Part Description 1 13 pages 2 Exhibit Tabs Exhibit Tabs Exhibit Tab 384A 5 Exhibit Tab 384B

Transcription

1 Perez et al v. Perry et al, Docket No. 5:11-cv (W.D. Tex. May 09, 2011), Court Docket Part Description 1 13 pages 2 Exhibit Tabs Exhibit Tabs Exhibit Tab 384A 5 Exhibit Tab 384B Multiple Documents 2013 Bloomberg Finance L.P. All rights reserved. Terms of Service // PAGE 1

2 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., - and - Plaintiffs, EDDIE BERNICE JOHNSON, et al., - and - TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., v. Plaintiff Intervenors, RICK PERRY, et al., Defendants, MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC), - and - Plaintiffs, HONORABLE HENRY CUELLAR, et al., v. Plaintiff Intervenors, STATE OF TEXAS, et al., Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. SA-11-CA-360-OLG-JES-XR [Lead case] CIVIL ACTION NO. SA-11-CA-361-OLG-JES-XR [Consolidated case]

3 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 2 of 13 TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, v. ) RICK PERRY, et al., ) ) ) Defendants, ) ) MARAGARITA v. QUESADA, et al., ) ) ) v. Plaintiffs, RICK PERRY, et al., ) ) Defendants, ) ) JOHN T. MORRIS, ) ) ) Plaintiff, ) ) v. ) ) STATE OF TEXAS, et al., ) ) Defendants, ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. SA-11-CA-490-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR [Consolidated case] CIVIL ACTION NO. SA-11-CA-615-OLG-JES-XR [Consolidated case] 2

4 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 3 of 13 EDDIE RODRIGUEZ, et al., ) ) ) Plaintiff, ) ) v. ) ) STATE OF TEXAS, et al., ) ) Defendants. ) CIVIL ACTION NO. SA-11-CA-635-OLG-JES-XR [Consolidated case] OPPOSED JOINT MOTION OF PLAINTIFFS FOR LEAVE TO REOPEN THE RECORD TO PROVIDE SUPPLEMENTAL EVIDENCE NOW COME all Plaintiffs and file this opposed joint motion for leave to reopen the record to provide supplemental evidence. 1 In support of this motion, Plaintiffs show: 1) On July 1, 2013, the Court issued an order directing any parties who wish to offer any evidence from the D.C. trial proceedings as evidence on the issues being litigated herein,... [to]: (1) file a designation chart of the portions of the D.C. record they are offering; (2) electronically file one complete copy of the actual record excerpts that have been listed in the chart; and (3) deliver one courtesy copy of the chart and the actual record excerpts to the chambers of each judge on the panel, by July 22, Dkt. 772 at 2. Per the Court s request, Plaintiffs jointly file the attached evidentiary designation chart, including a brief explanation of the significance of [each designated] document as it relates to the issues being litigated herein, and the 1 The joint Movants here include: Shannon Perez, et al., the Mexican American Legislative Caucus of the Texas House of Representatives, the Texas Latino Redistricting Task Force, et al., the Texas Democratic Party, Congressman Cuellar, Congresspersons Johnson, Jackson-Lee and Green, Texas State Conference of NAACP Branches, et al., Margarita Quesada, et al., National LULAC, et al., and Eddie Rodriguez, et al. Each plaintiff joins the designations made by other plaintiffs. 3

5 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 4 of 13 accompanying documents. Id.; see Ex. 1 (designation chart), 2-95 (supplemental exhibits). 2) In deciding whether to re-open the record in a particular case, courts consider the importance and probative value of the evidence, the reason for the moving party s failure to introduce the evidence earlier, and the possibility of prejudice to the nonmoving party. Garcia v. Woman s Hosp. of Tex., 97 F.3d 810, 814 (5th Cir. 1996); see also Tate v. Starks, 444 F. App'x 720, 724 (5th Cir. 2011); U.S. v. Parker, 73 F.3d 48, 53 (5th Cir. 1996), reh g granted, 80 F.3d 1042 (5th Cir. 1996), reinstated in relevant part, 104 F.3d 72 (5th Cir. 1997) (similarly finding that on a motion to reopen the record, a court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. ). All of these factors weigh in favor of reopening the record to incorporate the evidence offered by Plaintiffs here. 3) The litigation in the U.S. District Court for the District of Columbia ( D.C. court ) and before this Court concerns the same 2011 Texas redistricting plans. Both cases included claims under the Voting Rights Act of 1965, 42 U.S.C. 1973, et seq. and dealt with similar issues of intentional racial discrimination and minority vote dilution. For this reason, both courts requested and heard evidence on the redistricting process and the effect of the newly-adopted boundaries on racial minority voters. Thus, the evidence from the D.C. court trial offered here is highly relevant to and probative of the claims remaining before this Court. See Garcia, 97 F.3d at

6 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 5 of 13 4) The evidence Plaintiffs seek to admit is not cumulative of the evidence in this case. See Old Chief v. United States, 519 U.S. 172, 179 (1997) (finding that relevant evidence may not be excluded because other evidence related to it has rendered it irrelevant; inadmissibility must rest on other grounds). Plaintiffs have ensured that their new evidence is not already in the record in this case and have focused on providing the Court evidence that was provided to Plaintiffs by the State following the trial in this case. 5) Although Plaintiffs were diligent in providing evidence during trial in this case, the State provided additional documents to Plaintiffs for the D.C. court litigation. See Mem. Op. on Privilege Claims, Dkt. 128, Texas v. United States, No. 1:11-cv-1303 (D.D.C. Jan. 2, 2012). Unlike in United States v. Thetford, where a motion to reopen was denied, in part, because defendant previously had access to relevant evidence but failed to make an effort to gather it, here, Plaintiffs did not have access to the evidence they seek to introduce until after the trial in this case and shortly before trial in the D.C. court. 676 F.2d 170, 182 (5th Cir. 1982) disapproved on other grounds by United States v. Calverley, 37 F.3d 160 (5th Cir. 1994). This evidence includes statements by legislators, staff and lobbyists regarding the enacted redistricting plans and is relevant to claims of vote dilution and intentional discrimination here. 6) The evidence Plaintiffs seek to admit is particularly relevant in light of upcoming motions for section 3(c) bail-in of Texas. See 42 U.S.C. 1973a (c) (authorizing a federal court to order a jurisdiction to preclear its election changes under certain circumstances). 5

7 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 6 of 13 7) Admitting Plaintiffs supplemental evidence will not cause an injustice or undue prejudice to Defendants ( the State ). See Garcia, 97 F.3d at 814 ( While there is always the possibility of some prejudice in that additional testimony is being introduced against the non-moving party, our concern is with undue prejudice. ). The State is already familiar with all of the evidence being offered here precisely because it is part of the record in the D.C. court, and, for that reason, the State has already had the opportunity to respond to the evidence. The State also maintains the opportunity to defend against the evidence being offered here by seeking supplementation of the record in this Court with its own evidence from the D.C. court trial. In addition, the Court has provided a schedule by which the State may object to the admissibility of any specific evidence being offered. See Dkt. 772 at 2. 8) Finally, Plaintiffs proceeded without delay and in accordance with this Court s orders regarding supplementation of the record. On February 11, 2013, this Court ordered that all parties file advisories addressing the issues pending before the Court in light of the D.C. court litigation. See Dkt As part of the order, the Court requested that parties address: whether the record available for the Court's consideration [is] limited to the evidence already presented in this case; whether the parties [would] supplement the current record; and whether the Court's consideration of the issues in this case be based, in part, on the factual evidence in the D.C. record, which has already been tendered to this Court? See id. at 4. Following a hearing by the Court on May 29, 2013, the Court established a briefing schedule for addressing the issue of record supplementation. See Dkt. 748 at 1-2. Thus, this motion is made within the timeline for record supplementation set by the Court and not as a delay tactic. 6

8 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 7 of 13 1) For the reasons set forth above, Plaintiffs respectfully request that the Court reopen the record in this case to admit the supplemental evidence from the D.C. court trial attached here. See Ex. 1 (designation chart), 2-95 (supplemental exhibits). Dated: July 22, 2013 Respectfully submitted, /s/nina Perales Nina Perales Karolina J. Lyznik MALDEF 110 Broadway Street, #300 San Antonio, TX (210) Fax: (210) Robert W. Wilson Mark Anthony Sanchez Gale, Wilson & Sanchez, PLLC 115 East Travis, 19th Floor San Antonio, TX (210) Fax: (210) COUNSEL FOR PLAINTIFFS TEXAS LATINO REDISTRICTING TASK FORCE, RUDOLFO ORTIZ, ARMANDO CORTEZ, SOCORRO RAMOS, GREGORIO BENITO PALOMINO, FLORINDA CHAVEZ, CYNTHIA VALADEZ, CESAR EDUARDO YEVENES, SERGIO CORONADO, GILBERTO TORRES, RENATO DE LOS SANTOS, JOEY CARDENAS, ALEX JIMENEZ, EMELDA MENENDEZ, TOMACITA OLIVARES, JOSE OLIVARES, ALEJANDRO ORTIZ, AND REBECCA ORTIZ DAVID RICHARDS State Bar No Richards, Rodriguez & Skeith LLP 816 Congress Avenue, Suite

9 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 8 of 13 Austin, Texas Tel (512) Fax (512) RICHARD E. GRAY, III State Bar No Gray & Becker, P.C. 900 West Avenue Austin, Texas Tel: (512) Fax: (512) ATTORNEYS FOR PEREZ PLAINTIFFS JOSE GARZA Texas Bar No Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas (210) garzpalm@aol.com JOAQUIN G. AVILA LAW OFFICE P.O. Box Seattle, Washington Texas State Bar # (206) (206) (fax) jgavotingrights@gmail.com Ricardo G. Cedillo State Bar No Mark W. Kiehne State Bar No DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite E. Mulberry Avenue San Antonio, Texas Tel.: (210) Fax: (210) rcedillo@lawdcm.com mkiehne@lawdcm.com ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REP. (MALC) 8

10 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 9 of 13 Chad W. Dunn Attorney In Charge State Bar No General Counsel TEXAS DEMOCRATIC PARTY BRAZIL & DUNN K. Scott Brazil State Bar No Cypress Creek Parkway, Suite 530 Houston, Texas Telephone: (281) Facsimile: (281) chad@brazilanddunn.com ATTORNEY FOR TEXAS DEMOCRATIC PARTY AND GILBERTO HINOJOSA, IN HIS CAPACITY AS CHAIR OF THE TEXAS DEMOCRATIC PARTY Gary L. Bledsoe Law Office of Gary L. Bledsoe and Associates State Bar No West 12th Street, Suite 307 Austin, Texas Telephone: Fax: Garybledsoe@sbcglobal.net ATTORNEY FOR HOWARD JEFFERSON AND CONGRESSPERSONS EDDIE BERNICE JOHNSON, SHEILA JACKSON-LEE AND ALEXANDER GREEN Allison J. Riggs N.C. State Bar No (Admitted Pro Hac Vice) Anita S. Earls N.C. State Bar No (Admitted Pro Hac Vice) Southern Coalition for Social Justice 1415 West Highway 54, Suite 101 Durham, NC Telephone: Fax: Anita@southerncoalition.org 9

11 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 10 of 13 ATTORNEYS FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE AND BILL LAWSON Robert Notzon Law Office of Robert S. Notzon State Bar Number West Avenue Austin, TX fax ATTORNEY FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES, JUANITA WALLACE AND BILL LAWSON Victor L. Goode Assistant General Counsel NAACP 4805 Mt. Hope Drive Baltimore, MD Telephone: Fax: ATTORNEY FOR THE TEXAS STATE CONFERENCE OF NAACP BRANCHES J. Gerald Hebert 191 Somervelle Street, #405 Alexandria, VA (703) Gerald H. Goldstein State Bar No Donald H. Flannary, III. State Bar No Goldstein, Goldstein and Hilley 310 S. St. Mary s Street 29th Floor Tower Life Bldg. San Antonio, Texas Phone: (210) Fax: (210)

12 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 11 of 13 Paul M. Smith Michael B. DeSanctis Jessica Ring Amunson Jenner & Block LLP 1099 New York Ave., N.W. Washington, D.C Tel: (202) Fax: (202) Jesse Gaines PO Box Ft Worth, TX (817) ATTORNEYS FOR THE QUESADA PLAINTIFFS Luis Roberto Vera, Jr. LULAC National General Counsel SBN: THE LAW OFFICES OF LUIS ROBERTO VERA, JR & ASSOCIATES 1325 Riverview Towers 111 Soledad San Antonio, Texas office fax ATTORNEY FOR LULAC PLAINTIFFS Renea Hicks Attorney at Law State Bar No Law Office of Max Renea Hicks 101 West 6th Street Austin, Texas (512) Telephone (512) Facsimile rhicks@renea-hicks.com ATTORNEY FOR PLAINTIFFS EDDIE RODRIGUEZ, ET AL., TRAVIS COUNTY, AND CITY OF AUSTIN PERKINS COIE LLP Marc Erik Elias Admitted Pro Hac Vice 700 Thirteenth Street N.W., Suite 600 Washington, DC

13 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 12 of 13 (202) (202) FAX Abha Khanna Admitted Pro Hac Vice 1201 Third Avenue, Suite 4800 Seattle, WA (206) (206) FAX ATTORNEYS FOR EDDIE RODRIGUEZ, ET AL. David Escamilla Travis County Attorney State Bar No P.O. Box 1748 Austin, Texas (512) fax (512) ATTORNEY FOR PLAINTIFF TRAVIS COUNTY Karen Kennard City Attorney State Bar No P.O. Box 1088 Austin, Texas (512) fax (512) ATTORNEY FOR PLAINTIFF CITY OF AUSTIN CERTIFICATE OF CONFERENCE I hereby certify that, on July 19, 2013, counsel for the Task Force Plaintiffs communicated with the Defendants State of Texas, et al. in this matter. Counsel for Defendants State of Texas, et al. oppose this motion. /s/ Nina Perales Nina Perales 12

14 Case 5:11-cv OLG-JES-XR Document 817 Filed 07/22/13 Page 13 of 13 CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that she has electronically submitted a true and correct copy of the above and foregoing via the Court s electronic filing system on the 22nd day of July, The undersigned counsel hereby certifies that she caused a true and correct copy of the above and foregoing to be mailed to the persons listed below by the close of the next business day. David Escamilla Travis County Asst. Attorney P.O. Box 1748 Austin, TX /s/ Karolina Lyznik Karolina J. Lyznik 13

