v. RICK PERRY, et al., Defendants, MARAGARITA V. QUESADA, et al., v. Plaintiffs, RICK PERRY, et al., Defendants, JOHN T. MORRIS, Plaintiff, v. STATE OF TEXAS, et al., Defendants, CIVIL ACTION NO. SA-11-CA-490-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-615-OLG-JES-XR [Consolidated case] 2

3 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 3 of 12 EDDIE RODRIGUEZ, et al., Plaintiff, v. STATE OF TEXAS, et al., Defendants. CIVIL ACTION NO. SA-11-CA-635-OLG-JES-XR [Consolidated case] RESPONSE OF THE TEXAS LATINO REDISTRICTING TASK FORCE, ET AL. TO DEFENDANTS MOTION TO DISMISS FOR LACK OF STANDING AND SUPPORTING MEMORANDUM OF LAW Plaintiffs, the Texas Latino Redistricting Task Force and sixteen individual Latino voters of Texas, file this Response to Defendants Motion to Dismiss for lack of standing ( Defendants Motion and show as follows: INTRODUCTION This case is a challenge to the recently-enacted Texas congressional and House of Representatives redistricting plans. Plaintiff Texas Latino Redistricting Task Force is comprised of Latino organizations committed to securing fair redistricting plans for Texas. Member organizations of the Task Force include Hispanics Organized for Political Education (HOPE, the Mexican American Bar Association of Texas, the National Organization for Mexican American Rights, Southwest Voter Registration Education Project, the William C. Velasquez Institute, and Southwest Workers' Union. Plaintiffs also include sixteen individuals who are Latino and registered to vote in Texas. Plaintiffs seek to enjoin implementation of the newly-enacted redistricting plans until they are precleared under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. Plaintiffs also challenge the newly-enacted congressional and House redistricting plans 3

4 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 4 of 12 because they discriminate against Latinos in violation of the 14th and 15th Amendments of the U.S. Constitution and Section 2 of the Voting Rights Act, 42 U.S.C Defendants move for dismissal for lack of subject matter jurisdiction and assert that the Latino Task Force Plaintiffs ( Plaintiffs lack standing. 1 The motion alleges that Plaintiffs lack standing to challenge redistricting in two areas of the state: Harris County and Cameron/Hidalgo counties. Defendants concede that Plaintiffs have standing to bring their remaining claims. 2 LEGAL STANDARD To demonstrate standing, Plaintiffs must show that they have suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162 (1997 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992. Defendants attack the sufficiency of Plaintiffs complaint under Rule 12(b(1. 3 However, at the pleading stage of litigation, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim. Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 529 (5th Cir (quoting Lujan, 504 U.S. at 561 (alteration in original. When examining whether a complaint s allegations are sufficient to establish standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. 1 See Defendants Motion See Defendants Motion 13 (conceding that Plaintiffs have standing to challenge the Texas House redistricting plan in Nueces County and El Paso County, and conceding that Plaintiffs have standing to challenge the State s proposed congressional districts 6, 12, 23 and See Defendants Motion 3. 4

5 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 5 of 12 Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir (quoting Lewis v. Knutson, 699 F.2d 230, 237 (1983. If the Court determines that additional evidence is required to resolve the question of standing, the Court should request additional information in the form of affidavits and documents. Id. at 351. ARGUMENT In addition to the standing allegations related to individual plaintiffs in the Task Force case (which Defendants do not dispute, Plaintiffs complaint contains sufficient allegations that the Task Force itself has standing to bring claims, in a representative capacity, on behalf of the individual members of its constituent organizations. The Task Force is comprised of organizations that joined together to provide a unified voice and to coordinate efforts to secure fair redistricting plans in Texas. Task Force Second Amended Complaint at 4. The organizations that comprise the Task Force include statewide membership organizations such as Texas HOPE and the Mexican American Bar Association of Texas. Plaintiffs complaint demonstrates that: individual members of the Task Force constituent organizations are Latino registered voters living in the geographic areas at issue and otherwise would have standing to sue in their own right; the Task Force seeks to protect interests germane to its purpose; and neither the claims asserted nor the relief requested requires participation by the organizations members. See Texas Cable & Telecomm. Ass n v. Hudson, 265 Fed.Appx. 210, 215 (5th Cir (an association may appear as a plaintiff so long as it is asserting either its own interests as an association or by appearing solely as the representative of its members (quoting Warth v. Seldin, 422 5

