Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 1 of 30

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1 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 1 of 30 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]

2 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 2 of 30 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]

3 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 3 of 30 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 FOR PARTIAL SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF LAW

4 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 4 of 30 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION...1 LEGAL STANDARD...1 ARGUMENT AND AUTHORITIES...2 I. Plaintiffs Proffered Evidence is Sufficient to Raise a Question of Fact Concerning Intentional Discrimination Under the 14 th and 15 th Amendments to the U.S. Constitution...2 A. The Law of Discriminatory Intent in the Redistricting Context...2 B. Plaintiffs Have Introduced Circumstantial Evidence of Discriminatory Intent in the Enactment of Plan C II. Plaintiffs Proffered Evidence is Sufficient to Raise a Question of Fact Concerning Vote Dilution in the State s Congressional Redistricting Plan Under Section 2 of the Voting Rights Act...15 A. Plaintiffs Have Raised a Fact Issue Regarding the First Gingles Precondition with respect to the Congressional Redistricting Plan...16 CONCLUSION...20 i

5 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 5 of 30 TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 ( Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 ( passim Balderas v. Texas, 6:01-CV-158 (E.D. Tex, Nov. 28, Bush v. Vera, 517 U.S. 952 ( , 19 Cates v. Dillard Dept. Stores, Inc., 624 F.3d 695 (5 th Cir Chen v. City of Houston, 206 F.3d 502 (5th Cir Colony Ins. Co. v. Peachtree Const., Ltd., F.3d, 2011 WL (5 th Cir Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir Gomillion v. Lightfoot, 364 U.S. 339 ( , 4 Hunt v. Cromartie, 526 U.S , 19 Hunter v. Underwood, 471 U.S. 222 ( Johnson v. De Grandy, 512 U.S. 997 ( King v. Illinois Bd. of Elections, 522 U.S ( King v. State Bd. of Elections, 979 F. Supp. 619 (N.D. Ill League of United Latin Am. Citizens v. Perry, 548 U.S. 399 ( passim League of United Latin Am. Citizens v. Perry, 2:03-cv (E.D. Tex., Aug. 4, Miller v. Johnson, 515 U.S. 900 ( Pub. Citizen, Inc. v. Louisiana Atty. Disciplinary Bd., 632 F.3d 212 (5th Cir Reno v. Bossier Parish School Bd., 520 U.S. 471 ( ii

6 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 6 of 30 Rogers v. Lodge, 458 U.S. 613 ( , 3, 5 Shaw v. Hunt, 517 U.S. 899 (1996 (Shaw II...19 Shaw v. Reno, 509 U.S. 630 ( Thornburg v. Gingles, 478 U.S. 30 ( , 16 Valdespino v. Alamo Heights Independent School Dist., 168 F.3d 848 (5th Cir Whitcomb v. Chavis, 403 U.S. 124 ( STATUTES 42 U.S.C , 2 42 U.S.C. 1973c...1 iii

7 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 7 of 30 Plaintiffs, the Texas Latino Redistricting Task Force, and sixteen individual Latino voters of Texas ( Plaintiffs file this Response to Defendants Motion for Partial Summary Judgment and show as follows: INTRODUCTION This case is a challenge to the recently-enacted Texas congressional ( C185 and House of Representatives ( H283 redistricting plans. Plaintiffs seek to enjoin the 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 newlyenacted congressional and House redistricting plans 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 partial summary judgment on two types of claims: first, Plaintiffs claims of intentional discrimination under the 14th and 15th Amendments; second, Plaintiffs Section 2 claims challenging the congressional redistricting plan. Defendants do not move for summary judgment on Plaintiffs claims of vote dilution in violation of Section 2 for the House of Representatives redistricting plan or on Plaintiffs claims under Section 5. LEGAL STANDARD Summary judgment is appropriate 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. Pub. Citizen, Inc. v. Louisiana Atty. Disciplinary Bd., 632 F.3d 212, 217 (5th Cir (quoting Fed. R. Civ. P. 56(a. A material fact is one that can affect the outcome of 1