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53 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 39 of 127 DEF UNITED STATES DISTRICT COURT DISTRICT OF DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, - against - UNITED STATES OF AMERICA and ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States, Defendants. CIVIL ACTION NO. 1:11-cv Three-Judge panel: RMC-TBG-BAH DEFENDANT-INTERVENOR TEXAS LATINO REDISTRICTING TASK FORCE S NOTICE OF FILING SUPPLEMENTAL PRE-FILED WRITTEN DIRECT TESTIMONY EXHIBIT 831 Expert Report and Exhibits of Dr. Flores (filed at Dkt to ) DX831

54 Case 1:11-cv RMC-TBG-BAH 5:11-cv OLG-JES-XR Document Filed Filed 07/22/13 01/17/12 Page Page 401 of of UNITED STATES DISTRICT COURT DISTRICT OF DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, - against - UNITED STATES OF AMERICA and ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States, Defendants. CIVIL ACTION NO. 1:11-cv Three-Judge panel: RMC-TBG-BAH DEFENDANT-INTERVENOR TEXAS LATINO REDISTRICTING TASK FORCE S NOTICE OF FILING PRE-FILED WRITTEN DIRECT TESTIMONY EXHIBIT 6 Expert Report of Dr. Henry Flores DX831

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71 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 57 of 127 Expert Report of Orville Vernon Burton, Ph.D. for Perez v. Perry, regarding Congressional Redistricting in Texas and the State House of Representatives. Draft :32 pm EST I. Scope of Project In the late afternoon of July 20, 2011, I was contacted by NAACP attorney Robert Gary Bledsoe of Austin, with whom I had worked as an expert witness in 2003 on that round of Texas redistricting, and asked to provide consulting services with regard to the U.S. Congressional redistricting of Texas and for the Texas House of Representatives Redistricting. Specifically, Attorney Bledsoe asked that I prepare a discussion on the history of discrimination and that the Senate factors should be part of my report. He asked me to look at: 1. the extent of any history of official discrimination that touched the right of the members of the minority group to vote; 2. the extent to which voting is racially polarized; 3. the use of unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination; 4. whether the minority has been denied access to any slating process; 5. disparities in education, employment and health; 6. whether campaigns have used overt or subtle racial appeals; and 7. the record of election of minority candidates. Thus, in this report I investigate the Senate report factors (also known as the Zimmer factors) and consider whether the current plans for the State House of Representatives new plan EXHIBIT 602 Plt Intervenors NAACP & Congresspeople000058

72 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 58 of 127 Burton Report, page 2 H283 and the Congressional Plan C185 proposed for the State of Texas dilutes minority group voting strength. I was asked to study the districts and plans proposed by the NAACP to determine if they were efficient and reasonable. I was also asked to research the historical circumstances surrounding redistricting in Texas. Among the issues I was asked to investigate were: a) the purposes behind the plan; b) the larger historical context in which this specific change took place, including the history of official state discrimination, c) the socioeconomic status of whites, African Americans, and Latinos in Texas and the continuing effects of historical discrimination. I was also asked to do analysis of elections to determine if there was racial bloc voting and whether minorities could elect candidates of their choice in the proposed districts. At the request of attorneys, I have conducted research on the history of racial discrimination in regard to voting, education, and public accommodations in Texas, examining the degree to which politics in Texas has continued to be affected by racial considerations, and the impact of the new Congressional plan, and the Texas House of Representatives plan, on minority voting strength. I am being compensated for my work at the rate of $200 per hour. In my expert opinion, the Senate or Zimmer factors have been clearly established. These factors satisfy by a totality of the circumstances, in other words, by all the available contextual evidence, that minority voters do not have an equal opportunity to participate in the electoral process and elect candidates of their choice in Texas. Scholars have especially documented Senate factor #1, extent of any history of official discrimination, and Senate factor #5, the extent to which members of the minority group bear the effects of discrimination. In addition, the new House of Representatives redistricting plan and the new Congressional redistricting plans do dilute minority group voting strength, most notably in State Representative Plt Intervenors NAACP & Congresspeople000059

73 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 59 of 127 Burton Report, page 3 Districts 26, 54, 107, and 114 and Congressional Districts 9, 18, and 30 under Plan C185. Minority communities are separated, or cracked, in these Districts. In all of these areas, voting is racially polarized, and the proposed Congressional district boundaries divide minority communities that, if they had been kept intact, would have had an opportunity to elect candidates of choice. Moreover, the districts proposed by the NAACP are efficient and meet the criteria of redistricting and the Voting Rights Act and in particular offer African Americans the best opportunities to elect candidates of their choice. I base my opinion on research that I conducted in historical and current sources, interviews, and a very brief analysis of voting patterns in the State of Texas, as well as my examination of the current Congressional and Texas House of Representative district configurations. Given the short timeline of when this report is due, my attorneys sought out assistance from another plaintiff group s expert witness, Dr. J. Morgan Kousser, whom my attorneys asked his attorneys for his racial bloc analysis report and statistics. Dr. Morgan Kousser is doing a thorough study of racial bloc voting, and after I examine Dr. Kousser s report, I will present my expert opinion on racial bloc voting, and analyze any other elections we believe will be necessary. I was also asked to study the reports of other expert witnesses and possibly prepare a response to them. In addition, I will do my own ecological regression analysis of as many relevant elections for which I can obtain the data. II. Professional Background and Experience I received my Ph.D. in American History from Princeton University in 1976 and have been researching and teaching American History at universities since. Currently I am Distinguished Professor of Humanities, Professor of History, and of Computer Science at Plt Intervenors NAACP & Congresspeople000060

74 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 60 of 127 Burton Report, page 4 Clemson University as well as the Director for the Clemson University CyberInstitute. From 2008 to 2010, I was the Burroughs Distinguished Professor of Southern History and Culture at Coastal Carolina University. I am emeritus University Distinguished Teacher/Scholar, University Scholar, Professor of History, African America Studies, and Sociology at the University of Illinois at Urbana-Champaign. My research and writing focus on American History and particularly on race relations. For the past four decades I have taught courses in U.S. History, Southern History, race relations, discrimination, ethnicity, family, and community. I use statistical analysis in my own research and writing, and I also taught courses in quantitative techniques at the University of Illinois. I was a member of the graduate statistics faculty and am still a Senior Research Scientist at the National Center for Supercomputing Applications (NCSA) where I was Associate Director for Humanities and Social Sciences. I was also the founding Director of the Institute for Computing in Humanities, Arts, and Social Science (ICHASS) at the University of Illinois and currently chair the ICHASS Advisory Board. I am a recognized and respected scholar with numerous publications in scholarly books and peer-reviewed journals. I have published a number of book reviews and have refereed book manuscripts, articles, proposals, and books concerning statistics, the voting rights act, race relations, and redistricting for academic and commercial publishers such as Cambridge University Press and the University of North Carolina Press, journals such as Social Science History and The Journal of Interdisciplinary History, and funding agencies such as the University of Illinois Research Board, American Council of Learned Societies, National Humanities Center, and the National Science Foundation. I have presented scholarly papers both in the United States and abroad on historical and statistical subjects, and I have received various Plt Intervenors NAACP & Congresspeople000061

75 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 61 of 127 Burton Report, page 5 awards. I presented the Stice Lectures on the Voting Rights Act at the University of Washington and hopefully next year the University of Washington Press will publish my lectures on the Voting Rights Act in their series on the Stice Lectures. I am the author or editor of sixteen books, including A Gentleman and an Officer: A Military and Social History of James B. Griffin s Civil War (co-authored with Judith N. McArthur, Oxford University Press, 1996). Chapter 9 of this book deals with Texas in the aftermath of the Civil War. I have also co-edited with my wife Georganne B. Burton, The Free Flag of Cuba : The Lost Novel of Lucy Holcombe Pickens [orig. pub. 1855]. (Baton Rouge: Louisiana State University Press, 2002). In this book we study a novel by Lucy Holcombe, an author from Marshall, Texas and celebrated as the Rose of Texas. Her antebellum novel was a pro-slavery response to Harriett Beecher Stowe s Uncle Tom s Cabin. The Age of Lincoln (2007) won the Chicago Tribune Heartland Literary Award for Nonfiction and was selected for Book of the Month Club, History Book Club, and Military Book Club; One reviewer proclaimed, If the Civil War era was America's Iliad, then historian Orville Vernon Burton is our latest Homer. The book was featured at sessions of the annual meetings of African American History and Life Annual Association (ASALH), the Southern Intellectual History Circle (SIHC), the Social Science History Association (SSHA), and as a forum published in The Journal of the Historical Society. (See The Age of Lincoln (2007), a study of secession, Civil War, and the aftermath into the twentieth century, also includes historical research on Texas. I am also author of In My Father's House Are Many Mansions: Family and Community in Edgefield, South Carolina (University of North Carolina Press, 1985, fifth printing 1998; subject of sessions at the Southern Historical Association and the Social Science History Association s Plt Intervenors NAACP & Congresspeople000062

76 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 62 of 127 Burton Report, page 6 annual meetings; nominated for Pulitzer). Quantitative analysis grounds this study of a southern community. In 2002, the University of Illinois Press published my edited book, Computing in the Social Sciences and Humanities (a Choice Outstanding Academic Book, 2003), and my coedited CD-ROM (with two of my former Ph.D. students, Terence Finnegan and David Herr), Wayfarer: Charting Advances in Social Science and Humanities Computing. The CD-ROM is an expanded version of the traditional book and contains more essays and research and teaching applications, including Gary King s EI method of Voting Analysis. I have been recognized by my peers as a leader in my field, both as scholar and teacher. I am president elect of the Southern Historical Association and am serving this year as the vicepresident, I chaired the prize committee for the Southern Historical Association's H. L. Mitchell Award for the best book in Labor History, was appointed the program chair for the 2005 annual meeting, and was elected to the Executive Committee. I served as the president of the Agricultural History Society, which publishes the premier journal in rural history, and have served in a number of positions in that association. I served on the executive committee of the Social Science History Association, I served as a member of the Organization of American Historian's ABC-CLIO America: History and Life Award Committee, , to select the best article published in United States history during that two-year period and was nominated for the nominating committee. I was also nominated for the Vice President for Teaching for the American Historical Association. I have received fellowships and grants from the National Science Foundation, the U.S. Department of Education, Rockefeller Foundation, the National Endowment for the Humanities, the American Council of Learned Societies, the Woodrow Wilson International Center for Scholars, the National Humanities Center, the Carnegie Plt Intervenors NAACP & Congresspeople000063

77 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 63 of 127 Burton Report, page 7 Foundation, and the Pew Foundation. I was selected nationwide as the 1999 U.S. Research and Doctoral University Professor of the Year (presented by the Carnegie Foundation for the Advancement of Teaching and by the Council for Advancement and Support of Education). I was a Pew National Fellow Carnegie Scholar for At the University of Illinois I was named a University Scholar in 1988 and was designated an inaugural University Distinguished Teacher/Scholar in I received the University of Illinois Graduate College Outstanding Mentor award. I served as the General Mark Clark Distinguished Professor at The Citadel and the Pew-Lilly Foundation Graduate Professor, Notre Dame University, Strickland Visiting Scholar, Department of History, Middle Tennessee State University. I am the recipient of the 2004 Eugene Asher Distinguished Teaching Award of the American Historical Association. I served as interim president of the Board of Directors of the Congressional National Abraham Lincoln Bicentennial Foundation, and am currently vice-chair. I received the University of Illinois 2006 Campus Award for Excellence in Public Engagement. I was appointed an Organization of American Historian Distinguished Lecturer for In 2008, the Illinois State legislature honored me with a special resolution for my contributions as a scholar, teacher, and citizen of Illinois. Race relations, politics, and society have been my specialty since I received my Ph.D. at Princeton in Most of my work has dealt with the role of race in American life. In my books and articles, I have described the impact of race upon the South with a particular emphasis upon the connections between the political process and racial attitudes, traditions, and economic and political institutions. I have researched and written on the Voting Rights Act of 1965 and presented this research to academic conferences in England, France, and the United States. As Plt Intervenors NAACP & Congresspeople000064

78 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 64 of 127 Burton Report, page 8 part of a large National Science Foundation study of the effects of the 1965 Voting Rights Act in the American South, I headed the research team for South Carolina and was the principal author (with Terence Finnegan, Peyton McCrary, and James W. Loewen) of the chapter on South Carolina, Chapter Seven in the book resulting from the study, Quiet Revolution in the South: The Impact of the Voting Rights Act, (Edited by Chandler Davidson and Bernard Grofman. Princeton University Press, 1994; Winner of the 1995 Richard F. Fenno Prize, Legislative Studies Section, American Political Science Association). Another of my articles, Legislative and Congressional Redistricting in South Carolina, was published in Race and Redistricting in the 1990s (Edited by Bernard Grofman. New York: Agathon Press, 1998). A detailed record of my professional qualifications is set forth in the attached Curriculum Vitae. As a graduate student at Princeton University, I studied statistics both in the History Department and with Dr. Edward Tufte in the Woodrow Wilson School of Public and International Affairs and with Dr. Claudia Goldin in the Economics Department. At the University of Illinois, I did a formal Study in a Second Discipline with a concentration on demography and advanced statistics. I have researched and written about the use of quantitative techniques. For example, see Quantitative Methods for Historians: A Review Essay, Historical Methods 25:4 (Fall 1992): I have also researched and written specifically about statistical techniques for measuring racial bloc voting. See (with James W. Loewen, Robert R. Brischetto, and Terence Finnegan) It Ain't Broke, So Don t Fix It: The Legal and Factual Importance of Recent Attacks on Methods Used in Vote Dilution Litigation, lead article in The University of San Francisco Law Review 27:4 (Summer 1993): On 10 July 1993 I gave a presentation on The Use of Historical and Statistical Data in a Voting Rights Case at Plt Intervenors NAACP & Congresspeople000065

