Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States, Defendants, WENDY DAVIS, et al., Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:11-CV (RMC-TBG-BAH) [Three-Judge Panel] STATE OF TEXAS MOTION TO EXCLUDE TESTIMONY OF DEFENDANTS EXPERTS DR. THEODORE ARRINGTON, DR. ALLAN LICHTMAN, DR. HENRY FLORES, AND PROF. J. MORGAN KOUSSER For the reasons stated in the attached Memorandum of Points and Authorities, Texas moves to exclude the testimony of Dr. Theodore Arrington, Dr. Allan Lichtman, Dr. Henry Flores, and Prof. J. Morgan Kousser pursuant to Federal Rule of Evidence 702. Pursuant to Local Rule 7(m), Texas has conferred with counsel for Defendants and Defendant-Intervenors regarding this motion, and they have informed Texas they are opposed to relief requested. Dated: January 4, 2012 Respectfully submitted, /s/ Adam K. Mortara ADAM K. MORTARA JOHN M. HUGHES ASHLEY C. KELLER Bartlit Beck Herman Palenchar & Scott LLP 54 W. Hubbard Street, Suite 300 Chicago, IL Tel: (312) Fax: (312)

2 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 2 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States, Defendants, WENDY DAVIS, et al., Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:11-CV (RMC-TBG-BAH) [Three-Judge Panel] MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TEXAS MOTION TO EXCLUDE TESTIMONY OF DEFENDANTS EXPERTS DR. THEODORE ARRINGTON, DR. ALLAN LICHTMAN, DR. HENRY FLORES, AND PROF. J. MORGAN KOUSSER Admissible expert testimony offers specialized knowledge to help the trier of fact to understand complex evidence. Fed. R. Evid. 702(a). For two related reasons, Defendants proposed testimony of Dr. Theodore Arrington, Dr. Allan Lichtman, Dr. Henry Flores, and Prof. J. Morgan Kousser is not admissible under this standard. First, Defendants retained these experts to determine whether Texas enacted redistricting plans with discriminatory intent. But that question is not for an expert witness. Determining intent is the core province of the fact finder. Second, because they are not state-of-mind experts, Arrington, Lichtman, Flores, and Kousser offer little more than a summary of Defendants evidence. To support their findings on the Texas legislature s intent, the experts reports draw heavily on their inferences of intent from

3 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 3 of 14 simple facts, newspaper articles, one-sided portions of the legislative record, and self-serving letter correspondence. This Court is more than capable of reviewing this self-explanatory evidence without expert commentary. And in this case the proposed expert testimony speaks to legislative intent, a subject on which courts are the experts, not professors. Expert testimony exists to explain complicated facts, not to narrate easy-to-understand documents. With only two weeks to try a fact-intensive case, it is important for this Court to enforce the Federal Rules of Evidence. Unwarranted expert testimony will consume scarce judicial resources while impairing the parties ability to present relevant evidentiary submissions. While this is a bench trial, the Defendants should not be able to waste the Court s and Texas time with this inadmissible evidence. The Court should grant Texas motion. ARGUMENT Expert testimony is admissible if it is based on scientific, technical, or other specialized knowledge that will help the trier of fact. Fed. R. Evid. 702(a). Rule 702 charges trial judges with the responsibility of acting as gatekeepers to exclude unreliable or irrelevant expert testimony. United States v. Naegele, 471 F. Supp. 2d 152, 156 (D.D.C. 2007) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)). Under the two-pronged Daubert test, a court determining the admissibility of purported expert testimony must first determine [1] whether the reasoning or methodology underlying the testimony is scientifically valid and [2] whether that reasoning or methodology properly can be applied to the facts in issue. United States v. Libby, 461 F. Supp. 2d 3, 6 (D.D.C. 2006) (quoting Daubert, 509 U.S. at ). The burden rests with the proponent of the testimony to establish its admissibility. Id.; see also Meister v. Med. Eng g Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001). 2

4 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 4 of 14 The first Daubert prong establishes a standard of evidentiary reliability that tests the validity of the expert s procedures and methods. Daubert, 509 U.S. at 590. The second Daubert prong speaks primarily to relevance, id. at 591, and ensures that the proposed testimony will aid the jury in resolving a factual dispute, Naegele, 471 F. Supp. 2d at 157. Expert testimony is irrelevant if it offers knowledge within the province of the ordinary trier of fact. Libby, 461 F. Supp. 2d at 7; see also United States v. Mitchell, 49 F.3d 769, 780 (D.C. Cir. 1995) (Expert testimony is unnecessary where it involves matters of general knowledge and falls squarely within the traditional province of the jury. ) Where the trier of fact is just as capable of reviewing and analyzing the evidence, expert testimony is unhelpful and thus prohibited. Naegele, 471 F. Supp. 2d at 159. In keeping with these principles, [e]xpert witnesses are not permitted to testify concerning a party s intent, motive, or state of mind, or evidence by which such state of mind may be inferred. AstraZeneca LP v. Tap Pharm. Prods., Inc., 444 F. Supp. 2d 278, 293 (D. Del. 2006) (citation and internal quotation marks omitted). See also Libby, 461 F. Supp. 2d at 7 ( Expert testimony will [] be precluded if [it] would usurp the jury s role as the final arbiter of the facts, such as testimony on witness credibility and state of mind. ); S.E.C. v. Johnson, 525 F. Supp. 2d 70, 78 (D.D.C. 2007) (same); Halcomb v. Washington Metro. Area Transit Auth., 526 F. Supp. 2d 24, 30 (D.D.C. 2007) (same). Such testimony has no basis in any relevant body of knowledge or expertise and describes lay matters which a [fact finder] is capable of understanding and deciding without the expert s help. In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 546 (S.D.N.Y. 2004) (citations and internal quotation marks omitted). The prohibition on state-of-mind testimony applies also where the expert regurgitate[s] factual evidence and documentary records. In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 3

5 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 5 of , 1332 n.11 (S.D. Fla. 2010) (internal quotation marks omitted). The trier of fact is just as capable as an expert of drawing reasonable inferences from admissible documents. Naegele, 471 F. Supp. 2d at 159. Indeed, that is the trier of fact s quintessential function. Johnson, 525 F. Supp. 2d at 78. If an expert s basis for an opinion comes from evidence such as letters, admissions... or other admissible evidence, that is what the jury should hear. In re Diet Drugs Prods. Liab. Litig., No. MDL 1203, 2000 WL , at *9 (E.D. Pa. 2000). An expert s recitation of documentary evidence is neither helpful nor admissible. I. Dr. Arrington Should Be Precluded From Testifying Concerning Texas Intent Under Rule 702, Dr. Arrington s proposed testimony is inadmissible. Dr. Arrington is a political scientist with specialized expertise in districting and voting processes. (Ex. A, Arrington Decl. 1.) He has never published scholarly works on motive, is not aware that there are any political scientists who publish things on intent of the legislature, and does not believe there are any recognized experts in his field who study legislative intent. (Ex. B, 10/25/2011 Arrington Dep. 11:18-22; 13:14-16.) Despite the admitted limitations of Dr. Arrington s expertise, the United States asked him to determine whether the proposed redistricting plan for Congressional Districts (C185) and Texas House of Representatives (H283) were intentionally drawn to minimize, cancel out, or reduce the ability of Hispanic, Black, Asian, and other minority voters in Texas to elect representatives of their choice. (Ex. A, Arrington Decl. 2 (footnotes omitted).) In light of the United States instructions, it is no surprise that Dr. Arrington s report is replete with his musings as to [the Texas legislature s] motivations. In re Rezulin, 309 F. Supp. 2d at 546 (citation and internal quotation marks omitted). To offer but a handful of illustrations, Dr. Arrington s report states: 4

6 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 6 of 14 It is my opinion that both proposed plans were designed and enacted with the intent to present the appearance of non-retrogression by using an unreliable and misleading brightline standard to of [sic] VAP (voting age population) or CVAP (citizen voting age population) to determine districts in which minority voters are able to elect representatives of their choice. (Ex. A, Arrington Decl. 3.) The decision to remove a House district from Harris County flies directly against any claim by the State to be acting to protect incumbents and prevent pairing. (Id. 41.) The State chose to pair two minority candidates of choice in Harris County. This certainly shows their [sic] discriminatory intent, and was not justified by any reasonable or objective goal. (Id (emphasis added).) Texas proposed redistricting plan is not justified on rational grounds as required by the Arlington Heights factors. (Id. 107.) The proposed plan was drawn by Republicans, successfully defended by Republicans, and reflects their intent throughout. They compromised to maintain minority election districts only to the extent that they believed was minimally necessary to create an appearance of non-retrogression. (Id. 129 (emphasis added).) The intent of the Republicans, who completely controlled the redistricting process, was to limit the creation of minority election districts as much as possible while still making a case for non-retrogression by using unreliable bright line CVAP, VAP, or %SSVR criteria. (Id. 134 (emphasis added).) Dr. Arrington confirmed in his deposition that the purpose of his entire report is to determine the issue of intent: Q. And what was your purpose in preparing that declaration? A. To determine whether the State of Texas intended to discriminate when it drew the Congressional and House plans. (Ex. B, Arrington Dep. 9:1-5.) Q. Did they tell you they want to know -- they want you to make a declaration with respect to whether the State of Texas intentionally discriminated? A. Actually, what they asked me to do was to determine whether that was true. (Id. 10:12-18.) To support his inadmissible opinions on legislative intent, Dr. Arrington also offers inadmissible narrative (or verbatim recitals) of documentary evidence. To offer a handful of examples, Dr. Arrington s report observes that: 5

7 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 7 of 14 Minority legislators drew attention to the effects of the misuse of the count [sic] line rule. Representative Martinez Fischer suggested on the floor of the House that since the proposed plan makes about 17 county cuts why couldn t one of those be in the Coastal Bend that would have allowed the creation of two Hispanic election districts in Nueces and surrounding counties? (Ex. A, Arrington Decl. 34 (quoting House Journal, April 27, 2011, S122).) Though Texas eliminated a district in Harris county, [t]he Chair of the Redistricting Committee, Representative Solomons, admitted that the State had discretion in this case to round up. (Id. 40 (citing House Journal, April 27, 2011, S124-5).) An alternative to Texas proposed redistricting plan was defeated by nearly a straightline party vote by the Texas legislature. (Id. 73.) Minority representatives were treated differently than those who were candidates of choice of Anglo voters. For example note the discussion of the situation in Hidalgo County by Representative V. Gonzales; [proceeding to block quote an extensive portion of Rep. Gonzales remarks on the floor of the Texas House]. (Id. 125.) To demonstrate discriminatory purpose, here is an from Eric Opiela, Attorney for the Texas Republican Congressional Delegation to Congressman Lamar Smith. Opiela was clearly a central figure in the Congressional redistricting who handled the interrelationship between Congressmen and the Redistricting Committees. [Proceeding to reproduce the Opiela verbatim]. (Id. 135.) The process of drawing districts before the submission of the Chairman s plan (C125) is, therefore, critical to determine legislative intent. From the series of s among participants it is possible to characterize this process. [Proceeding to reproduce eight s verbatim]. (Id ) Dr. Arrington s proposed state-of-mind testimony has no basis in any relevant body of knowledge or expertise and constitutes just the sort of evidence that a jury and certainly this Court is capable of understanding and deciding without [an] expert s help. In re Rezulin Prods., 309 F. Supp. 2d at 546 (citation and internal quotation marks omitted). The Court requires no expert assistance to sift through verbatim accounts of s and the Texas legislative record, and is more than capable of ascertaining on its own whether Texas crafted the proposed plans with an impermissible purpose. Naegele, 471 F. Supp. 2d at 159. Dr. Arrington s testimony is inadmissible under Rule

8 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 8 of 14 II. Dr. Lichtman Should Be Precluded From Testifying Concerning Texas Intent Dr. Lichtman s proposed testimony is also inadmissible. Dr. Lichtman is a historian with specialized knowledge in electoral analysis, political history, and historical and quantitative methodology. (Ex. C, Lichtman Report 4.) His credentials do not qualify him with the expertise to plumb the [Texas legislature s] mind[] and thus to offer conclusions as to the existence of discriminatory purpose. Bone Care Int l, LLC v. Pentech Pharm., Inc., No. 08-CV- 1083, 2010 WL , at *9 (N.D. Ill. 2010). Nevertheless, the Davis Intervenors retained Dr. Lichtman to evaluate and report on whether the state s proposed senate plan was enacted with a racially discriminatory purpose. (Ex. C, Lichtman Report 2.) Obliging his clients request, the bulk of Dr. Lichtman s report conveys his conclusions regarding whether the State of Texas adopted State Senate plan was enacted with a racially discriminatory intent. (Id. 8.) Dr. Lichtman concludes that: The redistricting process that produced the state senate map clearly exhibits the indicia of a racially discriminatory intent aimed at African-Americans and Latinos. (Id.) Because a minority state senator accused Senate leaders of intentionally eliminating the ability of minority voters to select their candidate of choice, there is powerful evidence that the state senate plan was racially discriminatory in both its purpose and effect. (Id. 12.) Texas departures from prior practices are additional indicia of racially discriminatory purpose. (Id. 13.) The set of circumstances documented here is very close to those of the redistricting in Los Angeles County in the 1980s, which the federal District and Circuit Courts found intentionally discriminated against minorities. (Id. 14.) To reach his inadmissible conclusions on Texas intent, Dr. Lichtman summarizes or quotes admissible and inadmissible documentary evidence. For instance: To show that the Texas legislature disregarded traditional districting principles, Dr. Lichtman points to the deposition of Doug Davis and quotes from an article in the Dallas Morning News. (Id. 9.) 7

9 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 9 of 14 As supposed proof that the legislative decision makers knew precisely what they were doing, Dr. Lichtman adverts to a bevy of citizen letters whether the letters were ever read, Dr. Lichtman does not say expressing concern about splitting up minority communities. (Id.) To demonstrate the near unanimous opposition of minority legislators to the state s plan, Dr. Lichtman block quotes the sworn Declaration of African American State Senator Rodney Ellis and refers to sworn Declarations of Latina State Senator Judith Zaffirini and African American State Senator Royce West. (Id (footnote omitted).) As evidence that minority legislators were excluded from the redistricting process, Dr. Lichtman block quotes both the Ellis Declaration and a letter from five minority Senators to the Chair of the Senate Redistricting Committee. (Id ) To show that the Texas legislature enacted and the governor signed the State Senate redistricting plan... amid a high degree of racial animosity during the process, Dr. Lichtman refers to a news article in the Amarillo Globe-News. (Id. 14.) Dr. Lichtman s proposed testimony offers nothing more than his lay opinion based on an interpretation of evidence the Court needs no help with. This Court does not require the expert assistance of a PhD historian to analyze a state senator s declaration, to review Dear State Senator letters, or to read the Dallas Morning News. Dr. Lichtman s unscientific conclusions concerning Texas intent are inadmissible under Rule 702. III. Dr. Flores Should Be Precluded From Testifying Concerning Texas Intent The same analysis controls Dr. Flores proposed testimony. Dr. Flores is a political scientist with specializations in American politics, political theory, and multivariate statistical analysis. (Ex. D, Flores Report 1.) Like Dr. Arrington and Dr. Lichtman, Dr. Flores has no specialized skills in discerning legislative intent. But the Mexican American Legal Defense and Educational Fund nevertheless retained Dr. Flores to determine whether there was discriminatory racial intent in the congressional and Texas state house redistricting plans enacted in (Id. 3.) 8

10 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 10 of 14 Consistent with his assignment, Dr. Flores report provides a number of Conclusions and Observations concerning Texas legislative intent. (Id. 8.) For example, Dr. Flores report states: In the drawing of Congressional Districts 23 and 27 and Texas House Districts 33, 78 and 117 I have concluded that indeed 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 to the exclusion of the representational interest of Latinos thereby preventing this protected population from having the opportunity to elect a candidate of their choice. (Id. 8-9.) The distribution of the Latino population in selected districts support my opinion that the redistricters were consciously manipulating heavily Latino precincts and neighborhoods. (Id ) Texas deprived Latinos of the opportunity to elect their candidate of choice in Congressional District 23 by laboriously and intentionally manipulat[ing] the district s boundaries to add and subtract more than 612,191 individuals. (Id. 12.) The population data demonstrates that CD23 in C185 is structured to insure lower Hispanic turnout rates than in the benchmark CD23. These latter observations simply lend further substantiation to my conclusion that the method utilized to redraw CD23 in C185 was designed intentionally to reduce Latino voter turnout. (Id ) Dr. Flores inadmissible testimony concerning Texas state of mind is based on his inadmissible summary of other sources. For instance: To show that Texas drew House District 78 with discriminatory intent, Dr. Flores relies on a Google Earth Satellite Photo and the affidavit of Ms. Carmen Rodriguez, a resident and native of El Paso, Texas. (Id. 9.) To conclude that Texas carefully removed high performing Latino districts in the proposed plan, Dr. Flores parrots the conclusions of Dr. Lisa Handley s election performance research. (Id. 10.) To demonstrate that Congressman Conseco does not serve the expressed policy interests and wishes of his Latino constituents, Dr. Flores reproduces the results of a Texas statewide election-eve 2010 poll and compares the issues Hispanics identified as important to legislation Congressman Conseco sponsored during the 112th Congress. (Id. 7.) Dr. Flores proposed state-of-mind testimony is inadmissible. This Court is just as capable as Dr. Flores of reading a citizen s affidavit, of analyzing Dr. Handley s expert report, 9

11 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 11 of 14 or directing a web browser to Naegele, 471 F. Supp. 2d at 159. Wasting precious trial time hearing Dr. Flores testimony will not prove helpful. IV. Prof. Kousser Should Be Precluded From Testifying Concerning Texas Intent Prof. Kousser s testimony is also inadmissible. Prof. Kousser is a history and social science professor who focuses on minority voting rights, educational discrimination, political history and quantitative methods. (Ex. E, Kousser Decl. 2.) Like the other experts, Prof. Kousser has no expertise in perceiving legislative intent. But the Mexican American Legislative Caucus retained Prof. Kousser to determine whether Texas had an intent to discriminate against minorities during redistricting. (Id. 1.) Similar to defendants other experts, Prof. Kousser s report offers a number of conclusions on Texas legislative intent. For instance, the report states: Population disparities in Texas proposed House districts suggests bias against Latinos. (Id. 42.) The over and underpopulation of districts demonstrates the partisan, as well as ethnic bias in the redistricting process. (Id. 43.) Texas proposed plan is unsupported by rational legislative or administrative policy considerations and indicate both bias against minorities and racial gerrymandering. (Id. 66.) Prof. Kousser summarizes other sources to support his inadmissible testimony concerning Texas state of mind. For instance: To show that the legislature purposefully overpopulated minority districts, Prof. Kousser quotes a colloquy on the Texas House floor between Representatives Solomons and Walle. (Id. 43 (quoting House Journal, April 27, 2011, S235).) To prove that the proposed plan was constructed almost entirely by the Republican majority, Prof. Kousser describes the political composition of the redistricting committee and cites Rep. Solomons supposed admission that neither he nor his staff met with the Black Caucus or any other groups that represented African-Americans in drawing up the Committee s plan. (Id. 44, n.30 (citing House Journal, April 27, 2011, S114).) 10

12 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 12 of 14 As a further indication of discriminatory purposes, Prof. Kousser contends that Republican legislators applied the county line rule inconsistently. As supposed proof, Prof. Kousser block quotes a two page exchange between Representatives Solomons and Martinez Fischer on the House floor. (Id. 56 (quoting House Journal, April 27, 2011, S121-22).) Prof. Kousser s proposed state-of-mind testimony is inadmissible. This Court is just as capable as Prof. Kousser of analyzing the legislative record. Naegele, 471 F. Supp. 2d at 159. Indeed, mining the legislative record to unearth indicia of legislative intent is a judicial function. Prof. Kousser brings nothing helpful to the Court s inquiry. CONCLUSION The Defendants intent to offer inadmissible expert testimony will waste scarce trial time. And it is no answer that the Defendants have a time limit and this is a bench trial so the Court can sort the inadmissible from the admissible. Texas must expend its own time crossing the Defendants experts on inadmissible subject matter if the Court permits Defendants to offer their opinions. The Court should exclude the testimony of Dr. Arrington, Dr. Lichtman, Dr. Flores, and Prof. Kousser under Rule 702. Dated: January 4, 2012 GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General BILL COBB Deputy Attorney General for Civil Litigation DAVID C. MATTAX Director of Defense Litigation 11

13 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 13 of 14 /s/ David J. Schenck DAVID J. SCHENCK Deputy Attorney General for Legal Counsel J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General BRUCE D. COHEN Special Assistant to the Attorney General Office of the Attorney General P.O. Box 12548, Capitol Station 209 W. 14th Street Austin, Texas (512) / (512) (fax) ADAM K. MORTARA (Pro Hac Vice Motion Pending) JOHN M. HUGHES (Pro Hac Vice Motion Pending) ASHLEY C. KELLER (Pro Hac Vice Motion Pending) Bartlit Beck Herman Palenchar & Scott LLP 54 West Hubbard Street, Suite 300 Chicago, Illinois (312) / (312) (fax) Attorneys for Plaintiff State of Texas 12

14 Case 1:11-cv RMC-TBG-BAH Document 131 Filed 01/04/12 Page 14 of 14 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been sent via the Court s electronic notification system to the following parties on January 4, 2012: Daniel J. Freeman U.S. DEPARTMENT OF JUSTICE Voting Section, Civil Rights Division 950 Pennsylvania Avenue, NW NWB Room 7203 Washington, DC (202) daniel.freeman@usdoj.gov J. Gerald Hebert 191 Somerville Street, #405 Alexandria, VA (703) Fax: (202) jghebert@comcast.net Paul M. Smith Michael B. DeSanctis Jessica Ring Amunson Caroline D. Lopez JENNER & BLOCK LLP 1099 New York Ave., N.W. Washington, D.C Mark A. Posner LAWYERS' COMMITTEE FOR CIVIL RIGHTS 1401 New York Avenue, NW Suite 400 Washington, DC (202) mposner@lawyerscommittee.org John M. Devaney Marc Erik Elias PERKINS COIE th Street, NW Suite 600 Washington, DC (202) Fax: (202) jdevaney@perkinscoie.com melias@perkinscoie.com Nina Perales MEXICAN AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND, INC. 110 Broadway Suite 300 San Antonio, TX (210) Fax: nperales@maldef.org Robert Stephen Notzon 1507 Nueces Street Austin, TX (512) Fax: (512) robert@notzonlaw.com Ray Velarde 1216 Montana Avenue El Paso, TX (915) velardelaw2005@yahoo.com Chad W. Dunn BRAZIL & DUNN 4201 FM 1960 West Suite 530 Houston, TX (281) chad@brazilanddunn.com /s/ David J. Schenck DAVID J. SCHENCK Attorney for the State of Texas