8 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 8 of 30 the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986. Here, the court must view all evidence in the light most favorable to Plaintiffs and draw all reasonable inferences in Plaintiffs favor. Id. at 255. Summary judgment is not warranted when the non-moving party has proffered sufficient evidence to raise a question of fact with respect to the claim on which summary judgment is sought. See, e.g., Colony Ins. Co. v. Peachtree Const., Ltd. --- F.3d ----, 2011 WL (5 th Cir (vacating and remanding decision where fact issues precluded summary judgment; Cates v. Dillard Dept. Stores, Inc., 624 F.3d 695 (5th Cir (same. ARGUMENT AND AUTHORITIES I. Plaintiffs Proffered Evidence is Sufficient to Raise a Question of Fact Concerning Intentional Discrimination Under the 14th and 15th Amendments to the U.S. Constitution Defendants request for partial summary judgment on Plaintiffs claims under the 14th and 15th Amendments fails because it is based on a misunderstanding of the law related to intentional discrimination. 1 As a result, Defendants wrongly characterize both the legal standard and the evidence at issue in this case. A. The Law of Discriminatory Intent in the Redistricting Context. The Fourteenth and Fifteenth Amendments forbid intentional discrimination in the redistricting process. 2 Intentional vote dilution claims arise when a protected 1 Plaintiffs note that Defendants do not move for summary judgment on Plaintiffs claims of intentional discrimination under Section 2 of the Voting Rights Act, 42 U.S.C See Pl s Second Am. Compl An intentional vote dilution under the Fifteenth Amendment is analyzed in the same manner as a claim under the Fourteenth Amendment. See Rogers v. Lodge, 458 U.S. 613, 621 (1982 (holding that district court demonstrated understanding of the controlling standard by observing that a determination of discriminatory intent is a requisite to a finding of unconstitutional vote dilution under the Fourteenth and Fifteenth Amendments.. See also Gomillion v. Lightfoot, 364 U.S. 339, 346 (1960 ("When a legislature 2

9 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 9 of 30 minority group alleges that the districting plan is conceived or operated as [a] purposeful device[] to further racial discrimination by minimizing, cancelling out or diluting the voting strength of racial elements in the voting population. Rogers v. Lodge, 458 U.S. 613, 617 (1982 (quoting Whitcomb v. Chavis, 403 U.S. 124, 149 (1971 (alteration added; Miller v. Johnson, 515 U.S. 900, 911 (1995 (Kennedy, J. (holding that a vote dilution claim targets purposeful actions disadvantaging voters of a particular race. Here, Plaintiffs charge that the Texas Legislature both assigned Latino voters into and out of certain districts because of their race and also acted expressly to limit the voting power of Latinos; Defendants actions are unlawful even if the State can point to other, purportedly non-racial purposes. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 441 (2006 (Kennedy, J. [hereinafter LULAC ] ( By purposely redrawing lines around those who opposed Bonilla, the state legislature took the latter course [excluding some voters from the district simply because they are likely to vote against the officeholder]. This policy, whatever its validity in the realm of politics, cannot justify the effect on Latino voters. ; Garza v. County of Los Angeles, 918 F.2d 763, 771 (9th Cir (intentional vote dilution was coupled with the intent to preserve incumbencies, but the discrimination need not be the sole goal in order to be unlawful. Defendants proceed under the mistaken belief that intentional discrimination must be proved through express statements or other direct evidence, Def. s Mem. Supp. Summ. J. 12, and argue that Plaintiffs claim must be supported by actual intent, Def. s Mem. Supp. Summ. J. 6, a term made up by Defendants and not a standard imposed on thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment.". 3

10 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 10 of 30 plaintiffs in any reported federal decisions considering intentional vote dilution in redistricting. 3 Having made up the term actual intent, Defendants proceed to infuse the term with a meaning completely divorced from equal protection cases. According to Defendants, their redistricting plans cannot be intentionally discriminatory unless their actual intent is demonstrated by overtly racist statements or other direct evidence. Other than faulting Task Force witness Celeste Villarreal s alleged failure to identify evidence of intentional discrimination based on express statements or other direct evidence, and making repeated references to proof of actual intent, see Def. s Mem. Supp. Summ. J , Defendants present no argument or evidence suggesting that summary judgment is warranted on Plaintiffs claim of intentional vote dilution. In contrast to Defendants self-serving and fictional definition of discriminatory intent, it is well-established that facially neutral laws violate the Equal Protection Clause when they are motivated by race-based animus. See, e.g., Hunter v. Underwood, 471 U.S. 222, 227 (1985 (striking down, as racially discriminatory in violation of the 14th Amendment, a law that disenfranchised individuals convicted of crimes of moral turpitude when the crimes selected for inclusion in [the statute] were believed by the delegates to be more frequently committed by blacks. ; see also Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960 (reversing dismissal of 14th and 15th Amendment challenge to facially neutral revision of city boundaries that was alleged to exclude black voters from the city limits. 3 See, e.g. Def. s Mem. Supp. Summ. J. 3 (arguing that plaintiffs must present evidence of actual invidious intent to discriminate. 4