79 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 65 of 127 Burton Report, page 9 the NAACP s Ninth Annual Lawyers CLE Seminar, where I also prepared a package of handouts, including a detailed description of how to do ecological regression analysis. These handouts were included in the course book, Conference Proceedings, for the CLE/NAACP Annual Meeting, July 1993, Indianapolis, Indiana. In November 1999 at a Voting Rights Conference in Washington D.C. at American University Washington College of Law, I published a slightly revised version of this paper, Understanding Regression Techniques for Determining Racial Bloc Voting, in the Conference Workbook prepared by the Lawyers Committee for Civil Rights Under Law Voting Rights Project. I am a judicially recognized expert in the fields of districting, reapportionment, and racial voting patterns and behavior in elections in the United States. I have had extensive experience in analyzing social and economic status, discrimination, and intent in voting rights cases, and group voting behavior. I have been retained to serve as an expert witness and consultant in numerous voting rights cases by the Voting Section of the Division of Civil Rights of the United States Department of Justice, Voting Rights Project of the Southern Regional Office of the American Civil Liberties Union (ACLU), the National Association for the Advancement of Colored People (NAACP), the Mexican American Legal Defense and Educational Fund (MALDEF), the California Rural Legal Association (CRLA), League of United Latin American Citizens (LULAC), the Lawyers Committee for Civil Rights Under Law, the Legal Services Corporation, and other individuals and groups. I first served as an expert witness and consultant in about 1982 with McCain v. Lybrand 1 (I was contacted by attorneys Laughlin McDonald and Armand Derfner immediately after Mobile v. Bolden, 2 to consult on the McCain case). I have not kept a 1 McCain v. Lybrand, 465 U.S. 236 (1984) U.S. 55 (1980). Plt Intervenors NAACP & Congresspeople000066

80 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 66 of 127 Burton Report, page 10 list of all the voting rights cases in which I have been involved, but, to the best of my recollection, following are the states in which I was involved in redistricting. For the 1980 redistricting, I was retained for South Carolina by attorney Armand Derfner and by Dennis Hayes of the NAACP. In 1990, I was retained by Laughlin McDonald of the ACLU and by Dennis Hayes and Willie Abrams of the NAACP for South Carolina. At a later stage of challenge to the redistricting in South Carolina, I was retained by the United States Department of Justice, Division of Civil Rights, Voting Section. In Illinois, attorneys Craig Burkhardt and Michael Carvin hired me to work for the Republicans in the House of Representatives for the 1990 redistricting, and in Massachusetts Alan Rom of the Lawyers Committee for Civil Rights Under Law asked me to work with Dr. Allan J. Lichtman on redistricting. In the 1990 round of redistricting, I also worked for attorney Joaquin Avila and MALDEF in California. For the 2000 redistricting, I worked for the NAACP on the City of Evanston in Illinois, for the Democrats in the New York State Senate case, and for LULAC and the NAACP in the second redistricting of Texas in My testimony has been accepted by federal courts on both statistical analysis of racially polarized voting and socioeconomic analysis of the population, as well as on the history of discrimination and the discriminatory intent of laws. I conducted the extensive ecological regression (ER) analysis as proof that voting patterns were polarized along racial lines in Jackson v. Edgefield County, South Carolina School District, 650 F.Supp. 1176, (D.S.C. 1986), which I have been told was the first case where Ecological Regression was presented by the plaintiffs and accepted by the federal court after the Supreme Court endorsed Ecological Regression as the proper statistical technique for measuring racial bloc voting in the Gingles case, Thornburg v. Gingles. 106 S. Ct (1986); Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984). 3 3 I do not know the universe of the cases to say for certain that Jackson was the first. Gingles was decided on June Plt Intervenors NAACP & Congresspeople000067

81 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 67 of 127 Burton Report, page 11 To the best of my knowledge and memory, in the last five years I have not testified or given depositions, or filed a report in any cases. I did consult on an education and tax disparity case in Alabama, but wrote no report. My most recent cases where I gave depositions or testimony or filed a report were the following cases: an Indianapolis, Indiana, case involving the city of Indianapolis and the counties of Lawrence and Marion (2005); City of Thomasville, North Carolina (2005); Session v. Perry, the previous Texas redistricting case (2003); Vander Linden v. South Carolina, Civ. No ; Elliott Harvey, III v. National Association of Letter Carriers, C.A. No. 98 CV 2312 (POR); Moultrie v. Charleston County Council, C.A. No ; Montano v. Suffolk County Legislature CV (ADS) (ARL); and New Rochelle Voter Rights Defense v. City of New Rochelle. I did a brief racial bloc voting analysis of Port Chester, New York, that was used to determine whether Hispanics and minorities could win before attorneys brought that case to the U.S. Department of Justice, but I only provided statistical tables and did not file a formal report. In the course of my investigation, I have examined a wide range of sources. These have included an examination of pertinent published works by historians, political scientists, and sociologists relevant to my inquiry; reviews of newspaper clippings, census reports, trial transcripts, other government documents and reports that document socioeconomic and political conditions in Texas, election returns for selected primary and general elections in Texas and the statistical analysis done by the state of Texas of the probative elections for U.S. Congress that included a minority candidate. I have also conducted interviews and communicated with 30, 1986, Jackson was decided on Sept. 29, 1986, so Jackson would certainly have been among the first of the cases to follow the Gingles analysis. Of course, Ecological Regression had been used in cases before Gingles; I had used bivariate ER in cases before the Gingles decision. Plt Intervenors NAACP & Congresspeople000068

82 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 68 of 127 Burton Report, page 12 historians and political scientists knowledgeable of and in Texas. For the most part, I gathered these materials independently or with the assistance of my research assistants, Beatrice Burton, an all but dissertation History graduate student at the University of Georgia, and Morgan Johnston, an engineering BS and MA in Urban Planning at the University of Illinois, and Tucker Morris, who completed a year of law school and is currently an information technology expert at EPIC in Madison, Wisconsin. In some cases I requested specific documents that were supplied by the attorneys for the plaintiffs and the Texas NAACP. In preparing my report and my testimony in this case, the sources and types of documentation that I have used are those an expert normally consults in investigating questions of this nature. The methodology that I have employed in preparing my report is the same methodology I and other scholars in my field employ when examining issues of the sort investigated here. Finally, the analysis presented here is consistent with related scholarly research. In my analysis for this case, I have used assumptions, methods, and analytical principles consistent with those employed in my past scholarly writing. On the basis of the evidence discussed in the following pages, any expert in my field could legitimately reach a conclusion concerning the purposes and effects of the 2011 Congressional and State House Redistricting in Texas. III. Senate Factors that should be considered as part of the totality of circumstances This section of the report will systematically address the 7 plus 2 Senate Factors, as noted above, as part of the totality of circumstances for Texas. Historians, political scientists, Plt Intervenors NAACP & Congresspeople000069

83 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 69 of 127 Burton Report, page 13 and sociologists have documented the history of official discrimination in voting and the socioeconomic status contributing to lower rates of political participation. The fact that the state of Texas has a long history of racial discrimination affecting voting is beyond dispute. Although Texas was not covered initially by the 1965 Voting Rights Act, it has been a major battleground on which the struggle over minority voting rights has occurred. This history is summarized in Robert Brischetto, David R. Richards, Chandler Davidson, and Bernard Grofman, Texas, in Chandler Davidson and Bernard Grofman (eds.), Quiet Revolution in the South: The Impact of the Voting Rights Act, This history has long been recognized in factual findings made by federal courts. The trial court in Graves v. Barnes relied in part on this history as a basis for finding the redistricting plan for the state house of representatives unconstitutional. The State has adopted and maintained an official policy of racial discrimination against the Negro, observed the court, and that policy extended to the Negro s right to vote and to participate in the electoral process. 5 The court also found that the Mexican-American population of Texas... has historically suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics, and others. 6 This finding was, in turn, part of the evidence relied on by the United States Supreme Court in upholding the decision of the trial court in Graves. 7 My own expert witness report for the NAACP and LULAC from the 2003 redistricting trial is available as part of the record before Congress in 4 Robert Brischetto, David R. Richards, Chandler Davidson, and Bernard Grofman, "Texas," in Chandler Davidson and Bernard Grofman (eds.), Quiet Revolution in the South: The Impact of the Voting Rights Act, (Princeton, N.J.: Princeton University Press, 1994), , , quotation on p Graves v. Barnes, 343 F. Supp. 704, 725 (W.D. Tex. 1972)(citations omitted) F. Supp. at White v. Regester, 412 U.S. 755 (1973). See also Seamon v. Upham, 536 F. Supp. 931 (E.D. Texas 1982) ), aff'd, Strake v. Seamon, 469 U.S. 801 (1984)[Congr.]. Plt Intervenors NAACP & Congresspeople000070

84 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 70 of 127 Burton Report, page 14 regard to the 2006 Reauthorization Act: see Voting Rights Act: Evidence of Continuing Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong. Volume III (2006). 8 Senate Factor 1: the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process This factor looks at how the history of racial discrimination has affected voting in Texas. Native Texan and sociologist Dr. Chandler Davidson has researched and written extensively on African Americans and political rights in Texas. His expert witness report in Vera v. Richards is a good overview of Texas politics and race relations. 9 Texas has had a long history of racial discrimination. Beginning with Anglo settlement, slaves were brought from other areas of the South with their masters who had acquired inexpensive land in Mexican Texas. During this time slaves were official contract labor (usually for life) in order to comply with Mexican law which outlawed outright slavery. With the fear that the Mexican government would put an end to slavery, the Anglos living in Mexico felt threatened and fomented revolution in There are many interpretations as to the causes of this insurgence, among which racist leanings towards Mexicans are often attributed as a factor. Others strongly argue that these leanings did not arrive 8 Voting Rights Act: Evidence of Continuing Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong. Volume III (2006). 9. Texas does not have registration figures by race or language minority, as I understand Chandler Davidson, The Voting Rights of African Americans in Texas, Expert Witness Report (The copy Dr. Davidson provided me is 114 pages double spaced that includes 15 pages of notes, including citations to court cases). Vera v. Richards, 861 F. Supp, 1304 (S.D. Tex. 1994); Bush v. Vera, 116 S. Ct (1966). Much of this testimony is included in the essay, Brishcetto, et al., Texas. See also J. Morgan Kousser, Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Chapel Hill: University of North Carolina Press, 1999), Plt Intervenors NAACP & Congresspeople000071

85 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 71 of 127 Burton Report, page 15 until after revolution had broken out. Those who came to aid the Texans after the fighting broke out, it is claimed, formulated a hatred for the Mexicans they were at war against. 10 After Texas won independence, slavery grew as an important part of the economic system of the Republic of Texas and later the State of Texas; however, it no longer needed to be disguised as contract labor. Slavery was important to cotton, and cotton was important to the economy of Texas. Slavery grew at a rapid pace and by 1860 was as important in Texas as it was proportionately in Virginia. 11 Free African Americans did exist in antebellum Texas, and occupied the bottom class on the free population s social ladder. One of the first pieces of business for the new Republic of Texas after winning independence was to expel all free blacks. In the state of Texas, this group, which numbered no more than 400 in both 1850 and 1860, had no rights and were seen by whites as threats to the institution of slavery. Free African Americans had to seek permission from the legislature to remain in Texas and were subject to the same harsh laws as slaves. 12 In defense of slavery, Texas joined the Confederacy in In the Texas Declaration of Secession, the delegates wrote that Texas had joined the United States for the blessings of peace and liberty to her people. Their declaration averred that liberty meant maintaining and protecting the institution known as negro slavery-- the servitude of the African to the white race within her limits-- a relation that had existed from the first settlement of her wilderness by the 10 On Anglo settlement in Mexican-Texas see: Gregg Cantrell, Stephen F. Austin: Empresario of Texas (New Haven: Yale University Press, 1999); On the Texas Revolution see: Cantrell, Stephen F. Austin; Paul D. Lack, The Texas Revolutionary Experience: A Political and Social History (College Station: Texas A&M University Press, 1992). 11 Randolph B. Campbell, An Empire for Slavery: The Peculiar Institution in Texas (Baton Rouge: Louisiana State University Press, 1989). 12 Orville Vernon Burton, The Age of Lincoln (New York: Hill & Wang, 2007), p. 26. Campbell, Empire for Slavery. Plt Intervenors NAACP & Congresspeople000072

86 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 72 of 127 Burton Report, page 16 white race, and which her people intended should exist in all future time. Instead of protecting the property of our citizens, they declared, Washington was now intent to strike down the interests and property of the people of Texas, and her sister slave-holding States. 13 Slavery came to an end in Texas on June 19, 1865, when federal troops arrived at Galveston and announced the Emancipation Proclamation, although many kept slaves well into the fall of Without federal supervision, white Texans adopted in 1866 a new constitution that prohibited intermarriage, voting, officeholding, and jury service by freedmen. Instead, Congress proposed the 14 th Amendment, which defined American citizenship: All persons born or naturalized in the United States are citizens and as such are entitled to due process and the equal protection of the laws. Texas was one of the nine states that refused to ratify the amendment. 15 Texas then came under military rule and eventually under what has been called Radical Reconstruction, although it was only radical if one considers fairness and interracial democracy radical. Only with Congressional Reconstruction did African Americans get the vote; left to their own devices white Texans opposed strongly granting any rights of citizenship to former slaves. During the period of Reconstruction, African Americans gained the right to vote, the ability to serve in police forces and on juries, and some held various appointed and elected offices. Those elected to office and the state legislature were almost always elected only from African American majority districts. Texas s experiment with interracial democracy was relatively brief. In 1872 conservative white Democrats recaptured control of the legislature and in 1873 the governorship. A former governor characterized this so called Redemption as the restoration of white supremacy and Democratic rule. Another constitutional convention was 13 Age of Lincoln, p. 120; 14 Brischetto, et al., Texas, in Chandler Davidson and Bernard Grofman. Quiet Revolution in the South: The Impact of the Voting Rights Act , Age of Lincoln, p Plt Intervenors NAACP & Congresspeople000073

