Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 1 of 13

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1 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, ET AL. v. SA-11-CV-360 (OLG-JES-XR) RICK PERRY, ET AL. TEXAS LATINO REDISTRICTING TASK FORCE, ET AL. PLAINTIFFS RESPONSE TO DEFENDANTS BRIEF REGARDING ALABAMA LEGISLATIVE BLACK CAUCUS V. ALABAMA Plaintiffs the Texas Latino Redistricting Task Force, et al., ( Task Force or Plaintiffs ) file this brief in response to the brief by Defendants Governor Greg Abbott, Secretary of State Carlos Cascos, and the State of Texas (collectively, the State or Texas ) regarding Alabama Legislative Black Caucus v. Alabama, 135 S. Ct (2015). See Dkt (hereinafter, Texas Brief ). ARGUMENT I. TEXAS CONCEDES THAT THE TASK FORCE PLAINTIFFS HAVE ASSERTED SHAW CLAIMS Texas does not dispute, and in fact concedes, that the Task Force Plaintiffs have asserted Shaw claims against Plans C185 and H283. Texas Brief at 7. Texas specifically acknowledges that the Task Force Plaintiffs allege Shaw violations in CD 23 and the Dallas-Fort Worth area in Plan C185 and in HD 117 and El Paso in Plan H In its Brief, Texas does not address the Task Force s Shaw claim regarding HD90 in Plan H358, which has not yet been scheduled for trial. Compare Texas Brief at 7 with Task Force Advisory on Alabama at 2 (Dkt. 1308) and Task Force Fourth Amended Complaint at 11 ( The

2 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 2 of 13 Although Texas maintains that the Task Force Plaintiffs lack standing to assert Shaw claims against two of the challenged districts, Texas does not dispute that the Task Force Plaintiffs have standing to challenge, as unconstitutional racial gerrymanders, CD23 and CD6 in Plan C185 and HD77 and HD78 in Plan H283. As explained below, the Task Force Plaintiffs have standing to assert Shaw claims against all of their challenged districts. II. THE TASK FORCE PLAINTIFFS HAVE STANDING TO ASSERT THEIR SHAW CLAIMS AND OTHER CLAIMS 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)). When a membership association is a plaintiff, the association must demonstrate (1) the association's members, or any one of them, would have standing to sue in their own right; (2) the interests that the association seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires individual members' participation in the lawsuit. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). With respect to the first element of associational standing (member standing), in order to advance a claim of racial gerrymandering under Shaw, a plaintiff must live in the district they challenge. Order (denying in part motion to dismiss) Dkt. 285 at 19, citing Shaw v. Hunt, 517 U.S. 899, 904 (1996). For vote dilution, a plaintiff s assertion that he has suffered an injury because his vote for his preferred candidate in his district has been diluted as a result of the redistricting plan... is a personalized injury sufficient to confer standing. Order (denying in configuration of HD 90 in Plan H358 dilutes Latino voting strength and uses race as a predominant factor to allocate Latino voters into and out of HD 90. ) (Dkt. 891). 2

3 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 3 of 13 part motion to dismiss) Dkt. 285 at 18 (emphasis in original), citing United States v. Hays, 515 U.S. 737, 745 (1995). Thus, an association that asserts claims on behalf of Latino members who reside in districts where Latino voting strength has been diluted or Latino-majority districts should have been created but were not, represents members who suffered an injury-in-fact sufficient to confer standing and satisfies the first element of associational standing. Order (denying in part motion to dismiss) Dkt. 285 at 19. See also Hancock Cnty. Bd. of Sup'rs v. Ruhr, 487 F. App'x 189, 199 (5th Cir. 2012) (unpublished) (NAACP has associational standing based on members residence in overpopulated, under-represented district); see also Common Cause v. Bolger, 512 F. Supp. 26, 32 (D.D.C. 1980) (associations has standing to challenge law that burdens [members ] political rights and discriminates against them. ). The record in this case establishes that the Texas Latino Redistricting Task Force is comprised of organizations with members who reside throughout Texas. The members of the Plaintiff Texas Redistricting Task Force include The Mexican American Bar Association of Texas, the National Organization of Mexican American Rights, Southwest Voter Registration Education Project, Southwest Worker s Union, the William C. Velazquez Institute, and Texas Hispanic Organization for Political Education. (Ex. J-56, at 15:4-12; Ex [Dkt , at p. 2]). Texas Hispanics Organized for Political Education (HOPE) is a statewide membership organization (Ex. J-56, at 15:4-12; Ex [Dkt , at p. 3-4]). Similarly, The Mexican American Bar Association of Texas (MABA-TX) is a statewide membership organization. Id. at 4. The Southwest Worker s Union is a statewide membership organization. Id. The Texas chapter of the National Organization for Mexican American Rights, Inc. (NOMAR) has members that reside Tarrant, Dallas, Bexar, and Nueces counties. Id. at