11 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 11 of 30 In Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 (1977, the Supreme Court made clear that direct evidence is only one possible factor in proving a claim of intentional discrimination. The Court also set out a non-exhaustive list of five factors to consider in determining whether an invidious discriminatory purpose was a motivating factor in the adoption of a redistricting plan. 429 U.S. at In the redistricting context, the Court has made clear that discriminatory intent can be inferred from the totality of relevant facts, including the fact, if true, that the law bears more heavily on one race than another. Rogers, 458 U.S. at 618 (citing Arlington Heights, 429 U.S. at 266. In Hunt v. Cromartie, the Supreme Court confirmed that the Arlington Heights framework should be used in evaluating vote dilution claims brought under the Equal Protection Clause. 526 U.S. 541, 546 n.2 (citing Rogers, 458 U.S. at 618; see also Reno v. Bossier Parish School Bd., 520 U.S. 471, 488 (1997 ( As our discussion illustrates, 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. In conducting this inquiry, courts should look to our decision in Arlington Heights for guidance. There, we set forth a framework for analyzing whether invidious discriminatory purpose was a motivating factor in a government body's decisionmaking. (quoting Arlington Heights, 429 U.S. at 266 (internal citation omitted. B. Plaintiffs Have Introduced Circumstantial Evidence of Discriminatory Intent in the Enactment of Plan C185. Because the Task Force has presented evidence sufficient to raise a question of material fact pursuant to Arlington Heights, summary judgment on the Task Force s Fourteenth and Fifteenth Amendment claims is inappropriate at this time. 5

12 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 12 of 30 First, the Plaintiffs have raised a fact issue with respect to how the State s manipulation of the districts and regions at issue bears more heavily on Latino voters than Anglo voters. See Arlington Heights, 429 U.S. at 266. For example, although the Latino population in Texas has grown dramatically over the past decade and now comprises 25% of its citizen voting age population, under Plan C185 Latinos have the opportunity to elect their preferred candidate in only 19% of the State s congressional districts a decrease from 22% in the benchmark plan. Pl. Second Am. Compl. 24, 25; Exhibit 1, Texas Legislative Council s Election Analysis for Plan C185; Exhibit 2, Texas Legislative Council s Election Analysis for Plan C100. Similarly, the State s proposed redistricting plan for the Texas House of Representatives reduces by two the number of House districts in which Latinos have the opportunity to elect their preferred candidate. Exhibit 3, Texas Legislative Council s Election Analysis for Plan H283; Exhibit 4, Texas Legislative Council s Election Analysis for Plan H100. Combined with expert reports describing pervasive bloc voting along racial lines and the persistent effects of past discrimination against Texas Latinos, the Task Force plaintiffs have presented evidence of the plans racially disproportionate impact upon Latinos that is highly relevant to their intentional discrimination claim. See Exhibit 5, Expert Report of Richard L. Engstrom ( Engstrom Report at 18; Exhibit 6, Expert Report of Andres Tijerina ( Tijerina Report at 32. In addition to noting the loss of Latino electoral opportunity statewide in the new redistricting plans, the Task Force has also introduced evidence that the Texas Legislature failed to create the appropriate number of Latino opportunity districts. For example, the Task Force has shown that although El Paso County is heavily Latino, the 6

13 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 13 of 30 Legislature created only four of the five House districts in that county as Latino opportunity districts. Exhibit 7, Deposition of Henry Flores ( Flores Depo. at 113:18-114:1. See also Exhibit 8, Expert Report of Henry Flores ( Flores Report at 9 (describing the uneven distribution of the Latino population in El Paso County under H283 which has the effect of denying Latino voters the opportunity to elect a candidate of their choice in one of El Paso s five House districts. Similarly, the Task Force has shown that the Legislature failed to create two Latino opportunity districts in Nueces County and one additional Latino opportunity House district in Cameron and Hidalgo counties. Id. at 9-10 (concluding that the Legislature failed to create a Latino opportunity district in Cameron and Hidalgo counties in plan H283, and denied Latino voters in Nueces County the opportunity to elect their candidate of choice in a second district; see also Exhibit 7, Flores Depo. at 111:3-18, 115:1-13. With respect to the congressional redistricting plan, the Task Force has shown that the Legislature created only six out of a seven possible Latino opportunity congressional districts in South Texas. Exhibit 8, Flores Report at (concluding that the new CD27 deprives Latino voters in South Texas of an opportunity district because the new CD 27 reduced the SSVR from 69.2% to 45.1%... dilute[ing] Latino voting power and prohibit[ing] their ability to elect a candidate of their choice and concluding that the changes in CD 23 were designed not to create a majority Latino district where the voters can elect a candidate of choice but rather to insure the reelection of the current incumbent.. 7