87 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 73 of 127 Burton Report, page 17 held in 1875 and a bill mandated segregated schools. In 1876 Texas ratified a constitution that returned the state to conservative Democratic Party home rule and deprived African Americans of equal rights. Although some had wanted to use that constitution to disfranchise African Americans, it did not. Many whites in counties with a high proportion of blacks unsuccessfully sought to have a poll tax implemented as a provision of the constitution. At that time an Austin newspaper declared districts were Gerrymandered, the purpose being, in these elections, and properly enough, to disfranchise the blacks by indirection. Texas still operates under the anti- Reconstruction constitution adopted in Texas also had its share of segregation laws. For example, an 1891 law required segregation on railroad cars in the state. 16 From Reconstruction through the end of the nineteenth century, African Americans in Texas participated in the political process, usually as members of the Republican Party, while conservative Democrats continued to control the state government. In the 1890s economic oppression brought African Americans and poor whites together to support Populist Party candidates, and in several Texas congressional districts progressive whites and African Americans supported the People s Party candidates. This third party had a great deal of success at the local level, but could not elect a congressman or statewide official. Many scholars have asserted that in the cases of close elections the Democrats used fraud, ballot stuffing, payments, coercion and intimidation (often aimed at African Americans) to steal the offices at stake. Nevertheless, during this time whites and African Americans attended both political and social events together in support of Populist Politics. Brischetto, et al. quote historians who document 16 Randolph B. Campbell, Grass Roots Reconstruction in Texas, (Baton Rouge: Louisiana State University Press, 1997); Barry A Crouch, The Freedman s Bureau and Black Texans (Austin: University of Texas Press, 1992); Brischetto, et al., Texas, pp , quotations p. 234; Chandler Davidson, Expert Testimony, Vera, p. 4. Plt Intervenors NAACP & Congresspeople000074

88 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 74 of 127 Burton Report, page 18 from the 1870s the formation of white associations the purpose of which was to prevent the elections of blacks to office. When this failed, Anglos on the local level acted just as whites in other former Confederate states resorting to the methods listed above and even, if all else failed, resorting to murder. The terror in the Texas blackbelt was similar to that in the Deep South states during the time period. In addition, Dr. David Montejano s important book, Anglos and Mexicans In The Making of Texas, documents that the White Man s Primary Association was effectively used to prevent Mexican Americans from participating in the nomination process in Dimmit County, Texas. The 12 June 1914 Carrizo Springs Javelin, the local Dimmit County newspaper reported that the White Man s Primary Association absolutely eliminates the Mexican vote as a factor in nominating county candidates, though we graciously grant the Mexican the privilege of voting for them afterwards. One of the founders of the League of United Latin American Citizens in 1929, M. C. Gonzalez included among adverse conditions in Texas for Latinos in the decade of the 1920s, the establishment of white man s primaries to prevent blacks and Mexican Americans from exercising their right to vote. The history of race relations in Texas is one that discouraged African Americans and Latinos from participating in the political process not only subtly but with economic reprisals and the real threat of one s life Lawrence Goodwyn, Democratic Promise: The Populist Moment in America. (New York: Oxford University Press, 1976); Gregg Cantrell, et. al., Texas Populists and the Failure of Biracial Politics, Journal of Southern History, Vol. 55, No. 4. (Nov., 1989) pp ; Gregg Cantrell, Kenneth and John B. Rayner and the Limits of Southern Dissent (Urbana: University of Illinois Press, 1993); Gregg Cantrell and Kristopher B. Paschal, Texas Populism at High-Tide: The Case of the Sixth Congressional District, 1894, under consideration Southwest Historical Quarterly; Kristopher B. Paschal, Melvin Wade, The Dallas People s Party, and Bi-Racial Political Fellowship, under consideration Southwest Historical Quarterly; Alwyn Barr, From Reconstruction to Reform: Texas Politics, (Austin: University of Texas Press, 1971); Alicia Rodriquez, Urban Populism: Challenges to Democratic Party Control in Dallas, Texas, Ph.D. diss., University of California-Santa Barbara, 1998; Brischetto, et al., Texas, pp Plt Intervenors NAACP & Congresspeople000075

89 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 75 of 127 Burton Report, page 19 As a result of the political challenges to their own conservative rule in the 1890s, the Democratic Party sought reform in Texas politics, which meant in essence to clean up their opposition. 18 Around the turn of the century, White Men s unions formed in many Texas counties with their purpose to ensure that only conservative white Democrats were elected to office. Beginning in the 1890s and lasting for many decades, lynching became a standard form of racial intimidation in Texas. Between 1890 and the 1920s, Texans lynched 309 men, more than any other state. Of these, 249 were African American. In the 1920s mob violence would give way to organized violence against African Americans. 19 During the 1920s the Ku Klux Klan, no stranger to politics, gained prominence in Texas. In 1922, Earle B. Mayfield, an admitted Klan member, was elected to the United States Senate. The Klan also had success electing officials at the local level, and the Klan controlled the Democratic Party s nominating convention. 20 In 1930 a lynch mob burned down the Grayson County courthouse in Sherman to kill an African American accused of raping a white woman and then burned down the entire African American business block in Sherman for good measure. As recent as 1998, in Jasper, Texas, the murder of African American James Byrd was so shocking it drew worldwide attention. 21 During the early twentieth century the number of Latinos in Texas began to rise dramatically as the Porfiriato and Mexican Revolution took place in Mexico and a wave of migrants made their way across the border. According to Benjamin H. Johnson, At least ten 18 Brischetto, et al., Texas, in Davidson and Grofman, 235, 237; David Montejano in Anglos and Mexicans In The Making of Texas, (Austin: University of Texas Press, 1987), pp Randolph B. Campbell, Gone to Texas: A History of the Lone Star State (New York: Oxford University Press, 2003). 20 Randolph B. Campbell, Gone to Texas. 21 Dina Temple-Raston, A Death in Texas (Henry Holt & Co., 2002). Plt Intervenors NAACP & Congresspeople000076

90 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 76 of 127 Burton Report, page 20 thousand people moved to Cameron County from 1910 to 1920, increasing its population to 37,000. More than twice as many came to Hidalgo County, making almost two-thirds of its 1920 population of 38,000 recent immigrants. Prior to this time, Texans considered Mexican- Americans as white. As this wave competed with Anglos for jobs, however, accepting them as white quickly disappeared. Jim Crow laws also found their way to the Latino society in Texas. Now socially cast apart from whites, restaurants and stores in the Rio Grande valley began to display signs reading, NO MEXICANS. 22 Segregated Latino schools and neighborhoods began to develop. In reaction to Latino segregation, the Plan de San Diego was conceived in Duval County. This plan suggested violent rebellion by Latinos who would create a separate nation from the Border States in the Southwest. 23 In 1920, the sole Latino member of the state legislature, J.T. Canales, who had called attention to abuses of Latinos by the celebrated Texas Rangers, left politics. It would not be until 1956 before a Latino would return to Austin politics, when Henry B. Gonzales of San Antonio was elected. Brischetto, et all, Texas, have a brief section on Mexican Americans and the discrimination they received from Anglo Texans. 24 This history of discrimination has fostered a community of interest between Texas African Americans and Hispanics. The Ku Klux Klan, which targets minorities Hispanics as well as African Americans remains active in Texas. A list maintained by the Anti-Defamation League (ADL) includes the Bayou Knights of the Ku Klux Klan as prevalent in Texas as well as in other areas of the Southwestern and Southeastern U.S. According to the Anti Defamation League, the Texas-based 22 Johnson, A Revolution in Texas. 23 Benjamin H. Johnson, A Revolution in Texas: How a Forgotten Rebellion and its Bloody Suppression Turned Mexicans Into Americans (New Haven: Yale, 2003); Neil Foley, The White Scourge: Mexicans, Blacks and Poor Whites in Texas Cotton Culture (Berkeley: University of California Press, 1997). 24 Brischetto, et al., Texas, in Davidson and Grofman, pp Plt Intervenors NAACP & Congresspeople000077

91 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 77 of 127 Burton Report, page 21 White Camelia Knights, another off-shoot of the KKK, has managed to maintain a strong presence to this day. Moreover, the climate of hate espoused by such groups has an influence on the people of Texas. A news release from the Anti Defamation League tells of the beating and assault of a Hispanic teen in Houston, Texas, in The Anti-Defamation League (ADL) is shocked and appalled by the beating and sodomizing of a 16-year-old Spring boy. Investigators of the crime stated that perpetrators insulted the young man s Mexican heritage while they beat him. Moreover, Allegedly one of those two men wears racist tattoos and purports to be a skinhead. In a report entitled Extremists Declare Open Season on Immigrants; Hispanics Target of Incitement and Violence, ADL reported in 2006 that between 2000 and 2006, more than 2,500 hate crimes had been perpetrated against Hispanics. Moreover, the report stated that. the number of violent attacks targeting the Hispanic community is growing. 25 The KKK remains politically influential, now with some connections to the Tea Party in Texas. Karen Peck, who leads the Wood County Tea Party (also known as the Winnsoboro Texas Tea Party), is also an official supporter of the KKK and has a subscription to the White Patriot Tabloid. 26 Mark Williams, the original Vice Chairman of Tea Party Express, writes Some people should not vote Sometimes the best choice for the rest of us is if some of us don t vote at all. 27 Woodlake, Texas, is the Cooperate Headquarters of the 1776 Tea Party. Its organizer Dale Robertson attended a Tea Party event in Houston, carrying a sign that read, Congress= Slaveholder, Taxpayer= Niggar, and his requests for fund-raising depicted 25 Extremists Declare Open Season on Immigrants; Hispanics Target of Incitement and Violence, 26 Institute for Research & Education on Human Rights, Special Report, Tea Party Nationalism, Fall 2010, p Mark Williams, Taking Back America, One Tea Party at a Time, p. 122, cited in Special Report, Tea Party Nationalism, p. 55. The organization has disavowed Williams extremism, but he was influential in the formation of the Tea Party. Plt Intervenors NAACP & Congresspeople000078

92 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 78 of 127 Burton Report, page 22 President Obama as a pimp. 28 Although these are extreme positions within the Tea Party movement, they do provide a level of cultural acceptance for racist attitudes toward African Americans. Beginning in 1902 a series of acts sought to disfranchise several groups including African Americans, Latinos, and poor whites. The major disfranchising device in Texas was the use of a poll tax as a prerequisite for voting. The institution of the poll tax aimed directly at poor African Americans but also crippled the influence of many Latinos and poor whites. Historians have maintained that the poll tax was targeted at punishing Populists who had formed coalitions with African American voters in urban areas such as Dallas. In addition to disfranchising those who had been in dissent to conservative Anglo Democratic Party rule in Texas, urban workers who may very well have identified themselves as Democrats also felt the weight of the poll tax. Because both African Americans and Latinos were disproportionately poor, the cost of paying the poll tax helped keep minority registration and turnout low for much of the first half of the twentieth century. Dr. Chandler Davidson in his 1994 Expert Report quotes Ozzie Simmons that the poll tax, although a small sum ($1.75), costs the [South Texas Mexican] laborer most of a day's wage, and the same is true for African American laborers. 29 The poll tax had such an effect on voter turnout that Congress and the states passed the 24th Amendment to the United States Constitution (ratified 1964), which outlawed the practice for federal elections. The Voting Rights Act of 1965 authorized the United States Attorney General to challenge use of the poll tax in state elections, and a federal court promptly struck the poll tax down as unconstitutional, in 28 Special Report, Tea Party Nationalism, p Brischetto, et. al., "Texas," ; Davidson, Expert Report, p. 12. Plt Intervenors NAACP & Congresspeople000079

93 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 79 of 127 Burton Report, page 23 part because it had been adopted in 1902 for the purpose of disfranchising African American voters. 30 Without a poll tax to hinder minority voters, the Texas legislature imposed a restrictive voter registration system requiring annual registration of all voters months before elections were to be held. This system, which a federal court found to have a substantial disfranchising effect, was struck down in Beare v. Smith. 31 The following year the state enacted a new purge law that would have required reregistration of the entire state electorate. These kinds of purges tend to eliminate minority voters off the rolls. The extension of the preclearance requirement of the Voting Rights Act to Texas in 1975, however, prompted the Department of Justice to object to implementation of the new purge law, which a federal court then enjoined. By 1975 the attempts to hinder voting in Texas had become so obvious that the United States Congress extended Section 5 of the Voting Rights Act to cover Texas. 32 According to Brischetto, et al., Texas, after extension of Section 5 to Texas, Texas jurisdictions were soon the target of the largest number of objections in any covered state. Between 1975 and 1990, the Department of Justice interposed 131 objections to voting procedures embracing the full range of illegal procedures: racial gerrymandering, discriminatory purges of registered voters, imposition of numbered posts and the majority runoff requirement, annexations that diluted minority votes, a faulty bilingual oral assistance program, reduction in the number of elected officials, transfer of duties from one official to another, and unfair changes in election dates. Texas failed to submit numerous changes for Section 5 review between : 29 of the 105 successful Section 5 enforcement actions were from Texas more than from any other state [Northwest Austin Mun. 30 United States v. State of Texas, 252 F. Supp. 234, 245 (W.D. Tex. 1966), aff'd 384 U.S. 155 (1966) F. Supp (S.D. Tex. 1971), aff'd sub nom Beare v. Briscoe, 498 F.2d 244 (5th Cir. 1974). 32 Brischetto, et al., Texas, in Davidison and Grofman, Plt Intervenors NAACP & Congresspeople000080

94 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 80 of 127 Burton Report, page 24 Utility Dist. Number One v. Mukasey, 573 F. Supp. 2d 257 (D.D.C, 2008) (citing report of the National Commission on the Voting Rights Act). The court also cites several Texas vote dilution cases in which prior federal courts found intentional discrimination: Williams v. City of Dallas, 743 F. Supp (N.D. Tex. 1990); LULAC v Midland Indep. School Dist., 648 F. Supp. 596 (W.D. Tex. 1986); Political Civil Voters Org. v. City of Terrell, 565 F. Supp. 338 (N.D. Tex. 1983). Clearly, the Anglo leadership of Texas has a history of attempting to disfranchise African Americans. 33 In addition to the poll tax, Texas also instituted a white primary. Texas began to use the white primary as a means of de facto disfranchisement after adoption of the Terrell Election laws in 1903 and Given that the Democratic Party was the only party that mattered, keeping African Americans out of the primary amounted to disfranchisement. Those voting in the party primary had to affirm, I am a white and I am a Democrat. 35 Prof. David Montejano in Anglos and Mexicans In The Making of Texas, , writes that the author of the Terrell Election Law which established a direct primary and required the payment of a poll tax between October and February, clearly stated that the purpose of the law was to prevent opening the flood gates for illegal voting as one person could buy up the Mexican and Negro votes. Moreover, Proponents of the Terrell legislation also noted that Mexicans and blacks would either fail to pay so far in advance or lose their receipts when election time came around. In 1918 African Americans successfully challenged a white primary in Waco, Texas, and gained access to voting privileges there. In response, the Texas State Legislature outlawed the participation of African 33 Brischetto, et. al., "Texas," 240, quotes from pp. 246 and256 on DOJ objections. 34 See Table 8.9 in Brischetyo, et. al., Texas, p Barr, Reconstruction to Reform; Patrick G. Williams, Suffrage Restrictions in Post Reconstruction Texas: Urban Politics and the Specter of the Commune, Journal of Southern History Vol. 68, No.1 (Feb. 2000). Plt Intervenors NAACP & Congresspeople000081