15 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, v. Plaintiff, UNITED STATES OF AMERICA, and ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States, Defendants, WENDY DAVIS, et al., Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER Case No. 1:11-CV (RMC-TBG-BAH) [Three-Judge Panel] Now before the Court comes the State of Texas s Motion to Exclude Testimony of Defendants Experts Dr. Theodore Arrington, Dr. Allan Lichtman, Dr. Henry Flores, and Prof. J. Morgan Kousser. Having considered the motion and the memorandum of points and authorities in support thereof, the Court finds that the State s motion is meritorious and should be granted. IT IS THEREFORE ORDERED that The State of Texas s Motion to Exclude Testimony of Defendants Experts Dr. Theodore Arrington, Dr. Allan Lichtman, Dr. Henry Flores, and Prof. J. Morgan Kousser be, and it is hereby, GRANTED. DATED: UNITED STATES DISTRICT JUDGE

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85 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 1 of 7 Exhibit B

86 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 2 of 7 Theodore S. Arrington, Ph.D. October 25, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE STATE OF TEXAS )CIVIL ACTION NO. Plaintiff )1:11-cv RMC vs. ) THE UNITED STATES OF ) AMERICA and ERIC H. HOLDER, ) JR., in his Official ) capacity as Attorney ) General of the United States ) Defendant ) Deposition of Theodore S. Arrington, Ph.D. Washington, D.C. October 25, :12 a.m. Reported by: Bonnie L. Russo Job No Toll Free: Facsimile: Suite Bee Caves Road Austin, TX

87 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 3 of 7 Theodore S. Arrington, Ph.D. October 25, Q. And what was your purpose in 2 preparing that declaration? 3 A. To determine whether the State of 4 Texas intended to discriminate when it drew the 5 Congressional and House plans. 6 Q. And so we are clear, sort of the 7 errata sheet that you handed me just before we 8 identified that exhibit, these are corrections 9 to Exhibit 1? 10 A. That is correct. 11 MR. COHEN: If it's okay with 12 counsel, at the close of the deposition, we 13 will actually attach this to Exhibit 1 so it's 14 just part of it, with the understanding that 15 these corrections will actually be made in a 16 copy that you may be filing with the court. 17 MR. MELLETT: That's correct. 18 BY MR. COHEN: 19 Q. Why were you asked to determine 20 whether the State of Texas intentionally -- I'm 21 sorry. I'm going to make sure I use the word you said "intentionally" drew its maps to Toll Free: Facsimile: Suite Bee Caves Road Austin, TX

88 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 4 of 7 Theodore S. Arrington, Ph.D. October 25, discriminate -- 2 A. To discriminate. 3 Q. Why were you asked to do that? 4 A. I assume because it's part of the 5 case. 6 Q. Part of a Section 5 case in which 7 the contention of the United States is that 8 Texas intentionally discriminated? 9 A. I guess so. They don't tell me why 10 they want me to look at something. They just 11 say, would you look at this. 12 Q. Did they tell you they want to know they want you to make a declaration with 14 respect to whether the United States -- I'm 15 sorry, the State of Texas intentionally 16 discriminated? 17 A. Actually, what they asked me to do 18 was to determine whether that was true. 19 Q. Okay. You're not an attorney, 20 right? 21 A. I am not an attorney. 22 Q. I congratulate you for that, sir. Toll Free: Facsimile: Suite Bee Caves Road Austin, TX

89 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 5 of 7 Theodore S. Arrington, Ph.D. October 25, A. Thank you. 2 Q. In a court case, say a robbery, in 3 which one of the elements is intent, who 4 determines whether the suspect or the defendant 5 intentionally committed an act? 6 MR. MELLETT: Objection. Relevance. 7 THE WITNESS: I assume the jury does 8 or the judge. 9 BY MR. COHEN: 10 Q. In a -- in an appellate case, who 11 determines what the intention was of a 12 legislature that enacted a statute like 13 Congress or a state legislature? 14 A. The judges. 15 Q. In your -- I assume you wrote 16 professionally when you were at UNCC? 17 A. I did. 18 Q. Did you ever write about motive? 19 A. No. 20 Q. Who are the recognized experts in 21 your field on intent? 22 A. So far as I know, there are none. Toll Free: Facsimile: Suite Bee Caves Road Austin, TX

90 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 6 of 7 Theodore S. Arrington, Ph.D. October 25, Q. If I were to look at the -- by the 2 way, I just finished graduate school, so when I 3 ask this as -- I'm going to ask this as a grad 4 student as well as an attorney. I got my 5 graduate degree in history. I spent a lot of 6 time in the grad school library. 7 If I were to go to the graduate 8 library at my university and go to the 9 political science articles on motive or intent 10 of a legislature, where would I start looking? 11 A. You would start looking under those 12 names, under those names, under those words. 13 Whether you would find anything is a separate 14 question. 15 Q. And if I turned in my 20-resource 16 paper to my professor, how would she know the 17 good ones from the bad ones? The good sources 18 from the Wikipedias? 19 A. By the citations. 20 Q. Okay. Now you told me a moment ago 21 you are not sure -- you can't cite any of that 22 literature as we sit here right now; is that Toll Free: Facsimile: Suite Bee Caves Road Austin, TX

91 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 7 of 7 Theodore S. Arrington, Ph.D. October 25, right? 2 MR. MELLETT: Objection. 3 Mischaracterizing the testimony. 4 BY MR. COHEN: 5 Q. Can you cite any of that literature 6 right now? 7 A. What literature? 8 Q. Literature that I -- in which 9 recognized experts on intent or motive discuss 10 intent or motive of legislatures. 11 A. You are talking political 12 scientists? 13 Q. Yes, sir. 14 A. I'm not aware that there are any 15 political scientists who publish things on 16 intent of the legislature. 17 Now, it does sometimes come up in 18 the legal context, so that political scientists 19 who study the courts have undoubtedly published 20 some stuff on that subject, but that is not my 21 field. My field is elections. 22 Q. Okay. Now, I understand your Toll Free: Facsimile: Suite Bee Caves Road Austin, TX

92 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 1 of 17 Exhibit C

93 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 12 of Exhibit 7 to Davis Intervenors Opposition to Plaintiff State of Texas Motion for Summary Judgment Expert Witness Report of Dr. Allan J. Lichtman

94 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 23 of REPORT ON RECENT GENERAL ELECTIONS IN TEXAS STATE SENATE DISTRICT 10 AND TARRANT AND DALLAS COUNTY, RACIALLY DISCRIMINATORY INTENT UNDERLYING THE STATE S PROPOSED SENATE PLAN, AND EXAMINATION OFALTERNATIVE DEMONSTRATION REMEDIAL PLANS Allan J. Lichtman Professor of History American University Washington, DC October 21, 2011 Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the information set forth in this report is true and correct to the best of my knowledge and belief.

95 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 34 of I. Statement of Inquiry 1 1. I have been asked to consider the extent to which African American and Latino voters voted together cohesively in the 2008 general election for State Senate in the Tarrant County State Senate District 10 ( SD 10 ), as well as in recent general elections covering Tarrant and Dallas County. I have also been asked to examine the degree of Anglo bloc voting against candidates of choice of Hispanic and African-American voters in the elections studied. In addition, I have been asked to consider whether Democratic Senator Wendy Davis, the prevailing candidate in the 2008 general election in SD 10, represents a consensus choice of African Americans and Latinos in her district. I also have been asked to examine alternative demonstration remedial plans for SD 10. Finally, I was requested to evaluate and report on whether the state s proposed senate plan was enacted with a racially discriminatory purpose. My expected fee in this matter is $400 per hour. I have enclosed (as Appendix 9) an updated CV and a table of cases in which I have provided written or oral testimony. II. Summary of Opinions 2. I found that Latino and African American voters in the 2008 general election for State Senate in District 10 and in recent general elections covering Tarrant and Dallas County are cohesive in that both voter groups overwhelmingly unite in support of candidates of their choice. These preferred candidates of choice were Democratic candidates. I also found that for the elections studied, Anglo voters strongly bloc voted against the candidates of choice of Latino and 1 I previously prepared a report on the state s proposed congressional plan and the state s proposed state house redistricting plan in the consolidated San Antonio lawsuits, Perez v. Perry (lead case). This report deals exclusively with the proposed state senate map. In the interest of judicial economy and to avoid duplication, I am attaching and incorporating by reference my earlier report from the Perez San Antonio litigation because that report also deals with issues pending before this Court. See Appendix 10. 2

96 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 45 of African American voters. I have also found Senator Davis was an overwhelming consensus choice of Latino and African American voters in the 2008 SD 10 election, and that Senator Davis was elected by a unified coalition of Latino and African American voters. Obviously the ability of this minority coalition to elect candidates of choice in SD 10 and participate fully and effectively in the political process would be destroyed by any plan that substantially diminished the percentage of minorities in this district or divided this politically cohesive coalition of minority voters. The state s proposed senate plan does both. Two demonstration/remedial plans I have reviewed, S120 and S156, demonstrate that it is feasible to create an alternative SD 10 that not only preserves, but substantially increases, the African American and Latino voter strength in this district. Both plans create a majorityminority citizen voting age population in their new versions of SD 10, and stand in sharp contrast to the state s proposed state senate plan that diminishes minority voting rights in SD 10. Finally, I have examined the facts surrounding the intent behind the state s proposed senate map. I conclude that there is strong evidence of racially discriminatory purpose underlying the state s proposed senate plan. My finding of racially discriminatory intent underlying the state senate plan is consistent with other experts who, in reviewing the enactment of the proposed congressional and state house maps, have found that those plans were enacted with a racially discriminatory purpose. See Reports of Dr. Ted Arrington (United States) and Dr. Morgan Kousser ((Mexican American Legislative Caucus MALC) III. Qualifications 3. I am a Professor of History at American University in Washington, D.C., where I have been employed for 38 years. Formerly, I served as Chair of the History Department and 3

97 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 56 of Associate Dean of the College of Arts and Sciences at American University. I received my BA in History from Brandeis University in 1967 and my Ph.D in History from Harvard University in 1973, with a specialty in the mathematical analysis of historical data. My areas of expertise include political history, electoral analysis, and historical and quantitative methodology. I am the author of numerous scholarly works on quantitative methodology in social science. This scholarship includes articles in such academic journals as Political Methodology, Journal of Interdisciplinary History, International Journal of Forecasting, and Social Science History. In addition, I have coauthored Ecological Inference with Dr. Laura Langbein, a standard text on the analysis of social science data, including political information. I have published articles on the application of social science analysis to civil rights issues. This work includes articles in such journals as Journal of Law and Politics, La Raza Law Journal, Evaluation Review, Journal of Legal Studies, and National Law Journal. My scholarship also includes the use of quantitative and qualitative techniques to conduct contemporary and historical studies, published in such academic journals as The Proceedings of the National Academy of Sciences, The American Historical Review, Forecast, and The Journal of Social History. Quantitative and historical analyses also ground my books, Prejudice and the Old Politics: The Presidential Election of 1928, The Thirteen Keys to the Presidency (co-authored with Ken DeCell), The Keys to the White House, and White Protestant Nation: The Rise of the American Conservative Movement. My most recent book, White Protestant Nation, was one of five finalists for the National Book Critics Circle Award for the best general nonfiction book published in America. 4. I have worked as a consultant or expert witness for both plaintiffs and defendants in more than seventy-five voting and civil rights cases. These include several cases in the state of 4

98 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 67 of Texas, among them the 2003 congressional redistricting case that became the U. S. Supreme Court case, League of United Latin Am. Citizens (LULAC) v. Perry, 548 U.S. 399 (2006). The majority opinion written by Justice Kennedy authoritatively cited my statistical work several times. My work includes more than a dozen cases for the United States Department of Justice and cases for many civil rights organizations. I have also worked as a consultant or expert witness in defending enacted plans from voting rights challenges. IV. Data and Methods 5. The voting analysis in this report relies on standard data utilized in social science: precinct by precinct election returns for relevant elections, with candidates identified by race and precinct by precinct breakdowns of voting age Latinos, African Americans, Anglos, and Others. Data was obtained from the Texas Legislative Council. The analysis utilizes the standard methodology of ecological regression that I have employed in some 75 previous voting rights cases. This procedure was recognized by the Supreme Court in Thornburg v. Gingles, 478 U.S. 30 (1986), and applied by the Court to single-member districts plans in Quilter v. Voinovich, 113 S.Ct 1149 (1993). My analysis based on these methods was cited in the recent LULAC Supreme Court case. V. Results of Analysis 6. The results reported in Table 1 show overwhelming Latino and African American voter support for Democratic candidate Wendy Davis in the 2008 general election for State Senate in District 10. In turn, Anglo voters strongly preferred her Republican opponent, Kim Brimer. Candidate Davis garnered only 30 percent of the Anglo vote. This pattern of Latino and African American cohesion for the Democratic candidate and Anglo opposition to such a 5

99 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 78 of candidate is consistent with the findings of other recent general elections covering Tarrant County. For five statewide general elections in 2008 and 2010 involving a mix of Latino, African American, and Anglo candidates, Latino and African American voters in Tarrant County were essentially unanimous in voting for Democratic candidates, whereas a mean of only 25 percent of Anglos voted for these candidates of choice of African Americans and Latinos. Similar patterns emerge in neighboring Dallas County, where Latino and African American voters were nearly unanimous in voting for Democratic candidates, whereas a mean of 29 percent of Anglos voted for these candidates of choice of African Americans and Latinos. These results are nearly identical for those obtained in the analysis of the 2008 general election for State Senate in Tarrant County Senate District Although Senator Wendy Davis is an Anglo female, she was elected by a coalition of minority voters, who recruited her to run for the state senate. The sworn Declarations of African American Representative Marc Veasey (HD 95 in Tarrant County) 3, African American Tarrant County Commissioner Roy Brooks, 4 and Latino Tarrant County Constable Sergio DeLeon of Forth Worth, 5 along with Democratic State Party Chair Boyd Richie, 6 indicate that a coalition of African Americans and Latinos chose Davis as a Senate candidate who would best represent their interests and could prevail in a general election in 2 An estimate of 100% is often found in instances of very high cohesion. It does not mean that not a single African American or Hispanic voted for Republican candidates, but rather that the estimate of African American and Hispanic cohesion is extremely high. Similar results emerged in the 2003 analyses in LULAC v. Perry. The five general elections studied included the 2008 presidential (an African American Democrat and an Anglo Republican), the 2008 US Senate (a Hispanic Democrat and an Anglo Republican), the 2008 Supreme Court Chief Justice (an Anglo Democrat and an African American Republican), the 2010 gubernatorial (an Anglo Democrat and an Anglo Republican), and the 2008 Lt. Governor (a Hispanic Democrat and an Anglo Republican). 3 Appendix 2 4 Appendix 3 5 Appendix 4 6 Appendix 5 6

100 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 89 of Senate District 10. These Democratic leaders also indicate that they specifically targeted this race and focused their resources to this local, winnable campaign, rather than on other unwinnable statewide races. Therefore, other statewide races are not reliable indicators of the opportunities for African Americans and Latinos to elect State Senate candidates of their choice and fully participate in the political process in SD 10. Such opportunities, which resulted in the election of Senator Davis, would be eliminated under the state-passed plan that essentially destroys the minority coalition in this district. The state passed plan reduces the African American plus Latino voting age population in SD 10 by a politically significant 7.2 percentage points, from 42.4 to 35.2 percent. (Declaration of Marc Veasey and Declaration of Boyd Richie)(Appendix 2 and 5, respectively). 8. Two alternative plans, S120 and S156, demonstrate that it is feasible to create a voting age and citizen-voting age majority-minority district in the region of SD 10 that provides minority voters effective opportunities to elect candidates of their choice to the Texas State Senate. As demonstrated by the voting age population data in Table 3, new SD 10 in each of these two alternative plans substantially strengthens the African American and Latino populations by nearly 30 percentage points as compared to existing SD 10, which is 42.4 percent voting age African American and Latino combined. Also, as demonstrated by the citizen voting age population in Table 4, these two alternative plans created new versions of SD 10 in which African Americans and Latinos combined are a substantial majority of the citizen voting age population. Under these alternative plans, SD 23 (currently represented by African American Senator Royce West in Dallas County) is maintained as an African American opportunity district, equal in effectiveness to SD 23 in the current district (benchmark plan) and under the 7

101 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 910 of of State s proposed senate plan. VI. Discriminatory Intent 9. I also reviewed the evidence regarding whether the State of Texas adopted State Senate plan was enacted with a racially discriminatory intent. 10. When historians or other scholars review facts and circumstantial evidence to determine whether a decision of a governmental body (or any decisionmaker for that matter) is the product of a racially discriminatory purpose, it is a fact-intensive and sensitive inquiry. That is true in this case as well. What I found was that the redistricting process in Texas that produced a state senate map which itself has racially discriminatory effects, clearly exhibits the indicia of a racially discriminatory intent aimed at African-Americans and Latinos. 11. Discriminatory Effect. Although the discriminatory effect of a redistricting plan does not by itself prove discriminatory intent, it is a good starting point in assessing whether a plan is the result of intentional discrimination. Thus, it is important to consider whether the plan resulted in the diminution of minority opportunities to elect candidates of their choice to office and participate effectively in the political process. As demonstrated above, the substantial reduction of the African American and Latino population in SD 10 under the state s adopted senate plan clearly deprives these minority groups, that are overwhelmingly cohesive in their voting behavior in general elections, any realistic chance to once again elect their candidate of choice to State Senate from this district, or any other senate district in Tarrant County. The coalition of African American and Latino voters that elected Senator Davis in 2008 demonstrated an effective ability to participate in the political process and to elect a candidate of choice to office in Senate District 10. That effective coalition of minority voters has been fractured 8

102 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of severely into several other senate districts under the state s proposed map. The voting strength of minority voters (African Americans and Latinos) has been significantly diminished under the state s proposed senate plan. 12. Cracking of Minority Communities. The state legislature, in dismantling benchmark SD 10 cracked politically cohesive and geographically concentrated Latino and African American communities and placed members of those communities in districts in which they have no opportunity to elect candidates of their choice or participate effectively in the political process. The decision-makers did so in disregard of the traditional redistricting principle of maintaining communities of interest, a principle they claim to have adopted in devising the plan. See Deposition of Doug Davis, principal architect of state senate plan. As the Dallas Morning News reported, African American voters in southern Tarrant County would be moved into a rural district south of Fort Worth, while Hispanics in the northern part of the county would be switched to a district centered in mostly white Denton County. These decision-makers knew precisely what they were doing. The state Legislative leaders and those who drew the state senate map were warned during the process against fracturing these neighborhoods and communities by representatives of the Latino and African American communities, but did so regardless. Similar warnings about splitting up the minority community also came from citizen letters (all letters cited in this report are attached in Appendix 1) Racial Composition of Decision Makers. The Senate Redistricting Committee included a majority of Republicans, all Anglos, and a minority of Democrats, among them 7 Texas Senate Approves Redistricting Plan After Rejecting Fort Worth Amendments, Dallas Morning News, 17 July 2011.For examples of warnings prior to final adoption of the State Senate plan, see Texas House Oks Senate s Proposed Voting Districts, Lufkin Daily News, 20 May

103 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of African Americans and Latinos. The all-anglo Republican majority prepared and voted for the adopted map over the opposition of all minority Senators. The House Redistricting Committee likewise included a majority of Republicans and a minority of Democrats. Only one Republican was a minority member, Aaron Pena, who switched parties to become a Republican after the 2010 election, when he was re-elected as a Democrat. Pena was the only minority on the House Committee to vote in favor of the Senate plan. During consideration by the entire State House, the state s plan was adopted as a result of overwhelming support from members representing Anglo majority and Anglo-controlled districts over the near unanimous opposition of minority legislators representing minority opportunity districts. As noted in the sworn Declaration of African American State Senator Rodney Ellis, A number of Senators representing minority opportunity districts voted in support of the State s plan on final passage. It is important to note, however, that those voting for the plan did so to avoid the near certainty that the map would be even worse if the Senate deadlocked and the plan was ultimately drawn by the Texas Legislative Redistricting Board. Under the Texas Constitution, if the Legislature fails to adopt a Senate redistricting plan, the responsibility falls to a board made up of the Lt. Governor, Speaker of the House, State Attorney General, State Comptroller and State Land Commissioner. Many Senators feared, with justification, that this harshly partisan body of statewide elected officials would dismantle not only District 10 but other minority opportunity districts as well. It is important to note that all 12 Senators who represent minority opportunity districts voted in support of the alternative Senate plan offered by Wendy Davis that was tabled by the Anglo majority. Moreover, every minority opportunity Senator joined in signing an official statement entered into the Senate record expressing strong opposition to the discriminatory process used and the retrogressive map adopted. Declaration of State Senator Rodney Ellis, Appendix 6. 8 See also sworn Declarations of Latina State Senator Judith Zaffirini 9 and African American State 8 Appendix 6 9 Appendix 7 10

104 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of Senator Royce West Exclusion of Minorities from the Redistricting Process. Anglo majorities in both the Senate and House redistricting Committees manipulated the redistricting process to the benefit of Anglos and to the detriment of minorities and Senators representing majority-minority districts. During the redistricting process, in a May 13, 2011 letter to the Chair of the Senate Redistricting Committee, five minority Senators on the Committee documented this racially discriminatory and disparate treatment. The Senators wrote, In the weeks leading up to the committee s action on the Senate redistricting bill, some senators were allowed ongoing participation in developing the map. Their concerns were heard early, and they were allowed to view and respond to draft proposals. Other Senators, however, were not allowed to see even their own districts on the map until less than 48 hours before it was laid out in committee. Their concerns were neither solicited nor given fair consideration. Most of the Senators given access to the process represented Anglo-controlled districts. Most of those locked-out of the process represent large minority communities whose rights are protected under the Voting Rights Act. Excluding elected representatives of minority citizens is no different than excluding minority citizens themselves. 11 Similar exclusion is documented in a 10 May 2011 letter to the Senate Redistricting Committee Chair by Senator Wendy Davis, who represents SD 10, which has a majority-minority total population in the benchmark plan. 12 In a sworn declaration from African American State Senator Rodney Ellis that is attached as Appendix 6, he stated, State leaders were clearly determined to prevent minority voters in District 10 from demonstrating their ability to elect the candidate of their choice in future elections. The State s adopted map carefully targets and removes African American and Hispanic neighborhoods from District 10 attaching some to a rural district with no commonality of interest with Fort Worth urban voters, and attaching others to suburban and exurban 10 Appendix 8 11 Full Letter Included in Appendix 1 12 Full Letter Included in Appendix 1 11