6 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 6 of 12 U.S. 490, 511 (1975; see also Ass n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 365 (5th Cir For example, Plaintiffs alleged in their complaint that: Individuals who are members of the Task Force member organizations include: Latino registered voters of Texas who are injured by the dilution of Latino voting strength statewide; Latino registered voters of Texas who reside in areas where Latino voting strength has been diluted by newlyenacted plans H283 and C185; and Latino registered voters of Texas who reside in areas where Latino-majority districts should have been created but were not in plans H283 and C In the redistricting context, plaintiffs need only show that at least one of the plaintiffs lives in the [district at issue]. In cases with multiple plaintiffs, the presence of at least one party with standing makes the case justiciable. Prejean v. Foster, 83 Fed.Appx. 5, 8 (5th Cir (citing Dep t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 330 (1999. Here, Plaintiffs have established the standing of more than one individual for each geographic area at issue in the case with allegations demonstrating the standing of the individual plaintiffs as well as the standing of the Task Force to bring claims on behalf of the individuals who are members of its constituent organizations. Defendants concede that individual Plaintiffs in the Task Force case have standing when each alleges that he is injured by the failure to create a Latino-majority congressional district... that would provide him the opportunity to elect his candidate of choice to Congress. 5 However, Defendants ignore the similar allegations with respect to 4 See Task Force Second Amended Complaint at 4. 5 Compare Task Force Second Amended Complaint at 4-6 with Defendants Motion 13 (conceding that Plaintiffs have standing to challenge the Texas House redistricting plan in Nueces County and El Paso County, and conceding that Plaintiffs have standing to challenge the State s proposed congressional districts 6, 12, 23 and 27. 6

7 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 7 of 12 individuals who are members of the Task Force organizations. See, e.g., Task Force Second Amended Complaint at 4 ( Individuals who are members of the Task Force member organizations include Latino registered voters of Texas who reside in areas where Latino voting strength has been diluted by newly-enacted plans H283 and C185 and Latino registered voters of Texas who reside in areas where Latino-majority districts should have been created but were not in plans H283 and C185.. Plaintiffs allegations that members of the Task Force organizations have been injured by vote dilution and the failure to create Latino opportunity districts in the challenged plans directly support Plaintiffs standing to challenge the failure to draw an additional Latino-majority congressional district in Harris County and the failure to draw an additional Latino-majority House district in Cameron/Hidalgo counties. See Task Force Second Amended Complaint at 9, 12. Defendants also ignore the Task Force s response to the State s first set of interrogatories which stated, for example, that Texas HOPE has more than 7,000 individual members living throughout the State of Texas. Exhibit 1, Task Force Responses to Defendants First Set of Interrogatories, No. 3. Defendants do not claim, nor can they, that this case requires the participation of individual members of the Task Force s constituent organizations, or that the Task Force s mission to secure fair redistricting plans is not germane to the subject of this lawsuit. Furthermore, Plaintiffs complaint on its face establishes that, in addition to the sixteen individual plaintiffs in the case, the individual members of the Task Force s constituent organizations would have standing to sue. Allowing Plaintiffs to proceed without adding even more parties to the lawsuit avoids repetition of evidence and serves the interest of judicial economy. See, e.g., Ass n of American Physicians & Surgeons, 7

8 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 8 of 12 Inc. v. Texas Medical Bd., 627 F.3d 547, 553 (5th Cir (finding that association of doctors had standing to sue on behalf of its members and noting that [b]ecause [the association] also seeks only equitable relief from these alleged violations, both the claims and relief appear to support judicially efficient management if associational standing is granted.. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court deny Defendants motion to dismiss for lack of standing. Dated: August 23, 2011 Respectfully submitted, /s/ Nina Perales Nina Perales Marisa Bono Rebecca M. Couto MALDEF 110 Broadway Street, #300 San Antonio, TX ( Fax: ( Robert W. Wilson Mark Anthony Sanchez Gale, Wilson & Sanchez, PLLC 115 East Travis, 19th Floor San Antonio, TX ( Fax: ( COUNSEL FOR PLAINTIFFS TEXAS LATINO REDISTRICTING TASK FORCE, RUDOLFO ORTIZ, ARMANDO CORTEZ, SOCORRO RAMOS, GREGORIO BENITO PALOMINO, FLORINDA CHAVEZ, CYNTHIA VALADEZ, CESAR EDUARDO YEVENES, SERGIO CORONADO, 8