14 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 14 of 30 Second, the Plaintiffs have raised a fact issue with respect to the historical background and the specific sequence of events leading up to the challenged decision, providing additional evidence of the decisionmakers discriminatory purpose. Arlington Heights, 429 U.S. at 267. For example, in the most recent rounds of Texas House and congressional redistricting (2001 and 2003 respectively the Texas House and congressional redistricting plans were blocked because they discriminated against Latino voters in violation of the Voting Rights Act. Exhibit 9, Letter from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division, to Geoffrey Connor, Acting Secretary of State (November 16, 2001 (Section 5 objection letter regarding the 2001 redistricting plan for the Texas House of Representatives; LULAC, 548 U.S. at (holding that the 2003 congressional redistricting plan violated Section 2 of the Voting Rights Act. As a result, both plans had to be redrawn by federal courts. Exhibit 10, Balderas v. Texas, 6:01-cv-158 (E.D. Tex, Nov. 28, 2001 (redrawing the 2001 plan; Exhibit 11, League of United Latin Am. Citizens v. Perry, 2:03-cv (E.D. Tex., Aug. 4, 2006 (redrawing the 2003 plan. Furthermore, Plaintiffs have introduced evidence that the 2011 Regular and Special Legislative Sessions in which the proposed redistricting plans were enacted were characterized by racial strife. Exhibit 8, Flores Report at 6 (stating that [t]he acrimony which has been publicly reported in the current legislative session, as well as outside of this institution, surrounding the redistricting process, immigration reform, sanctuary cities, educational reform has been the most racially charged I have witnessed during my professional career.. Plaintiff Joey Cardenas further testified that the recent legislative session featured a number of bills that were targeted at Latinos, and that used citizenship 8

15 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 15 of 30 status as a proxy for race. Exhibit 12, Deposition of Joey Cardenas ( Cardenas Depo. at 22:13-23:10. Plaintiffs have further provided evidence of race-based statements of legislators leading up to and including the 2011 Legislative Session. See Exhibit 13, Comments by Texas State Officials. Third, Plaintiffs have raised a fact issue regarding the Legislature s departures from its normal procedural sequence, that support a finding of discriminatory intent. Arlington Heights, 429 U.S. at 267. For example, the public Notice of the April 15, 2011 hearing of HB 150, the proposed legislation enacting the Texas House Map, in the House Redistricting Committee was provided at 2:15 p.m. on April 14, Exhibit 14, Tex. House Redistricting Comm. Notice Alert of Public Hrg. 82 nd Leg., R.S. (April 14, The proposed House map released by Representative Burt Solomons on April 13, 2011 allowed for less than 2 days for public analysis before the April 15 hearing. Exhibit 15, Tex. Legislative Council Red. App. Map H113; Exhibit 16, Press Release, Office of State Representative Burt Solomons (April 13, Latino legislators from the Rio Grande Valley who testified against the proposed House plan at that April 15 hearing were not recorded in the minutes of the meeting. Exhibit 17, Tex. House Redistricting Comm. Witness List 1, 82 nd Leg., R.S. (Apr. 15, 2011 (excluding mention of the testimony of Representative Sergio Munoz (HD 36 and Representative Armando Martinez (HD 39. HB 150 was then heard, amended and voted out of the Texas Redistricting Committee on April 19, 2011 in Room 1W.14 without any public broadcasting. Exhibit 18, Tex. House Redistricting Comm. Hearing Notice of Public Hrg. 82 nd Leg., R.S. (April 9

16 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 16 of 30 19, 2011; Exhibit 19, Tex. House Redistricting Comm. Broadcast Archives 82 nd Leg., R.S. (2011. The process was similarly rushed in the Texas Senate. The public Notice for the May 6, 2011 public hearing of HB 150 in the Senate Select Redistricting Committee was provided less than 48 hours in advance of the hearing. Exhibit 20, Tex. House Redistricting Comm. Notice Alert of Public Hrg. 82 nd Leg., R.S. (May 4, Because no changes were made to HB 150 in the Texas Senate, the only meaningful opportunity for input was in the House of Representatives. Exhibit 21, Tex. Leg. Online Actions, 82 nd Leg., R.S. HB 150 (2011. With respect to the congressional redistricting plan, no hearings featuring maps proposed by the legislative leadership were held during the 82 nd Regular Legislative Session in either the House or Senate Redistricting Committees. Exhibit 22, Tex. Leg. Report Bills By Committee House Redistricting, 82 nd Leg., R.S. (2011; Exhibit 23, Tex. Leg. Report Bills By Committee Redistricting, Select, 82 nd Leg., R.S. (2011. The only proposed Senate Hearing on SB 308 was cancelled. Exhibit 24, Tex. Senate Select Redistricting Comm. Hearing Notice of Public Hrg. 82 nd Leg., R.S. (May 19, SB 4, the proposed legislation enacting the congressional map, was rushed through the subsequent Special Session, passing both the House and Senate in sixteen calendar days. Exhibit 25, Tex. Leg. Online Actions, 82 nd Leg., S.S.1 SB 4 (2011. The Senate held one hearing on congressional redistricting in the Special Session. Exhibit 26, Tex. Sen. Select Redistricting Comm. Notice Alert of Public Hrg. 82 nd Leg., S.S. 1 (May 31, In the House, the Notice for the House Redistricting Committee hearing on HB 4, the companion bill for SB 4, was provided on June 1 for a public testimony hearing on June 2, 2011 and no subsequent public testimony was allowed for 10