105 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of districts controlled by Anglo voters. Texas has a long and sad history of preventing minority voters from exercising their right to participate in the political process. Certainly Texas Senators who represent minority opportunity districts in Texas were prevented from exercising their right to defend and protect minority citizens during the 2011 redistricting process. 13 The sworn testimony of a state senator of Senator Ellis experience and stature is powerful evidence that the state senate plan was racially discriminatory in both its purpose and effect. Senator Ellis statement is not a half-hearted or less than vigorous attack on the racial discrimination underlying the state senate plan. He testifies in the strongest possible terms that the racial discrimination at work here was not marginal; instead, Senator Ellis provides direct and personal testimony that the plan is racially discriminatory in purpose and effect. The same can be said of African American Representative Marc Veasey s sworn Declaration. (Veasey Declaration, Appendix 2). Veasey was a Member of the House Redistricting Committee and has provided an unambiguous sworn statement detailing the intentionally discriminatory treatment he and other minorities suffered in the redistricting process. Similarly, State Senators Zaffirini and West, also minority members of the Senate Redistricting Committees, have provided sworn declarations to the same effect. See Appendix 7 and 8, respectively. These minority members of the redistricting committees in the House and Senate were in an excellent position to personally observe the redistricting process. Each of these minority members have provided strong and clear statements of the intentionally racially discriminatory and exclusionary treatment of minority voters and their elected representatives, both in terms of the redistricting process itself as well as the discriminatory effects of the state senate plan. 13 Appendix 6 12

106 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of Procedural and Substantive Departures From Past Redistricting Cycles. Like Senator Ellis, Senators Zaffirini and West are long-serving and highly regarded members of the Texas Senate and veterans of past redistricting cycles. Their sworn statements (Appendix 7 and 8) provide a unique and important historical perspective on the redistricting process, particularly how this process deviated from past redistricting cycles. For example, in past senate redistricting cycles, state officials went across the state and held public hearings on redistricting plans and proposals. The State failed to do so this time. Such departures from past redistricting practices are additional indicia of racially discriminatory purpose. 16. Contemporaneous Statements Made By Legislators. As an historian, and as an expert witness who has prepared or reviewed numerous expert witness reports on the issue of racially discriminatory intent in redistricting and Voting Rights Act cases on the issue of racially discriminatory purpose, the statements made by legislators who actually were in a position to be involved in the legislative process and who ultimately voted on the senate map can be important evidence that the plan fails to meet the proscribed purpose and effect requirements of Section 5. The fact that Senators Ellis, Zaffirini, and West, and Representative Veasey (and other elected officials in the senate and house, including Senator Davis) made these concerns known to senate leaders during the legislative process enhances not only the credibility of their statements, but also the unresponsiveness of those who drew the senate map to the concerns of racial and ethnic minority representatives and their constituents. 17. Minority Opposition. The Senate redistricting plan was enacted in the face of near universal opposition from minority legislators, citizens, and interest groups. Just this week, as an additional indication of minority opposition to the state senate plan, the League of United Latin 13

107 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of American Citizens ( LULAC ), a national Hispanic organization, filed a Voting Rights Act challenge against the Texas redistricting plan for State Senate in Texas. With regard to State Senate District 10 specifically, and as the sworn Declarations of the Senators and Representative referenced above show, minority legislators have been outspoken for months expressing clear and strong opposition to the destruction of that effective minority coalition senate district. 18. Racial Animosity. The Texas legislature enacted and the governor signed the State Senate redistricting plan and other redistricting plans amid a high degree of racial animosity during the process. This racial tension is documented in a news article entitled Racial Tensions Wrack Capital, by the Amarillo Globe-News. It reflects disputes between Anglos and minorities in Austin, not just over redistricting, but over other tense issues as well, such as controversial voter ID legislation and proposed legislation that would have denied undocumented Texas residents in-state tuition rates at public colleges and universities in Texas. This racial tension is also evident in the letters cited above (and set forth in Appendix 1) The set of circumstances documented here is very close to those of the redistricting in Los Angeles County in the 1980s, which the federal District and Circuit Courts found intentionally discriminated against minorities. I was an expert witness in that case. Although I testified on racially polarized voting patterns and discriminatory effects of the redistricting plan, not intent, I am extremely familiar with the intent evidence from that case as well. 15 As noted above and in my attached CV, I have served and testified as an expert witness in over 75 redistricting or Voting Rights Act cases, many of which involved allegations of racially discriminatory intent. The evidence I have cited herein and relied upon in reaching my 14 Racial Tensions Wrack Capitol, Amarillo Globe-News, 18 June Garza v. County of Los Angeles, 756 F. Supp (C.D. Cal. 1990); Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990). 14

108 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of conclusion in this case, that the proposed State Senate redistricting plan that is the subject of this lawsuit was enacted with a racially discriminatory purpose and will have a retrogressive effect, is quite similar to the types of evidence that I (and other expert witnesses) have relied upon in other Voting Rights Act cases. 15

109 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 1 of 16 Exhibit D

110 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 12 of Expert Report In STATE OF TEXAS, et al v UNITED STATES OF AMERICA and ERIC H. HOLDER, JR. No. 1:11-CV October 21, 2011 Submitted by Henry Flores, PhD Introduction My name is Henry Flores and I am over the age of eighteen (18) years, have never been convicted of a crime and am fully competent to express the below opinions. The following facts and opinions are within my personal and professional knowledge and competence and are true and correct. Currently, I am Dean of the Graduate School and a tenured Full Professor of Political Science at St. Mary's University in San Antonio, Texas where I have been employed 28 years; I am in my eighth year as dean. I've served as Chair of the Department of Political Science twice and twice each as the Director of Graduate Studies in the department and as Director of the Masters in Public Administration prior to my tenure as dean. I teach graduate classes in Research Methods and Statistics and Decision Theory and have taught undergraduate classes in Texas Politics, Political Parties, and Latino Politics. My academic vitae is attached with more details of my career (Appendix A). The University of California at Santa Barbara granted my PhD in Political Science in December 1981 with specializations in American Politics, Public Administration, Political Theory /Philosophy, and Multivariate Statistical Analysis. I Civ. Action No. 1:11-cv RMC-TBG-BAH 1

111 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 23 of have published numerous books and articles, encyclopedia entries and invited chapters in books as well as presented learned papers on racially polarized voting, Latino Politics, Latino voting behavior, political theory and urban politics. Throughout many of my published pieces I have spoken to the racialized nature of politics in San Antonio, Texas, Los Angeles, California, the southwestern United States and the nation. I have testified in well over 25 voting rights cases since 1986 one ofwhich was a submission to the Assistant Attorney General of the United States for Civil Rights concerning congressional and state legislative redistricting in Texas (1992). Subsequently, I testified on behalf of the Republican Party of Texas in Terrazas v Slagle (1992), the redistricting of the state senate, on the nature of racialized voting in the state. In 2001 I testified in Balderas v Texas/ (U.S. Dist. Ct. E.D. Tex. No. 6:01cv158) which concerned the State Senate, House and US Congressional redistricting of 2001 as a consulting expert on racially polarized voting and discriminatory intent. During the 2001 round of redistricting I also appeared and submitted testimony to six Texas state assembly hearings on the racially polarized nature of elections in the state. Finally, I have offered expert testimony in 15 additional civil and criminal suits, from both the defendant and plaintiff perspectives, concerning employment discrimination, change of venue and probate matters. A complete listing of all lawsuits where I have provided expert testimony appears in my attached vitae. Retention The Mexican American Legal Defense and Educational Fund retained my services on behalf of the Latino Task Force plaintiffs in this matter as an expert Civ. Action No. 1:11-cv RMC-TBG-BAH 2

112 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 34 of witness in discriminatory racial intent. Specifically I was retained to determine.. whether there was discriminatory racial intent in the congressional and Texas state house redistricting plans enacted in My focus was primarily on United States Congressional Districts (CDs) 23 and 27 and Texas House of Representative Districts (TH) 33, 78 and 117. Data and Literature Review My expert opinions are based on a review of the following information: a. Maps and data packets for Congressional Plans C100 and C185 and Texas House District Plans H100 and H283. b. Two United States Supreme Court decisions-village of Arlington Heights v. Metropolitan 492 US 252 (1977) and LULAC v Perry 548 US 399 (2006). c. The final judgments and opinions in Balderas v Texas (2001). d. The expert reports and court testimonies of Drs. J. Morgan Kousser, Richard Engstrom, and Andres Tijerina in Perez v Perry (No. 11-CA-361 U.S. Dist. Ct. W.D. Tex.). e. The expert report of Dr. J. Morgan Kousser in LULAC v Perry (2006). f. The extfert report of Dr. Lisa Handley and Dr. Theodore Arrington in this case. g. Summaries of the Texas Senate Select Committee on Redistricting Hearings (2011). h. Summaries of the Texas House Redistricting Committee's Hearings (2011). i. "Voting Rights in Texas " Perales, Nina, Luis Figueroa, and Criselda G. Rivas. Southern California Review of Law and Social Justice. Los Civ. Action No. 1:11-cv RMC-TBG-BAH 3

113 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 45 of Angeles: University of Southern California Gould School of Law (hereinafter referred to as "Voting Rights in Texas"). j. "A Revealed Preferences Method for Evaluating Redistricting Intent" an unpublished manuscript by Drs. Micah Altman (MIT) and Michael McDonald (George Mason University). k. The trial testimony of Texas State Senator Ken Seliger, Chairman of the State Senate Select Committee on Redistricting, Texas State Representative Burt Solomon, Chairman of the Texas House Redistricting Committee, and Mr. Ryan Downton, the General Counsel to the House Redistricting Committee. l. The deposition of Mr. Gerardo Interiano, Counsel to the Speaker of the Texas House of Representatives. m. A broad array of newspaper, newsmagazine, and law review articles concerning redistricting in Texas and other state legislation directly affecting Latinos such as policy on immigration, "sanctuary cities," use of English in public places, voter identification cards, educational funding and higher education reform among others. n. Maps and data packets for Congressional Plan C190 and Texas State House Plan H292. o. A review of the 2010 election-eve Texas poll conducted by Latino Decisions and a February 24, 2008 poll of Texas Latino voters conducted by the same firm. p. A summary of Congressman Francisco "Quico" Canseco's (R-TX, CD23) legislative sponsorship and co-sponsorship in the 112th National Congress. Civ. Action No. 1:11-cv RMC-TBG-BAH 4

114 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 56 of Observations Historical The redistricting history of Texas together with the current political context, demography of the state over four decades, and the general climate of racial politics in the state form the basis of my opinion. It is the overall context, the totality of all circumstances and data, which underlie my opinion in this case. It goes without saying that every round of Texas redistricting that I have been involved with has been subject to litigation by the Latino and/or African American communities. Representatives of each of these groups have sued the State of Texas claiming a violation of some element in the Voting Rights Act of The Republican Party, joined by Latinos in 1992, brought suit; in 2001 Latinos and African Americans joined together to bring suit; and, now, in 2011, the Texas redistricting process has been challenged by Latinos, African Americans and various other individuals. In each and every round of redistricting litigation the United States Congressional, State House and Senate maps have been challenged as has been the process itself in some instances. The State of Texas has a rich history of having voting rights challenges brought against it or one of its political subdivisions more than 200 times since These challenges have been under the provisions of Sections 2, 5 or 203 of the Voting Rights Act of 1965 or the 14th and 15th Amendments ofthe United States Constitution ("Voting Rights in Texas"). The evidence presented to courts, in a panoply of voting rights cases over the last 25 years, have shown clear patterns of racially polarized voting where Hispanics Civ. Action No. 1:11-cv RMC-TBG-BAH 5

115 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 67 of vote differently from their Anglo or non-hispanic white fellow citizens. These racially polarized patterns are still in evidence as presented in the expert reports of both Drs. Engstrom and Kousser in Perez. v Perry which was recently tried to a three judge panel in the Western District of Texas sitting in San Antonio, Texas. Climate of Racial Politics The acrimony which has been publicly reported in various media during this last Texas legislative session, both inside and outside of the Legislature, surrounding policy areas directly affecting Latinos including redistricting, immigration reform, "sanctuary cities," and educational reform has been the most racially charged I have witnessed throughout my 30 plus year career in higher education and more than 25 years as a voting rights expert. The brief summaries of both the Senate Select Committee on Redistricting and the House Redistricting Committee hearings surrounding the passage of redistricting legislation are replete with examples of hearings without public input or testimony, rushed meetings, meetings intentionally not scheduled until after the regular session and, at least in one instance, the complete disregard for the input of a sitting state senator seeking a courtesy. Additionally, the input of representatives of both the Latino and African American communities were never given serious consideration during this process. The entire atmosphere surrounding the hearings calls into question the motives of the committee membership particularly that of the chairs. My observation is that these committees functioned outside of their normal and customary rules and procedures as they passed the state's redistricting legislation. Civ. Action No. 1:11-cv RMC-TBG-BAH 6

116 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 78 of A review of the Texas statewide election-eve 2010 poll conducted by Latino Decisions, a well-respected national Latino polling organization, and released on November 2, 2010 indicated that the most important issue for Latinos was immigration (35%) followed by jobs (28%) and education (16%). The Latino Decisions Texas Statewide Poll of Feb. 24, 2008 further shows that the economy, health care and immigration were issues of greatest concern to Texas Latino voters. A review of Congressman Canseco's (R-TX, CD23) sponsored and cosponsored legislation during the 112th Congress found that he did not sponsor any legislation on immigration reform other than to increase law enforcement on the border. It is clear that his sponsorship and co-sponsorship record does not coincide with the expressed policy interests and wishes of his Latino constituents. Review of the District Lines I have reviewed the maps generated through REDAPPL and provided to me by MALDEF and compared the existing benchmark plan, H100 with plan H283 (Texas House plan). Also, I have reviewed the maps created by REDAPPL and provided to me by MALDEF and compared the existing benchmark, C100 with plan C185 (United States Congressional plan). I reviewed the district boundaries of both United States Congressional Districts 23 and 27 together with the surrounding districts and the demographic data accompanying those plans. Additionally, I examined district boundaries of Texas House Districts 33,78 and 117 together with the surrounding districts and the demographic data accompanying these plans. Finally, I looked at the redistricting maps and demographic data for both Congressional and Texas House Civ. Action No. 1:11-cv RMC-TBG-BAH 7

117 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page 89 of redistricting efforts in the geographical regions of Cameron and Hidalgo Counties. Almost all of the documentation that forms the basis of my opinion has been provided by MALDEF legal counsel. Conclusions and Observations of the Redistricting Process As the court has pointed out proving "racial intent" is difficult but not impossible. Recently, the Supreme Court in LULAC v Perry (2006) provided us with a path to follow in determining whether or not, through the observations of the decision makers and the political circumstances surrounding the action, one can conclude that race was the intention of those drawing congressional districts in specific circumstances. Earlier in Arlington Heights v Metropolitan Housing Corp. (1977) the Court declared that "sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face." The court noted that "the historical background,"... and "specific sequence of events leading up to the challenged decision"... As well as "departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role; substantive departures too may be relevant" in determining racially discriminatory intent. In the drawing of Congressional Districts 23 and 27 and Texas House Districts 33, 78 and 117 I have concluded that indeed race was the predominant factor guiding the redistricters. They intentionally manipulated the Hispanic population numbers, provided for redistricting, to insure the re-electibility of the incumbents to the exclusion of the representational interests of Latinos thereby Civ. Action No. 1:11-cv RMC-TBG-BAH 8

118 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 10/25/11 Page 10 9 of preventing this protected population from having the opportunity to elect a candidate of their choice. Additionally, it is my opinion that the redistricting committee completely ignored the wishes of South Texas in considering drawing an additional House district in the region of Cameron and Hidalgo Counties. Now I will discuss each of the counties and districts upon which I am reporting. El Paso County It is my observation that the distribution of the Latino population and Spanish Surnamed Voter Registration (SSVR) numbers were uneven across the five Texas House districts in Plan H283 in El Paso County. A close inspection of each district reveals that the Latino population could be more evenly distributed among all five districts resulting in giving Latinos the opportunity to elect their preferred candidate in all ofel Paso's House districts (Exhibit 1). For instance, in districts 75, 76, 77 and 79 the SSVR is above 64.6% with HD7 6 having an SSVR of 89.4% at the highest end of the range and HD79 having an SSVR of 64.6%. Yet on the northern edge of the county, bordering HD77 and HD79lies HD78 with only an SSVR of o/o (Exhibit 2; Exhibit 3). Further investigation reveals that 14 VTDS or precincts were minutely split to arrive at this imbalance of SSVR among all five Texas House Districts (Exhibit 4; Exhibit 5). Finally, the deliberateness of the redistricters can be visibly seen in the Google Earth Satellite Photo (Exhibit 6) as the southeastern boundary of H78 "snakes" its way through Latino neighborhoods. These exhibits together with the affidavit of Ms. Carmen Rodriguez, a resident and native of El Paso, Texas, support my opinion that the redistricters were consciously Civ. Action No. 1:11-cv RMC-TBG-BAH 9

119 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of manipulating heavily Latino precincts and neighborhoods to avoid creating a House district in the northern part of El Paso County that would allow Hispanics to elect a candidate of their choice. Dr. Richard Engstrom's racially polarized voting analysis demonstrating that Representative Margo was not the Latino candidate of choice in HD 78 in the 2010 General Election lends even more substantiation to my opinion. (Engstrom Corr. Rebuttal at ) Bexar County In Bexar County, Plan H283 reduces the SSVR of HD 117 from 50.8% to 50.1 %. A review of Dr. Lisa Handley's election performance research (A Section 5 Voting Analysis of the Proposed Texas House Plan) indicates that the performance level of HD117 is reduced from 60 to 20 (100 point scale) making this district even less likely to allow Hispanics to elect a preferred candidate. This severe reduction is underlaid by the racially polarized nature of the electorate in HD117 as evidenced in the same report by Dr. Handley. The redistricters again carefully removed high performing Latino districts from the Westside of San Antonio, Texas and replaced them with higher performing Anglo precincts from the far northwest side of the city. In effect, the redistricters not only reconfigured HD117 from the benchmark to H283 geographically but also changed the political dynamics of the district in that they have created what appears to be an Hispanic majority or opportunity district but in substance is not (Exhibit 7). Nueces County The H283 Plan completely eliminates House District 33 that exists in the benchmark plan (Exhibit 8). This district has historically been located in the heart Civ. Action No. 1:11-cv RMC-TBG-BAH 10

120 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of of Corpus Christi, Texas and was a majority SSVR district. The effect is that under H283 Nueces County is deprived of a Latino majority district and their representation in the state legislature is reduced from three members to two. The elimination of House 33 represents the elimination of a district where Latinos have the opportunity to elect a preferred candidate. Cameron and Hidalgo Counties An additional House district can be added in the geographical area along the Mexican border known as "The Valley" which is centered in Cameron and Hidalgo Counties (Exhibit 9). A close perusal of the deviations among the 6 districts, drawn under H283, and two other surrounding districts indicates that there is sufficient population to create an additional district in this region. Adding a new district in this region is important because "The Valley" has been one of the fastest growing population centers of the state over the last two decades. Also, and almost equally as important, is this area has traditionally and historically been understood as an integrated economic, cultural, social and political region of Texas. The small towns in this region share a rich common history reaching further back than the founding of the state and represent a unique community of interest. United States Congressional District 23 Latinos have an opportunity to elect a candidate of their preference in CD23 under the benchmark plan. Engstrom Corr. Rebuttal at Under C185, however, the opportunity to elect for Latinos is reduced even though the district remains majority Hispanic. This reduction is based on the cracking of a traditional voting community on the South Side of San Antonio, Texas (Exhibit 10; Exhibit 11: Civ. Action No. 1:11-cv RMC-TBG-BAH 11

121 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of Exhibit 12). This community, bound on the west by Lackland AFB and on the east by Interstate Highway 10 stretching all the way south to Highway 1604 and north to the central city, has been an entire community of interest within CD 23 historically. Under C185 the South Side, as it is traditionally known in San Antonio political and social culture, has been "cracked" three ways with the majority of this population moved into both new CDs 20 and 35. In another part of benchmark CD23, the city of Eagle Pass, Texas and the county in which it resides, Maverick, has been "cracked" or "split" in two sending half the population into neighboring CD28. Maverick County has traditionally been kept whole in CD 23 until now (Exhibit 13). The same type of "splitting" and "cracking" has occurred to several small towns in El Paso County (Exhibit 14; Exhibit 15). Finally, the addition of counties from CD 11 where the Latino community underperforms, essentially voting at lower rates than other Latino communities throughout CD23 such as the parts of the South Side of San Antonio excluded from CD23 in C185 (Exhibit 16). The redistricters simply replaced high performing/participation Latino voters with low participation Latino voters (Exhibit 17). In my opinion this is tantamount to a "bait and switch" making CD 23 in C185 appear to be a Latino opportunity district when in substance it is not. Under CD23 in C185 Latinos are deprived of their opportunity to elect a preferred candidate even though they remain a majority of the population. In order to achieve this end the redistricters laboriously and intentionally manipulated the district's boundaries to add and subtract more than 612,191 individuals to simply Civ. Action No. 1:11-cv RMC-TBG-BAH 12