4 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 4 of 13 When a statewide membership organization serves as a plaintiff, it is highly likely that [the organization] will have members in each majority-minority district being challenged under Shaw. Alabama Slip Op. at 13. Here, as in Alabama, testimony by the Task Force that its constituent organizations have members throughout the state, supports, and nothing in that record undermines, the conclusion that the Task Force has standing through its members. Id.; see also Task Force Plaintiffs Proposed Findings of Fact and Conclusions of Law (Dkt. 1274) (hereinafter, Task Force FOF ). If the Court has any doubts regarding whether a plaintiff statewide organization has standing, elementary principles of procedural fairness require[] that the District Court, rather than acting sua sponte, give the [plaintiff] an opportunity to provide evidence of member residence. Id. at 14, citing Warth v. Seldin, 422 U. S. 490, (1975). In Alabama, the Supreme Court reversed the district court s finding that the plaintiff lacked standing, accepted a lodged affidavit identifying members of the statewide organizational plaintiff who lived in the challenged districts, and remanded the case with instructions for the district court to permit the organizational plaintiff to present a list of members with standing. Id. at 14. The Task Force also satisfies the second element of associational standing because the interests that the Task Force seeks to protect in this lawsuit are germane to its purpose. The purpose of the Texas Latino Redistricting Task Force is to unite Latinos and the Texas Latino leadership, as well as to coordinate their advocacy efforts, around redistricting plans that fairly reflect the political strength of the Latino population in Texas (Ex [Dkt , at p. 1]). After the Texas Legislature enacted its 2011 state house and congressional redistricting plans, the Task Force, in furtherance of its purpose, filed suit to challenge dilution of Latino voting strength and the use of race as a predominant factor in drawing district boundaries. The Task Force was 4

5 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 5 of 13 organized to defend against exactly this kind of harm. O'Hair v. White, 675 F.2d 680, 692 (5th Cir. 1982); see also Hancock Cnty. Bd. of Sup'rs v. Ruhr, 487 F. App'x 189, (5th Cir. 2012). The nature of the Task Force Plaintiffs claim, and the relief sought, does not require the participation of individual members of the Task Force organizations. The Task Force seeks declaratory and injunctive relief that will inure to the benefit of those members of the association actually injured. Hunt, 432 U.S. at 343. Because no individual member of the Task Force constituent organizations needs to offer individualized proof in order to establish a violation of the Voting Rights Act and Fourteenth Amendment, the Task Force fulfills the third element of associational standing. See Warth v. Seldin, 422 U.S. 490, 511 (1975); see also Familias Unidas v. Briscoe, 619 F.2d 391, 398 n. 7 (5 th Cir. 1980) ( the declaratory relief sought, inuring as it would to the benefit of all members, is ideally suited to allowing associational standing. ) (quoting Warth v. Seldin, 422 U.S. 490, 511, 515 (1975)). A. The Task Force Plaintiffs Have Standing to Bring Shaw Claims Against HD 117 and CD 26 The State wrongly asserts that The Task Force Plaintiffs lack standing to bring racialgerrymandering claims against HD 117 and CD 26. Id. at 8. 2 In fact, the statewide Latino 2 In June 2011, the State requested the names of most of the members of the Task Force constituent organizations. See Dkt After the Task Force responded that turning over membership lists would violate the members First Amendment rights (NAACP v. Alabama ex rel. Patterson 357 U.S. 449, (1958)), Texas deposed representatives of the Task Force and two of its constituent statewide organizations but chose not to ask them to identify individual members who were affected by the challenged redistricting plans. Following this Court s denial of its motion to dismiss for lack of standing in September 2011 (Dkt. 285), Texas did not raise the issue of standing in its post-trial brief. See Dkt Texas made no mention of standing in its Proposed Findings of Fact and Conclusions of Law in See Dkt In 2013, Texas moved to dismiss this case for lack of subject matter jurisdiction but made no mention of standing. See Dkt In 2014, Texas again moved to dismiss the case and made no mention of standing. See Dkt Following a second trial in 2014, Texas did not raise the issue of 5