95 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 81 of 127 Burton Report, page 25 Americans in Democratic primaries statewide. Dr. Montejano writes that in 1918, the legislature passed a law eliminating the interpreter at the voting polls and stipulating, moreover, that no naturalized citizens could receive assistance from the election judge unless they had been citizens for twenty-one years. In 1923, the Texas legislature enacted a law declaring that in no event shall a negro be eligible to participate in a Democratic primary election held in the State of Texas. After a 1927 successful challenge by the African American El Paso physician Dr. Lawrence A. Nixon, the legislature shifted the burden of disfranchisement from the state to political parties. The State Democratic Executive Committee resolved to limit primary participation to white Democrats and none others. Although this law was successfully challenged in the Supreme Court, the Texas Democratic Party made slight adjustments to the rule until, in Grovey v. Townsend (1935), it was unanimously held that if the Democratic Convention decides to exclude African Americans it was constitutionally acceptable to do so. This standard was not overturned until the landmark 1944 Supreme Court decision Smith v Allwright that held the white primary to be unconstitutional. 36 Texas has continued to hinder minority voting with the use of vote dilution techniques. For example, since the 1960s there have been constant legal challenges to the system of election districting in Texas. It is important to note that these challenges have been closely paralleled by an increase in a surge of political activity among African Americans and Hispanic activists. Kicking off the set of legal challenges to voting districting in Texas was the Graves v Barnes (1972) decision that became the important White v. Regester (1973) decision, which 36 Brischetto, et. al., Texas, in Davidson and Grofman, , quote p. 238; David Montejano in Anglos and Mexicans In The Making of Texas, (Austin: University of Texas Press, 1987), pp ; Davidson, Expert Report, Vera, p. 7. Plt Intervenors NAACP & Congresspeople000082

96 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 82 of 127 Burton Report, page 26 outlawed multimember districts as unfair to minorities. This decision brought about decades of political positioning and maneuvering in the redistricting process, followed by lawsuits, followed by more positioning and maneuvering, all culminating in the two court decisions in Bush v. Vera (1996) and Vera v. Richards (1994). 37 Senate Factor 2: "the extent to which voting in the elections of the state or political subdivision is racially polarized I have been asked by attorneys to examine at a later point the expert witness reports relevant to the issues I am investigating, and in particular racial bloc voting, and I reserve the right to do so, and also to do voting analysis of particular elections. In 2003, Attorney Jose Garza then representing LULAC, provided me with the state s analysis of racial bloc voting for the highly probative contests involving a minority candidate for Congress which were broken out by year, I have requested similar reports for the years In 2003, I studied those reports and within each year separate reports were given for each Congressional District with estimated turnout rates among Anglos, Latinos, and African Americans, as well as estimated levels of support for Anglo- and non-anglo candidates among each of these groups. Although I was not provided the data or the methodology behind the state s own printout, I studied the printout results. These results showed racial bloc voting by Anglos, strong cohesion among African American voters, and among Latino voters. In addition, in the general elections and often during primaries, African American and Latino voters supported the same candidates. 37 Kousser, Colorblind Injustice, pp Plt Intervenors NAACP & Congresspeople000083

97 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 83 of 127 Burton Report, page 27 There are clear patterns of proportionally lower turnout in general elections among Latino and African American populations relative to whites, and clear patterns that Latinos and African Americans favor the minority candidates, while Anglos favor the Anglo candidates. The patterns in primary voting are mixed: the turnout disparities among groups tend to be smaller than in general elections, and African American and Latino blocs sometimes have turnout levels equal or greater than Anglos. Although in 2003 I did not provide a final expert report on racial bloc voting, I was provided tables before Dr. Alan Lichtman produced his report and these were also consistent with lower turnout by minorities, and Dr. Lichman s election results and the State s regression analysis indicated a high probability that African Americans and Latinos are politically cohesive within each group and with each other and that Anglos generally vote as a bloc to defeat minority preferred candidates absent a minority opportunity district. 38 This would not be surprising since several Court cases in Texas have documented racial bloc voting. Moreover, the careful social science study by Brischetto, et al. Texas, found that their findings on minorities election to city councils are consistent with the assumption that racially polarized voting was strong in most Texas cities during this period ( ). In addition they found that minorities seldom won in Anglo majority districts and moreover, minority-plurality districts elected a significant number of minority candidates, as did Anglo-plurality districts in which blacks and Hispanics combined made up a slight majority. This is consistent with the 38 As noted in my 2003 Report, this could have been a methodological artifact of the estimation procedures being used by the state, since the proportions of African American and Latino voters turning out are so small. In addition, many of the Anglo turnout estimates look quite low relative to the much higher turnout levels for Anglos in the general elections. For instance, in District 18 the 2002 primary turnout was estimated to be zero among Anglos, but the general election turnout was estimated to be 29.6% among Anglos. This could be because there are few whites who vote in the Democratic primary, or it could be a methodological artifact introduced by regression models or of errors in the coding of the primary election dataset. Only further inspection of the data and methods would have allowed me to determine what is causing this. I did not pursue these statistics and concentrated on the Senate Factors instead in Registration and turnout figures for the state of Texas are recorded for at and for 1996 at and through November 2010 at recent voter turnout & registration figures for texas: Plt Intervenors NAACP & Congresspeople000084

98 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 84 of 127 Burton Report, page 28 interpretation that the minority groups help each other s candidates in these circumstances. 39 In addition, Dr. Chandler Davidson devoted the longest section of his Expert Report in Vera (1994) to racial bloc voting and what he also terms racial polarization. He titled Section 5 of his report Continuing Racial Polarization in Texas (pp ) and included subsections on what Dr. Davidson terms The Claim that White Bloc Voting is Not Motivated by Racism (pp ). This noted scholar of Texas politics carefully documents the importance of racism in voting and discusses the development of the modern political party system in Texas. He re-emphasizes the significance of race in his penultimate subsection, Racism as an Explanation for White Bloc Voting (pp ). Dr. Davidson documents that a major reason for the failure of African Americans to win elections in majority Anglo districts was racially polarized voting (p.58). Finally, Dr. Davidson concludes his report: It is my considered professional opinion that racial polarization in the sociological sense is still very much with us in Texas today and that it will be with us for decades to come (p. 89). In the course of my own research in 2003, I did some analysis of voting. In particular, I analyzed seven elections. 1. Morris Overstreet v. Sue Lagarde 1992 general election for the Judge Court of Criminal Appeals 2. Harris County 1992 elections (including contest between Clark Kent Ervin v. Gene Green for Congress) 3. Grady Yarborough s race for State Treasurer in 1994 Republican Primary 39 Brischetto, et al., Texas, pp. 253, 254; Davidson, Expert Report, Vera, p. 39 on court cases documenting racial bloc voting. Plt Intervenors NAACP & Congresspeople000085

99 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 85 of 127 Burton Report, page Judge Maryellen Hicks, Tarrant County, race for a seat on the Tarrant County Court of Appeals (1994) 5. Republican African American Alvin Shaw s contest against Democratic Sheriff Margo Fraser for Travis County Sheriff (1996) 6. The 2002 United States Senate campaign of Ron Kirk 7. The 2002 Republican Primary where Xavier Rodriguez ran against Stephen Smith My conclusions in 2003 was that there was significant racial bloc voting that prevented minority candidates from electing the candidate of their choice and that African Americans voted as a cohesive group and that Hispanics voted as a cohesive group, and that often these two minority groups supported one another in elections for preferred candidates voting as cohesive minorities. This is consistent with other expert reports on racial bloc voting in Texas. As part of the record before Congress in regard to the 2006 Reauthorization Act: [see Voting Rights Act: Evidence of Continuing Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong. (2006), Volume IV] are the reports from Sessions v. Perry of Richard Engstrom (pp ), Jonathan Katz (pp ), & Allan Lichtman (pp ).; all showing racial bloc voting that prevents African American minorities and Hispanic minorities from electing candidates of their choice, and also showing that African Americans are cohesive as a voting group as is Hispanics and that often Hispanics and African Americans are cohesive together supporting the same minority candidate for election.40 My attorneys have also asked me to do racial bloc voting analysis, and if time 40 Voting Rights Act: Evidence of Continuing Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong. (2006), Volume IV, pp , Plt Intervenors NAACP & Congresspeople000086

100 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 86 of 127 Burton Report, page 30 permits, I will. My attorneys requested from other plaintiffs the voting analysis tables of Expert Witness Dr. Morgan Kousser, but in the tables and graphs provided, there is only one election analyzed. Thus, I have asked for case specific elections and the data necessary to run ecological regression data on racial composition of precincts and precinct returns. I have especially requested the election returns from the congressional elections in the three districts of interest and for the House seats in question. In a future report I would like to update information relating to racially polarized voting in Texas and also incidents where slating of candidates has not worked to the advantage of the minority community and/or candidates. Election losses of quality minority candidates need some analysis as do elections or loss of elections by white candidate who minorities supported. These include, but is not limited to, the following: --Victor Carrillo, a Latino who was the Chairman of the Texas Railroad Commission. He lost reelection to the Railroad Commission in the 2010 Republican statewide primaries C.O. Bradford, an African American who ran for District Attorney in Harris County in He received 49.79% of the vote. --J. Goodwill Pierre, an African American who lost his bid for the 333rd District Court by 230 votes. --Mekisha Murray, a Caucasian who ran for District Judge for the 351st district. She received % of the vote. --Ashish Mahendru, born in India. He ran for District Judge in the 334th District and received 48.57% of the votes. --Andres Pereira, a Hispanic who ran for District Judge for the 190th District. --Xavier Rodriguez, a Hispanic candidate for Texas Supreme Court Associate Justice in An Austin-American Statesman article hints that the Ethnicity of Carrillo was the reason he lost. See Plt Intervenors NAACP & Congresspeople000087

101 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 87 of 127 Burton Report, page 31 He was defeated by Caucasian Steven Wayne Smith. --Tony Garza, a Hispanic who ran for Texas Attorney General in He finished 4th in the election. --Morris Overstreet, an African American who lost his statewide re-election in Frederick Lico Reyes, a Hispanic who ran for congress in He received 33% of the vote as a candidate for Texas Congressional District 26, in Tarrant County. Others include Maryellen Hicks, an African American woman who is a former State Judge, Bill White, Pete Benavides, and a sweep of losses in Harris County in There may be others. I reserve the right to do this voting analysis, as well as to study the analysis of the other experts on voting behavior. Senate Factor 3: the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group The move away from district and ward elections for local jurisdictions in Texas to dilute the minority vote is well documented (See Brishetto, et al., Texas, in The Quiet Revolution (editors Bernie Grofman and Chandler Davidson). For example, in 1953 the city of Austin went to a majority run-off in the at-large election system and opposed single shot voting. In 1971, White v. Register struck down multimember legislative districts. In both Chandler Davidson s Plt Intervenors NAACP & Congresspeople000088

102 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 88 of 127 Burton Report, page 32 Bi-Racial Politics, where he looks specifically at Houston, and his more recent Race and Class, the author documents how the numbered place requirement discriminated against minorities. 42 In my report on redistricting and in my testimony in court on Texas for 2003 I discussed the state s attempts to crack, pack, and break minority voting districts. Since at least 1991, Benjamin Ginsberg, an attorney for the Republican National Committee, devised a plan to use the Voting Rights Act itself to further racially polarize politics. He deliberately set out a strategy for Republicans to advocate for bleaching white districts and packing minority districts, especially African American districts. Although this report is not about the Texas State Senate, there appears to be at least two of those state district plans which are the result of this policy of packing to diminish the influence of African American voters and to also reduce African American influence districts. Senate Factor 4: if there is a candidate slating process, whether the members of the minority group have been denied access to that process African Americans in particular were excluded from the Democratic Party, which was the only game in town until the 1944 elimination of the white primary. For a long time it was difficult for African Americans to be selected by the Party as candidates. Brischetto, et al., Texas, briefly discuss slating in Texas and the diluting effect on minority voters by combining slating with at-large elections. 43 Now African Americans and Latinos have influence in the Democratic Party, but less so in the Republican Party. Since the mid-2990s, the 42 Chandler Davidson, Race and Class in Texas Politics (Princeton: Princeton University Press, 1990) and Bi- Racial Politics: Conflict and Coalition in the Metropolitan South (Baton Rouge; Louisiana State University Press, 1972). 43 Brischetto, et al., Texas, p Plt Intervenors NAACP & Congresspeople000089

103 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 89 of 127 Burton Report, page 33 Republican Party has slated both African American and Latino candidates, but the slated candidates generally have not been able to win. For example, in the 1994 statewide Republican Primary for State Treasurer, African American Grady Yarborough received a plurality but lost in a run off when his opponent publicized Yarborough s picture as part of racial politics. Senate Factor 5: the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process In Northwest Austin Mun. Utility Dist. Number One v. Mukasey, 573 F. Supp. 2d 221, 248 (D.D.C, 2008), the trial court notes citing /tab 04 a.xls - that, if one compares the registration & turnout rates for non-hispanic whites with those for African Americans & Hispanics in Texas, there remained as of 2004 significant disparities (see the rates in Table 4a for Texas). 44 Turnout and registration figures for Texas through the November, 2010 elections are at : Socioeconomic factors have a direct influence on voting. In their highly regarded study, Who Votes, political scientists Raymond Wolfinger and Steven Rosenstone document the strong and direct correlation between political participation and socioeconomic and educational status. Their central conclusion is that citizens of higher social and economic status participate more in politics. In the South, they conclude, this disparity in turnout between the rich and the poor and between the educated and uneducated is even more pronounced. Southerners with eight years of schooling or less, they note, vote 16 percentage points less than their northern counterparts. All these factors have a 44 Northwest Austin Mun. Utility Dist. Number One v. Mukasey, 573 F. Supp. 2d 221, 248 (D.D.C, 2008). Plt Intervenors NAACP & Congresspeople000090