122 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of reduce the population of CD23 by 149,163 to meet the "one person, one vote" requirement of the constitution. Redistricters moved in a total of 231,514 new individuals and also removed 380,677 individuals from the district (Exhibit 18). Beyond the manipulation of the population in absolute numbers, a deeper analysis of the registered voters within the district together with the performance of the Hispanic preferred candidates in 14 endogenous elections between 2002 and 2010 lend substantiation to my conclusion (Exhibit 19). If one compares the percentage turnout of SSVR in the benchmark C100 plan for CD23 with that of SSVR in C185 one will note that the SSVR turnout for the 2010 General Election drops 1.98% from 24.84% to 22.86% (Exhibit 17). Taking the analysis another step further one discovers that under the benchmark plan the Hispanic preferred candidate is successful in 7 of the 14 general endogenous elections between 2002 and 2010 for a 50% success rate. Under Plan C185 there is a stark difference in that a reaggregation of the same elections in the redrawn CD 23 reveals that the Latino preferred candidates win only 3 of the 14 elections, a 24.4% rate or more than a 50% reduction from the rate in the benchmark plan (Exhibit 19). The effect on support for the Latino-preferred candidate, as reflected in general election votes for the Latino preferred candidate in CD 23 from the district in the benchmark to the "new" one in C185 is dramatic; the votes garnered by Latino preferred candidates is reduced 3.2% in that district between 2006 and 2010 and 2.4% between 2002 and These data demonstrate that the "new" CD23 in C185 is structured to insure lower Hispanic turnout rates than in the benchmark CD23. These latter observations simply lend further substantiation to my Civ. Action No. 1:11-cv RMC-TBG-BAH 13

123 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of conclusion that the method utilized to redraw CD23 in C185 was designed intentionally to reduce Latino voter turnout in order to insure that Hispanics would be denied an opportunity to elect a candidate of choice. Civ. Action No. 1:11-cv RMC-TBG-BAH 14

124 Case 1:11-cv RMC-TBG-BAH Document Filed 10/25/11 01/04/12 Page of United States Congressional District 27 Latinos have the opportunity to elect their preferred candidate in the benchmark CD27. Engstrom Corr. Rebuttal at In C185 the new CD27 reduced the SSVR from 69.2% to 45.1 o/o when compared to ClOO the benchmark plan. Dr. Richard Engstrom's racially polarized voting analysis demonstrates that Representative Farenthold was not the Latino candidate of choice in CD27 in the 2010 General Election.!d. at 25-26) This 24% reduction in SSVR intentionally dilutes Latino voting power and prohlbits their ability to elect a candidate of choice. The reconfiguration ofcd27 also removes a substantial number oflatinosfrom the configuration of Latino opportunity districts in South Texas and thus deprives voters in this region a seventh Latino opportunity district. 15 Civ. Action No. 1:11-cv RMC-TBG-BAH

125 Case 1:11-cv RMC-TBG-BAH Document Filed 01/04/12 Page 1 of 134 Exhibit E

126 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 12 of of UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC) Plaintiff v. C.A. No. 11-cv-0361 OLG-JES-XR STATE OF TEXAS, RICK PERRY, In His Official Capacity as Governor of the State of Texas, DAVID DEWHURST, In His Official Capacity as Lieutenant Governor of the State of Texas, and JOE STRAUS, In His Official Capacity as Speaker of the Texas House of Representatives. Defendant DECLARATION OF PROFESSOR J. MORGAN KOUSSER I, J. Morgan Kousser, under penalty of perjury, do declare: I have been retained by the plaintiffs in this action to analyze racially polarized voting in recent Texas elections, the extent of compliance of the redistricting plan for the Texas House of Representatives with the one person, one vote principle and the possible reasons for deviations from the equal population standard; and the impact of the plans for the Texas House and Congress on minority voters. The summary below sets out my conclusions in their briefest form, and the rest of this report explains them in more detail and provides extensive evidence for them. 1

127 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 23 of of Redistricting in Texas, 2011: Racially Polarized Voting, Racially Biased Population Deviations, and Racially Gerrymandered Maps Table of Contents I. Summary p. 3 II. Credentials p. 4 III. Defining Racially Polarized Voting p. 7 IV. Statistical Methods for Assessing Racially Polarized Voting p. 9 A. The Aggregation or Ecological Inference Problem p. 9 B. Ecological Regression p. 11 C. Weighted Ecological Regression p. 17 D. King s Ecological Inference p. 19 V. Racially Polarized Voting in Recent Texas Elections p. 26 VI. Violations of the One-Person, One-Vote Principle A. The Larios v. Cox Standard p. 54 B. Other State and Federal Laws Governing Redistricting 1. Population Equality and the Voting Rights Act p The County Line Rule and Compactness p. 60 C. The Fact of Population Disparities in H.B. 150 and Objective Indicators of Bias p. 61 VI. Larios, the Voting Rights Act, and H.B. 150 A. Evidence of Bias in the Legislative Process p. 70 B. What Sorts of Districts Give Minorities an Equal Opportunity to Elect in Texas Today? p. 73 C. H283 Has Fewer Minority Opportunity Districts and Larger Deviations, and Is Less Compact Than Alternative Plans p. 78 D. Inconsistent Application of Standards and Other Indications of Bias in H283 p. 87 E. Maps as Evidence of Intent p. 92 F. The State House Plan: A Short Summary p. 106 VII. S.B. 4: Packing, Dilution, Retrogression A. Biased Process p. 108 B. Alternative Plans and the Gingles Preconditions p. 109 C. Packing Minority Opportunity Districts p. 114 D. Cracking Minority Areas and Tacking Them onto Anglo Counties to Create Safe Anglo Districts p. 117 E. Justifications for S.B. 4 and for Not Adopting Alternatives p.131 F. S.B. 4: A Short Summary p

128 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 34 of of I. Summary 1. First, using the statistical methods conventionally employed in voting rights cases to determine racially polarized voting, I find that voting has been markedly racially polarized in recent general and Democratic primary elections in Texas, and that Latino voters in the state overwhelmingly choose to vote for Democratic candidates, even when Republicans nominate candidates with Spanish surnames. In general elections, African-Americans almost unanimously support Democratic candidates, regardless of whether Republicans nominate Anglos or Latinos. A majority of Asian-Americans supported Latino Democratic statewide candidates in the 2010 general election. Second, I find that the extensive population disparities in the redistricting plan for the State House of Representatives (H.B. 150) tend to disadvantage Latinos and have no other plausible explanations except partisanship, which is difficult to separate from ethnicity in Texas. Third, I find that despite the massive growth of the Latino population in Texas, which was largely responsible for the addition of four congressional seats to the state, the largest population growth of any state in the country, the number of minority opportunity districts in the adopted plans did not increase, and probably decreased, compared to the previous apportionment plan. Fourth, evidence from maps of both State House and congressional districts, as well as the patterns of the racial composition of districts and remarks during legislative debates makes clear an intent to discriminate against minorities during redistricting. Fifth, the existence of polarized voting and of alternative plans to those adopted that are more or equally compact and that offer minorities many more opportunities to elect candidates of their choice demonstrates that a challenge under Section 2 of the Voting Rights Act at least passes the threshold Gingles factors. 3

129 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 45 of of II. Credentials 2. I am a professor of history and social science at the California Institute of Technology. Educated at Princeton and Yale, I have been a visiting professor at Michigan, Harvard, and Claremont. In , I was Harmsworth Professor of American History at Oxford. As my curriculum vitae, attached, shows, I ve published three books and edited another, in addition to 42 scholarly articles, 79 book reviews, and 24 entries in reference works. My work has focused on minority voting rights, educational discrimination, race relations, the legal history of all of the foregoing subjects, political history, and quantitative methods. I have been executive editor of the journal Historical Methods, which specializes in interdisciplinary and quantitative history, since My 1999 book, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction, was co-winner of the annual Lillian Smith Award of the Southern Regional Council for the best book on the South and co-winner of the annual Ralph J. Bunche Award of the American Political Science Association for the best scholarly work in political science which explores the phenomenon of ethnic and cultural pluralism. One of my most recent articles, The Strange, Ironic Career of Section Five of the Voting Rights Act, , published in the Texas Law Review, is the first comprehensive history of the Act s first 42 years. My curriculum vitae is appended to this report as Attachment C. 3. I have previously testified or consulted in 35 federal voting rights or redistricting cases and five state cases (in Alaska and California). Many, such as the key case of City of Mobile v. Bolden, concerned whether at-large systems of voting were adopted or maintained with a racially 4

130 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 56 of of discriminatory intent or whether they had discriminatory effects. Others, such as Garza v. Los Angeles County Board of Supervisors, involved questions of racial gerrymandering. My testimony on the racial intent of those who redistricted the Los Angeles County Board served as the basis for the district and appeals court decisions on that issue in Garza, and their opinions on intent provided the framework for the Justice Department s standard objection letter on the grounds of discriminatory intent under Section 5 of the Voting Rights Act during the 1990s. In some cases, such as Bolden, Garza, and the 2003 Texas re-redistricting case, LULAC v. Perry, the sources of my testimony were primarily qualitative. During the 1990s round of redistricting, I wrote expert reports for the cases of Shaw v. Hunt (North Carolina) and Bush v. Vera (Texas) examining the history of redistricting in those states from 1970 on. Revised for publication in Colorblind Injustice, those reports take up two chapters totaling 74 pages with numerous citations to newspapers, depositions, and governmental documents, as well as to secondary sources. A revised version of my Garza report, based on similar sources, comprises a 69-page chapter of the same book. In six other federal cases, such as the 2002 California state redistricting case, Cano v. Davis, and five cases brought under the California Voting Rights Act, the sources of my testimony were primarily quantitative. 4. My first published article was the earliest extensive introduction to ecological regression analysis for the historical profession. Throughout my career, in scholarly books and articles, as well as in legal testimony, I have written about and employed ecological regression, which has been the chief statistical means of determining whether voting is racially polarized. Even before ecological regression was employed by any expert witness in a voting rights case, I used it in my 5

131 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 67 of of th 1971 doctoral dissertation to estimate the patterns of voting of southern blacks in the late 19 and th early 20 centuries. Previous historians had only been able to guess how African-Americans voted and whether they voted, and they could therefore not tell when blacks were disfranchised or make valid inferences about how they were disfranchised by violence, fraud, or the passage of laws or why for merely racial, or for both racial and partisan purposes. The development of ecological regression in sociology and political science, and my close study of that method and related ones in graduate school and afterwards made it possible for me to answer those questions much more systematically. Thirty-two tables in The Shaping of Southern Politics were based on ecological regression the first widespread use of ecological regression by a historian. Ecological regression was later extensively used in voting rights cases (by others, as well as by me), for example, in Thornburg v. Gingles (1986), the first major U.S. Supreme Court case to interpret the 1982 amendments to Section 2 of the Voting Rights Act. In 2001, I published a lengthy article examining issues in several models of ecological inference, including ecological regression and Gary King s EI, which have been used to determine the extent of racially polarized voting in recent federal voting rights cases. That article is appended to this report as Appendix B. 6

132 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 78 of of III. Defining Racially Polarized Voting 5. The federal case law definition of racially polarized voting derives from the federal district court s opinion in Gingles v. Edmisten, 590 F.Supp. 345, (EDNC 1984) and the Supreme Court s decision in Thornburg v. Gingles, 106 S.Ct. 2752, (1986). It must be admitted that the Supreme Court did not establish a very bright line, remarking that the degree of bloc voting which constitutes the threshold of legal significance will vary from district to district there is no simple doctrinal test for the existence of legally significant racial bloc voting. But Justice Brennan did offer two more specific definitional statements in Gingles: And, in general, a white bloc vote that normally will defeat the combined strength of minority support 2 plus white crossover votes rises to the level of legally significant white bloc voting. He also adopted definitions offered during the district court trial by Prof. Bernard Grofman, who declared that racially polarized voting exists where there is a consistent relationship between [the] race of the voter and the way in which the voter votes... black voters and white voters vote differently Although subsequent discussions in federal cases and the political science literature have not 1 Thornburg v. Gingles, at Thornburg v. Gingles, at Thornburg v. Gingles, at 2768, n

133 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 89 of of added much more clarity to the discussion, the two basic operational definitions that are used track Grofman s comments quoted in Gingles. One simply asks whether a majority of one group votes differently from a majority of another for example, it would find racially polarized voting if 51 percent or more of Latinos voted for Linda Chavez-Thompson for Lieutenant Governor in 2010, while 49 percent or fewer non-latinos did. The second asks whether the relationship between ethnicity and voting is statistically significant at conventional levels. In the second definition, elections could be said to be racially polarized even if majorities of both groups or minorities of both groups voted for the same candidate or proposition, so long as there were a statistically significant difference between their voting patterns. Depending on the number of precincts, there might, for instance, be a statistically significant difference between non-latino and Latino voting if, as in Texas, between 67 and 71 percent of the Latinos are estimated to have voted for Blake Bailey, the Democratic nominee for position 9 on the Supreme Court, in the 2010 general election, and only percent of non-latinos backed him. It has always seemed to me that both definitions contribute to the general assessment of racial polarization in a jurisdiction, and I have found no convincing argument or legal authority for choosing between them. 4 See, e.g., J. Gerald Hebert, Donald B. Verrilli, Jr., Paul M. Smith, and Sam Hirsh, The Realists Guide to Redistricting: Avoiding the Legal Pitfalls (Chicago: American Bar Assn., 2000), 41-44; Bernard Grofman, Lisa Handley, and Richard G. Niemi, Minority Representation and the Quest for Voting Equality (New York: Cambridge University Press, 1992),

134 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 910 of of IV. Statistical Methods for Assessing Racially Polarized Voting 7. Although political scientists began as early as the 1930s to use regression analysis to study elections, and although statistical methods have been used since the 1970s to estimate the degree of ethnically polarized voting in federal voting rights cases, the techniques are less familiar in state litigation. An intuitive explanation of the three different statistical methods used in this report may assist judges and others in weighing the evidence. It is not necessary to understand all of the mathematics behind these methods to grasp their essential natures. Visual aids will guide intuitions. A. The Aggregation or Ecological Inference Problem 8. Social scientists would often like to know how individuals with certain characteristics (race, class, gender, etc.) voted in particular elections, or whether they turned out at all. But in the presurvey era and in most elections below the presidential level even more recently, we have no direct evidence about individual voting choices. Instead, we often have election returns in which individuals have been grouped into precincts, townships, counties, etc. We may also have information, for example, from censuses, on the socioeconomic traits of these precincts, townships, and/or counties. 9. If voters or potential voters were perfectly segregated in these aggregate or ecological units 9

135 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of (e.g., precincts) on the basis of the trait we were particularly interested in (e.g., ethnicity), then it would be simple to determine how individuals voted. For instance, we could just look at all of the 100 percent Latino precincts and determine how every Latino voted, because we would know that only Latinos lived in those precincts, and that no Latinos lived elsewhere. Fortunately for society, but unfortunately for social scientists, living patterns are more mixed, and inference is more difficult. 10. The precinct-level data that we usually are presented with shows some, but not perfect ethnic segregation. Many precincts and even state House districts in Texas have almost no Latino registered voters, some are about a quarter Latino, and in a large number, Latinos currently make up over half of the electorate. But there are not many 100 percent Latino precincts, and there are no 100 percent Latino districts in the state House of Representatives. Generally speaking, the greater the range of ethnically different precincts and the larger the proportion of an ethnic group in a community, the more solid the inferences about that group s voting behavior. We are lucky that Texas collects and makes available a profusion of electoral and census data at the precinct level and that a sizable proportion of the state s voters come from different ethnic groups and reside in relatively homogeneous precincts. Data for this report was provided to me by the Mexican-American Legislative Caucus. The Caucus staff originally received the data from the Texas Legislative Council. Plentiful data and considerable socioeconomic diversity make Texas an ideal place to study racial bloc voting. 10

136 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 112 of of B. Ecological Regression 11. How do we estimate individual voting behavior if we have only precinct-level data? In 1959, statistician Leo Goodman introduced what he called ecological regression, and that has 5 been the dominant method used since then by historians and political scientists. It was in effect endorsed by Justice William Brennan in the leading federal Voting Rights Act case on racially polarized voting, Thornburg v. Gingles (1986), since that is what Prof. Bernard Grofman, the principal expert witness in the case, used to estimate racial polarization The easiest way to comprehend ecological regression (which I will hereafter refer to as ER ) is to consider some graphs. Figure 1 plots the percentages in each district of the Texas State House for Linda Chavez-Thompson, the only Spanish-surnamed candidate for Lieutenant- Governor in the 2010 Democratic primary election, against the percentage of the registered 7 voters in each State House district who had Spanish surnames (whom I will hereafter refer to as 5 Leo A. Goodman, Some Alternatives to Ecological Correlation, American Journal of Sociology 64 (1959), For the first extensive article on the subject in a historical journal, see my Ecological Regression and the Analysis of Past Politics, The Journal of Interdisciplinary History 4: (1973) S.Ct. 2752, Justice Brennan explicitly rejected an effort to use multiple regression to control for other traits of individuals or candidates in estimating the degree of racial polarization. Defendant North Carolina and the U.S. Department of Justice in an amicus brief had suggested that if one controlled for such variables as party or which candidates were incumbents, the effect of race on candidate choice might be reduced or eliminated statistically. Justice Brennan accepted the plaintiffs argument that it was the pattern of racial polarization per se that mattered, not what motivated black voters to vote differently from white voters. 7 Texas has over 8000 precincts in the state as a whole. While I calculated coefficients in several of the tables below using data from all of those precincts, the large amount of data creates 11

137 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Latinos for convenience). It shows that as the percentage of Latinos went up, the percentage for Chavez-Thompson went up dramatically, as well. The straight line (the regression line ) tells us how the dependent variable in this case, the percentage for Chavez-Thompson -- changed, on average, as the independent variable in this case, the percentage Latino changed. 13. ER estimates voting by each ethnic group by asking, in effect, how precincts that were 100 percent Non-Latino or 100 percent Latino would have voted, on average. At least in this simple model, ER attributes the same propensity to vote for Chavez-Thompson to every Latino or every Non-Latino in the jurisdiction. Graphically, a 100 percent Non-Latino (Non-Hispanic white, black, and/or Asian-American) precinct would fall on the left vertical axis, so ER determines where the regression line intersects that axis at 37.4 percent in this instance and concludes that 37.4 percent of the non-latino Democrats in Texas voted for Chavez-Thompson. Likewise, ER estimates Latino voting behavior by asking where the regression line would intersect a line a swarm of points that obscures, rather than illuminates the pattern in a graph. I therefore present graphs only for data encompassing the 150 House districts. 8 The list of Spanish surnames, originally compiled by the U.S. Bureau of the Census, has been widely used in Texas and California for decades to match against lists of voting registrants and those who turned out at the polls. During the statewide and local redistricting processes of the 1990s and 2001, for example, the list was considered authoritative by politicians, scholars, and judges alike om California. See, for example, my articles on these two redistrictings, which made extensive use of statistics based on the Spanish surname list. Reapportionment Wars: Party, Race, and Redistricting in California, , in Bernard Grofman, ed., Race and Redistricting in the 1990's (New York: Agathon Press, 1998), ; Has California Gone Colorblind?, in Frederick Douzet, Thad Kousser, and Kenneth P. Miller, eds., The New Political Geography of California (Berkeley: Institute of Governmental Studies, 2008),

138 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of drawn vertically above the point on the right of the graph corresponding to a 100 percent Latino precinct. In this case, the regression line would intersect with that vertical line at 89.4 percent. Because the standard errors in parenthesis below the equation in Figure 1 are low, we can be sure that the difference between the two estimates (37 percent and 89 percent) is statistically significant at virtually any level of confidence. That is to say, the voting behavior of Spanishsurnamed voters and the rest of the electorate was strikingly different and was strongly racially polarized by either of the two definitions given earlier. 14. Below this and other graphs, I have placed the ordinary least squares or OLS regression equation that determines the regression line. This simplest version of a regression equation takes the form (1) Y = a + b X + e, where Y is the dependent variable, in this case, the percentage for Chavez-Thompson; a is the intercept, the point at which the regression line crosses the Y axis, in this case 37.4 percent; b is the slope of the regression line, which in this case is the amount the line differs in two precincts, one of which had no Latinos, and the other of which was all-latino; as the Latino proportion rose from 0 percent to 100 percent, the regression line rose by

139 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of percent; X is the independent variable, the percentage Latino of the registrants, in this instance; and e is an error term, an indication that we are somewhat uncertain about our estimate. How uncertain we are may be gauged by the standard errors for each coefficient, which are placed in parentheses underneath the respective a and b coefficients in the equations below the graphs in this paper. A coefficient that is twice or more its standard error is considered statistically significant at the conventional 0.05 level of statistical significance, which means that we would only observe a coefficient this different from zero (or any other particular number) five times out of a hundred, if the variables were actually completely unrelated to each other. Here, the coefficients are many times their standard errors, so we can be quite certain that they measure relationships that are different from zero in the population. Standard errors can also give indications about whether two different estimates are approximately equivalent. If one estimate is that 10 percent of a group voted for a particular candidate, and the standard error of that estimate is 2 percent, and another estimate is that 14 percent of the same group voted for that candidate, and the standard error is 3 percent, then the standard errors overlap a high percentage 2 of the time, and the two estimates cannot be safely distinguished. The R or percentage of variance in the dependent variable explained by the independent variable tells us how well one variable explains the other how strongly the two are related and how tightly the points are clustered around the regression line. Here, Latino turnout alone explains 66.3 percent of the 14

140 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of variation in the percentages for Chavez-Thompson in the Democratic primary a very high level for social science. 15

141 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 1: 2010 Democratic Primary for Lieutenant-Governor: Ordinary Least-Squares Estimate of Ethnicity and Vote for Chavez-Thompson Estimating Equation: % for Chavez-Thompson = (% Latino) (0.010) (0.030) 2 R =

142 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of C. Weighted Ecological Regression 15. But the precincts are not all the same size in Texas, and turnout varied somewhat from State House district to district. Weighted regression allows one to count larger precincts or districts that turned out more heavily than smaller precincts or districts with fewer votes in calculating the coefficients, and STATA can produce graphs in which each precinct is represented by a circle that is proportional to the number who voted (or registered, or any other appropriate weighting quantity) in the precinct or district, rather than by dots of equal size. Figure 2 is one such graph, a version of the same data as in Figure 1 on the 2010 primary for Lieutenant-Governor, but with a slightly different regression equation and circles of different sizes. Readers will note that the pattern of the points and the coefficients that are estimated are close to those in Figure 1. Several of the districts with the highest turnout, and therefore the largest circles, are in quite heavily 2 Latino constituencies, and the R is even higher than in Figure 1, explaining more than three- quarters of the variance in votes for Chavez-Thompson. The similarity in coefficients in the unweighted and unweighted estimates is quite reassuring, because it means that the judgment that the primary contest was a racially polarized election was not merely the product of a particular weighting scheme, one that gave less emphasis to larger precincts or districts with more votes than it might have. 17

143 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 2: Weighted Ecological Regression Graph of Racial Polarization in the 2010 Democratic Primary for Lieutenant-Governor Estimating Equation: % for Chavez-Thompson = (% Latino) (0.011) (0.025) 2 R =