9 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 9 of 12 GILBERTO TORRES, RENATO DE LOS SANTOS, JOEY CARDENAS, ALEX JIMENEZ, EMELDA MENENDEZ, TOMACITA OLIVARES, JOSE OLIVARES, ALEJANDRO ORTIZ, AND REBECCA ORTIZ CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that she has ed (or will send via U.S. Mail by the next business day where is not available a true and correct copy of the above and foregoing on the 23 rd day of August, /s/ Nina Perales Nina Perales David R. Richards RICHARDS RODRIGUEZ & SKEITH, LLP 816 Congress, Suite 1200 Austin, TX ( Fax: ( davidr@rrsfirm.com Richard Edwin Gray, III GRAY & BECKER, P.C. 900 West Avenue, Suite 300 Austin, TX ( Fax: ( rick.gray@graybecker.com COUNSEL FOR PLAINTIFFS SHANNON PEREZ, HAROLD DUTTON, JR., GREGORY TAMEZ, NANCY HALL, DOROTHY DEBOSE, CARMEN RODRIGUEZ, AND SERGIO SALINAS Jose Garza 1111 North Main San Antonio, TX ( Fax: ( garzpalm@aol.com Mark W. Kiehne mkiehne@lawdcm.com Ricardo G. Cedillo rcedillo@lawdcm.com DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza 755 E. Mulberry, Suite 500 San Antonio, TX ( Fax: ( Joaquin Guadalupe Avila P.O. Box Seattle, WA COUNSEL FOR PLAINTIFFS MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC 9

10 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 10 of 12 J. Gerald Hebert J. GERALD HEBERT, P.C. 191 Somervelle Street, #405 Alexandria, VA ( (fax Gerald Harris Goldstein Donald H. Flanary, III GOLDSTEIN, GOLDSTEIN & HILLEY Tower Life Building 310 S. St. Mary's, 29th Floor San Antonio, TX ( Fax: ( Paul M. Smith Michael B. DeSanctis Jessica Ring Amunson Jenner & Block LLP 1099 New York Ave., N.W. Washington, DC Jesse Gaines Attorney at Law PO Box Ft. Worth, TX COUNSEL FOR PLAINTIFFS MARGARITA V. QUESADA, MARC VEASEY, ROMEO MUNOZ, JANE HAMILTON, JOHN JENKINS, AND LYMAN KING Luis Roberto Vera, Jr. LAW OFFICES OF LUIS ROBERTO VERA & Max Renea Hicks LAW OFFICE OF MAX RENEA HICKS 101 West Sixth Street, Suite 504 Austin, TX ( Fax: ( S. Abraham Kuczaj, III Sam Johnson Stephen E. McConnico SCOTT DOUGLASS & MCCONNICO, LLP 600 Congress Avenue, 15th Floor Austin, TX ( Fax: ( Karen M. Kennard 2803 Clearview Drive Austin, TX ( Fax: ( David Escamilla TRAVIS COUNTY ATTORNEY P.O. Box 1748 Austin, TX ( COUNSEL FOR PLAINTIFFS EDDIE RODRIGUEZ, CITY OF AUSTIN, TRAVIS COUNTY, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, MILTON GERARD WASHINGTON, ALEX SERNA, SANDRA SERNA, BETTY F. LOPEZ, BEATRICE SALOMA, JOSEY MARTINEZ, LIONOR SOROLA- POHLMAN, BALAKUMAR PANDIAN, NINA JO BAKER, JUANITA VALDEZ- COX, AND ELIZA ALVARADO John T. Morris 5703 Caldicote St. 10