17 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 17 of 30 either HB 4 or SB 4 in the House Redistricting Committee. Exhibit 27, Tex. House Redistricting Comm. Notice Alert of Public Hrg. 82 nd Leg., S.S.1 (June 1, 2011; Exhibit 28, Tex. House Redistricting Comm. Hearing Notice of Public Hrg. 82 nd Leg., S.S. (June 2, With respect to both plans, alternative maps and amendments reflecting minority input and minority communities of interest were offered in committee and on the House Floor and were rejected. Exhibit 29, H.J. of Tex., 82 nd Leg., S.S (2011; Exhibit 30, S.J. of Tex., 82 nd Leg., S.S (2011; Exhibit 31, Tex. House Redistricting Comm. Minutes 1-5, 82 nd Leg., R.S. (Apr. 19, 2011; Exhibit 32, Tex. House Redistricting Comm. Minutes 1-5, 82 nd Leg., S.S.1 (June 9, 2011; Exhibit 33, Tex. Sen. Redistricting Select Comm. Minutes 1-3, 82 nd Leg., S.S. 1 (June 3, State Representative Marc Veasey and State Representative Carol Alvarado, members of the House Redistricting Committee stated on June 2, 2011 that minority input was ignored. Exhibit ***, Hearing on Tex. H.B. 4 before the House Comm. on Redistricting., 82 nd Leg., S.S. (June 2, Plaintiffs expert, Dr. Henry Flores, concluded that the Senate Select Committee on Redistricting and the House Redistricting Committee hearings surrounding the passage of all the redistricting legislation appear to be replete with examples of hearings without public input or testimony, rushed meetings, and, at least in one instance, completely ignoring [... ] the input of a state senator seeking a courtesy. The atmosphere surrounding the hearings brings into question the motives of the committee membership particularly that of the chairs. Exhibit 8, Flores Report at 6. Dr. Flores further concluded that it is my opinion that the redistricting committees 11

18 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 18 of 30 completely ignored the wishes of South Texas to consider drawing an additional House District in the region of Cameron and Hidalgo Counties. Exhibit 8, Flores Report at 9. Plaintiffs have also introduced the testimony of Plaintiff Joey Cardenas who attended a number of redistricting hearings in the Legislature and testified that the redistricting process was a closed process. Exhibit 12, Cardenas Depo. at 64:15-65:16; 65: Mr. Cardenas also testified that Latinos and African Americans were denied a meaningful opportunity to analyze and comment on the proposed congressional and Texas State House maps, because of the short time frame, and the dates of hearings (including a Sunday. Id. at 68:13-69:7. Fourth, the Plaintiffs have raised a fact issue regarding the State s departures from substantive factors usually considered important in redistricting, indicating the existence of discriminatory intent to dilute Latino votes. Arlington Heights, 429 U.S. at 267. For example, Plaintiffs have shown that although compliance with the Voting Rights Act is a normal substantive consideration in redistricting, at the beginning of the Regular Session, the Texas House of Representatives voted to reject a rules adoption seeking that all legislative approved maps comply with the Voting Rights Act. Exhibit 34, H.J. of Tex., 82 nd Leg., R.S (2011. In addition, the chief author of the Texas House plan, Chairman Burt Solomons, chose to follow the state County Line Rule over the federal mandate to avoid vote dilution in redistricting. See, e.g., Exhibit 35, Tex. House Redistricting Comm. Hearing on H.B. 150 Tex., 82 nd Leg. R.S. (Apr. 15, 2011 ( it's your belief the Voting Rights Act may trump Texas Constitution but you understand my predicament in trying to follow the Texas Constitution and what the current law is.. 12