144 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of D. King s Ecological Inference 16. As I have shown elsewhere, ER is more sophisticated and flexible than it is often considered 9 to be. Nonetheless, ER has two major deficiencies. First, it sometimes produces estimates outside the percent logical bounds. Second, it does not make use of all of the available aggregate information. Gary King, a political scientist at Harvard, sought to overcome these difficulties with his celebrated ecological inference or EI technique The first problem may be illustrated by looking at the relationship between ethnicity and votes for Vilma Luna, the Democratic candidate for state representative from district 33, in the 2002 general election, which is pictured in Figure 3. This election was so ethnically polarized, resulting in a very steep regression line for the relationship between the percentage of votes for Luna and the percentage of voters in each precinct who had Spanish surnames, that the line would intersect the right-hand axis above 100 percent, which is outside the logical zero-one bounds. In the analogous graph (not shown here) for Lauro Cuellar, Luna s Republican opponent, the regression line slants so steeply down from left to right that it would intersect the right-hand line at negative 2.2 percent, implying that a negative number of Spanish-surnamed voters cast ballots for the Spanish-surnamed Republican. Out-of-bounds estimates are most common when the relationship between two variables is very strong and/or when one group whose behavior we are investigating represents a small part of the electorate Kousser, Ecological Inference from Goodman to King, Historical Methods 34 (2001), 10 King, A Solution to the Ecological Inference Problem: Recovering Individual Behavior from Aggregate Data (Princeton, N.J.: Princeton University Press, 1997). 19

145 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 3: An Out-of-Bounds ER Estimate Estimating Equation: % for Luna = (% Latino) (0.018) (0.297) 2 R =

146 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of The second deficiency of ER is a bit more complicated. Consider Table 1, which gives the election results and ethnic percentages in a hypothetical Texas precinct in The figures on the right-most column tell us that the precinct was 73 percent non-latino and 27 percent Latino. Those on the bottom row inform us that the precinct voted for David Dewhurst, the 2010 Republican nominee for Lieutenant-Governor, by a margin. What we are trying to estimate are the P s (for probabilities ) in the cells in the middle of the table, which are subscripted to indicate which row and column they occupy. P 11 signifies that the entry is in the first row, first column, P 12 means first row, second column, and so on. 19. Note that the values of the columns on the edges of the table set some limits on the P s. Assuming for the purposes of the example that everyone in the precinct voted and that they all voted for one of the two major-party candidates, no more than 55 percent (40/73) of the non- Latinos could have voted for Linda Chavez-Thompson in this precinct, because non-latinos comprised 73% of the voters, and only 40% of the votes were cast for Chavez-Thompson. On the other hand, if all of the Latinos voted for Chavez-Thompson, then at least 18 percent of the Non- Latinos must have, as well, because the maximum Latino vote was 27 percent, leaving 13 percent of the pro-chavez-thompson votes that had to have been cast by non-latinos. Since non-latinos comprised 73 percent of the voters, 18 percent of them (13/73) at a minimum must have favored the Spanish-surnamed candidate. 20. Figure 4 provides a geometric version of the above algebraic argument. Observe that the axes are different from those in Figures 1 to 3. In Figure 4, the horizontal axis depicts the 21

147 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 223 of of proportion of Non-Latinos who voted for Chavez-thompson, and the vertical axis reflects the proportion of Latinos who did so. The line across the square represents the bounds for this precinct calculated above from Table 1. It shows that the estimate of non-latino voting for Chavez-Thompson in this precinct must mathematically range from 18 percent to 55 percent (and conversely, that the percentage of non-latinos who voted for Dewhurst had to be between 45 and 82 percent). Unfortunately, the voting behavior in this precinct puts no constraints on our estimate of Latino voting on the proposition, which could have potentially varied from no support of Chavez-Thompson to unanimity behind her candidacy. 22

148 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 1: The Relationship Between the Vote in 2010 Lieutenant-Governor Race and Ethnicity in a Hypothetical Precinct Vote in 2010 Lieutenant-Governor s Contest Ethnicity Chavez-Thompson Dewhurst Ethnic % Non-Latino P11 P12 X 1 = 0.73 Latino P21 P22 X 2 = 0.27 Vote % Y 1 = Y 2 =

149 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 4: A Bounds Plot for the Data in Table 1 24

150 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of More generally, such bounds are most informative when a group comprises a large proportion of a particular precinct. If every precinct were composed of close to 50 percent of each of two groups (as is the case for gender, for example), the bounds would tell us almost nothing, for the line in Figure 4 would go from the northwest to the southeast corner or close to it, indicating that each group s minimum vote for a measure or candidate could have been close to zero, and its maximum, close to 100 percent. 22. King s technique of ecological inference or EI makes use of the fact that precinct totals usually put some limits on possible voting behavior, as well as of the increased power and speed of current computers. To avoid the technicalities: what EI does is first to run something like an ER, and then, using that information, estimate where on bounds lines like that in Figure 4 a point is most likely to lie. It calculates the estimate by generating, through computer simulation, a normal or bell-shaped curve in a third dimension on top of each bounds line. Unlike a usual bell curve, however, this one is forced to stop at the edges of a square like that in Figure 4. The values of the points generated in the simulation (usually of 100 points per bounds line) are then averaged, giving us the most likely point on the line for example, the most likely combination of Latinos and Non-Latinos who favored Chavez-Thompson for that precinct. The bell curve need not have its apogee at the center of the line; indeed, it will usually be skewed toward one end or the other. Every precinct will have its corresponding bounds line and its corresponding estimate of what are referred to in Table 1 as P 11 and P 21, the proportions of non-latinos and Latinos, respectively, who favored Chavez-Thompson. EI then multiplies the estimate for each precinct by the population of the precinct and averages these to get a jurisdiction-wide estimate. 25

151 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of In brief, the chief advantages of EI over ER for estimating racially polarized voting are that it makes use of the information in the precinct bounds, which ER ignores, and that it has interesting diagnostic tests (which will not be presented or discussed in this paper). EI is guaranteed to produce estimates that are within the percent logical bounds. Its principal deficiencies are that it does not accommodate multiple independent or dependent variables. In addition, unlike ER or weighted ER, EI does not guarantee that voting estimates add to 100 percent of each ethnic group in elections in which there are more than two choices e.g., three candidates or two 11 candidates and abstention. V. Racially Polarized Voting in Recent Texas Elections 24. Tables 2-16 which follow may look complicated, but they demonstrate four simple points: First, voting in recent Texas elections has been ethnically polarized. Latinos and non-latinos vote differently. Second, that pattern is not simply a function of partisanship. Ethnic polarization is often even more stark within Democratic primaries when Latino candidates run against non- Latino candidates than it is in general elections. Third, Latino voters in Texas overwhelmingly favor Democratic nominees, even when Republican nominees have Spanish surnames. Indeed, some non-latino Democratic nominees have received more than 85 percent of Latino votes in general elections when running against Spanish-surnamed Republicans. Fourth, and less substantively, these results hold across three methods of estimation (ER, weighted ER, and EI) 11 This is because there is a constraint on each choice, but not on the sum of all of the choices. For instance, the estimate of the Latino vote for each candidate must be between zero and a hundred percent in EI, but the estimates of the Latino votes for all candidates need not sum to one hundred percent. 26

152 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of and two levels of aggregation (all the precincts in the state or in individual congressional and State House races, and all 150 State House districts). The patterns inhere in the data, not in the methods or the ways voters were grouped into districts. 25. Table 2, which is based on all of the precincts in the state (approximately 8400, with missing data for tens or hundreds of precincts in each of the statewide contests in the general and primary elections), can serve as a convincing and representative sample. In the three statewide contests which involved Spanish-surnamed candidates, Lieutenant-Governor, Land Commissioner, and Position 9 of the State Supreme Court, Democratic candidates, whether Spanish-surnamed or not, received from 71 to nearly 80 percent of the votes of Latinos who voted, but only 26.6 to 29.7 percent of the votes of non-latino voters. By contrast, Republican candidates received only percent of the votes of Latinos, but 65.8 to 70.1 percent of the votes of non-latinos. These results are very comparable to two statewide contests, for the State Supreme Court, Positions 3 and 5, that did not involve any Spanish-surnamed candidates. And while the only Spanishsurnamed Republican, Eva Guzman, did somewhat better among Latino voters (and somewhat worse among non-latinos) than the other Republican candidates, she still received only about a quarter of the Latino votes. This was a very polarized election, as racially polarized as black/white contests in the Deep South during the 1980s and 90s. 27

153 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 2: 2010 General Election, Ordinary Least Squares, % of Voters, by Precincts (n = 8400) Candidate, Party Latino Non-Latino Lieutenant Governor Chavez-Thompson, D* 75.9 (0.8) 27.0 (0.3) Dewhurst, R 19.6 (0.8) 69.8 (0.3) Jameson, Lib 1.6 (0.1) 2.7 (0.0) Gonzales, Green 2.9 (0.0) 0.4 (0.0) Land Commissioner Uribe, D* 79.8 (0.8) 26.6 (0.3) Patterson, R 18.0 (0.8) 70.1 (0.3) Holdar, Lib 2.2 (0.0) 3.3 (0.0) Supreme Court, Position 3 Sharp, D 77.9 (0.7) 30.4 (0.3) Lehrmann, R 19.3 (9.7) 66.6 (0.3) Strange, Green 2.7(0.0) 2.9 (0.0) Supreme Court, Position 5 Moody, D 78.6 (0.7) 29.3 (0.3) Green, R 18.7 (0.7) 67.6 (0.3) Oxford, Green 2.7 (0.0) 3.1 (0.0) 28

154 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Supreme Court, Position 9 Bailey, D 71.0 (9.7) 29.7 (0.3) Guzman, R 25.6 (0.7) 65.8 (0.3) Armstrong, Green 3.4 (0.1) 4.5 (0.0) 29

155 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 3, which gives the results of the same elections for all of the precincts statewide, but this time, weights the precincts by the total number of votes cast in each contest, mirrors the results of Table 2, in fact, showing somewhat more pronounced racial polarization by party. Tables 4 and 5 are directly parallel to Tables 2 and 3, but based on the 150 observations of the different State House districts, instead of the roughly 8000 precincts without missing data in the state. Substantively, the estimates of voting behavior by Latinos and non-latinos are extremely close to those in the previous tables. The estimates based on the more complicated Ecological 12 Inference procedure corroborate the ER and weighted ER estimates from Tables 2-5. At least in these contests, the general election of 2010 in Texas was markedly racially polarized. 12 As mentioned earlier, there are many missing precincts in the statewide dataset. Stata handles missing data without difficulty, but Ezi, the form of King s EI program that I used to calculate the EI coefficients, does not. Editing over 8000 cases manually to delete missing data for each of the variables would have added hours and hours of drudgery to the process with very little likelihood of producing different results, so I refrained. 30

156 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 3: 2010 General Election, Least Squares Weighted by Votes, % of Voters, by Precincts (n = 8400) Candidate, Party Latino Non-Latino Lieutenant Governor Chavez-Thompson, D* 77.8 (0.9) 26.0 (0.3) Dewhurst, R 17.6 (0.9) 70.9 (0.3) Jameson, Lib 1.7 (0.1) 2.6 (0.0) Gonzales, Green 3.0 (0.0) 0.5 (0.0) Land Commissioner Uribe, D* 81.8 (0.9) 25.6 (0.3) Patterson, R 15.8 (0.9) 71.2 (0.3) Holdar, Lib 2.3 (0.1) 3.2 (0.0) Supreme Court, Position 3 Sharp, D 80.0 (0.9) 28.4 (0.3) Lehrmann, R 17.1 (0.9) 68.8 (0.3) Strange, Green 2.9 (0.1) 2.9 (0.0) Supreme Court, Position 5 Moody, D 80.7 (0.9) 27.9 (0.3) Green, R 16.5 (0.9) 69.1 (0.3) Oxford, Green 2.8 (0.1) 3.0 (0.0) 31

157 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Supreme Court, Position 9 Bailey, D 72.8 (0.9) 27.8 (0.3) Guzman, R 23.5 (0.9) 68.1 (0.3) Armstrong, Green 3.7 (0.1) 4.1 (0.0) 32

158 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 334 of of Table 4: 2010 General Election, Ordinary Least Squares, % of Voters, by House Districts (n = 150) Candidate, Party Latino Non-Latino Lieutenant Governor Chavez-Thompson, D* 73.0 (4.5) 28.4 (1.9) Dewhurst, R 22.4 (4.4) 68.5 (1.9) Jameson, Lib 1.7 (0.2) 2.6 (0.1) Gonzales, Green 2.8 (0.0) 0.5 (0.0) Land Commissioner Uribe, D* 76.9 (4.6) 28.1 (1.9) Patterson, R 20.8 (4.5) 68.8 (1.9) Holdar, Lib 2.3 (0.2) 3.1 (0.0) Supreme Court, Position 9 Bailey, D 67/9 (4.4) 30.6 (1.9) Guzman, R 28.2 (4.1) 65.5 (1.8) Armstrong, Green 3.8 (0.4) 4.0 (0.2) 33

159 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 5: 2010 General Election, Least Squares Weighted by Votes, % of Voters, by Districts (n = 150) Candidate, Party Latino Non-Latino Lieutenant Governor Chavez-Thompson, D* 71.0 (5.5) 26.6 (1.7) Dewhurst, R 24.5 (5.4) 70.3 (1.7) Jameson, Lib 1.7 (0.3) 2.7 (0.1) Gonzales, Green 2.8 (0.1) 0.5 (0.0) Land Commissioner Uribe, D* 74.9 (5.6) 26.2 (1.8) Patterson, R 22.8 (5.5) 70.6 (1.8) Holdar, Lib 2.3 (0.3) 3.2 (0.1) Supreme Court, Position 9 Bailey, D 66.4 (5.4) 28.6 (1.7) Guzman, R 29.6 (5.2) 67.4 (1.7) Armstrong, Green 4.0 (0.5) 4.0 (0.2) 34

160 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 6: 2010 General Election, King s EI, % of Voters, by Districts Candidate, Party Latino Non-Latino Lieutenant Governor Chavez-Thompson, D* 70.7 (1.6) 26.6 (0.4) Dewhurst, R 23.6 (1.4) 70.5 (0.3) Jameson, Lib 1.4 (0.1) 2.7 (0.0) Gonzales, Green 2.8 (0.0) 0.5 (0.0) Land Commissioner Uribe, D* 74.3 (1.6) 26.3 (0.4) Patterson, R 22.2 (1.5) 70.7 (0.3) Holdar, Lib 1.7 (0.1) 0.0 (0.0) Supreme Court, Position 9 Bailey, D 67.9 (1.3) 28.2 (0.3) Guzman, R 27.6 (1.1) 67.8 (0.3) Armstrong, Green 4.0 (0.2) 4.1 (0.1) 35

161 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Although there was little polarization along Latino/non-Latino lines within the Republican primaries in 2010, presumably because there were so few Latino voters who identified with the Republican party, Table 7 and subsequent tables demonstrate that racial-identity voting in Texas is not just a proxy for party. In the two statewide Democratic primary contests in 2010 that featured Spanish-surnamed candidates, voting was more polarized along Latino/non-Latino lines than in the general election. In the contest for Land Commissioner, Hector Uribe received more than 90 percent of the franchises of Latinos who voted, while his opponent, Bill Burton, received nearly 7 out of 10 non-latino votes. For Lieutenant-Governor, Linda Chavez-Thompson was nearly as strongly a favorite of Latino voters as Uribe was, and she gathered between 5 and 9 percent more non-latino votes than Uribe did. Again, the results of Tables 7-11 are very similar, although each uses a different estimating equation or is computed on the basis of a different numbers of aggregate units. Race in Texas elections goes deeper than partisanship. 28. Tables 12-14, which were estimated using precinct-level election returns from the appropriate state representative and congressional districts, make clear that the candidates of choice of Latino voters are Democrats, not Republicans, even if the Republican candidates have Spanish surnames. In only 2 of 12 contests did Latino support for the Democratic nominee drop below 80 percent, and then, not by much. Conversely, two-thirds or more of non-latinos supported the Republican candidate in each general election. Latino Republicans support was the same color as Anglo Republicans support. 36

162 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 7: 2010 Primary, Unweighted Ordinary Least Squares, % of Vote, by Precincts (n = 8400) Candidate Latino Non-Latino Democratic Lieutenant Governor Chavez-Thompson* 87.5 (0.6) 38.3 (0.2) Earle 5.3 (0.6) 46.2 (0.2) Katz 7.2 (0.3) 15.4 (0.1) Democratic Land Commissioner Uribe* 90.8 (0.6) 29.4 (0.3) Burton 9.2 (0.6) 70.6 (0.3) Republican Supreme Court Position 9 Guzman 51.8 (0.6) 66.0 (0.2) Vela 48.2 (0.6) 34.0 (0.2) Republican Supreme Court Position 3 Brown 15.2 (0.4) 16.9 (0.2) Green 17.2 (0.4) 19.7 (0.2) Lehrmann 17.1 (0.4) 18.1 (0.2) Moseley 13.5 (0.4) 18.8 (0.2) Simmons 25.0 (0.4) 17.2 (0.2) Strange 12.0 (0.3) 9.3 (0.1) 37

163 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 8: 2010 Primary, Ordinary Least Squares Weighted by Votes, % of Vote, by Precincts (n = 8400) Candidate Latino Non-Latino Democratic Lieutenant Governor Chavez-Thompson* 87.8 (0.3) 36.2 (0.1) Earle 4.8 (0.3) 49.3 (0.2) Katz 7.4 (0.1) 14.5 (0.0) Democratic Land Commissioner Uribe* 91.4 (0.4) 32.1 (0.2) Burton 8.6 (0.4) 67.9 (0.2) Republican Supreme Court Position 9 Guzman 49.6 (0.7) 67.5 (0.2) Vela 50.4 (0.7) 32.5 (0.2) Republican Supreme Court Position 3 Brown 15.0 (0.5) 17.0 (0.1) Green 18.3 (0.5) 19.1 (0.1) Lehrmann 13.2 (0.6) 18.9 (0.1) Moseley 12.6 (0.5) 18.9 (0.1) Simmons 24.9 (0.5) 17.0 (0.1) Strange 15.7 (0.5) 9.0 (0.1) 38

164 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 9: 2010 Primary, Unweighted Ordinary Least Squares, % of Vote, by State House Districts (n = 150) Candidate Latino Non-Latino Democratic Lieutenant Governor Chavez-Thompson* 89.4 (2.4) 37.4 (1.0) Earle 3.8 (2.5) 47.5 (1.1) Katz 6.8 (0.8) 15.2 (0.3) Democratic Land Commissioner Uribe* 94.2 (3.0) 31.2 (1.3) Burton 5.8 (3.0) 68.8 (1.3) Republican Supreme Court Position 9 Guzman 51.5 (2.4) 68.5 (1.0) Vela 48.5 (2.4) 31.5 (1.0) Republican Supreme Court Position 3 Brown 15.9 (1.8) 17.9 (0.8) Green 17.9 (1.5) 19.6 (0.6) Lehrmann 14.9 (1.7) 18.1 (0.7) Moseley 14.1 (1.1) 18.7 (0.5) Simmons 25.0 (1.6) 17.1 (0.7) Strange 12.1 (1.5) 8.7 (0.6) 39

165 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 10: 2010 Primary, Ordinary Least Squares Weighted by Votes, % of Vote, by State House Districts (n = 150) Candidate Latino Non-Latino Democratic Lieutenant Governor Chavez-Thompson* 90.0 (1.9) 35.5 (1.1) Earle 2.9 (2.0) 49.9 (1.2) Katz 7.2 (0.6) 14.6 (1.3) Democratic Land Commissioner Uribe* 94.7 (2.2) 30.4 (1.3) Burton 5.3 (2.2) 69.6 (1.3) Republican Supreme Court Position 9 Guzman 48.7 (4.1) 68.3 (1.0) Vela 51.3 (4.1) 31.7 (1.0) Republican Supreme Court Position 3 Brown 15.6 (3.1) 16.9 (0.7) Green 16.9 (2.7) 19.4 (0.7) Lehrmann 10.1 (3.3) 19.7 (0.8) Moseley 12.5 (2.0) 19.2 (0.5) Simmons 25.6 (2.6) 16.7 (0.6) Strange 19.2 (2.9) 9.2 (0.7) 40

166 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 11: 2010 Primary, King s EI, % of Vote, by Districts (n = 150) Candidate Latino Non-Latino Democratic Lieutenant Governor Chavez-Thompson* 88.3 (0.8) 36.3 (0.4) Earle 5.3 (0.6) 48.8 (0.3) Katz 7.1 (0.3) 14.6 (0.1) Democratic Land Commissioner Uribe* 92.1 (0.8) 31.7 (0.4) Burton 7.8 (1.0) 68.3 (0.5) Republican Supreme Court Position 9 Guzman 50.7 (2.2) 67.9 (0.4) Vela 48.6 (2.0) 32.3 (0.4) Republican Supreme Court Position 3 Brown 15.8 (0.6) 16.9 (0.1) Green 17.3 (1.0) 19.3 (0.2) Lehrmann 16.2 (0.7) 18.6 (0.1) Moseley 14.1 (0.8) 18.9 (0.1) Simmons 25.2 (1.2) 16.7 (0.2) Strange 14.0 (1.3) 9.1 (0.2) 41

167 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 12: Congressional and State Representative General Elections in which Spanish-surnamed Republicans Ran against Democrats, : Ordinary Least Squares, % of Voters, by Precinct Candidate Latino Non-Latino State Rep. 33, 2002 Luna, D (1.5) 32.4 (1.8) Cuellar, R -1.9 (1.5) 67.6 (1.8) State Rep. 33, 2008 Ortiz, D 94.8 (1.6) 21.6 (2.1) Torres, R 3.8 (1.6) 68.3 (2.1) Garrett, L 1.3 (0.4) 10.1 (0.6) State Rep. 33, 2010 Ortiz, D 92.0 (2.3) 3.5 (3.1) Torres, R 8.0 (2.3) 96.5 (3.1) State Rep. 35, 2004 Gonzalez-Toureilles, D 88.8 (1.6) 11.0 (1.3) Opiela, R 11.2 (1.6) 89.0 (1.3) State Rep. 35, 2006 Gonzalez-Toureilles, D 82.3 (1.7) 22.4 (1.4) Esparza, R 17.2 (1.7) 67.1 (1.4) Elmer, L 0.5 (0.6) 10.6 (0.5) 42