6 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 6 of 13 membership organizations that are part of the Task Force include members who live in, and have standing to assert Shaw claims against, HD 117 and CD 26. The current membership of HOPE includes Latino individuals who reside and are registered to vote in CD26 in Plan C185 and HD117 in Plan 283. See Exhibit A, Exhibit B and Exhibit C. The current membership of MABA-TX also includes Latino individuals who reside and are registered to vote in HD117 in Plan H283. See Exhibit D; Exhibit E. Finally, the current membership of NOMAR includes Latino individuals who reside and are registered to vote in CD26 in Plan C185. Exhibit F. B. The Task Force Plaintiffs Have Standing to Bring Shaw Claims against CD6, CD23, HD77 and HD78 With respect to the Task Force Plaintiffs standing to raise Shaw claims against the remaining challenged districts, which Texas did not dispute in its recent brief, the membership of NOMAR includes Latino individuals who reside and are registered to vote in CD6 in Plan C185. Id. Plaintiffs Gilberto Torres and Socorro Ramos live and vote in CD23 in Plan C185. See Exhibits G, H and R. In El Paso County, Plaintiff Sergio Coronado lives and votes in HD78 in Plan H283. See Exhibit I and R. The Task Force Plaintiffs have challenged HD78 as an unconstitutional racial gerrymander as well as dilutive of Latino voting strength. See Task Force Post-Trial Br. at 2, 26; Task Force FOF 14-15, Both MABA-TX and HOPE have Latino members who live and vote in HD77. See Exhibits A, D and J. The Task Force Plaintiffs have challenged HD77, standing in its post-trial brief or its Proposed Findings of Fact and Conclusions of Law. See Dkt (State s 2014 post-trial brief) and Dkt (State s 2014 proposed FOF and COL). 6

7 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 7 of 13 also known as the antler district, as an unconstitutional racial gerrymander. See Exhibits A; Task Force Post-Trial Br. at 46; Task Force FOF C. The Task Force Plaintiffs Have Standing to Bring Their Vote Dilution Claims With respect to the Task Force Plaintiffs standing to raise vote dilution claims under section 2 of the Voting Rights Act and the Fourteenth Amendment, which Texas did not dispute in its recent brief, the membership of HOPE and NOMAR includes Latino individuals who live and vote in the Dallas-Ft. Worth area where the Latino Task Force Plaintiffs claim Texas diluted Latino voting strength by failing to create a congressional district in C185 offering Latinos the opportunity to elect their preferred candidate. See Exhibit A and Exhibit F. Individual plaintiff Alex Jimenez also lives in Ft. Worth. See Exhibits K and R. The membership of MABA-TX and HOPE includes Latino individuals who live and vote in Harris County, where Texas diluted Latino voting strength by failing to create a congressional district in C185 offering Latinos the opportunity to elect their preferred candidate. See Exhibit A and Exhibit D. Plaintiffs Gilberto Torres and Socorro Ramos live and vote in CD23, where the Latino Task Force Plaintiffs claim Texas diluted Latino voting strength in C185. See Exhibits G, H and R. Plaintiffs Cesar Yevenes, Jose Olivares and Tomacita Olivares live in Nueces County, where the Latino Task Force Plaintiffs claim Texas diluted Latino voting strength in C185. See Exhibits L, M, N, and R. Plaintiff Cesar Yevenes also lives in HD33 in Plan C100, a district the Latino Task Force Plaintiffs claim Texas eliminated in order to dilute Latino voting strength in Plan H283. See Exhibit L and R. 3 The membership of HOPE also includes Latino individuals who live and vote in HD90 in H358, against which the Task Force Plaintiffs have raised (but are not yet scheduled to try) Shaw claims. Exhibit A. 7

