Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 1 of 12

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1 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs, v. CIVIL ACTION NO. 11-CA-360-OLG-JES-XR STATE OF TEXAS, et al., [Lead Case] Defendants. MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-361-OLG-JES-XR [Consolidated Case] STATE OF TEXAS, et al., Defendants. TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-490-OLG-JES-XR [Consolidated Case] RICK PERRY, Defendant. MARGARITA V. QUESADA, et al., Plaintiffs, v. CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR RICK PERRY, et al., [Consolidated Case] Defendants. EDDIE RODRIGUEZ, et al., Plaintiffs, v. CIVIL ACTION NO. SA-11-CA-635-OLG-JES-XR RICK PERRY, et al., [Consolidated Case] Defendants. 1

2 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 2 of 12 TO THE HONORABE THREE JUDGE COURT; Now Comes LULAC who would respond to the State and its expert. 1 The State s position is beyond ludicrous as it attempts to portray all the plaintiffs as freeloaders asking for a handout on an issue they created as they continue the same pattern of purposeful discrimination it has done for the past 40 + years on the backs of the Latino and Black communities in Texas redistricting, racial gerrymander. Initially it should be noted that LULAC does not come recently to the Texas redistricting effort. LULAC has been involved with statewide redistricting litigation extending as far back as the 1970s. Indeed the leading case in this decade on statewide redistricting is LULAC v Perry, cited repeatedly not only by the plaintiffs and defendants in this case, but also by this honorable Court and the Supreme Court of the United States. LULAC is the only party plaintiff in this case that participated in the Congressional, the State House and the Senate redistricting. The record in this case is clear in that LULAC s expert witness on redistricting George Korbel, has testified as an expert in every state wide redistricting since This has included cases in both state and Federal Courts. George Korbel has taught redistricting at the university level. Mr. Korbel was one of the primary witnesses before Congress when the Special Provisions of the Voting Rights Act were extended to cover Texas in the mid-1970s. He was a witness in the leading case on at large elections Graves v. Barnes 343 F.Supp 704 (W.D. Tex 1972) affirmed as White v, Regester. 412 US 755 (1973). In Graves/White the state failed to offer any plan to hold elections after the existing State House plan was declared unconstitutional. its expert. 1 / LULAC will not re-plow ground already adequately briefed before this Court through 2

3 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 3 of 12 As a result the Court adopted the only plan before it which was the one offered by the Plaintiffs. Mr. Korbel was responsible for the drafting of that plan. Subsequently in later versions of White v Regester Mr. Korbel was responsible for drawing the districts adopted in whole or in part by the Court and by the legislature for El Paso, Nueces, Travis, McLennan, Galveston and Lubbock Counties. In each of the cases since the establishment of the fee shifting provisions for voting rights cases, Mr. Korbel has been awarded expert fees. LULAC has been involved with more than 100 successful redistricting lawsuits involving not only the state but also Counties, School Boards, Cities and other special districts. Each of these cases required the drawing of single member districts as a remedy. Mr. Korbel has been a part of the team in many of these cases sometimes as a consulting witness or as a testifying expert and sometimes as a lawyer. Mr. Korbel was the lead counsel in the ultimately successful litigation against the Cities of Houston and San Antonio. Mr. Korbel was the lead counsel in the litigation against the Waco ISD and the Cities of Waco, Houston and San Antonio. In each of these cases, although functioning as a lawyer, Mr. Korbel was involved in the remedy process and the resulting districts. Mr. Korbel has been and in many cases is currently a consulting or testifying witness on behalf of attorneys for all of the plaintiff groups before this Court. Mr. Korbel has also worked with and for many of the Defendants in this and other cases and or their Counsel. In 1971 and in 1981, Mr. Korbel testified on behalf of the Republican Party. In the mid-decade redistricting 1995 litigation Mr. Korbel was a consulting expert on behalf of the State. Significantly the state s witness on fees is a partner in Andrews and Kurth. In 2001, Mr. 3