168 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of State Rep. 35, 2010 Gonzalez-Toureilles, D 78.0 (2.3) 19.6 (2.0) Aliseda, R 22.0 (2.3) 80.4 (2.0) State Rep. 78, 2008 Moody, D 82.7 (2.5) 26.4 (2.4) Margo, R 14.2 (2.7) 70.2 (2.5) Collins, L 3.1 (0.4) 3.5 (0.4) State Rep. 78, 2010 Moody, D 79.3 (2.7) 23.4 (2.5) Margo, R 20.7 (2.7) 76.6 (2.5) State Rep. 117, 2008 Leibowitz, D 85.7 (1.8) 31.9 (1.9) Garza, R 14.3 (1.8) 68.1 (1.9) State Rep. 117, 2010 Leibowitz, D 87.5 (2.2) 16.8 (2.3) Garza, R 12.5 (2.2) 83.2 (2.3) Congressional District 23, 2010 Rodriguez, D 82.8 (1.5) 15.7 (1.5) Canseco, R 12.3 (1.5) 76.0 (1.5) Nietschke, L 1.5 (0.2) 2.1 (0.2) Scharf, G 1.0 (0.2) 1.1 (0.2) 43

169 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 445 of of Stephens, Indep. 2.4 (0.3) 5.0 (0.3) Congressional District 27, 2010 Ortiz, D 84.9 (1.2) 8.0 (1.7) Farenthold, R 13.4 (1.4) 80.9 (2.1) Mishou, L 4.0 (0.3) 5.4 (0.4) 44

170 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 13: Congressional and State Representative General Elections in which Spanish-surnamed Republicans Ran against Democrats, : Least Squares Weighted by Votes, % of Voters, by Precinct Candidate Latino Non-Latino State Rep. 33, 2002 Luna, D (1.4) 31.6 (1.4) Cuellar, R -2.2 (1.4) 68.4 (1.4) State Rep. 33, 2008 Ortiz, D 94.2 (1.4) 21.7 (1.5) Torres, R 4.6 (1.5) 68.4 (1.6) Garrett, L 1.2 (0.5) 10.0 (0.5) State Rep. 33, 2010 Ortiz, D 90.1 (2.1) 4.8 (2.1) Torres, R 9.9 (2.1) 95.1 (2.1) State Rep. 35, 2004 Gonzalez-Toureilles, D 91.2 (1.4) 8.9 (1.4) Opiela, R 8.8 (1.4) 91.1 (1.4) State Rep. 35, 2006 Gonzalez-Toureilles, D 84.2 (1.5) 20.7 (1.5) Esparza, R 15.2 (1.5) 69.2 (1.5) Elmer, L 0.6 (0.5) 10.1 (0.5) 45

171 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of State Rep. 35, 2010 Gonzalez-Toureilles, D 80.5 (2.1) 14.1 (2.1) Aliseda, R 19.5 (2.1) 85.9 (2.1) State Rep. 78, 2008 Moody, D 81.8 (3.0) 26.3 (2.5) Margo, R 14.7 (3.2) 70.5 (2.7) Collins, L 3.5 (0.5) 3.2 (0.4) State Rep. 78, 2010 Moody, D 79.3 (3.4) 22.1 (2.8) Margo, R 20.7 (3.4) 87.9 (2.8) State Rep. 117, 2008 Leibowitz, D 86.9 (1.8) 30.2 (1.7) Garza, R 13.1 (1.8) 69.8 (1.7) State Rep. 117, 2010 Leibowitz, D 89.1 (2.1) 14.0 (1.8) Garza, R 10.9 (2.1) 86.0 (1.8) Congressional District 23, 2010 Rodriguez, D 86.5 (1.1) 10.8 (1.0) Canseco, R 8.5 (1.0) 82.2 (0.9) Nietschke, L 1.6 (0.1) 1.6 (0.0) Scharf, G 0.9 (0.0) 1.0 (0.1) 46

172 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Stephens, Independent 2.6 (0.2) 4.4 (0.2) Congressional District 27, 2010 Ortiz, D 81.9 (0.9) 9.3 (1.0) Farenthold, R 13.2 (0.9) 85.5 (1.0) Mishou, L 4.9 (0.3) 5.2 (0.3) 47

173 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 14: Congressional and State Representative General Elections in which Spanish-surnamed Republicans Ran against Democrats, : EI, % of Voters, by District Candidate Latino Non-Latino State Rep. 33, 2002 Luna, D 97.3 (0.7) 36.4 (0.7) Cuellar, R 2.7 (0.7) 63.5 (0.7) State Rep. 33, 2008 Ortiz, D 93.2 (0.9) 22.7 (1.0) Torres, R 6.3 (0.9) 66.6 (0.9) Garrett, L 1.0 (0.1) 10.2 (0.1) State Rep. 33, 2010 Ortiz, D 86.3 (0.8) 8.7 (0.8) Torres, R 15.4 (0.5) 89.6 (0.5) State Rep. 35, 2004 Gonzalez-Toureilles, D 89.1 (0.8) 11.1 (0.8) Opiela, R 11.0 (0.8) 88.8 (0.8) State Rep. 35, 2006 Gonzalez-Toureilles, D 82.4 (1.1) 22.6 (1.1) Esparza, R 16.9 (1.1) 67.4 (1.1) Elmer, L 0.8 (0.3) 9.9 (0.3) 48

174 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of State Rep. 35, 2010 Gonzalez-Toureilles, D 76.9 (1.6) 17.7 (1.6) Aliseda, R 23.1 (1.5) 82.4 (1.5) State Rep. 78, 2010 Moody, D 81.0 (1.4) 27.0 (1.2) Margo, R 15.9 (1.2) 69.5 (1.0) Collins, L 6.0 (0.2) 1.2 (0.1) State Rep. 78, 2010 Moody, D 78.2 (1.5) 23.0 (1.2) Margo, R 21.8 (1.8) 77.1 (1.4) State Rep. 117, 2008 Leibowitz, D 86.4 (1.4) 30.7 (0.7) Garza, R 13.8 (0.7) 69.2 (0.6) State Rep. 117, 2010 Leibowitz, D 88.7 (1.7) 14.4 (1.4) Garza, R 11.3 (1.8) 85.7 (1.5) Congressional District 23, 2010 Rodriguez, D 83.5 (0.5) 13.2 (0.4) Canseco, R 10.4 (0.7) 80.7 (0.5) Nietschke, L 1.4 (0.0) 1.9 (0.0) 49

175 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Scharf, G 0.8 (0.0) 1.0 (0.0) Stephens, Independent 1.8 (0.2) 5.1 (0.1) Congressional District 27, 2010 Ortiz, D 80.6 (0.4) 10.7 (0.4) Farenthold, R 12.4 (0.6) 86.4 (0.6) Mishou, L 4.6 (0.2) 5.5 (0.2) 50

176 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Tables 15 and 16 examine support for Latino candidates in statewide races in 2010, using census data on the voting-age population (not the citizen voting-age population, which was not made available to me at the precinct level) to estimate whether African-Americans and others (chiefly Asian-Americans) supported Latino candidates in the general election. The tables also allow one to gauge Latino voter support for Latino candidates with another (though inferior) measure The most important fact from the table is that African-Americans supported Latino Democratic but not Republican candidates in the general election almost unanimously. Majorities of other ethnic groups supported Latino candidates, regardless of party, in the general election. About two-thirds of Latinos, by this measure, also supported Democratic candidates, regardless of whether they ran against Latino Republicans or not. In general elections in Texas today, a black-hispanic coalition in favor of Democratic candidates is a fact of life. 13 The voting-age population (VAP)is two steps removed from voting registration. For populations with significant immigrant percentages, chiefly Latinos and Asian-Americans in the U.S. today, the citizen VAP (CVAP)of the group is generally a smaller percentage of the whole than its percentage of the VAP is. And registration rates as a percentage of CVAP are generally lower for immigrant than for native-born groups. 51

177 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 15: General Election, 2010, Ordinary Least Squares, % of Vote, by Precincts (n = 8400) Candidate Anglo Black Hispanic Other Lieutenant Governor Dewhurst, R Chavez-Thompson,D Jameson, L Gonzales, G Land Commissioner Patterson, R Uribe D Holdar L Supreme Court, Position 9 Guzman, R Bailey, D Armstrong L

178 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 16: General Election, 2010, Least Squares, Weighted by % of Vote, by Precincts (n = 8400) Candidate Anglo Black Hispanic Other Lieutenant Governor Dewhurst, R Chavez-Thompson,D Jameson, L Gonzales, G Land Commissioner Patterson, R Uribe D Holdar L Supreme Court, Position 9 Guzman, R Bailey, D Armstrong L

179 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of VI. Violations of the One-Person, One-Vote Principle A. The Larios v. Cox Standard 31. In its announcement of the one-person, one-vote principle in Reynolds v. Sims, 377 U.S. 533, at 579 (1964), the U.S. Supreme Court declared that the "overriding objective" of districting "must be substantial equality of population among the various districts" and that deviations from the equal population principle are permissible only if "incident to the effectuation of a rational state policy." As the case law developed, courts allowed some leeway from absolute population equality, particularly in state legislative districts, and the Georgia legislature in 2001 believed that deviations of plus or minus 5 percent in State House and Senate districts could not be successfully questioned in court. A three-judge court in Larios v. Cox, 300 F.Supp. 2d 1320 (2004), however, rejected the idea that any deviations under 5 percent fell within a safe harbor, sheltering the plan from legal attack. If districts that were under-populated often shared partisan or regional traits, and if facts about the process of redistricting suggested that systematic biases underlay the pattern of under- and over-population of districts, then the harbor was no longer safe, the district court concluded, and Reynolds had been violated. The Supreme Court denied Georgia s appeal, without a majority opinion, and with an instructive dissent by Justice Scalia that suggested that even he 14 would have affirmed if the lower court had found a systematic bias against minority voters. 14 Justice Scalia noted pointedly that Appellees do not contend that the population deviations -- all less than 5% from the mean -- were based on race or some other suspect classification. (Cox v. Larios, 542 U.S. 947, at 951 (2004)) 54

180 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 556 of of (Cox v. Larios, 542 U.S. 947 (2004).) 32. The Larios decision and the necessity to justify population deviations of any magnitude, not just those over five percent above or below the target population, were widely noted in guides to redistricting in preparation for the 2011 redistricting. For example, The Realist s Guide to 15 Redistricting states that The 10 percent rule is not, however, a safe harbor. Rather, it is a threshold that allocates the burden of proof for one-person, one-vote claims. State legislative plans with total population deviations below 10 percent still may be struck down if the population deviation resulted from some unconstitutional, irrational, or arbitrary state policy, such as intentionally discriminating against certain groups of voters, certain cities, or certain regions of the state. 16 An article published by the Pew Center for the States just as discussions of the 2011 redistricting were shifting into high gear cites Republican redistricting lawyer E. Mark Braden, who litigated both the Larios case and a parallel New York case that ruled on population deviations in state 17 senate districts as advising that the case that he thinks states should pay attention to [in] this 15 J. Gerald Hebert, Paul M. Smith, Martina E. Vandenberg, and Michael B. DeSanctis, The Realist s Guide to Redistricting, Avoiding the Legal Pitfalls, Second Edition (Chicago: American Bar Assn. Publishing, 2010). 16 Id, at 13, footnotes suppressed. 17 Rodriguez v. Pataki, 308 F.Supp. 2d 346 (S.D.N.Y. 2004). 55

181 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of cycle is Larios. State legislators were on notice that in the 2011 round of redistricting, they had to justify any deviations from population equality. 33. These considerations were brought home in Texas in a Texas Legislative Council (TLC) report prepared for the legislature in February, 2011 and available on the TLC s redistricting 19 website. Although the report noted that the U.S. Supreme Court had established a general ten percent population deviation rule for state legislative redistricting in White v. Regester and Gaffney v. Cummings, it cautioned that Larios v. Cox and other federal court decisions had made clear that a range of deviation of ten percent or less was not a safe harbor. As the report summarized the state of the law on the eve of the Texas legislature s consideration of redistricting in 2011: The 10 percent rule established in the supreme court's legislative equal population cases does not guarantee that the population deviations within a plan with a total range of population deviation under 10 percent will not be subject to a legal challenge on a basis other than one person, one vote. Even if a legislative plan has an overall range of population deviation of less than 10 percent, a pattern of population deviation within that range to further invidious intentional discrimination or that inadvertently results in the systematic underrepresentation of a racial or ethnic group may be held invalid on other 18 Josh Goodman, One person, one vote' still an unsettled question for states, Stateline, Feb. 11, 2011 < 19 Texas Legislative Council, State and Federal Law Governing Redistricting in Texas (Preliminary Draft, Feb., 2011), available at < 56

182 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of grounds.... After Larios, total deviations under 10 percent in plans for legislative districts will be the subject of substantial scrutiny....to minimize the chance of a successful challenge under the somewhat amorphous Larios standard, mapmakers may want to consider, in a legislative redistricting plan with an overall deviation of less than 10 percent, avoiding deviations that consistently advantage or disadvantage a particular political, racial, or ethnic group or region of the state Since the Larios district court s review of the evidence for illegal population deviations is the most extensive of any court s to this time, it is worth a brief summary. The court first examined the process by which the plans were adopted. The redistricting committees were overwhelmingly Democratic, and the plans were developed in Democratic-only subcommittees; Republican plans and amendments were rejected; and the stated principles of the committees revealed no aim to minimize population deviations. Second, the court noted that more Democratic than Republican incumbents were paired i.e., their homes were placed in new districts containing the homes of other incumbents. Third, the court declared without giving any exact counts that The most 20 Id., at It is noteworthy that the March, 2011 draft of this report shortened the discussion of population deviations in state legislative districts from three pages to one paragraph. The first paragraph above was repeated, but the specific discussions of cases were eliminated. The section of the report (Chapter 2, Section D) did end with the following sentence: However, the legislature must be wary of assuming that a plan deviation of less than 10 percent is safe from attack if the population deviation appears to consistently reduce the voting strength of an identifiable group, particularly on the basis of race, ethnicity, or party affiliation. (Unpaginated) In any event, the legislature had both versions available to it, and both made clear that any deviations that had effects that discriminated against racial, ethnic, or partisan groups should not be assumed to be legal, even if they fell within the ten percent limits. < 57

183 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of underpopulated districts are primarily Democratic-leaning, and the most overpopulated districts are primarily Republican-leaning. Fourth, the court observed that plans with lower deviations had been proposed, so that the legislature must have chosen higher deviations for some reason. Fifth, the court counted the number of counties split under the redistricting plans adopted. Sixth, the court recounted the extensive testimony (note that the opinion came three years after the adoption of the plans) about the intention of the legislature to under-populate districts in South Georgia (then a Democratic stronghold) and the inner-cities of the urban areas (still Democratic strongholds). Seventh, the court noted that some of the most over-populated districts were oddly shaped. Although the opinion did not display any indices of compactness or otherwise systematically compare the shapes of too-large or too-small districts, it did list 10 of the 236 districts in the state that it believed were oddly shaped. Eighth, the court pointed to one overpopulated district that bordered on several under-populated districts. 35. The Larios district court then turned to four possible rational state policies that might have justified the deviations, and it rejected each: incumbent protection (because it was inconsistently followed), compactness (because the plan was less compact than its predecessor), keeping counties whole (because the plan did not), and keeping the cores of present districts (because the legislature did that more for Democratic than for Republican districts). 36. In my consideration of population deviations in H.B. 150, I will examine the same or similar factors as the judges did in Larios, and I will attempt to pattern my analysis upon that in the Larios opinion. 58

184 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of B. Other State and Federal Laws Governing Redistricting 1. Population Equality and the Voting Rights Act 37. Although the House and Senate Redistricting Committees apparently did not adopt explicit goals for the redrawing of the districts, members were advised by the TLC of the applicable state 21 and federal legal frameworks. In its July, 2010 Guide to 2011 Redistricting the TLC announced that Two primary requirements govern all redistricting decisions in the state. First, districts of a given type (senate, house, congressional, SBOE) must have equal or nearly equal populations, and second, districts must be drawn in a manner that neither has the purpose nor will have the effect of denying or abridging the right to vote on the basis of race, color, or language group.... Exceptions to the 10 percent deviation limitation have been allowed if based on consistent application of rational state policy such as the preservation of whole counties. In some cases, plans with districts within the 10 percent limitation have been held invalid if the population deviations show a pattern of discrimination. 22 Note that the TLC ranked population equality and compliance with the Section 2 of the Voting Rights Act (from which the effect of denying or abridging language is drawn) ahead of all other requirements. 21 Austin, TX: Texas Legislative Council. 22 Id., at 5. 59

185 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of The County Line Rule and Compactness 38. Ranked lower was the requirement of Section 26, Article III, of the Texas State Constitution, which the TLC summarized as follows: (1) a county with suffi cient population for exactly one district must be formed into a single district; (2) a county with a population smaller than the population needed for a whole district must be kept whole and combined with one or more contiguous counties to form a district; (3) a county that has sufficient population for two or more whole districts must be divided into that number of districts, with no district extending into another county; and (4) each county with a population suffi cient for one or more whole districts plus a fraction of another district must be divided into that many whole districts, with the excess population added to one or more contiguous counties to form an additional district. In practice, it is sometimes impossible to draw a statewide plan that completely satisfies these rules while maintaining districts with equal populations. The Texas courts have allowed a house plan to violate these rules to the extent necessary to draw a plan that complies with the one-person, one-vote requirement The TLC publication on state and federal law governing redistricting noted that The Texas Constitution does not require house districts to be compact.... Federal law does not require 23 Id., at 6. My italics. There is a more detailed discussion in Texas Legislative Council, State and Federal Law Governing Redistricting in Texas, < at Chapter 7, Section V (unpaginated). 60

186 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of compact districts, but failure to draw reasonably compact districts may be viewed as evidence that the districts have been illegally gerrymandered Did the legislature in redistricting the Texas State House follow federal and state law, as summarized in the TLC s redistricting guidelines and in the more detailed discussion of Larios above? 25 C. The Fact of Population Disparities in H.B. 150 and Objective Indicators of Bias 41. Figure 5b is a histogram of the population deviations for the 150 State House districts under H.B If the legislature had been trying to minimize deviations, the histogram would have resembled a normal curve, with the largest number of districts clustered around zero deviations. Instead, it is more U-shaped, with the largest number of districts between 4 and 5 percent underpopulated and between 4 and 5 percent over-populated. Compared to the previous plan, shown 24 State and Federal Law Governing Redistricting in Texas, < at Chapter 7, Section V (unpaginated). Footnote omitted. 25 When Rep. Burt Solomons, the chair of the House Redistricting Committee, presented the committee s bill on the House floor, he began by proclaiming the population equality and county line criteria as aims of the committee, but he did not mention compliance with the Voting Rights Act or the fifteenth amendment, and he made no direct or indirect reference to nondiscrimination considerations drawn from Larios. In order to meet the equal representation requirements under the U.S. Constitution, we need to apportion a 23 percent growth in the states among 150 districts. We also need to comply with the county line rule under Article III, Section 26 of the Texas Constitution, which forbids us from breaking county lines. House Journal, April 27, 2011, at S99. 61

187 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of here in Figure 5a with the original 2000 population census numbers, H.B. 150 is more skewed. In the previous plan, 37 of the 150 districts had deviations greater than 4 percent; in H.B. 150, 45 districts do. 62

188 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 5: Population Disparities in the 2000 Plan Compared with H.B. 150 A Plan Deviations B. H.B. 150 (Proposed 2011 Plan) 63

189 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of If we separate out the House districts in which a majority of the population was Anglo (non- Hispanic white) and those districts where a majority of the population was Latino (leaving out districts with black population majorities or those where no group had a majority), we find a pattern that suggests bias against Latinos. Figure 6a charts population disparities in Anglo districts. Of the 80 Anglo-majority districts, 34 are over-populated and 46 are under-populated. By contrast, of the 37 Latino-majority districts in Figure 6b, 22 are over-populated, and just 15 are under-populated. And of the 15 under-populated Latino districts, 5 are in El Paso County, where the county line rule requires that 5 and only 5 districts be drawn, a rule which, applied to the population total in El Paso in the 2010 census, guarantees that the districts must be underpopulated. If these 5 districts were excluded, then more than twice as many Latino-majority districts would be over-populated as under-populated. 64

190 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 6: Population Deviations in Majority Anglo and Majority Latino Districts in H.B. 150 A. Majority Anglo Districts B. Majority Latino Districts 65

191 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 667 of of Figure 7 demonstrates the partisan, as well as ethnic bias in the process perhaps even more clearly, because it shows that the different patterns of over- and under-population in the proposed districts cannot be explained by any interaction of population patterns with the county line rule. This figure compares over- and under-population in the proposed House districts corresponding to those now represented by Republicans, all Democrats, and just Latino Democrats in the seven most urban counties in the state - Bexar, Dallas, El Paso, Harris, Hidalgo, Tarrant, and Travis. Compared to districts in rural and suburban/exurban counties, districts in urban counties were 26 generally overpopulated. Even districts currently represented by Republicans tend to have slightly more than the statewide average House district population under H.B. 150: 19 are overpopulated and 15 are underpopulated, with an average deviation of But districts now represented by Democrats are more overpopulated under H.B. 150: 22 to 17, with an average deviation of And Latino Democratic districts are even more overpopulated: 13 to 6, with an 27 average deviation of The legislature did this self-consciously, for during debate on the second reading of the bill, Rep. Armando Walle asked Redistricting Committee Chair Burt Solomons: Why do we choose to over populate nearly every minority majority district in Harris 26 Overpopulating urban counties may well be evidence of discrimination in itself. According to the 2010 census, 50.0% of Texas s whole population resides in these seven counties, but 64.0% of its African-Americans and 61.0% of its Hispanics do. If the county line rule, as instituted by the legislature, results in fewer urban members of the House than rural and urban members, proportionate to the population in those areas, then it disadvantages African- Americans and Latinos, unless the plan balances the anti-urban bias by giving them proportionately more seats within those counties. But as the statistics in the text shows, the legislature gave minorities fewer seats than it gave others within the urban counties. 27 If El Paso, three of whose five representatives are Latino Democrats, is eliminated, the ratio of overpopulated to underpopulated districts currently represented by Latino Democrats becomes 13 to 3, with an average deviation of