8 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 8 of 13 In Bexar County, the current membership of HOPE and MABA-TX includes Latino individuals who reside and are registered to vote in HD117 in Plan 283, where the Latino Task Force Plaintiffs claim that Texas diluted Latino voting strength. See Exhibit A, Exhibit C, Exhibit D and Exhibit E. In El Paso County, Plaintiff Sergio Coronado lives and votes in HD78 in Plan H283 where the Task Force Plaintiffs claim Texas diluted Latino voting strength. See Exhibit I and Exhibit R. In the Rio Grande Valley, the current membership of MABA-TX includes Latino individuals who reside and are registered to vote in Cameron and Hidalgo counties, where the Latino Task Force Plaintiffs claim that Texas diluted Latino voting strength in Plan H283. See Exhibit D. In CD35 in Plan C185, where the Latino Task Force Plaintiffs claim Texas created a congressional district mandated by section 2, the current membership of HOPE and MABA-TX includes Latino individuals who reside and are registered to vote in CD35. In addition, plaintiffs Florinda Chavez, Cynthia Valadez and Armando Cortez live and vote in CD35 in Plan C185. See Exhibits O, P, Q, and R. 4 III. THE ALABAMA DECISION FURTHER REINFORCES THE SHAW ANALYSIS PRESENTED BY THE LATINO TASK FORCE PLAINTIFFS The Supreme Court s decision in Alabama casts into strong relief the fact that Texas had no strong basis in evidence to racially gerrymander the challenged districts. See Alabama Slip 4 The membership of HOPE also includes Latino individuals who live and vote in HD90 in H358, against which the Task Force Plaintiffs have raised (but are not yet scheduled to try) vote dilution claims. Exhibit A. Two of the Latino Task Force Plaintiffs have changed their residence since the filing of the lawsuit. Mr. Gregorio Palomino now lives in CD20 in Plan C185 and HD116 in Plan H283. Mr. Renato De Los Santos now lives in CD30 in Plan C185 and HD 103 in Plan H283. 8

9 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 9 of 13 Op. at 22. Like Alabama, Texas claimed it was required to follow artificial numerical thresholds that were not supported by Voting Rights Act standards. Even more egregious than Alabama, Texas knew that it was using race as a predominant factor to craft districts that would not offer Latino voters the opportunity to elect their candidate of choice. In Alabama, the Supreme Court rejected the State s argument that its predominant use of race was justified by an attempt to comply with the Voting Rights Act. This Court should reject the similar argument by Texas that it used race as a predominant factor because it sought to comply with section 2 and section 5. Texas Brief at 13. Although compliance with the Voting Rights Act can be a compelling state interest, a state cannot misconstrue Voting Rights Act standards and then use them to justify racially gerrymandering. For example, section 5 does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority s ability to elect a preferred candidate of choice. Alabama Slip Op. at 19. In Alabama, the Supreme Court rejected that state s claim that it had to maintain the same population percentages in majority-minority districts and instead reiterated that the goal of section 5 is to ensure that minority voters retain the ability to elect their preferred candidates. Id. at 20. In its 2011 redistricting, Texas knew how to measure whether minority voters in a redrawn district maintained the ability to elect their preferred candidates. The Texas Attorney General s Office prepared an index measuring Latino ability to elect (the OAG-10) and legislative map-drawers used that index to evaluate their draft districts. Task Force Post-Trial Br. at 44, 95 97; FOF 664,1350, 1352, Texas claims that it used a 50% CVAP or SSVR threshold in its redistricting because it was maintaining a voting majority [and] preserving the opportunity to elect in single-member districts. Texas Brief at 13. But the record in the case 9