4 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 4 of 12 Korbel was hired along with Andrews and Kurth to draw redistricting plans for the Houston ISD and the Houston Community College District. Initially it was agreed that Andrews and Kurth would take the lead in the actual drawing of the redistricting plan. However in 2001 a Hurricane flooded much of downtown Houston and destroyed the computer facilities which in most cases were stored in under basement areas. In addition, the Computer facilities at the University of Houston which Andrews and Kurth were relying on were destroyed. Because Andrews and Kurth were without computer redistricting facilities, Mr. Korbel assumed the responsibility of meeting with the members of both elected bodies and physically drawing the plans that were adopted and used for elections in In 2011, Mr. Korbel again worked with Andrews and Kurth on the Houston ISD redistricting. This time Andrews and Kurth had their computer facilities available and took the lead on the actual redistricting process. The state makes much of the fact that not all lawyers in this case cross examined all witnesses. It is true that Counsel for the plaintiffs closely cooperated on the presentation of evidence, the cross examination of witness and on the use of Experts. It is true that not all counsel for the plaintiff groups cross examined all of the witnesses. That was by design and at the behest of the Court to deal promptly with the dozens of witnesses who testified either in deposition or live. This honorable court gave clear and specific direction as to how the trial would be conducted, ordering the plaintiff s counsel to avoid repetition of issues, evidence, cross examination and exhibits. In following the Courts specific instructions, the State now takes the position that plaintiffs did little or nothing to prevail in this case, despite the hundreds of hours the plaintiffs used to prepare and coordinate witnesses and exhibits. The state also makes much of the fact that there were a large number of lawyers 4

5 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 5 of 12 representing various parties in this case. While Justice Brister concedes that there was a very short time to get ready and try this case, he still feels that there were too many lawyers. In fact, the number of plaintiff group and lawyers in this case is not inconsistent with earlier statewide redistricting litigation. For example there were 6 major plaintiff groups in this case. They were in Alphabetical Order as follows. League of United Latin American Citizens (Luis Vera) Latino Task Force (MALDEF - Nina Perales) Mexican American Legislative House Caucus (Jose Garza) National Association for the Advancement of Colored People (Allison Riggs) (Black Congressman and Southern Coalition (Gary Bledsoe) Quasada (Jerry Hebert) Travis County, Rodriguez (David Richards, Renee Hicks and Rick Gray) Parties with a lesser degree of participation: Congressman Henry Cuellar Texas Democratic Party In reality, Congressman Cuellar though a prevailing party had a very limited interest in his Congressional District and the Defendants contend that Chad Dunn for the Democratic party was primarily involved in assisting the Court with setting the elections date changes. So that there are really 6 plaintiff groups that carried the majority of the water and of those 5 did the majority of the prep and trial work. Of these groups, 4 were able to work closely in assuring the courts directive was followed by coordination of witnesses, presentation of evidence and nonduplication of exhibits. These four groups filed joint briefs and memorandums in order to avoid time and resources of this courts time in having to read and rule on issues common to all groups inserting their arguments into these joint briefs and memorandums. These 4 groups included; League of United Latin American Citizens (Luis Vera); National Association for the Advancement of Colored People (Allison Riggs) & (Black Congressman and Southern Coalition (Gary Bledsoe); Quasada (Jerry Hebert); Travis County, Rodriguez (David Richards, Renee Hicks and Rick Gray). 5

6 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 6 of 12 In 1971 there were actually 12 Plaintiff groups including again in alphabetical Order Allen et al Brice Cunningham Archer and the Bexar County Republican Party (Eason and McGuire) Crouch et al interveners (Dallas Republican Party) Tom Crouch Dallas Democratic Party (Earl Luna). Nominally a plaintiff, actually aligned with the D s. Dallas Legal Services Washington et al (Irvin and Steele) Curtis Graves (Nelkin and Berg) Sam Kail et al (Roach) Dick Ree Plaintiff Interveners Johnny Marriott et al (Robert Greenberg MALDEF (Bernal Interveners ) ( Idar) Dianna Regester (Richards and Mauzy) State Republican Party (Gee and George) Seven of these groups took the same sort of active part in the litigation as the active parties in this case. Crouch et al (Republican Party of Dallas County) Archer et al Dallas Democratic Party Dallas Legal Services (Washington) Graves et al MALDEF (Bernal) Republican Party of Texas see eg: Graves v Barnes, 343 F.Supp. 704, 708 (WD Tx 1972) A similar pattern of representation has emerged from each of the statewide redistricting litigations that took place thereafter. Although there are a large number of lawyers, a redistricting case such as this very large and case tried in a short period of time from pleadings through decision, is not out of the norm. In fact the defendants have used many more lawyers and outside counsel that dwarfs that used by the plaintiffs. The exhibits used by other plaintiffs make it clear the state has no problem paying hourly rates for attorneys well beyond what 6