19 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 19 of 30 Following the constitutional mandate of equal population in districts is also a normal substantive consideration that the Legislature did not consistently respect in its House redistricting plan. Plaintiffs have shown that in the heavily-latino Rio Grande Valley, Plan H283 unnecessarily overpopulates House districts in Cameron and Hidalgo Counties. The benchmark plan contains 6 districts in Cameron and Hidalgo counties and a total overpopulation of 175,167 between the two counties. The overpopulation in these two adjacent counties would have yielded an additional House district in this area and fulfilled legal requirements under the Voting Rights Act. Instead, the Legislature declined to draw the additional Latino opportunity district and instead chose to overpopulate districts in Cameron and Hidalgo counties. See Exhibit 3, Texas Legislative Council s Election Analysis for Plan H283. Furthermore, traditional redistricting criteria, such as maintaining cities and counties whole, are normal substantive considerations that, when ignored, can raise the inference of discrimination. See, e.g., Bush v. Vera, 517 U.S. 952, 960 (1996 (basing finding of race discrimination in part on the observation that challenged districts did not follow traditional, neutral redistricting criteria ; see also LULAC, 548 U.S. at 491 (Breyer, J., concurring in part and dissenting in part. With respect to Defendants congressional redistricting plan, Plaintiffs have demonstrated that the Legislature divided heavily Latino communities between two congressional districts in Maverick County and the City of Eagle Pass on the Texas-Mexico border. Compare Exhibit 2, Texas Legislative Council s Election Analysis for Plan C100 with Exhibit 1, Texas Legislative Council s Election Analysis for Plan C185. The Legislature also divided among several congressional districts the long-standing Latino community on the South Side of San 13

20 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 20 of 30 Antonio. Id. El Paso County and Nueces County are also cut across existing precincts in Defendants congressional redistricting plan. Id. Defendants proposed congressional redistricting plan also removes Nueces County from its traditional location in a South Texas, Latino-majority district that extends along the Gulf Coast to Cameron County. Nueces County had been in this configuration since 1982 but was removed, along with its Latino voters, in order to be paired with more Anglo and dissimilar counties to the north. Id. Fifth, based on the facts set out above, Plaintiffs have raised a fact issue regarding the legislative history of both redistricting plans which supports the conclusion that the State acted with the intent to dilute the voting strength of Latinos. Arlington Heights, 429 U.S. at 268. Finally, Plaintiffs have raised a fact issue regarding the State s assignment of Latino voters in and out of CD 23 in C185 on the bases of their race to ensure that Latino voters could not elect the candidate of their choice. Defendants witness who created the Legislature s congressional map testified that the two goals with respect to C23 were to increase Republican numbers to make it more likely that Canseco could get re-elected while also maintaining or increasing the Hispanic numbers. Exhibit 36, Deposition of Ryan Downton ( Downton Depo. at 79:4-16. The congressional map makers achieved their goals by shifting precincts in and out of CD23 in part based on their race. Id. Defendants witness conceded that the changes in CD23 were intended to secure the incumbency of a congressman who was not the Latino-preferred candidate and that the result was a CD23 in which Latinos could not elect their candidate of choice. Id. at 90:9-11 and 93: Although Plaintiffs have not yet concluded the deposition of the 14

21 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 21 of 30 Legislature s congressional mapper, the evidence adduced to date raises a material fact issue with respect to whether race predominated in the creation of the Legislature s proposed congressional map. Furthermore, Plaintiffs expert Dr. Henry Flores concluded that race was the predominant factor guiding the redistricters. They intentionally manipulated the Hispanic population numbers provided for redistricting to insure the re-electability of the incumbents with the purpose of drawing districts where the citizens of those districts did not have an opportunity to elect a candidate of their choice. Exhibit 8, Flores Report at 9. As noted by Justice Kennedy in LULAC, reconfiguring the Latino opportunity so that it no longer can elect the Latino-preferred candidate bears the mark of intentional discrimination U.S. at 440. II. Plaintiffs Proffered Evidence is Sufficient to Raise a Question of Fact Concerning Vote Dilution in the State s Congressional Redistricting Plan Under Section 2 of the Voting Rights Act Thornburg v. Gingles, 478 U.S. 30 (1986, provides the framework for determining whether a redistricting plan impairs the ability of Latinos to elect representatives of their choice in violation of Section 2 of the Voting Rights Act. In Gingles, the Supreme Court established a two-step inquiry for analysis of vote dilution claims. Id. at First, the minority group must be able to demonstrate: (1 that it is sufficiently large and geographically compact to constitute a majority in a single-member district; (2 that it is politically cohesive, and (3 that the white majority votes sufficiently as a bloc to enable it - in the absence of special circumstances...- usually to defeat the minority's preferred candidate. The second step of the inquiry requires the court to consider the totality of the circumstances and to determine upon a searching 15