104 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 90 of 127 Burton Report, page 34 disparate racial impact since African Americans and Latinos remain grouped in the ranks of lower social, educational, and economic status. Given the disparity in educational and economic levels between African Americans, Latinos, and Anglos, this is likely to have a significant negative impact upon minority political participation. The authors believe that much of this is due to the past history of race discrimination, what they call a regional memory of the time when it was dangerous for African Americans to vote. Older, uneducated African Americans who are poor are particularly unlikely to cast their ballots 45 Two more recent studies build upon the classic work by Wolfinger and Rosenstone. In 1993, Steven J. Rosenstone and John Mark Hansen argued in Mobilization, Participation, and Democracy in America that a major factor influencing turnout is contact by party organizations. People who are mobilized by political activists are more likely to get involved than other people, even after taking account of differences in socioeconomic status (SES), which is the traditional predictor of voting turnout. Because political activists are an unrepresentative cross-section of the American public, those mobilized are also unrepresentative: class and racial inequalities are therefore reinforced by unequal patterns of political mobilization. This book looks beyond voting to include a wide range of political activities, from letter writing to making financial contributions. In 1995, Sidney Verba, Kay Lehman Schlozman, and Henry E. Brady in Voice and Equality: Civic Voluntarism in American Politics conclude that the traditional SES model of voter participation is in need of refinement. Like Rosenstone and Hansen, Verba, et al. are looking at a broad range of participatory acts including voting and they over-sampled both 45 The standard work of the effects of socio-economic status is still Raymond E. Wolfinger and Steven J. Rosenstone, Who Votes? (New Haven: Yale University Press, 1980). See esp, pp.13, 93. A more current survey of research on political participation is Richard G. Niemi and Herbert F. Weisberg, eds., Controversies in Voting Behavior (Washington, D. C., 2001, 4 th ed.), pp Plt Intervenors NAACP & Congresspeople000091

105 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 91 of 127 Burton Report, page 35 Latino and African American populations to get accurate measures of participatory activity. They argue that it is not merely SES, but the factors associated with higher levels of SES, that drive turnout differences. Factors include contacts by political activists, the social distribution of resources needed for participation, etc. They document participatory disparities by race, gender, class, etc.; and chapter 12 summarizes their model of political participation. An important point made by these authors is that activists representing racial minorities and the poor are systematically different than the people they represent, which means that, for instance, African American activists speak with a different voice and have different experiences than typical black citizens they are purporting to represent. The book argues that this causes participatory distortions. It is consistent with their argument that the only remedy for participatory inequality is to increase participation levels. 46 People of upper socioeconomic status (high income and education, and holding prestigious occupations) tend to vote more frequently, are more interested in political affairs, and are better informed. It is not simply the difference in per capita income, which, because of a number of factors including the past history of economic discrimination, is lower for African American and Latino households. It is also that whites have more surplus and discretionary assets that make it possible for individuals to comfortably write checks for political campaigns. 47 Economic disparities inevitably increase in complex and substantive ways the difficulty African Americans and Latinos have in obtaining access to the political process. 46 Steven J. Rosenstone and John Mark Hansen, Mobilization, Participation, and Democracy in America (New York: Macmillan, 1993), see especially Chapters 6 and 7 which focus on institutional factors that influence turnout (chp. 6) as well as the rise and decline of African American voter turnout (part of chp. 7); Sidney Verba,, Kay Lehman Schlozman, and Henry E. Brady, Voice and Equality: Civic Voluntarism in American Politics (Cambridge:Harvard University Press, 1995), see esp. 6, 7, 8 and Not surprisingly most minority candidates are repeatedly outspent in campaigns by their white competitors. New York Times, February 17, 1998, A-18; Melvin L. Oliver and Thomas M. Shapiro, Race and Wealth, 17 (1989) Review of Black Political Economy, Plt Intervenors NAACP & Congresspeople000092

106 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 92 of 127 Burton Report, page 36 In the State of Texas, the disparities between white, African American, and Latino socioeconomic positions are considerable. On the whole, white Texans show significantly higher levels of important socioeconomic indicators, such as education and economic prosperity, than do their African American and Latino counterparts. These socioeconomic disadvantages experienced by African Americans and Latinos constitute a clear hindrance to the effective participation of those groups in the political process. Employment The economic status of a citizen is a significant and critical characteristic in determining voting behavior. Across the board, employed citizens are much more likely to vote than their unemployed counterparts. Additionally, the income level of the employed citizen further modifies voting behavior. Citizens living at or below the poverty line will vote in relatively small numbers while citizens enjoying higher income levels will vote at significantly higher rates. In Texas, there is a clear divide between the different racial and ethnic groups on all levels of the economic spectrum. When looking at those portions of the population below the poverty line, just 8.8% of whites for whom poverty status was determined had income in the last 12 months below the poverty line, while 24.0% of African Americans and 25.8% of Latinos were below the poverty line in This is consistent with data about the poorest Texan families in 48 U.S. Census Bureau, American Community Survey 5-Year Estimates, POVERTY STATUS IN THE PAST 12 MONTHS BY SEX BY AGE, B Plt Intervenors NAACP & Congresspeople000093

107 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 93 of 127 Burton Report, page At that time, only 7.7% of white heads of households reported an income below the poverty line while 23.3% of African American and 25.3% of Latino heads of households reported this level of poverty. 49 The same trend holds true for overall per capita income in 2009, with whites reporting a per capita income of $33,641; that is more than twice the per capita income of Latinos ($13,866) and almost twice as much as African Americans ($17,763). 50 Most significant is the level of employment of different ethnic groups. While 5.1% of whites are currently unemployed in the state of Texas, 11.8% of African Americans and 7.5% of Latinos are unemployed. This results in an unemployment rate for Latinos that is much higher than the rate for whites, and this results in an unemployment rate for African Americans that is over twice as high as Anglos. 51 Education Education has also been identified as significant in providing motivation for political participation. The educational status of a citizen is a critical characteristic in determining voting behavior. Aside from its obvious connection to a voter s occupation and income (see above), educational level may contribute to a voter s interest in the political process. In Texas, the level of education of whites exceeds the level of education of both African Americans and Latino residents. Texas, like other Southern states, has a history of segregated schools. The state built a separate law school rather than admit a single African American student to the University of 49 Poverty Status in 1999 by Age, United States Census 2000, P159B, P159I, P159H. 50 U.S. Census Bureau, American Community Survey 5-Year Estimates, PER CAPITA INCOME IN THE PAST 12 MONTHS (IN 2009 INFLATION-ADJUSTED DOLLARS), B U.S. Census Bureau, American Community Survey 5-Year Estimates, SEX BY AGE BY EMPLOYMENT STATUS FOR THE POPULATION 16 YEARS AND OVER, C Plt Intervenors NAACP & Congresspeople000094

108 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 94 of 127 Burton Report, page 38 Texas s school of law. The case, Sweatt v. Painter, became an important precedent for Brown v. Board. Deep racial inequities in support for public education have persisted to the present. By the late 1980s, for example, the Alamo Heights independent school district had more than fourteen times the property value per student of the Edgewood independent school district, also in Bexar County. 52 School financing discrimination and segregation in San Antonio prompted a political movement that began in the 1930s and helped to give rise to LULAC and ultimately MALDEF. (See especially the case Rodríguez v. San Antonio, Dr. Chandler Davidson s 1994 Expert Report in Vera discusses the Texas School System in pp Educational inequality in Texas begins in elementary schools. For example, Texas third graders standardized test results clearly demonstrate racial and ethnic inequality in performance. In 2010 the English-language passing rate for Latino third graders was 18% lower than white third graders, and African American third graders pass rate was 10% lower than white third graders. With the Spanish-language standardized tests, the difference between white third graders and Latino and African American third graders is slightly less pronounced (7% lower for Latinos and 12% lower for African Americans). The disparity in passing test scores is maintained with little change through grade When students graduate to middle and high school, the annual drop out rate is significantly higher among African American and Latino students than among Anglo students. Between grades 7 and 12, the annual drop out rate for Latinos was 4.2% and for African Americans was 4.9%. These numbers are alarmingly high 52 Jesús F. de la Teja, Paula Marks, and Ron Tyler, Texas: Crossroads of North America (Houghton Mifflin, 2004), p Texas Education Agency, Division of Performance Reporting, Academic Excellence Indicator System, State Performance Report, Plt Intervenors NAACP & Congresspeople000095

109 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 95 of 127 Burton Report, page 39 compared to the 1.4% drop out rate among whites in the same year. 54 Additionally, in the school year, Latino students comprised 48.6% of the Texas secondary education system, yet they accounted for only 39.7% of the graduating class. 55 While the Texas school system has made advances in providing Spanish language testing and teaching, these provisions appear to have little effect on academic performance. In Breaking School Rules, researchers studied every student who entered seventh grade in a Texas public school in 2000, 2001, or 2002 and tracked the students for seven years; they did not use a sample of students, and they followed all the students until their expected graduation date to see the long-term effects of disciplinary action, such as in-school suspensions, out-of-school suspensions, and expulsions. The researchers had several significant findings, but two of their findings are most pertinent to this case. Researchers found that African American students disproportionately received discretionary disciplinary action and that students who did receive disciplinary action were significantly more likely to repeat a grade or drop out of school. 56 Researchers found that only 3% of all cases of school disciplinary action resulted from student behavior that the state of Texas mandated action for; the other 97% of cases were at the discretion of the school administrators, most often in response to students violating the codes of conduct of individual schools. 57 The researchers noted that while student-reported student-onstudent violence has declined by 67% in the past 2 decades, current studies suggest this is not a Texas AEIS report, Texas Education Agency. BR Texas AEIS report, Texas Education Agency. BR ; TEA Pocket-Edition Performance Statistics, Tony Fabelo, Michael D. Thompson, Martha Plotkin, Dottie Carmichael, Miner P. Marchbanks III, and Eric A. Booth, Breaking Schools Rules: A Statewide Study of How School Discipline Relates to Students Success and Juvenile Justice Involvement. Justice Center, The Council of State Government, and Public Policy Research Institute, July 2011, Ibid., x Plt Intervenors NAACP & Congresspeople000096

110 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 96 of 127 Burton Report, page 40 result of schools zero tolerance approach to violations of codes of conduct. 58 Individual schools, therefore, control what form of disciplinary action to take, and therefore have an opportunity to improve overall academic performance for the school without diminishing the safety of their students. 59 The full student population was 14% African American, 40% Hispanic, and 43% white non-hispanic. 60 The report s authors determined that the rate of discretionary disciplinary action varied by race and gender, with African American students receiving a disproportionately high level of disciplinary action. Of the African American student population, 83% of males and 70% of females received discretionary disciplinary actions; 74% of Hispanic males and 58% of Hispanic females received discretionary disciplinary action; and 59% of white males and 37% of white females had received discretionary disciplinary action. 61 The authors used multivariate analyses that allowed them to control for 83 variables and isolate race alone as a reason for receiving discretionary disciplinary action. They found that black students were 31% more likely to receive discretionary disciplinary action than otherwise identical white and Hispanic students. 62 The authors of the study, in order to forestall claims that students of color violated schools codes of conduct in a higher proportion, included a comparison between profiles for students whose behavior prompted a discretionary action and students who received a mandatory removal from school. Interestingly, although Hispanic students experienced a disparate level of involvement in school disciplinary actions, the disparity 58 Ibid.,4. 59 Ibid., Ibid.,28 61 Ibid.,x. 62 Ibid.,x. Plt Intervenors NAACP & Congresspeople000097

111 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 97 of 127 Burton Report, page 41 was not nearly as pronounced as that found for African-American students. 63 They found race was a determining factor in how school administrators used discretionary discipline. In addition, more black students and Hispanic students received out-of-school suspension for their first violation than white students received. For discretionary disciplinary action, 26.2% of African American students, 18% of Hispanic students, and 9.9% of white students had out-ofschool suspensions for their first violation, whereas 86.5% of white students, 71.5% of African American students, and 79.1% of Hispanic students had in-school suspension for their first discretionary disciplinary action. 64 Black students are also more likely to experience repeat disciplinary actions. 25.7% of African American students, 18.1% of Hispanic students, and 9.5% of white students had more than eleven violations. 65 Researchers also found causation between disciplinary action and repeating a grade or dropping out. The authors determined that students who were suspended or expelled had a higher rate of repeating a grade; 31% of those who received disciplinary action repeated a grade as opposed to 5% of the rest of the student population. And 10% dropped out of school before graduation. 66 The researchers isolated other factors and compared otherwise identical students. The study s authors found the reason the students they tracked repeated a grade or dropped out of school was due to the disciplinary action they received. 67 The authors wrote that if the African-American students had the same probability as whites of being involved in a school disciplinary action, there would have been 13,496 fewer African-American pupils disciplined in the groups studied between their seventh- and twelfth-grade school years. 68 This number would 63 Ibid., Ibid., Ibid., Ibid.,xi. 67 Ibid., Ibid.,46. Plt Intervenors NAACP & Congresspeople000098

112 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 98 of 127 Burton Report, page 42 be slightly less for Hispanic students. This would also lead to fewer students repeating a year of middle or high school or dropping out of school altogether. Another indicator of educational opportunity among students is college admissions testing. The average SAT score of Anglo students for the class of 2009 was 1064 whereas Latino students average score was 899, and African American students averaged 858, over 200 points below the average white student s score. 69 SATs do not measure intelligence as much as they do cultural and economic status; yet, the fact that African American and Latino students consistently score lower on the SAT means that they face a more difficult college admissions process. This inequality in test scores greatly affects university admissions. In 2010, 74,501 white students applied to Texas public universities, whereas only 32,971 African American students and 65,141 Latino students applied. In 2009, 43.6% of graduating whites applied for TX public universities; 50.5% of blacks students applied for TX public universities, and 36.8% of Hispanic students applied for TX public universities. 70 In addition to public education, many other educational factors among the adult community affect political awareness and efficacy such as educational achievement, literacy, and media awareness. Only 25.9% of Latinos in Texas have high school diplomas with no higher degree, and only 10.8% have a college degree or higher. Furthermore, a major literacy gap occurs along Texas AEIS report, Texas Education Agency. BR Texas Higher Education Coordinating Board, High School Graduates in the Top 10% of Their Classes Found in Texas Public Higher Education, Fall 2009 and Fall 2010 Cohorts. These numbers do not tell us about applications to out-of-state institutions or to private universities. Plt Intervenors NAACP & Congresspeople000099