7 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 7 of 12 plaintiff LULAC and its expert are requesting. In this case LULAC counsel Luis Roberto Vera, Jr. prepared and presented many exhibits that are part of this record in this litigation, dealing with areas of Latino and African American concentration, with the historic and projected growth of the state and its minority groups, on the social, educational and economic differences in the Anglo, Hispanic and African American communities, and multiple plans of redistricting both so called demonstration (Gingles I) plans and remedy plans. LULAC presented evidence including both charts and graphs in concert with the testimony of Mr. Korbel explaining in some detail on the congressional gerrymander of the minority community in the Dallas, Tarrant, Maverick and Bexar County areas. LULAC coined the phrase describing the gerrymander of the Tarrant County Districts as the Lightening bolt district (Districts 26 and 12). LULAC offered multiple ways to fix the Congressional districts at issue. In the Dallas-Tarrant situation these were exhibits 12-A and 12 -B. In addition LULAC offered a plan for Dallas and Tarrant counties that Mr. Korbel had prepared and given to Congressman Lamar Smith. The Congressman unsuccessfully urged the Texas House and Senate to accept that plan. The plan adopted by the Court for the interim elections in the Dallas Tarrant area is District 33 which is essentially the same as the district in LULAC exhibit 12-A and the Smith Plan. The problems that LULAC had with Districts 23 were exactly the same problems that they had with District 23 for the past 2 decades. Indeed District 23 was the sole district that the Plaintiffs were successful on in / 2 / However in the process of redrawing District 23, the Court made changes in several of 7

8 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 8 of 12 The state is critical of the detail that Mr. Vera and Mr. Korbell have in their time records. In most of the entries by Mr. Korbel, the time is related to the various plans drawn on the State Computer facilities. LULAC has 11 congressional and 4 state house demonstration maps (Gingles 1) together with maps for the state senate, not accounted for in this case. It identifies the plans and in most cases where appropriate, the areas of the state to which these plans relate. It is hard to understand how much more detail that state wants. When a plan is worked on, it is a process of moving various census geography from one district to another and running programs contained in the state computer relating to polarization, compactness and elections. In many cases there would be several such movements in each minute of the work. If each movement were to be described it would take more time to detail it than it would take to do it. The state also refuses to recognize LULAC counsels role in ensuring these maps do not conflict with LULAC goals and objectives including these maps drawn by its expert for other plaintiffs or jointly with other plaintiffs. The state also criticizes the entries by Mr. Vera and Mr. Korbel involving preparation of exhibits as insufficiently precise. In fact most of the exhibits relate in one way or another to each other and therefore are being prepared in conjunction with each other. Mr. Korbel has used this sort of description relating to the creation of exhibits in each of the cases where he has been awarded fees. No Court has ever found such description lacking. LULAC put on testimony through Mr. Korbel, Judge Saucedo and former congressman Ciro Rodriguez on the effect of the division of Maverick County (54,258) and the way that the the bacon strip districts that ran from the Mexican Border to and into Travis County. These districts had been criticized by the Court but not found to violate Section 2 as Congressional District 23 had been. 8

9 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 9 of 12 South side of Bexar County was fractured. In Maverick County, the State had split the almost entirely Hispanic County and attached approximately half to District 28 (Congressman Cuellar) and the balance to District 23. In the benchmark plan all of Maverick County was in District 23. At 54,000 persons Maverick County is essentially 10% of a Congressional District. Removal of half of the County had the effect of changing a District from being able to elect the candidate of choice of the Latino Community into a District where it was very unlikely. LULAC was successful in having Maverick County made whole and in changes in the Bexar County area. At trial, Mr. Korbel testified extensively on how the technology involving the RedApl redistricting computer system worked and was used to draw plans. He showed the Court how the state used it to minimize minority vote. A part of the Gerrymander evidence LULAC presented exhibits on the hundreds of voting precincts that had been split to draw the Congressional Plan that the state had adopted. The state contended that it was necessary to split voting precincts to arrive at the zero deviation that they claimed was required by the case law. The Plaintiffs contended that it was not necessary to cut voting precincts to arrive at a zero deviation plan and that the cutting of all of these precincts was a part of how the gerrymander was accomplished. Mr. Korbel was able to take the state plan modify it slightly so that no voting precincts were split and the deviation was less than 00.0%. The plan eventually adopted by the Court although somewhat different than that offered by LULAC, split only three or four precincts and essentially solved the gerrymanders in Districts 23 and 33 in the same way as had the LULAC maps. The State also ignores the critical testimony of LULAC witness Jackie Callanen on the critical issues of timing and deadlines for the primary elections. It was this LULAC witness and 9