10 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 10 of 13 shows that map-drawers used the OAG10 to ensure that their draft districts would not elect the Latino-preferred candidate (Task Force Post-Trial Br ) and the State s asserted adherence to the strict 50% SSVR threshold was not good faith compliance with the Voting Rights Act. The record demonstrates that Texas used the 50% SSVR threshold as a sham in HD117, where the incumbent insisted that he would not vote for an amendment if it went one tenth of one percent above 50.1%. SSVR [Task Force FOF 669] and map-drawers repeatedly rejected proposals by State Rep. Mike Villarreal that offered Latino voters the opportunity to elect their candidate of choice. See Task Force FOF Mr. Interiano reviewed the OAG10 analysis for HD117 and knew that the Hispanic performance, i.e. the rate at which Latino voters were able to elect their candidates of choice, dropped when compared to the benchmark. Task Force Post-Trial Br. at If Texas had been concerned about maintaining ability to elect in HD117, it would have simply shed the excess population from the district and maintained the SSVR at the benchmark 50.3% SSVR. Instead Mr. Interiano performed a careful balancing act in the State s REDAPPL software, shading for SSVR and using race and election results to craft the final HD117 at 50.1% SSVR and with lower performance for Latino-preferred candidates. Task Force Post-Trial Br. at Texas did the same in CD23, where Ryan Downton, instead of shedding overpopulation and preserving Latino ability to elect, swapped precincts into and out of the district to reduce performance for Latino preferred candidates in the OAG10. Task Force Post-Trial Br. at 82-83; see also FOF In Dallas-Ft. Worth (CD26 and CD6), Texas used race as a predominant factor in redistricting without even the pretense of creating Latino electoral opportunity or maintaining Latino ability to elect. Task Force FOF Similarly, in El Paso, Ryan Downton turned 10

11 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 11 of 13 on the racial shading in REDAPPL while he was mapping and selected blocks based on Hispanic shading while keeping an eye on the fluctuations in the plan statistics on political results. Task Force Post-Trial Br. at 46; FOF 563. However, he did not perform his race-based redistricting to raise the SSVR of HD78 above 50% and he left the SSVR below benchmark levels. See United States Trial Exhibit 374. The State s claim that its redistricting had a firm basis in the Supreme Court s Section 2 jurisprudence is not supported by the record. See Texas Brief at 13. Map-drawers and legislators testified that they neither asked for nor relied on a section 2 analysis during the redistricting process. See Task Force Advisory Regarding Alabama Legislative Black Caucus v. Alabama, Dkt at They also ignored concerns raised by staff and advisors that the House and Congressional plans violated the Voting Rights Act. Id. at Finally, they did not review the maps for compliance with the Voting Rights Act. Id. at 17. The State s argument that when its map-drawers considered racial data to draw a particular district, [they] placed equal or greater emphasis on other information, such as election analysis and partisan shading, (Texas Brief at 14), is thoroughly undermined both by the State s use of the nudge factor and the map-drawers departure from partisan goals in order to craft Latino majority districts that they knew would not elect Latino-preferred candidates. See Task Force Advisory Regarding Alabama Legislative Black Caucus v. Alabama, Dkt at 8-9 and IV. THE FIFTH CIRCUIT S DECISION IN DAVIS V. ABBOTT DOES NOT SUGGEST THIS CASE IS MOOT The Texas Latino Redistricting Task Force Plaintiffs incorporate and adopt the arguments and authorities contained in the brief filed by the United States in response to the Texas brief. 11

12 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 12 of 13 See Dkt For the reasons set out in the brief of the United States, this case is not moot in light of the Fifth Circuit decision in Davis v. Abbott. CONCLUSION For the foregoing reasons, the Task Force Plaintiffs respectfully request the Court find in favor of their claims of racial gerrymandering under Shaw. DATED: May 26, 2015 Respectfully submitted, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND /s/ Nina Perales Nina Perales Texas Bar No Broadway, Suite 300 San Antonio, TX (210) FAX (210) 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, GILBERTO TORRES, RENATO DE LOS SANTOS, JOEY CARDENAS, ALEX JIMENEZ, EMELDA MENENDEZ, TOMACITA OLIVARES, JOSE OLIVARES, ALEJANDRO ORTIZ, AND REBECCA ORTIZ Certificate of Service I hereby certify that on this 26 th day of May, I served a copy of the foregoing Response to Defendants Brief Regarding Alabama Legislative Black Caucus v. Alabama on all counsel who are registered to receive NEFs through this Court s CM/ECF system. All attorneys who are 12

13 Case 5:11-cv OLG-JES-XR Document 1313 Filed 05/26/15 Page 13 of 13 not registered to receive NEFs have been served via . /s/ Nina Perales Nina Perales 13

14 Perez et al v. Perry et al, Docket No. 5:11-cv (W.D. Tex. May 09, 2011), Court Docket General Information Court Federal Nature of Suit Docket Number United States District Court for the Western District of Texas; United States District Court for the Western District of Texas Civil Rights - Voting[441] 5:11-cv The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 14