192 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of County? If the legislature had been aiming at population equality across districts, it could 29 surely have shifted some blocks, apartment complexes, or parts of housing tracts within urban counties to attain it more precisely. Instead, the clear pattern of more overpopulated districts in areas currently represented by Democrats and especially, by Latino Democrats in the seven urban counties indicates that the legislature acted with a partisan and especially racially discriminatory intent. 28 House Journal, April 27, 2011, at S As Rep. Scott Hochberg pointed out, H283 did split a single apartment complex between his and another district, but not for the purpose of equalizing populations. Id., at S

193 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 7: Population Deviations in Urban Districts Must Reflect Partisan and Ethnic Bias A. Republican Districts in Urban Counties B. Democratic Districts in Urban Counties 68

194 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of C. Latino Democratic Districts in Urban Counties 69

195 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of VII. Larios, The Voting Rights Act, and H.B. 150 A. Evidence of Bias in the Legislative Process 44. The legislative process that produced the Texas districts was similar to that in Georgia in 2001, with the political parties reversed. The House committee on redistricting consisted of 12 Republicans (11 Anglo, 1 Latino) and 5 Democrats (1 Anglo, 3 Latino, 1 African-American). The committee plan for the House was constructed almost entirely by the Republican majority, and all amendments by Democratic members aimed at increasing minority representation were rejected 30 both in committee and on the House floor. The simplest, most objective way to demonstrate the lack of influence of minority Democrats on the final plan is to compare the percentages of Hispanic citizens over 18, usually referred to as HCVAP (Hispanic Citizen Voting Age Population) in each district in the initial Republican committee plan and the final plan.. Table 17 looks at the 8 districts in the state in which the HCVAP changed by more than one percent between the initial committee plan, H113, and the plan that finally passed the House, H283. Two districts, 40 and 41, essentially swapped population, one becoming more Latino and one, less, but 31 both were overwhelmingly Latino before and after. In five districts, there were small changes of little political significance. In only one district, district 148, was there a significant increase in the HCVAP percentage, one that moved it from a minority (42.4%) to a bare majority (51.4%). But that district was overwhelmingly Democratic: In the 2010 gubernatorial election, a very good 30 Rep. Burt Solomons acknowledged during second reading debate that neither he nor his staff met with the Black Caucus or any other groups that represented African-Americans in drawing up the Committee s plan, though he boasted of meeting generally with many House members and groups. House Journal, April 27, 2011, at S The swap was more complicated than is presented here. See below, paragraph

196 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Republican year, incumbent Gov. Rick Perry received only 34.5% of the votes under the lines then in effect (H100), and 34.8% of the votes within the bounds of the district under plan H283. In fact, the major Democratic candidate in every general election from 2002 through 2010 carried district 148, and this Houston district has been represented by a Latino Democrat, Jessica Farrar, 32 now the leader of the Democratic Caucus, since So the only change that might be thought to have increased Latino representation between the initial committee plan as introduced and the plan passed by the legislature merely further packed a district in which Latino voters had been able to elect their candidates of choice for at least a generation < 33 Rep. Farrar vigorously pointed this out to Rep. Solomons in a colloquy on the House floor, challenging his contention that the change in her district represented an increase in the number of performing Hispanic districts: But I m glad you brought up my district because I m below 50 percent and yet it elects not just at the state legislature but in local elections, the coalition there has elected Hispanic representatives. So are you aware that the DOJ guideline says, quote, "there is no specific demographic percentage that determines effectiveness. You have to do a functional analysis of the individual district including turnout and election results," end quote. Are you aware of that DOJ guideline? House Journal, April 27, 2011, at S

197 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 17: The Minimal Impact of Minority Democrats on the Final House Plan: House Districts in which the Hispanic Voting Age Population Changed by more than One Percent from the Initial Committee Plan (H113) to the Plan Finally Adopted (H283) District Number % HCVAP, H113 % HCVAP, H

198 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of B. What Sorts of Districts Give Minorities an Equal Opportunity to Elect in Texas Today? 45. To assess the plans offered during the course of the legislature s consideration of redistricting, we must first review and establish some facts about voting in Texas today. First, the reader should recall the patterns of polarized voting: Latinos vote overwhelmingly for Latino Democratic candidates in both primary and general elections, but against Latino Republicans. Anglos vote overwhelmingly against Latino Democratic candidates in both primary and general elections. African-Americans vote almost unanimously for Latino Democratic candidates in general elections, but not in Democratic primaries, at least in the statewide contests in Asian- Americans support Latino and other Democratic candidates in general elections, but they split their votes in statewide Democratic primaries involving Latinos. As a consequence of these facts, it makes sense to combine African-American and Latino voters in districts in order to assess districting plans. In general elections, as Tables 15 and 16 above show, they reliably coalesce. African-Americans and Latinos also support Anglo Democratic nominees in general elections when Anglos win primaries, both in statewide elections and in predominately-minority state House contests. 46. Table 18 displays the ethnic and partisan characteristics of successful candidates for the State House of Representatives in two very different election years, 2008, a presidential election year with high turnout and a good showing for Democrats, and 2010, a landslide for Republicans. In 2008, Democrats won 74 of 150 seats in the House, while in 2010, they won only 51. After 2008, MALC had 44 members; after 2010, only 39. Since turnout and to a lesser extent, voters 73

199 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of allegiance may shift over a decade, it is important to assess the consequences of redistricting plans by considering elections that took place in different political climates and 2010 in Texas qualify. 47. Table 18 considers four different definitions of majority-minority districts: those in which a majority of the voting-age population (VAP) was Hispanic, referred to as HVAP in the table; those in which a majority of the citizen voting-age population (CVAP) was Hispanic, referred to as HCVAP in the table; those in which a combination of the African-American VAP (BVAP) and the HVAP formed majority of the population, referred to as BHVAP; and those in which a combination of the BVAP and HCVAP formed a majority of the population. Because not all Latinos of voting age are citizens, HVAP is somewhat larger than HCVAP in each district, and BHVAP is somewhat larger than BHCVAP. 74

200 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 18: Outcomes in Majority-Minority State House Districts, 2008 and 2010 District Definition Party and Ethnicity of Legislators Elected Democrats Republicans* Latino African- American Asian- American Anglo A HVAP>50% HCVAP>50% BHVAP>50% BHCVAP>50% B HVAP>50% HCVAP>50% BHVAP>50% BHCVAP>50% * Republicans of various ethnicities, but overwhelmingly Anglo 34 Hispanic Voting-Age Population 35 Hispanic Citizen Voting-Age Population 36 Black Voting-Age Population plus Hispanic Voting-Age Population 37 Black Voting-Age Population plus Hispanic Citizen Voting-Age Population 75

201 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Nonetheless, the striking feature of part A of the table is how successful black and Latino voters were in electing their candidates of choice across all four definitions of majority-minority in In districts with an HCVAP majority, Latino Democrats won 93% of the elections, and Republicans carried not a single district. But if one also includes the six other districts with HVAP majorities, Latino Democrats still won 83%, and Republicans took but one (and that in a bare-majority HVAP district). Likewise, Democratic candidates won every contest with BHCVAP percentages of greater than 50%, but also 95% of the races in which the BHVAP was higher than half of the population. It is therefore obligatory to assess redistricting plans not only by the number of HCVAP districts they include, but also by the number of BHCVAP and BHVAP districts. 49. Part B of Table 18 witnesses a downshift, as it were, in the success of minority voters in each of the four kinds of districts in Even in the HCVAP-majority districts, the general election choices of Latinos and African-Americans lost five seats to the Republicans, and in the BHVAPmajority districts, they lost 11, compared to only 3 two years earlier. Still, in this landslide election, Republicans won fewer than 20% of the seats in the districts with the most expansive definition of majority-minority, BHVAP. A BHVAP majority offers protected minorities not just an equal opportunity to elect candidates of choice, but four chances out of five in even the most adverse political circumstances. At these odds, retrogression from a benchmark number of BHVAP-majority seats would raise Section 5 issues, and the failure to draw BHVAP-majority seats when it is demonstrated that they could be drawn would invite a challenge under Section This functional analysis of the electoral behavior within Texas is patterned on the Section 5 76

202 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 778 of of guidelines of the United States Department of Justice. According to those guidelines, A proposed plan is retrogressive under Section 5 if its net effect would be to reduce minority voters effective exercise of the electoral franchise when compared to the benchmark plan. Beer v. United States at 141. In 2006, Congress clarified that this means the jurisdiction must establish that its proposed redistricting plan will not have the effect of diminishing the ability of any citizens of the United States because of race, color, or membership in a language minority group defined in the Act, to elect their preferred candidate of choice. 42 U.S.C. 1973c(b) & (d). In analyzing redistricting plans, the Department will follow the congressional directive of ensuring that the ability of such citizens to elect their preferred candidates of choice is protected. That ability to elect either exists or it does not in any particular circumstance. In determining whether the ability to elect exists in the benchmark plan and whether it continues in the proposed plan, the Attorney General does not rely on any predetermined or fixed demographic percentages at any point in the assessment. Rather, in the Department s view, this determination requires a functional analysis of the electoral behavior within the particular jurisdiction or election district Department of Justice, Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / Notices, at

203 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of C. H283 Has Fewer Minority Opportunity Districts and Larger Deviations, and Is Less Compact Than Alternative Plans 51. Because there was considerable similarity among many of the whole-state plans that were introduced in the House Redistricting Committee or offered as amendments during the second or third readings of the state house plan or those developed as alternatives and proffered in this litigation, it is possible to compare plans offered by Latino and African-American members of the House with the committee-majority plan for the House in two fairly simple tables. Significant ethnic statistics for ten plans are listed in Table 19. Each was either offered in the House redistricting committee, on the House floor, or in the course of the consideration of redistricting, as well as in the current litigation. 78

204 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 19: Comparison of Majority-Minority Districts in State House Plans Plan Id Plan # Roll Call Vote 39 HCVAP 40 > 50% HVAP >50% BHCVAP > 50% BHVAP > 50% Current H H Committee H Alonzo sub H Veasey sub H Committee final H MALC sub H195, amended by H MALC whole county plan H H Final passage H Smaller numbers in House committee; larger numbers on House floor 40 Definitions of majority-minority districts given in Table

205 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of The table demonstrates how much more opportunity every other plan, including the plan in effect from 2002 through 2010 (referred to here as the current plan, H100) offered to minorities to elect their candidates of choice than do the plans introduced by the committee, reported to the 41 House, and enacted. H283, the enacted plan, contains only 47 BHCVAP-majority districts, while H195 and H205, the chief MALC substitutes, contain 53. H283 includes only 54 BHVAPmajority districts, compared to 62 for H195 and H205. In this and other respects, H283 represents a retrogression from the benchmark or status quo plan, which had 57 BHVAP-majority seats and this despite the fact that 65% of Texas s population growth from 2000 to 2010 was Hispanic 42 and 89% was non-anglo. As Jessica Farrar put it during the debate on the second reading of H283 in the House, In other words, the minority population that drove the growth in the state was not used [by the Redistricting Committee] in a way that actually promoted minority representation. In fact, it s gone the other way,... By any definition, H283 does not provide Latinos and African-Americans an equal opportunity... to elect candidates of their choice. 53. What rational bases or compelling state interests might the legislature offer for choosing a redistricting plan with population deviations that discriminate against Latinos and district configurations that contain markedly less opportunity for Latinos and African-Americans to elect House Redistricting Committee Chair Burt Solomons implicitly recognized this during the second reading debate in the House: You know, we didn t create five or six or seven or eight or 10 [new majority-minority districts], but we did try to beef that up and meet what we thought we needed to do under the Voting Rights Act. House Journal, April 27, 2011, at S Michael E. Young, Hispanic surge, metro area growth could reshape Texas political future, Dallas Morning News, Jan. 29, 2011, < House Journal, April 27, 2011, at S House Journal, April 27, 2011, at S

206 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of candidates of their choice? Table 20 attempts to assess quantitative indices that might answer those questions. It could be that other plans had larger total (largest - smallest) or average (mean) population deviations than H283. It is possible that other plans might have more districts whose boundaries cross county lines, though as the TLC guidelines pointed out, the county line rule is a less important legal constraint to observe than population equality or adherence to the VRA and non-discrimination criteria, and during the debate on the third reading of the bill in the House, Rep. Yvonne Davis pointed out that the Supreme Court decision of Bartlett v. Strickland a decision of which Chairman Solomons professed to be unaware, allowed splitting counties to 44 create majority-minority districts. Perhaps the other plans were less compact, though compactness is not a state-mandated criterion in Texas. Or perhaps the other plans split fewer precincts (voter tabulation districts or vtd s in the table), minimizing voter confusion and administrative inconvenience as people used to voting at a local school, fire house, or other community facility might suddenly discover on election day that they had a different polling place 45 than their usual one. Table 20 makes clear than none of these potential explanations justifies the legislature in choosing H Id., April 28, 2011, at S260. Solomons said... we didn t know that case law Chairman Burt Solomons, at least, thought the number of split vtd s important. Appealing to his colleagues to oppose an amendment to the Redistricting Committee s map, Chairman Burt Solomons objected because it increases the split of precincts and increases the number of split VTDs.. House Journal, April 27, 2011, at S

207 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 20: Comparison of Deviations, County Breaks, and Compactness Scores in State House Plans Plan Id Plan # Total Dev. 46 % Average county Dev. 47 % breaks 48 area rubber band 49 area to perimeter 50 split vtds Current H n.a. H Committee H Alonzo sub H Veasey sub H (District with largest population - district with smallest population)/average district pop 47 Sum of deviations from average distict population/ Number of districts that cross county lines 49 A compactness measure defined by the TLC as follows: Area Dispersion: This measure examines the relative degree to which a district's area is compact when compared with the area of a similar compact figure. It is the ratio of the area of the district to the area of the smallest convex polygon that can enclose the district (imagine a rubber band stretched around the district). A district in the shape of a square would receive a perfect score of one using this measure. This measure penalizes a district that has long "fingers" or extensions, making it less compact because it requires a larger convex polygon to enclose the entire district, yet much of that polygon is empty. The higher the score, the more compact the district. < 50 A compactness measure defined by the TLC as follows: Perimeter: This measure compares the relative length of the perimeter of a district to its area. It is the ratio of the area of the district to the area of a circle with the same perimeter as the district. A perimeter-to-area measure penalizes a district's compactness score whenever the boundaries are uneven or irregular: the more the boundary zigzags (for example, a river), the less compact the district using this measure. The higher the score, the more compact the district. Id. 51 Based on 2000 population; all others based on 2010 population 52 Precinct lines were presumably redrawn over the decade. I have not been able to locate the number of precincts originally split by the 2001 plan. 82

208 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Committee final H MALC sub H195, amended by H MALC whole county plan H H Final passage H

209 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of The total deviation of H283 is 9.92%; the MALC plans range from 9.50 to 9.70%. The total deviation of the 2001 plan, based on the 2000 population used as its basis, was 9.74 percent. The average deviation in a district is 2.75% in H283, while the MALC plans have lower average deviations that range from 1.85% to 2.69%. The 2001 plan averaged a 2.67% deviation when computed on the basis of the 2000 population. Except for H205, which put together pieces of 89 counties, the county break statistics are a wash: all split portions of 16 counties. The TLC made available two distinct compactness measures, which measure different aspects of a district s density and are explained in footnotes to Table 20. By the area rubber band measure, districts in H283 are, on average, less compact than those in any of the other plans, and considerably less compact than the 2001 plan. By the area to perimeter measure, H283 is more compact than one of the four MALC plans listed. Clearly, H283 was not chosen because its districts looked prettier on a flat, featureless map. Nor was it picked because it split fewer existing precincts, because in fact, as the table shows, it split considerably more than did any other plan. Splitting so many precincts is an indication of an intent to pursue some aim other than administrative convenience, and as a comparison of the number of split precincts in the House and Senate plans demonstrates, it was not necessary to split precincts to attain population equality. The final Senate plan, S148, split only 10 precincts; the final House plan, H283, split 412. Moreover, the split precincts were concentrated in heavily minority areas. Two hundred and fifty-two, or 61% of the precincts that were split in H283 had BHVAP populations of more than 50%, yet only 3154 of the state s 8400 precincts, or 37.5%, had such concentrations of Latinos and African-Americans. It was a difficult task for those who drew the lines to confine a rapidly-growing minority population into as few districts as possible. The disproportionate concentration of split precincts in minority 84

210 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of areas make clear that the line-drawers accomplished their task with considerable precision. 55. It is conceivable that the legislature rejected the larger numbers of minority opportunity districts in alternative plans because the majority-minority districts in the other plans had bizarre shapes, while those in H283 were neat and compact. From another standpoint, perhaps the House Redistricting Committee anticipated that H283 could not lose a Section 2 Voting Rights Act lawsuit because other districts could not satisfy the first Gingles factor because additional compact minority opportunity districts could not be drawn. Table 21 speaks to the issue, focusing only on the districts where majorities of the voting population were African-American or Latino (citizen and non-citizen). It shows that far from being more compact, the majorityminority districts in H283 were less compact than eight other plans and the current plan by one measure of compactness, and that they were less compact than seven other plans and the current 53 one by another compactness measure. In Shaw v. Reno, as I have argued elsewhere, a lack of compactness was used as an index of an intent to favor African-Americans over whites. An analogous argument indicates that the Texas legislature in H283 intended to discriminate against minorities. 53 Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill, NC: University of North Carolina Press, 1999),

211 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 21: Compactness Scores for House Plans, BHVAP Districts Only Plan ID rubber band area to perimeter H100 (current) H H H H H H195, amended by H H H H

212 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of D. Inconsistent Application of Standards and Other Indications of Bias in H Certain other details of H283 give further indications of discriminatory purposes. In discussing the criteria for drawing seats, House Redistricting Committee Chair Burt Solomons not 54 only put extraordinary weight on the county line rule, but he also implicitly admitted, in a colloquy with Rep. Trey Martinez Fischer, chair of MALC, during the House debate on the second reading of the Committee bill, that the Committee employed that rule inconsistently. In Nueces County, which is heavily Latino, the 2001 plan contained two state House districts that elected Latino Democrats in all except the Republican landslide election of 2010 (districts 32 and 55 33). The Committee plan packed Latinos into one of these districts, making the other a district that Latinos could no longer control. It is worth quoting the Solomons/Martinez Fischer conversation at some length to spotlight the inconsistencies and lack of a rational, articulated policy to explain why some county lines were cut and why districts were drawn to curtail, instead of to preserve the opportunities for minorities to elect candidates of their choice: SOLOMONS: So why didn t we create two Hispanic majority seats in Nueces County? The overall population in Nueces has an SSVR [Spanish-surname voting registration] of 49 percent; as a result it is impossible to draw two Hispanic majority seats within Nueces. We decided to draw only one strongly Hispanic district to allow the Hispanic community in Nueces to elect a representative of their choice House Journal, April 27, 2011, at S As Tables 12-14, above, show, the contests in State House district 33, which pitted Latino Democratic against Latino Republican candidates, were starkly racially polarized, with Latino voters overwhelmingly supporting the Democratic candidates. District 34, which crossed county lines in the 2001 redistricting, was anchored in Nueces county. 87

213 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 889 of of MARTINEZ FISCHER:...it appears to me that district [sic county] had two performing minority opportunity districts, and they seemed to be working quite fine.... [I]f I m not mistaken your map makes about 17 cuts. And I guess what I m saying is that why couldn t one of those...cuts could have been in the Coastal Bend that would have resulted in there being not just one minority opportunity district [in Nueces County] but two? SOLOMONS: I don t know. My response is we didn t unnecessarily cut any county line where it didn t absolutely need to be done. Not just to do it to create new districts but because it absolutely had to be done in the context of what was being accomplished in that area. MARTINEZ FISCHER: So when you took a district in South Texas and you took a member s district out of Webb County and put it in Hidalgo County, what was the justification for that? SOLOMONS: I m reminded that we only cut in one area and everything else was spill overs. Spill overs are not cuts in county lines. Spill overs are not. MARTINEZ FISCHER: Well, I think they break a county line. SOLOMONS: Well, they don t cut them intentionally to go they re because of the population numbers. It s not because you re going around to do that. MARTINEZ FISCHER: Right. So why didn t the district that currently spilled over into Webb continue to go into Webb and instead made the decision to veer into Hidalgo? SOLOMONS: I don t know. The committee this is the map the committee proposed based on what we were advised and how we have to abide by the law, and that s what we did

214 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 890 of of MARTINEZ FISCHER:...it s curious to me that we can spill over into Hidalgo County and justify it, but we can t spill over outside Nueces County and justify it by maintaining two minority opportunity districts that are currently there today In the largest urban counties, the Committee used an extremely strict interpretation of the county line rule and ingenious reconfigurations of district boundaries to counteract the decline in Anglo population and the increases in the proportions of Latinos, African-Americans, and Asians. As State Representative Armando Walle pointed out during the second reading debate, Harris County (Houston) had been cut from 25 seats in the 2001 plan to 24 in H283, even though it had the same proportion of the state s population in both 2000 and This decline in the number of seats made it possible to prevent an increase in the number of minority opportunity districts, despite population growth in Harris County of 552,000 Latinos, 135,000 African-Americans, and 77,000 Asians, and a decrease of 82,000 Anglos. Even though Chairman Solomons pointed out that the county s population entitled it to only seats, he admitted that the legislature had the discretion, as the 2001 Legislative Redistricting Board had done, to round up the county s 57 representation to 25. Of course, it could also have spilled over part of an adjacent county s 56 House Journal, April 27, 2011, at S My underlining. Debating an amendment to create two new Latino opportunity districts in West Texas, Rep. Lon Burnam similarly charged that H283 treated the county line rule inconsistently:...we are being very hypocritical in this process because we are willing to violate the county line rule when it s convenient to undermine and contribute to retrogression of representation of Hispanics. But apparently we are not willing to consider violating the county line rule when it would enhance Hispanic representation. Id., at S Id., at S