22 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 22 of 30 practical evaluation of the past and present reality whether the political process is equally open to minority voters. Id. at 79. Defendants seek summary judgment against Plaintiffs only with respect to the first prong of Gingles in the congressional plan whether Plaintiffs have offered any additional congressional districts that contain a sufficiently numerous and compact Latino population. Other than the challenge under the first prong of Gingles, and vague charges that the Task Force Plaintiffs arguments raise a host of distinct legal problems, Def. s Mem. Supp. Summ. J. 24, Defendants do not challenge the sufficiency of Plaintiffs evidence on the second and third Gingles prongs, or on the ultimate showing under the totality of circumstances. 4 A. Plaintiffs Have Raised a Fact Issue Regarding the First Gingles Precondition with respect to the Congressional Redistricting Plan. First, Plaintiffs raise a fact issue as to the first Gingles prong by offering an alternative Congressional plan that contains at least one additional geographically compact district with a majority Latino citizen voting age population. 5 This burden is easily met, and Defendants summary judgment motion defeated, with Plaintiffs Plan 4 The totality of the circumstances inquiry focuses on the Senate Report on the 1982 amendments to the Voting Rights Act, which identifies factors typically relevant to a Section 2 claim. See LULAC, 548 U.S. at 426. Plaintiffs have introduced evidence relating to each of these factors, including on the history of voting related discrimination in the State, Exhibit 6, Tijerina Report, existence of effects of past discrimination, Exhibit 37, Expert Report of Susan Gonzalez Baker, existence of racially polarized voting, Exhibit 5, Engstrom Report, and legislators responsiveness to the particularized needs of members of the minority group, Exhibit 8, Flores Report. Another relevant consideration is whether the number of districts in which the minority group forms an effective majority is roughly equal to its share of population in the relevant area. LULAC, 548 U.S. at 426 (citing Johnson v. De Grandy, 512 U.S. 997, 1000 (1994. As noted supra, Latinos make up 25% of Texas s citizen voting age population, but Latino opportunity districts under C185 make up only 19% of the total. 5 The Fifth Circuit has imposed a bright line citizenship test for the first Gingles prong: this court has required vote dilution claimants to prove that their minority group exceeds 50% of the relevant population in the demonstration district.... Finally, this court has already determined what factors limit the relevant population in the district: voting-age and citizenship. Valdespino v. Alamo Heights Independent School Dist., 168 F.3d 848, (5th Cir

23 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 23 of 30 C190, which was disclosed to Defendants during discovery. Exhibit 38, Texas Legislative Council s Election Analysis for Plan C190. In South Texas, Plan C190 creates seven compact, majority Hispanic citizen voting age districts across the region. See Exhibit 39, Texas Legislative Council s District Population, Voting, Demographic, and Compactness Data for Plan C190 [hereinafter C190 Plan Packet ]. In contrast, Defendants Plan C185 creates only six in which Latino voters can elect their candidate of choice. C190 preserves CD 23 as a Latino opportunity district and creates an additional Latino opportunity district (CD35. See Exhibit 40, C190 Maps. Unlike Defendants Plan C185, where the State s mapper has admitted the Latino preferred candidate wins only one in ten elections, Exhibit 36, Downton Depo. at 93:17-23, in Plaintiffs Plan 190, the Latino candidate of choice prevails in ten out of ten racially contested elections in CD 23. See Exhibit 38, Texas Legislative Council s Election Analysis for Plan C190. Statewide Plan C190 creates nine districts in which Latinos make up a majority of the citizen voting age population and in which Latinos can elect their candidate of choice. Exhibit 39, C190 Plan Packet. The plan also creates three districts in which Black voters have the opportunity to elect their candidate of choice. See Exhibit 39, C190 Plan Packet. By contrast, C100, the benchmark plan, contains only seven districts in which Latinos make up a majority of the citizen voting age population. See Exhibit 41, Texas Legislative Council s District Population, Voting, Demographic, and Compactness Data for Plan C100 ( C100 Plan Packet. Defendants offer no evidence that C190 dilutes or retrogresses minority voting strength. 17