11 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 11 of 12 ASSOCIATES, P.C. 111 Soledad, Suite 1325 San Antonio, TX ( Fax: ( George Joseph Korbel 1111 North Main San Antonio, TX ( COUNSEL FOR PLAINTIFF INTERVENOR LULAC Gary L. Bledsoe LAW OFFICE OF GARY L. BLEDSOE 316 W. 12th Street, Suite 307 Austin, TX ( Fax: ( Anita Sue Earls Allison Jean Riggs SOUTHERN COALITION FOR SOCIAL JUSTICE 1415 West Highway 54, Suite 101 Durham, NC ( ext 117 Fax: ( Robert Stephen Notzon LAW OFFICE OF ROBERT NOTZON 1507 Nueces Street Austin, TX ( Fax: ( Humble, TX ( PRO SE Rolando L. Rios LAW OFFICES OF ROLANDO L. RIOS 115 E Travis Street, Suite 1645 San Antonio, TX ( Fax: ( rrios@rolandorioslaw.com COUNSEL FOR PLAINTIFF INTERVENOR U.S. CONGRESSMAN HENRY CUELLAR, MEMBER OF CONGRESS, CD 28 K. Scott Brazil scott@brazilanddunn.com Chad W. Dunn chad@brazilanddunn.com BRAZIL & DUNN 4201 FM 1960 West, Suite 530 Houston, TX ( Fax: ( COUNSEL FOR INTERVENOR DEFENDANTS TEXAS DEMOCRATIC PARTY AND BOYD RICHIE Donna Garcia Davidson P.O. Box Austin, TX ( Fax: ( donna@dgdlawfirm.com Frank M. Reilly POTTS & REILLY, L.L.P. P.O. Box 4037 Horseshoe Bay, TX ( Fax: ( reilly@pottsreilly.com 11

12 Case 5:11-cv OLG-JES-XR Document 234 Filed 08/23/11 Page 12 of 12 COUNSEL FOR INTERVENOR PLAINTIFFS TEXAS STATE CONFERENCE OF NAACP, EDDIE BERNICE JOHNSON, SHEILA JACKSON-LEE, ALEXANDER GREEN, HOWARD JEFFERSON, JUANITA WALLACE, AND BILL LAWSON COUNSEL FOR DEFENDANT STEVE MUNISTERI David Mattax David J. Schenck Matthew Hamilton Frederick Angela V. Colmenero Ana M. Jordan OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548, Capitol Station Austin, TX ( Fax: ( COUNSEL FOR DEFENDANTS STATE OF TEXAS, RICK PERRY, HOPE ANDRADE, DAVID DEWHURST, AND JOE STRAUS 12

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49 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., - and - Plaintiffs, EDDIE BERNICE JOHNSON, et al., - and - TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., v. Plaintiff Intervenors, STATE OF TEXAS, et al., Defendants, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC, - and - Plaintiffs, HONORABLE HENRY CUELLAR, et al., v. Plaintiff Intervenors, STATE OF TEXAS, et al., Defendants, CIVIL ACTION NO. SA-11-CA-360-OLG-JES-XR [Lead case] CIVIL ACTION NO. SA-11-CA-361-OLG-JES-XR [Consolidated case]

50 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 2 of 3 TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, v. RICK PERRY, et al., Defendants, MARAGARITA V. QUESADA, et al., v. Plaintiffs, RICK PERRY, et al., Defendants, JOHN T. MORRIS, Plaintiff, v. STATE OF TEXAS, et al., Defendants, CIVIL ACTION NO. SA-11-CA-490-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-615-OLG-JES-XR [Consolidated case]

51 Case 5:11-cv OLG-JES-XR Document Filed 08/23/11 Page 3 of 3 EDDIE RODRIGUEZ, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants. CIVIL ACTION NO. SA-11-CA-635-OLG-JES-XR [Consolidated case] ORDER On this day, the Court considered Defendants Motion to Dismiss for Lack of Standing and Supporting Memorandum of Law. The Motion is hereby denied. SIGNED AND ENTERED this day of, ORLANDO L. GARCIA UNITED STATES DISTRICT JUDGE