215 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of population into Harris s to make the population numbers add up. According to Rep. Walle, reducing the number of districts in Harris County by one and packing minority members into existing minority opportunity districts enabled the Committee to collapse two existing coalition districts (137 and 149) in which combinations of Latinos, African-Americans, and Asian- Americans had been able to elect candidates of their choice, Scott Hochberg and Hubert Vo, resulting in a reduction in the existing opportunities of minority voters to elect candidates of choice The facts were similar in Dallas and Tarrant Counties, as State Rep. Marc Veasey, an African-American member of the Redistricting Committee, pointed out:...in Dallas County the Anglo population decreased by 198,000 people between 2000 and 2010[.] [T]hat is a negative growth rate of 20.2 percent. The Hispanic population grew by 243,000 plus, the African American population grew by 73,000 plus, and the Asian population grew by 30,000 plus. Anglos now only make up about a third of the city, about 33 percent of Dallas County. And so with these numbers in mind, why didn t you create anymore new opportunity districts in Dallas? You still allow Anglo voters to control percent of the district[s]. In Tarrant County, Veasey charged, there had been retrogression in the number of districts that African-Americans could win, and he proposed a plan to restore the status quo (it lost):... most of the growth in Tarrant County, and in the city of Fort Worth over the last 58 Id., at S Id., at S

216 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of decade, has been Hispanic and African American. Under my amendment, this creates a new minority opportunity district in District 96. It wouldn t be a shoo-in, but it would be a new minority opportunity district. Under the current plan that we re in right now, we have four out of ten districts that are majority black and Hispanics. Under the Solomons plan under the amendment that was voted out only three of those districts are now minority opportunity. 60 Veasey s amendment lost. Citing Larios, Rep. Roberto Alonzo charged that minority districts in Dallas County had been deliberately overpopulated, in violation of the Voting Rights Act and the equal protection clause, and he moved an amendment to equalize the populations of districts and draw a new minority opportunity district by combining areas in Dallas and Tarrant Counties. It was defeated The House Redistricting Committee also broke with legislative convention to disadvantage 62 minorities. In the multimember counties, as is evidenced in the floor debates, it was usual for the local delegations to draw or at least approve the districts from their counties by consensus. This convention seems to have been adhered to only partially in the 2011 redistricting, as Marc Veasey pointed out about his own county of Tarrant: All 10 of us signed off on our individual districts....but the district that I represent and the district that Lon Burnam represents, the two districts that are the most 60 Id, at S Id., at S E.g., id., at S174, S177 (Fort Bend), S216 (Harris). 91

217 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of minority in the entire plan, when it came back to the committee those were the two that were changed. Every other district that is represented by the rest of you stayed the same. Our districts changed....but if you look at the major changes that took place from after the point in which we signed off, the big change that has happened in the districts were represented by the minorities, and we didn t approve them. 63 E. Maps as Evidence of Intent 60. A prime example of the interconnections between partisan politics, ethnic discrimination, and the deliberate under- and over-population of districts took place in the legislature s shifting of populations in House Districts 40 and 41 in Hidalgo County, an overwhelmingly Latino county in South Texas. After being elected to the District 40 seat as a Democrat in 2010, Rep. Aaron Pena switched to the Republican party. According to District 41 Rep. Veronica Gonzales,... basically the two districts have been swapped. They have been swapped and the [D]emocratic precincts have been lopped off Representative Pen a s district. So they tried to make it a [R]epublican district....my district bec[a]me dismantled in the process....i m left with 1.5 percent of my 64 district....the VTDs which are my precincts in my old district, 14 of them were split Id., at S162. The changes that Rep. Veasey referred to packed more minorities into his and Rep. Burnam s district. Id., at S163. It is unusual, to say the least, for a politician to object to changes that make his district safer. 64 Note that the fourteen split precincts necessary to draw District 41 were more than in the whole State Senate plan throughout the state! Altogether, there were 20 precincts in Hidalgo County that were split by H % of the population in those precincts was African- American or Latino. 92

218 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Hispanics have been packed and cracked in this map. In fact, my current district has an SSVR [Spanish surname voting registration] that we ve been talking about today of 69 percent. It would now have 87.4 percent packing Hispanics into the new district. Whereas Representative Pen a 65 would go from 88.3 percent to 63.9 percent. A dilution of Hispanic voters of 24.4 percent. And this was accomplished, as Rep. Gonzales went on to say, by overpopulating one district and underpopulating the adjacent district. In H283, the new District 41 (where Pena lives) is 4.40% under the ideal population size, while the new District 40 is 3.50% over it. Asked what role he played in shaping his new district, Rep. Pena replied that he met with Republicans from the Rio Grande Valley and told them there s a conservative district here, I would expect... [R]epublicans to maximize their seats and be protected Three pictures graphically illustrate Rep. Gonzales s words and the dry statistics. The first is a simple map of District 41 with nothing else on the page, giving the reader a sense of its 67 distinctive form. The second superimposes the district s boundaries on a grid of the precinct lines, showing how many had to be cut to trace the district s shape. If ever slices in vtd s were an indication of intent, this is that case. The darker shadings are more heavily Anglo precincts. Part C of Figure 8 floats the district boundaries on a sea of dots, where each dot represents 20 Anglos, 65 Id, April 27, 2011, at S186. (The order of one sentence was changed for clarity.) 66 Id., April 27, 2011, at S198. An attempt to modify the configurations of districts in Hidalgo County failed on a largely party-line vote, House Journal, April 27, 2011, at st According to Rep. Joaquin Castro, the 41 looks like a Transformer Cartoon. Id, April 27, 2011, at S

219 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of to illustrate more clearly the racial gerrymandering of the district. Nearly all of the most heavily Anglo areas of the county were captured for the new district 41, and as pointed out above, almost as many Latinos as possible were shed. 94

220 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of st Figure 8: The Underpopulated, Racially Gerrymandered 41 House District, Home of the Split Precinct A. Suspect Shape 95

221 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of B. Split Precincts: A Different Kind of Narrow Tailoring 96

222 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 8 C: Capturing as Many Anglos as Possible

223 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of H283's overall treatment of the adjacent counties of Hidalgo and Cameron also illustrates the inconsistency with which the Committee employed the county line rule. As Rep. Rene Oliviera pointed out during the debate on the second reading, together, Cameron and Hidalgo were due 7.05 representatives. If they had been simply combined, instead of splitting both to add population from other counties, it is possible that a new minority opportunity district could have 68 been drawn. Indeed, the MALC plans drew four districts in Hidalgo, two in Cameron, and one shared by both, and they created a new minority opportunity district. An amendment on the 69 House floor to H283 to create seven seats between the two counties was beaten. Speaking of H283 in the course of the debate, Mike Villarreal, the vice-chair of the Redistricting Committee, asserted that I believe that another Hispanic district can be drawn with a combination of population in Cameron County, Hidalgo County, and Willacy County, and we failed to do that. For that reason I believe this map is compromised legally Another district with an instructive shape is State House District 90 in Tarrant County. As noted during the floor debate, District 90 was already a Latino opportunity district in the previous 71 plan, with a Latino VAP of 64.9%, a Latino CVAP of 47.9%, and an SSVR of 47.2%. H283 raised its Latino VAP to 71%, its Latino CVAP to 49.7%, and its SSVR to a bare majority, 50.1%, 68 Id, at S Id., at S Id., at S Id., at S

224 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of a change trumpeted with great fanfare as generous to Latinos by Chairman Solomons. It 73 accomplished these increases by subtracting non-latino population, making the district the 74 smallest in the state and giving it the second lowest area-to-perimeter compactness score in the state, (compared to a statewide average of 0.257). 64. Figure 9 illustrates the story graphically, showing in Part A the gaping hole in the center of the district, the tangential connections between parts of the district, and the various ungainly appendages. Part B superimposes the district lines over a map of Latino population concentration, with orange representing the most heavily Latino concentrations. The map lassoed Latinos, wherever they were, and fenced out others. Part C exhibits the excision from District 90 by th outlining the interlocking 95 district, before and after the redistricting a performing African- 75 American district with a black VAP of 45%. Overconcentrating Latinos in District 90 and African-Americans in District 95, according to the representatives from those districts, diminished 76 the influence of minorities in surrounding districts. As District 90 Rep. Lon Burnam remarked in a debate over an amendment to restore to District 90 some of the communities he had previously represented, the majority on the Redistricting Committee only opposed his amendment 72 Id., at S100. Raising a legally or politically highlighted percentage just over a bright line is in itself evidence of intent. For a political motive in driving a Dallas district over 50% African-American in 1991, see my Colorblind Injustice, at Id., at S163-64, Id., at S99 (Solomons). 75 Id., at S Id., at S161, S166, 99

225 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of because they are trying to artificially suggest that they created a Hispanic opportunity district. That opportunity exists, has existed since the creation of the district by a federal judge in 1978, and will continue to exist Id., at S

226 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 9: State House District 90 in Tarrant County A.: The Basic Outline of the Hollowed-Out District 101

227 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 9 B: Latinos Carefully Drawn in, Others Excluded from District

228 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Another interesting example of interlocking districts is State House Districts 104 and 105 in Dallas County, depicted separately in Figures 10a and 10b. District 104 has an HVAP of 69.2%, while District 105's is 39.2%. Both are overpopulated, 104 by 3.1 % and 105 by 4.8%. Both have BHVAP majorities 82.1 % in 104 and 50.7% in has a suspicious 50.1% SSVR majority, enabling the Committee to claim it as a Hispanic District, while 105 has an SSVR minority of 18.3%. Both had population to spare if some of their appendages had been truncated, population that could have increased minority influence in surrounding districts. 103

229 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 10: Packing Latinos into One District, Minimizing them in Another in Dallas State House District

230 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 10 B: District 105, the Missing Sliver in District

231 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of F. The State House Plan: A Short Summary 66. Although other maps could be presented, they would be largely redundant. Both quantitative and qualitative evidence casts doubt on the legality of H.B. 150 (H283) under both the Larios v. Cox equal protection standard and Sections 2 and 5 of the Voting Rights Act. First, the process was controlled exclusively by Republicans, and all Democratic and minority amendments were defeated. The Committee Chair did not meet with any representatives of African-American groups or legislators, and the Committee did not compromise with MALC or any Latino group. The only arguably pro-minority change from the Committee s initial plan merely further packed a district that Latino voters had been able to control for a generation. Second, the districts have wide population disparities that are strongly correlated with partisan and racial concentrations. More minority than Anglo districts are overpopulated, both in the state as a whole and within the large urban counties. Third, districts with lower average and total deviations were proposed, so that the legislature must have deliberately chosen districts farther from the equal population standard. Fourth, disregarding the TLC s published legal advice that the county line rule had to give way to population equality under Larios and to the Voting Rights Act, and rejecting widespread and repeated criticisms of its elevation of the county line rule above most other concerns, the majority in the legislature refused to adopt plans that recognized the minority proportion (89%) of Texas s 20% population growth over the decade. Fifth, the Redistricting Committee and the House employed the county line rule inconsistently for example, to condemn the Texas Legislative 78 Black Caucus plan, but not to prevent Hidalgo County territory from being added to a Webb 78 House Journal, April 27, 2011, at S

232 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of County district and in any event, the county line rule would not explain racially discriminatory population disparities within the urban counties. Sixth, no other rational legislative or administrative policy considerations explain the disparities. The H283 districts are less compact, split many more precincts, and split the same number of counties as almost all of the alternative plans. As the discussion of districts in Dallas, Hidalgo, and Harris Counties above especially emphasizes, H283 only inconsistently protected incumbents or the cores of previous districts, at least in those counties, and was especially unlikely to do so for districts in which minorities had been able to elect candidates of choice. The debate on the House floor reveals no offsetting rationale for the disparities. Seventh, as in Larios, there were overpopulated districts in H283, for instance, in Hidalgo and Dallas Counties, that were adjacent to underpopulated districts. Eighth, if an 80 percent probability of electoral success in the face of the least favorable partisan tide for minority voters in a decade is a proper definition of an equal opportunity to elect candidates of choice, then H283 is retrogressive under Section 5 of the Voting Rights Act. Ninth, several other plans, including the MALC plans, draw considerably more districts with minority concentrations that enable minority voters to elect candidates of choice, as judged by the results of the 2008 and 2010 State House contests. The failure of H283 to draw as many districts is a likely violation of Section 2 of the Voting Rights Act. Tenth, detailed investigations of individual districts, including revealing boundaries, especially when those boundaries are superimposed on ethnic maps, indicate both bias against minorities and racial gerrymandering. 107

233 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of VIII. S.B. 4: Packing, Dilution, Retrogression A. Biased Process 67. The congressional story is much simpler. Because the legislature believed that the U.S. Supreme Court allowed no population deviations for congressional districts, there were none, at least if one considers the short-form census totals correct for the decade. So there were no Larios considerations. Although rumors flew for months, the redistricting committees did not agree on a congressional plan during the regular session, and there was speculation that the legislators would 79 let federal judges draw up a plan, as they had a decade earlier. Instead, the leadership came to an agreement, the plan was fully divulged only three days before it was considered by the legislature, and instead of holding hearings around the state to invite comments on the plan to facilitate 80 revisions, the legislature held but a single hearing in Austin. No Republican amendments formally offered for a vote in committee or on the legislative floor were rejected, and every amendment proposed by a Democrat was rejected, most by straight party-line votes. As Sen Kel Seliger, the nominal author of S.B. 4, admitted, no minority member of the legislature, and specifically no Latino member, was involved in drawing the plan, and all minority organizations 81 opposed it. Voting Rights Act considerations were dealt with so privately that lawyers hired by 79 Ross Ramsey, Even With New Congressional Seats, Tricky Redistricting Work Isn t a Priority, New York Times, May 21, Id, at A nd Senate Journal, 82 Legislature, First Called Session, Proceedings, Addendum (June 6, 2011), at A2-3, 12-15, 17, hereinafter SJ Special. Sen. Judith Zaffirini asked Seliger I want to know from you if any Hispanics were involved at any stage of developing this plan in the Senate? Sen. Seliger: No, not in the Senate. (A17) 108

234 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of the Senate Redistricting Committee were not shown S.B. 4 until the day it was introduced, and they could not offer opinions on whether it complied with the Voting Rights Act during the one 82 committee hearing on S.B. 4. Consideration in the redistricting committees and on the legislative floor was much briefer and more perfunctory than the consideration of the House plan was, and both attacks and defenses were much more limited and much less detailed. Instead of a debate, there were discussions of the plan that everyone knew would be adopted by a partisan majority and of other plans offered to demonstrate that plans more favorable to minorities could be drawn. The artificial drama was admittedly staged to make a record for the inevitable legal proceedings, and the record and the statistics available on each plan admirably succeeded in accomplishing this purpose. B. Alternative Plans and the Gingles Preconditions 68. Because Texas gained four congressional seats as a result of its population growth from 2000 to 2010, 89% of it African-American, Asian-American, or Latino (65% of it Latino alone), it would have amounted to an act of open defiance of the Voting Rights Act to subtract minority opportunity districts in C185, the congressional redistricting plan that the legislature passed. As Table 22 shows, the legislature was not that willing to defy the federal government. Its 36-district plan created one more district than the current 32-district plan with a majority of Hispanic voting-age 82 Id, at A-11, A

235 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of persons (HVAP) and the same one more with a majority of Hispanic voting-age citizens (HCVAP). Likewise, it added one more district with a combination of African-American voting-age persons (BVAP) and HCVAP. There were also three more BHVAP-majority districts. Compared to seven competing MALC and Black Legislative Caucus plans, however, C185 offered much less opportunity for minority citizens to elect candidates of choice. Plan 188 contained another HCVAP-majority district, and all of the MALC plans contained two or three more HVAP-majority and BCHVAP districts than C185 did. Five of the MALC and BLC plans contained two more BHVAP-majority districts than C185 contained. As Table 18 showed, in Texas State House contests, BHVAP-majority seats elected the minority candidate of choice 95% of the time in 2008 and 81% in On that evidence, C185, the legislatively-adopted plan, denied minorities quite good opportunities to elect two more candidates of choice. Seven other plans showed that there were a variety of ways to satisfy the language of Section 2 of the Voting Rights Act. The legislature chose none of them. 110

236 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page 1112 of of Table 22: Ethnic Statistics for Congressional Plans Plan Number HCVAP HVAP BHCVAP BHVAP Current (32 districts) 121 (West Fair Texas Plan ) 131 (Gallegos Plan) 163 (MALC plan) 164 (MALC plan) 165 (MALC plan) 185 (adopted plan) 187 (Black Leg Caucus Plan) 188 (MALC plan)

237 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of On the score of compactness, each of the current plans is inferior to the current 32-district plan, at least by the two indices presented here. But C163 is more compact than C185 overall and in just the BHVAP districts, and C164 is better or just as good using the rubber band compactness scores. C121 is more compact than C185 overall, though not in its minority opportunity districts. The conclusion from this table is that districts in at least one alternative plan are compact, both overall and with respect to minority opportunity districts, compared to the plan that was adopted, and that other plans are more compact overall by certain indices. If compactness is comparative, the so-called first Gingles prong is satisfied by alternative plans. 112

238 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 23: Compactness Scores for Congressional Plans Plan Number Whole Plan BHVAP > 50% rubber area to rubber area to band perimeter band perimeter Current (32 districts) (West Fair Texas Plan) (Gallegos Plan) (MALC plan) (MALC plan) (MALC plan) (adopted plan) (Black Leg Caucus/MALC blend) (MALC plan)

239 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of C. Packing Minority Opportunity Districts 70. During the House debate on S.B. 4, Redistricting Committee Chair Burt Solomons boasted of having increased the SSVR in congressional district 20 in San Antonio to 56.3%. We needed to sort of do that and try to maintain the performing nature of this Hispanic majority district in South 83 Texas, he explained. He did not mention that the district, long represented by Henry B. Gonzalez, had been a performing district since 1961, when Solomons was 11 years old. 71. As Table 24 shows, congressional district 20 was not the only minority opportunity district to have its minority percentage raised by S.B. 4. In fact, of the ten districts with BHVAP majorities in the current plan, all but one had its African-American plus Latino majority raised by S.B. 4, and District 18 only lost half a percentage point. Specific instances of packing were repeatedly noted during the debates on S.B. 4. Rep. Marc Veasey, for example, introduced the Fair Texas Plan into the House with the comment that The [Dallas-Ft. Worth] metroplex has 2.1 million Latino and African American residents. Under the Solomons plan [S.B. 4], they are mainly packed into one district, which is illegal, and he later pointedly asked Chairman Solomons Why didn t you draw a Section 2 African American district in the metroplex when you could have easily done so, 84 instead of trying to pack all of those African American residents into one district? Similarly, Rep. Roberto Alonzo charged in a memorandum that he inserted into the record that The 83 nd House Journal, 82 Legislature, First Called Session, Supplement. CSSB 4 Debate, at S2, hereinafter HJ, Special Session. 84 Id., at S12, S63. He referred to District 30, represented since 1993 by Congresswoman Eddie Bernice Johnson. 114

240 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Republican Plan Packs District 30 and Cracks the Rest of the DFW Minority Population Id., at S54. Note that in Table 24, the new district 34 has been substituted for the old district 27, which it effectively replaced. As a comparison of Tables 24 and 25 shows, the old district 27 lost 22.7 percentage points of HCVAP, preserving the district for Republican incumbent Farenthold. 115

241 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 24: Packing Minority Opportunity Districts A. Current Plan Districts HVAP HCVAP BVAP BHCVAP BHVAP R* R* ** * Currently represented by Republican ** Currently represented by Anglo Democrat S.B. 4 (H185, Plan Passed by Legislature) Districts HVAP HCVAP BVAP BHCVAP BHVAP R* R* (34)

242 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of D. Cracking Minority Areas and Tacking Them onto Anglo Counties to Create Safe Anglo Districts 72. The packing of minorities, along with the cracking of other minority areas and the extension of districts based in suburban and rural counties into central cities or other heavily minority regions, made it possible to deny minorities the opportunity to elect or influence the election of other candidates of choice. Table 25 gives the same statistics as Table 24 for six congressional districts in the immediate vicinity of the minority opportunity districts in Table 24. Four of the six have BHVAP percentages below 50, and the other two barely pass that mark. None has a BHCVAP percentage over 50, while all ten of the districts in Table 24 had BHCVAP percentages over

243 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Table 25: Stacking Districts Close to Minority Opportunity Districts S.B. 4 (H185) District HVAP HCVAP BVAP BHCVAP BHVAP (new)

244 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of As in the State House plan, maps for Congress tell stories about discrimination and racial gerrymandering. One of the most blatant tales involves Congressional District (CD) 12 in Tarrant County and CD 26 in Denton and Tarrant Counties. To keep the HVAP of CD12 to 21% and its BHVAP to 35.5%, planners drew a jagged lightning bolt down the center of the district. Part A of Figure 11 shows that the bolt almost cleaves the district in half. Whom did the bolt strike? Part B of Figure 11, in which the green dots represent Latino population concentrations, make clear who the electrocuted victims were: Latinos. Finally, Part C tells what happened to them: They were joined to the overwhelmingly Anglo suburban/exurban county of Denton, diluting their vote by th placing them in a 26 district with an HVAP proportion of 24.7% and a BHVAP proportion of th 32%. Had the 12 CD not been sundered, it could well have had a BHVAP majority, perhaps a substantial one, and another minority opportunity district could have been created. 119

245 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 11: Congressional District 12 in Tarrant County A. Who is Being Avoided? 120

246 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Part B: Latinos Are Being Avoided 121

247 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Part C: Fort Worth Latinos Are Being Diluted in a Sea of Denton County Anglos 122

248 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Similar tactics diluting central city minority political power by thrusting long arms of districts from suburban and rural counties into urban counties account for the tell-tale shapes of congressional districts 6 and 33. Figure 12a depicts CD6, anchored in Ellis and Navarro Counties, pushing jagged arms into Dallas and Tarrant, and Figure 12b superimposes the district outlines on the concentrations of African-American and Latino population in the area. Darker portions of Figure 12b represent higher percentages of blacks and Hispanics. It is clear from the maps that CD6 cracked the minority areas, but was carefully drawn not to take in so many minorities as to threaten Anglo control of the district. Figure 12c shows District 33 putting a fist into Tarrant County from the Parker County west, and Figure 12d again superimposes the district on the black and Hispanic population concentrations. Here, the evident purpose was to avoid minority areas to keep the new district very safely Anglo Together, the maps make clear how carefully CD6 added, but diluted Latinos and how precisely CD33 avoided them. The result was that CD6 had a bare BHVAP majority of 51.5% and CD33, a BHVAP minority of 34.9%. 123

249 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Figure 12: Congressional Districts 6 and 33: Two Other Suburban Incisions into the Metroplex Part A: CD 6: Outline 124

250 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Part B: CD 6: Black + Latino Concentrations 125

251 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Part C: CD 33 Outline 126

252 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed 08/08/11 01/04/12 Page of of Part D: CD 33: Black + Latino Concentrations 127