10 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 10 of 12 the coordination of election administrators throughout Texas that aided this court in critical decisions made by this court, created solely to the problem created by the State. The State does not even acknowledge the amount of time involved in that process. The state is disingenuous in its arguments claiming that virtually all of the time is related to Section 5. The Section 5 issues that can be handled by three judge courts other than in the District of Columbia is simple to prove. All the plaintiff needs to show is that a change in elections such as redistricting has not been precleared. If the state will not stipulate to that fact, it can be proven with a single witness to show the plan is not precleared, end of case. LULC did not request a single minute in trial or preparation for the DC case nor did it request time and travel it accrued in meeting with DOJ on the San Antonio case. In fact the record is clear on the occasions this court inquired about LULAC s meeting with DOJ and what their position would be in this litigation. Since the extension of the special provisions of the Voting Rights act to Texas in 1975, the State has had a responsibility to obtain preclearance of a plan before any litigation under the Constitution or Section 2 of the Voting Rights Act could be handled. However because the time between the passage of a redistricting plan and the opening of filing for office is very tight, the parties have agreed to take evidence that could be used in trial of the case once preclearance was obtained or by the Court in the adoption of a interim plan if the State defaulted on a redistricting plan. That is exactly what happened here. The evidence taken before the Court was designed to be a part of that used for a trial on the merits of the plan. The State argues that LULAC should not be considered to be a prevailing party because it opposed parts of the plan that was used by the Court for the elections in 2012 and subsequently adopted by the legislature during its last session. LULAC still opposes the interim plan as an 10

11 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 11 of 12 adequate remedy. It is true while LULAC endorsed the changes proposed by the State in District 23 and in Dallas and Tarrant Counties, LULAC felt that changes relating to CD-23, CD-35 and the Nueces County CD-27 area, did not go far enough. LULAC had wanted changes in Nueces County area (District 27) and in District 35 and CD-23 by adding the southern part of Bexar County that had been divided into three congressional districts into one of those two districts. 3 LULAC also participated in the State house litigation. LULAC offered proposed district changes for the South Houston and Fort Bend area as well as for the Temple Fort Hood area. Since the Mexican American Legislative Caucus eventually took the same position in those two areas LULAC cooperated with MALC and as the Court directed avoided duplication of witnesses, exhibits and other evidence. As a result minimal request for fees relate to the House portion of the case. There is no question, LULAC is entitled to attorney fees and expert fees on behalf of Mr. Korbel under 42 USC 1973 (e) which provides: (e) Attorney s fees. 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. LULAC adopts into this reply all legal arguments made by all the Plaintiffs in support of their attorney and expert fees Motion and their reply to the States Response. As such they will not be repeated herein. 3 / The position taken by LULAC about the problems in CD-23, CD-27 and CD-35 were roundly criticized by the three judge Federal Court in Washington considering the preclearance of the Congressional plan. 11

12 Case 5:11-cv OLG-JES-XR Document 890 Filed 09/09/13 Page 12 of 12 For all the above LULAC request this honorable court award its attorney fees, expert fees and cost. Respectfully Submitted, Luis Roberto Vera, Jr. LULAC National General Counsel SBN: THE LAW OFFICES OF LUIS ROBERTO VERA, JR & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, Texas office fax /s/ Luis Roberto Vera, Jr. Luis Roberto Vera, Jr. Attorney for the Plaintiff-Intervener Dated: September 9, 2013 CERTIFICATE OF SERVICE This certifies that a true and correct copy of the foregoing is being sent to all parties in this case by facsimile transmission and each party will also receive a copy through the electronic filing system utilized by the federal courts. September 9, 2013 /s/ Luis Roberto Vera, 12

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