113 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 99 of 127 Burton Report, page 43 ethnic and racial lines. White adults scored 50 points higher on prose proficiency on the NALS survey than did African American adults (287 vs. 237). In turn, African American adults scored 21 points higher than Latino respondents (237 vs. 216). 71 Media reception is also lower among Latinos. Whereas less than 2 % of Anglo households do not have a telephone, more than twice that percentage of African American households and three times that proportion of Latinos were without a telephone. Compared to the white population, 15% fewer Spanish speakers read newspapers, and 12.5% fewer Spanish speakers have Internet access. 72 Access to information is also lower among African American adults, as 24% fewer African Americans have access to the Internet than whites. In 2009, Texas ranked 44 th of 50 states for homes with access to the internet, with only 65.5% of its population over the age of 3 living in a home with internet access, according to an October 2009 report by the U.S. Census Bureau. 73 While this report did not categorize home internet access by race, another table of the same report tabulates discrepancies between races across the nation. Across all the U.S., only 26.7% of the white non-hispanic population has no access to the internet at home, while 45.5% of African American households and 47.2% of Hispanic households have no home internet access. Already this report has shown the racial implications of educational attainment, but it plays out again in internet usage. While 57.5% of householders with a high school diploma or equivalent has access to internet at home, the number increases to 88.5% for householders with a Bachelor s degree or higher. 74 Low media reception correlates with lack of political knowledge; thus, Spanish speakers 71 Wisconsin Center for Educational Research. 72 Multimedia Audiences--Summary: 2001 Statistical Abstract of the U.S., 2002 Issued By: Bureau of Census December, 2002, p U.S. Census Bureau, Current Population Survey, October 2009, Table 3, Reported Internet Usage for Individuals 3 Years and Older, by State: U.S. Census Bureau, Current Population Survey, October 2009, Table 1, Reported Internet Usage for Households, by Selected Householder Characteristics: Plt Intervenors NAACP & Congresspeople000100

114 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 100 of 127 Burton Report, page 44 and African Americans tend to be less politically informed than Anglos. Moreover, the Texas Education System has been in the national news in the last few years and is particularly discussed among historians about how they are reluctant to portray the historical accuracy of slavery and racism in their textbooks and teaching. Within the last few years, I believe June, 2008, I was the keynote speaker for the Texas Humanities Council who were sponsoring a workshop for public school teachers and this was of particular concern to many of the teaches who participated in that workshop in San Antonio. Homeownership and Residency Aside from educational and economic indicators, another group of indicators is particularly important to influencing voting behavior, and that is homeownership and residency. Citizens who own their own home tend to vote at much higher levels than citizens who live in rental housing. Part of this has to do with income level (people who own their homes tend to have higher incomes than people who do not). In addition, there are further complications with changing voter registrations that people who rent have to deal with on a much more frequent basis. Similarly, citizens who have the financial security to live in the same dwelling for a long period of time are more likely to avoid voter registration problems. A citizen who moves more often is more likely to be unfamiliar with polling locations. In Texas, the number of heads of household that own their own homes varies significantly based on race and ethnicity. 72.4% of Anglo heads of households own their own homes, while 27.6% rent. This compares strikingly to the only 45.6% of African American heads of households and Plt Intervenors NAACP & Congresspeople000101

115 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 101 of 127 Burton Report, page % of Latino heads of households who own their own homes and the 54.4% and 42.1% respectively that rent. 75 Renting means more hurdles to voting because renters are more likely to move more often and would need to re-register to vote at their new residences. This pattern is also seen in residency information where 82.2% of whites lived in their current residence for more than one year, while only 75.5% of African Americans and 80.9% of Latinos lived in the same residence. 76 This is consistent with similar data from 1995 where 51.2% of whites lived in the same residence that they did five years previously, while only 47.0% of African Americans and 49.1% of Latinos lived in the same residence. 77 In Who Votes, Wolfinger and Rosenstone noted that in 1972, Texas s 61 days was the single longest residency requirement, twice that of every other state except Tennessee s 50 day U.S. Census Bureau, American Community Survey 5-Year Estimates, TENURE, B U.S. Census Bureau, American Community Survey 5-Year Estimates, GEOGRAPHICAL MOBILITY IN THE PAST YEAR BY RACE FOR CURRENT RESIDENCE IN THE UNITED STATES, B Residence in 1995 for the Population 5 Years and Over, United States Census 2000, PCT64H, PCT64I, PCT64B. 78 Wolfinger and Rosenstone, Who Votes, p. 73. Plt Intervenors NAACP & Congresspeople000102

116 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 102 of 127 Burton Report, page Measure Anglos Blacks Hispanics Anglos Blacks Hispanics home owners 70.7% 46.4% 56.1% 72.4% 45.6% 57.9% home renters 29.3% 53.6% 43.9% 27.6% 54.4% 42.1% live in same place as 5 years ago 51.2% 47.0% 49.1% live in same place as 1 year ago 82.2% 75.5% 80.9% 2000 Census, Summary File 3 ACS, Estimates The Pew Research Center has released a recent reporting that the decline in home values disproportionately affects minorities. According to Paul Taylor, executive vice president of the Pew Research Center, this is because a much higher share of their wealth is tied up in the value of their homes. Using the most recent national wealth data, from 2005 to 2009, Pew found that Hispanic households saw their net worth drop 66%, while black households fell 53% and whites fell 16%. Another study, by the Center for Responsible Lending in 2010, determined that Nationally, nearly 8% of African American and Latino mortgage borrowers have lost their homes to foreclosures, compared with 4.5% of whites. 79 Problems of minority home ownership go beyond the recent increase in foreclosure rates. Historians and sociologists have shown that the lower rate of home ownership is a consequence of official state discrimination. The federal government was complicit in redlining, a policy whereby banks refused to make home loans in minority neighborhoods. Deleterious effects of this discrimination were especially blatant for World War II veterans; white veterans were able to invest in homes and use that equity for loans to enable their children to attend college, but minorities were systematically denied this opportunity. Lack of such opportunity helped produce 79 USA Today, on August 5, 2011 (p. 5B), I have requested a copy of this study and specific data for Texas. Plt Intervenors NAACP & Congresspeople000103

117 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 103 of 127 Burton Report, page 47 disparities in wealth and education, which now relate to voting registration and turnout, and the opportunity to elect candidates of choice. 80 Health Disparities between minority groups and Anglos exist in numerous health areas in Texas. The Minority Health and Health Disparities Research and Education Act of 2000 defines a health disparity population as having a significant disparity in the overall rate of disease incidence, prevalence, morbidity, mortality, or survival rates in the population as compared to the health status of the general population. 81 In April 2011, the US Department of Health and Human Services (HHS) launched two initiatives to reduce health disparities: the National Stakeholder Strategy for Achieving Health Equity and the HHS Action Plan to Reduce Racial and Ethnic Health Disparities. 82 These reports highlight key health disparity metrics, including but not limited to the percent of nonelderly uninsured, diabetes, and mortality rates. Because African Americans and Latinos in Texas are generally poorer than Anglos, and because they are more likely to be unemployed than Anglos, they are less likely to have health insurance and regular visits with primary care doctors. The nonelderly population without health insurance is significantly higher for minorities than Anglos. Latinos, with 39 percent of the nonelderly population lacking health insurance, have more than double the rate of Anglos, with 80 George Lipsitz, The Possessive Investment in Whiteness: How White People Profit from Identity Politics (Philadelphia: Temple University Press, 1998) and How Racism Takes Place (Philadelphia: Temple University Press, 2011). 81 Minority Health and Health Disparities Research and Education Act of Pub. L. no , 114 STAT (2000) Plt Intervenors NAACP & Congresspeople000104

118 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 104 of 127 Burton Report, page percent. African Americans fall in between these two groups, with 26 percent of the population without health insurance. 83 Access to health care plays an important role in preventative health care, including early diagnosis as well as access to and effectiveness of treatment plans, which in turn affect overall health. For example, Latinos have a slightly higher risk of diabetes than Anglos, yet they are twice as likely to die from complications, see table below. Additionally, although diabetes mellitus is one of the leading causes of deaths in all ethnic groups, the percent of deaths is disproportionate for both African Americans and Latinos. white black Hispanic % of deaths due to complications from diabetes mellitus % 4.41% 3.90% % of population diagnosed with diabetes % 14.40% 9.70% Overall, African Americans had a higher mortality rate and a much higher infant mortality rate than Anglos. Generally, Latinos have a lower mortality and infant mortality rate than Anglos. white black Hispanic Mortality Rate, Age using 2000 Standard Population, 95 % Confidence Interval Infant Mortality Rate per 1,000 birth by race/ethnicity Cause of Death: Diabetes Mellitus, Age Adjustment Uses 2000 Standard Population, 95 percent Confidence Interval for Rates Plt Intervenors NAACP & Congresspeople000105

119 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 105 of 127 Burton Report, page 49 Miscellaneous Factors There are also a number of miscellaneous factors that influence people s voting behavior. Dr. Dwight Steward led an NAACP study of the Texas Criminal Justice system, titled Racial Disparities in the Texas Criminal Justice System, and found that policies significantly increased voter disfranchisement (among other things) for African Americans. Another factor is the origin of birth of United States citizens. People who are born in the United States generally feel more connected to the political process and are more likely to vote than naturalized citizens who are not born in the United States. Moreover, language ability is an important factor. People who speak the English language are more likely to be aware of political campaigning (mostly done in English) than are people who do not speak English. Additionally, the ability to secure transportation is an important factor. Getting to the polls is an important part of voting. Origin of Birth: In Texas, both white and African American citizens experience high rates of native origins of birth. 97.2% of whites and 95.2% of African Americans are native-born residents of the United States. 86 On the other hand, only 68.0% (though significantly down from 81.5% in 2000) of Latino citizens were born in the U.S., and 18.5% of Latino citizens had moved here from foreign locations U.S. Census Bureau, American Community Survey 5-Year Estimates, PLACE OF BIRTH BY RACE IN THE UNITED STATES, B Place of Birth by Citizenship Status, United States Census 2000, PCT63B, PCT63H, PCT63I; U. S. Census Bureau, American Community Survey 5-Year Estimates, GEOGRAPHICAL MOBILITY IN THE PAST YEAR BY RACE FOR CURRENT RESIDENCE IN THE UNITED STATES, B Plt Intervenors NAACP & Congresspeople000106

120 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 106 of 127 Burton Report, page 50 Language: In Texas, almost all of the white and African American residents are rated as able to speak English either very well or well. Latino residents, on the other hand, see much lower rates of English skills. Currently, 13.2% of Texas residents who have Spanish spoken as the primary language in their homes (a group that is almost entirely Latino) rate their English skills as not well, and 9.2% report that they cannot speak any English at all. 88 This shows a very small improvement compared to the 2000 Census, when 15.7% of Spanish-speaking residents rated their English skills as not well, and 9.6% reported they could not speak any English. 89 Transportation. In Texas, the distribution of vehicles differs significantly across racial/ethnic groups. Over 95% of white Texans have at least one or more vehicles available to them on a regular basis. The number is much less for African Americans and Latinos, who have access to vehicles at the rate of 84.0% and 89.2% respectively. 90 African American and Latino households are also significantly less likely to own a vehicle than non-latino white households. This lack of transportation for African Americans and Latinos puts increased demands on African American and Latino favored candidates and voter participation campaigns. In 2003, Dr. Allan Lichtman provided me a table on socio-economic status comparing Anglos, African Americans, and Latinos. His SES data was consistent with what my research 88 U.S. Census Bureau, American Community Survey 5-Year Estimates, LANGUAGE SPOKEN AT HOME BY ABILITY TO SPEAK ENGLISH FOR THE POPULATION 5 YEARS AND OVER (HISPANIC OR LATINO), B Population 5 Years and Over by Language Spoken at Home and Ability to Speak English, United States Census 2000, QT-P17; U.S. Census Bureau, American Community Survey 5-Year Estimates, LANGUAGE SPOKEN AT HOME BY ABILITY TO SPEAK ENGLISH FOR THE POPULATION 5 YEARS AND OVER (HISPANIC OR LATINO). B Vehicles Available, United States Census 2000, HT33I. These same statistics are not available from the 2010 Census or ACS data. Plt Intervenors NAACP & Congresspeople000107

121 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 107 of 127 Burton Report, page 51 assistants and I found. I have taken the data from Dr. Lichtman s table and updated it with the latest available census information and included it below Measure Anglos Blacks Hispanics Anglos Blacks Hispanics Percent Bachelor s Degree or Higher, Population % 15.40% 8.90% 33.3% 18.0% 10.8% 91 Median Household Income $47,162 $29,305 $29,873 $59,721 $34,998 $35,705 Per Capita Income $26,197 $14,253 $10,770 $33,641 $17,763 $13, Percent Persons Below Poverty 7.80% 23.40% 25.40% 8.8% 24.0% 25.8% 93 Unemployment Rate, Civilian Labor Force 4.10% 10.50% 8.70% 5.1% 11.8% 7.5% Percent Households Without Telephones 1.70% 4.50% 6.40% Percent Households Without Vehicles 4.50% 16.00% 10.80% 2000 Census, Summary File 3 ACS, Estimates Voter turnout depends on many factors. Socioeconomic differences between the races are one cause of differences in participation rates. A history of de jure segregation and present day effects of past racial discrimination may also account for some of the differences in participation between whites and minority citizens. Those who reap the fewest benefits from our economy and society are least inclined to participate in an electoral process that serves as an affirmation of the efficacy of the political economy. The marginal return on investment of time and energy for poor persons has proven to be lower than for those better off in society. For those 91 U.S. Census Bureau, American Community Survey, Year Estimate, SEX BY AGE, B01001; HISPANIC OR LATINO ORIGIN BY RACE, B U.S. Census Bureau, American Community Survey, Year Estimate, SEX BY AGE, B01001; PER CAPITA INCOME IN THE PAST 12 MONTHS (IN 2009-INFATION-ADJUSTED DOLLARS, B U.S. Census Bureau, American Community Survey, Year Estimate, SEX BY AGE, B01001; POVERTY STATUS IN THE PAST 12 MONTHS BY SEX AND AGE, B Plt Intervenors NAACP & Congresspeople000108