24 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 24 of 30 Furthermore, Defendants conclusory assertion that all of the consolidated plaintiffs attempts to draw additional majority-minority congressional districts patently violate the Fourteenth Amendment s prohibition on racial gerrymandering, Def. s Mem. Supp. Summ. J. 27, wrongly characterizes both the governing legal standard and the evidence at issue in this case. 6 For example, Plaintiffs proposed seven Latino opportunity districts in South Texas in Plan C190 include the State s own configuration of CD16 and CD35 in the State s Plan C185. Plaintiffs find it hard to believe that Defendants are challenging the shape of their own districts as racial gerrymanders. Plaintiffs remaining districts (CD15, CD20, CD23, CD28 and CD34 are comfortably within the range of compactness scores for the State s South Texas districts. See Exhibit 39, C190 Plan Packet; Exhibit 42, Texas Legislative Council s District Population, Voting, Demographic, and Compactness Data for Plan C185 ( C185 Plan Packet. Defendants offer no specific evidence that C190 or any other proposed plan constitutes impermissible racial gerrymandering. Summary judgment in favor of a plaintiff asserting a racial gerrymandering claim is disfavored because of the fact-intensive nature of the inquiry and because the nonmoving party does not bear the burden of proof. See Chen v. City of Houston, 206 F.3d 502, 506 (5th Cir (citing Hunt v. Cromartie, 526 U.S. 541, (1999. Since Defendants are making a Shaw-grounded argument against all remedial maps proposed by Plaintiffs, they should at least be required to explain which uncontroverted evidence and which reasonable inferences (drawn in the nonmoving party's favor exclude all 6 Defendants assert that [t]he one fact not in dispute here is that the revisions the plaintiffs seek are based on race and a reading of Section 2 that embraces indeed, compels the Court to draw a racially gerrymandered district where the Gingles factors are said to be met. Def. s Mem. Supp. Summ. J. 27 n.8. Plaintiffs in fact dispute both Defendants characterization of Plaintiffs legal position with respect to Section 2, as well as Defendants characterization of Plaintiffs proposed remedy. 18

25 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 25 of 30 genuine issues of fact for trial. Cf. Cromartie, 526 U.S. at 553. Instead, Defendants offer nothing but the bare legal conclusion that plaintiffs proposed revisions are based on race and racially gerrymandered. Def. s Mem. Supp. Summ. J. 27, 27 n.8. To the extent that Defendants suggest that drawing remedial majority minority districts violates the Equal Protection Clause, they mischaracterize governing law. A state may engage in districting based on race... as reasonably necessary to cure an anticipated 2 violation. See Bush v. Vera, 517 U.S. 952, 997 (1996 (Kennedy, J., concurring. Section 2 remedial districts are not racial gerrymanders when they are narrowly tailored to avoid Section 2 liability. [T]he districting that is based on race [must] substantially addres[s] the 2 violation. Id. at 977 (majority opinion (quoting Shaw v. Hunt, 517 U.S. 899, 918 (1996 (Shaw II. Furthermore, while 2 does not require a noncompact majority-minority district, neither does it forbid it, provided that the rationale for creating it is proper in the first instance. Districts not drawn for impermissible reasons or according to impermissible criteria may take any shape, even a bizarre one. Id. at 999 (Kennedy, J., concurring; see also LULAC, 548 U.S. at 430. For example, a court found that an Illinois Latino opportunity congressional district s extraordinary configuration was required to preserve shared communities of interest and protect adjacent African American opportunity districts from impermissible retrogression. King v. State Bd. of Elections, 979 F. Supp. 619, 623 (N.D. Ill. 1997, aff'd sub nom. King v. Illinois Bd. of Elections, 522 U.S (1998. Given the legal standard outlined above, Plaintiffs have introduced sufficient evidence to create a genuine issue of material fact regarding whether their plan offers 19

26 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 26 of 30 additional Latino opportunity districts that are also consistent with the 14th Amendment s prohibition on racial gerrymandering. As noted supra, Plan C190 creates additional geographically compact and cohesive Latino opportunity districts in areas where racial bloc voting usually results in the defeat of the Latino candidate of choice. Defendants have neither offered evidence regarding the shape of Plaintiffs proposed congressional districts nor suggested how the shapes, especially when working to preserve adjacent Black opportunity districts, violate the 14th Amendment. CONCLUSION For the reasons set out above, Plaintiffs respectfully request that the Court deny Defendants motion for summary judgment. 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, 20

27 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 27 of 30 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 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, 21

28 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 28 of 30 TEXAS HOUSE OF REPRESENTATIVES (MALC 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 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- 22

29 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 29 of 30 COX, AND ELIZA ALVARADO Luis Roberto Vera, Jr. LAW OFFICES OF LUIS ROBERTO VERA & 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: ( John T. Morris 5703 Caldicote St. 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 23

30 Case 5:11-cv OLG-JES-XR Document 242 Filed 08/23/11 Page 30 of 30 Robert Stephen Notzon LAW OFFICE OF ROBERT NOTZON 1507 Nueces Street Austin, TX ( Fax: ( COUNSEL FOR INTERVENOR PLAINTIFFS TEXAS STATE CONFERENCE OF NAACP, EDDIE BERNICE JOHNSON, SHEILA JACKSON-LEE, ALEXANDER GREEN, HOWARD JEFFERSON, JUANITA WALLACE, AND BILL LAWSON Frank M. Reilly POTTS & REILLY, L.L.P. P.O. Box 4037 Horseshoe Bay, TX ( Fax: ( 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 24