122 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 108 of 127 Burton Report, page 52 who lack transportation, telephones, or for whom reading is more difficult, voting is all the harder. Thus, lowered voter participation levels are a symptom of the disparities affecting African Americans and Latinos. There is also an important historical dimension. Since historically official state discrimination hindered minority voting, especially before the 1965 Voting Rights Act, many minorities were discouraged from voting. Some even had a fear of registering to vote, especially at a courthouse or other places of unfriendly official state premises. Moreover, older minorities grew up with segregation and attended segregated schools that were far from equal to those for Anglos. All of these factors work against minority registration and participation in the election process. SES disparities within the context of Texas s history, led Dr. Chandler Davidson to proclaim Texas race relations a racial caste system. Davidson concluded in 1994 that Significant gaps in living standards and opportunities still exist between blacks and whites, on average. 94 The voter apathy that accompanies these economic and educational disparities is not absolute. Fair voting districts are vital in voting procedures. Districts that are drawn to split minority communities, dilute minority group voting power, and ensure the defeat of minoritypreferred candidates, can be expected to discourage participation, or have what is called a chilling effect. At the same time, where minorities believe they have a realistic chance of electing a candidate of their choice, there is also a warming effect; that is, when minority group voters realize they have a chance of winning, they mobilize. Minority group voters are much more likely to participate if they have some reasonable hope of electing the candidate of 94 Davidson, Expert Report, Vera, pp. 41, 90. Plt Intervenors NAACP & Congresspeople000109

123 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 109 of 127 Burton Report, page 53 their choice. President Barack Obama s and Jesse Jackson s campaigns obviously aroused such hopes. In my experience, an important factor regarding winnability is the difference in political mobilization often prompted by fairly drawn electoral districts themselves. When some of the newly created districts are majority African American or Latino, several outcomes become evident. Minority candidates work harder on their campaigns. An Anglo candidate who is not the candidate of minority choice will work less on a campaign, especially if not an incumbent. Moreover, African Americans and Latinos tend to register, turn out, and vote for minority candidates at higher rates than when these same candidates ran in districts where they had little chance of prevailing. According to voting rights expert Dr. James W. Loewen, This phenomenon may also help minority candidates win the leaning or tossup congressional districts, if these districts are perceived as fair by members and political leaders of the African American and Latino communities. 95 Senate Factor 6: whether political campaigns have been characterized by overt or subtle racial appeals With the heightened consciousness about ethnic and racial issues today, one does not expect to find many overt racial appeals as was the case before enforcement of the 1965 Voting Right Act. Still several elections have been identified for me wherein African Americans and Latinos believed that they were characterized by both subtle and overt racial appeals. Among the elections listed under Senate Factor 2 are several that individuals identified as having subtle racial appeals. In particular several individuals commented on remarks about Ron Kirk and 95 James W. Loewen, Preliminary Report on Racial Bloc Voting, Political Mobilization, and Redistricting Plans in New York City, July 8, 1991, p. 34. Loewen has consistently made this argument in his voting rights studies. Plt Intervenors NAACP & Congresspeople000110

124 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 110 of 127 Burton Report, page 54 Tony Sanchez made by David Beckwith who was then working on a Republican campaign. Another is the 1994 campaign mentioned under discussion of Senate Factor 4 above. In this Republican primary for state treasurer, his opponent played the race card when he published African American Grady Yarborough s picture. The presidential election election of 2008 and subsequent representations of President Obama as a witchdoctor or in other cartoonish or poses that would characterize racist appeals has been the discussion of national news media. In Texas, Many non-minority and candidates put Obama on their campaign literature and one showed their opponent standing next to Obama who was in bed with a pillow. Senate Factor 7: the extent to which members of the minority group have been elected to public office in the jurisdiction Historically, minorities in Texas have been severely underrepresented in the U.S. Congress. With very few exceptions, minorities were better represented only after the courts required effective majority-minority districts in accordance with the 1965 Voting Rights Act. Even today, minorities, both African American and Latino, are still proportionately underrepresented in the U.S. Congress. According to the 2010 American Community Survey 5- Year Estimate, Anglos comprised 47.8% of the total population, Latinos 35.9%, and African Americans 11.3%. Latinos comprise 32.1% of the voting age population, African Americans 11.3%, and Anglos 51.9%. There are 32 people elected to Congress from Texas, and only 11 of these congressmen are minorities (8 Latinos and 3 African Americans) U.S. Census Bureau, American Community Survey, Year Estimate, SEX BY AGE, B Plt Intervenors NAACP & Congresspeople000111

125 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 111 of 127 Burton Report, page data from Dr. Lichtman 2010 Measure Anglos Blacks Hispanics Anglos Blacks Hispanics Total Population 54.6% 12.4% 33.1% 47.8% 11.3% 35.9% Voting Age Population 58.7% 11.7% 29.7% 51.9% 11.3% 32.1% Citizen Population 59.1% 13.2% 27.8% Citizen Voting Age Population 64.4% 12.6% 23% 2000 Census, Summary File 3 ACS, B01001 Texas did not send its first Latino representative to Congress until 1961 with the election of Henry B. Gonzalez, who served until his death in Until 1979, there was one African American and two Latino representatives of the 24 Congressional seats. In the 1980s there were 27 representatives from Texas to Congress, and of those five were minorities (4 Latino, 1 African American). The first African American to serve in Congress was Barbara Jordan, elected some eight years after the enactment of the Voting Rights Act of In 1990, the number of congressional districts increased from 27 to 30, and there was an increase from 4 to 5 Latino representatives, and in 1996 that number increased to 6. In 1993 a second African American was elected to Congress, making a total of 8 minorities serving in the congressional delegation. The number of representatives was increased from 30 to 32 after the 2000 Census, but the number of minority representatives to Congress remained the same; this in spite of the fact that the largest increase in the Texas population was among the minority population! It was not until the NAACP joined the 2003 lawsuit for redistricting and drew a third congressional African American minority seat, that a third African American, Al Green, was elected to the 9 th Congressional District. In 2010, Texas became a majority minority state. The African American population has increased substantially (see above table). Plt Intervenors NAACP & Congresspeople000112

126 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 112 of 127 Burton Report, page 56 Minority Congressmen/women who Served/Serve in U.S. House of Representatives Latinos Henry B. Gonzalez, (D) Elgio Kika de la Garza II, (D) Solomon P. Ortiz, , (D) African Americans Barbara Jordan, (D) Mickey Leland, (D) Craig A. Washington, (D) Eddie Bernice Johnson, 1993-Present Albert G. Bustamante, (D) Frank M. Tejeda, (D) (D) Sheila Jackson Lee, 1995-Present (D) Al Green, 2005-Present 9th District Henry Bonilla, rd District (R) (D) Ruben Hinojosa, 1996-Present 15th District (D) Silvestre Reyes, 1996-Present 16th District (D) Ciro Rodriguez, , th District (D) Charles A. Gonzalez, Present 20th District (D) Ruben Hinojosa, 1997-Present 15th District (D) Charlie Gonzalez 1999-Present 20th District (D) Henry Cuellar 2005-Present 28th District (D) Francisco Quico Canseco 2011-Present 23rd District (R) Bill Flores 2011-Present 17th District (R) Plt Intervenors NAACP & Congresspeople000113

127 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 113 of 127 Burton Report, page 57 Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are Additional Senate Factor 1: whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group. The 2003 second Texas redistricting case where I was an expert witness is a perfect example of additional Senate Factor 1. The 2003 plan turned the Voting Rights Act on its head so that Partisan Politics trumped race. Normally redistricting does not occur on the scale that happened under the Republican proposed plan 1374C unless the existing plan (1151C) was legally deficient in some way: that is, the existing plan might violate one person, one vote. In Texas, however, the existing plan had no such legal deficiencies and therefore, adopting a new plan when one is not needed, and on the eve of an election, cast some on the state s underlying policy for the new redistricting plan 1374C. This was especially suspicious since the stated purpose of the redistricting (developing additional minority districts) was not accomplished, and indeed, probably would have been diminished by the new plan 1374C if not for the intervention of plaintiffs like the NAACP. The proposal for four Congressional Districts that reduced the opportunity for minorities to elect candidates of their choice demonstrated a lack of responsiveness. For example, the third largest concentrated group of African Americans in the state is in Dallas-Fort Worth in Tarrant County. The 2003 state proposed gerrymandering by cracking that group of cohesive African American voters and putting them with suburban whites with a district that ran nearly to Oklahoma. Both the NAACP and the National Hispanic Leadership Agenda Scores are basically Report Cards of the responsiveness on the part of each Plt Intervenors NAACP & Congresspeople000114

128 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 114 of 127 Burton Report, page 58 individual congressman. There was general agreement upon the rankings of the Congressmen by the two different organizations representing their respective minorities. The two white Congressmen who represent the 24th and 10th districts scored very well in these scorecards for both African Americans and Latinos. Issues such as health care, housing, and public safety are very important to the minority community in 2003 just as they are today. This story of the 2003 redistricting is well told, including the implications for minorities of African Americans and Hispanics and how in the shape of the final plan, resulted in switching six seats from Democrats to Republicans in Texas and caused a net twelve-seat change in the partisan balance of the U.S. House of Representatives by Steve Bickerstaff in Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom DeLay. 97 Marilou Morrison, a white woman who had worked for several years for the Texas Commission of Human Rights, found that the commission did not adequately do its job of investigating claims of racism and discrimination in the workforce. Her pursuit of correct action resulted in her being fired from the commission. In 2003 she sued. 98 She won the lawsuit, the jury finding that David Powell, Chief of the Texas Commission of Human Rights, had not done his job, had been racist, and had unlawfully terminated Morrison. The Morrison case contains strong statements of a Texas government official using racist language and making derogatory remarks about African Americans. Most of the materials documented are from and it took a while for this case to work its way up to the Appellate court. 97 Steve Bickerstaff, Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom DeLay (Austin: University of Texas Press, 2007). 98 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN, NO CV. Texas Commission on Human Rights, Texas Workforce Commission, David Powell, and Robert Gomez, Appellants v. Marilou Morrison, Appellee, Plt Intervenors NAACP & Congresspeople000115

129 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 115 of 127 Burton Report, page 59 Additional Senate Factor 2: whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. 99 This is closely related to Senate Factors 1 and 2. In 2000 and 2001, the NAACP held hearings and gathered testimony about voter intimidation, the challenging of African Americans at the poll, the purging of African American voters from the rolls, etc. I testified to that testimony in trial in Testimony was gathered in Houston, Fort Worth, and Texarkana. In each instance witnesses testified to abuses in their attempts to register and to vote. People were very confused by the moving of so many precincts at the last moment. Several African Americans reported harassment and misinformation from white poll watchers. In at least one instance a TV station reporter covered the lack of responsiveness of Anglos at the polls to African American attempts to vote. In my report in 2003, I also cited two other examples to illustrate both the state s lack of response and state efforts at restricting voting. One, with help from the NAACP, the Texas legislature passed a bill that would post voters rights at each polling place, but then the governor vetoed it. Two, the legislature passed House Rule 54, which has been enacted into law; this bill makes it easier to prosecute an individual who might help someone elderly vote. In addition, Dr. Dwight Steward had been conducting studies of racial profiling and racial disparities in the Criminal Justice system; he documented different treatments of minorities (African Americans and Latinos) from Anglos. The report on racial profiling A Statistical Examination of Racial Profiling showed that African Americans were 99 S.Rep., at 28-29, U.S.Code Cong. & Admin.News 1982, pp Plt Intervenors NAACP & Congresspeople000116

130 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 116 of 127 Burton Report, page 60 significantly more likely, even after taking into account all driver and traffic related factors, to be searched by police than Anglos. Dr. Chandler Davidson also has a discussion of the Criminal Justice System in Texas, where he documents racism inspired civil rights violations. 100 I also noted in 2003, that in 2002, the television news show Sixty Minutes ran a segment on the scandalous situation in Tulia, in the Texas Panhandle, or West Texas. On the word of an undercover law enforcement agent who Sixty Minutes suggested was racist, the police made massive drug arrests of innocent African Americans (and a few white girl friends). The undercover agent was presented a major award as an officer of the law. The NAACP Legal Defense Fund finally succeeded in getting all of the defendants out of jail. The Tulia case received a lot of attention. 101 There is a sobering conclusion about modern Texas race relations and politics in America s Modern Poll Tax: How Structural Disenfranchisement Erodes Democracy (2000). The author compares Texas to other states studied and proffers, Most of the barriers to minority voting rights outlined in this report concern election administration faulty technology, lack of poll worker training, shoddy voter registration practices, and a shortage of capacity to absorb a large turnout. In Texas, barriers to minority voting rights were of a different sort. They concerned instances of outright voter intimidation more reminiscent of the Jim Crow era than 21 st century America. While these instances were not officially sanctioned, they serve as a chilling reminder that even now individuals will resort to violent, unscrupulous tactics to keep 100 See for example, NAACP Voter Intimidation Hearing December 9, 2000, Texarkana, Texas and NAACP Voter Irregularity Hearing Wednesday, December 12, 2001, Shape Community Family Center Houston, Harris County, Texas. There are three separate reports of racial profiling completed by Dr. Steward; Davidson, Expert Report, Vera, pp Plt Intervenors NAACP & Congresspeople000117

131 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 117 of 127 Burton Report, page 61 minorities from going to the polls. The book documents incidents in Tarrant County and Wharton County in August and October, 2000 respectively. 102 The latter incident is also documented in the Sworn Testimony of C. G. Walywn, who was the African American candidate for sheriff in Wharton County, Texas, at the Voter Intimidation Hearing, Palmer Center Business and Technology Center, Houston, Texas, Dec. 19, 2000, pp No better place illustrates additional Senate Factor 2 and also closely-related Senate Factors 1 and 2 than Waller County, home to Prairie View A&M, a historically black college that is affiliated with the predominately white college, Texas A&M. When I wrote my report in 2003 and testified in 2003, documented incidents showed Waller County attempting to prevent black students from voting in elections. Indeed, for at least forty years, Waller County has consistently tried to prevent African American Prairie View A&M students from voting in local elections. In a fairly recent case, Prairie View Chapter of NAACP v. Kitzman; Prairie View Chapter of NAACP v. Waller County, Texas, 103 the Houston Division of the Texas district courts established the following facts in a settlement agreement for that case. 1) District Attorney Kitzman wrote a letter published in the Waller Times expressing a willingness to prosecute people for illegal voting on the grounds of improper domicile if one did not meet his particular definition of domicile; 102 Steven Donziger, principal author, America s Modern Poll Tax: How Structural Disenfranchisement Erodes Democracy ( Nov. 7, 2001 by Advancement Project, 1730 M Street, N.W., Suite 401, Washington, DC ), pp U.S. District Court, Southern District of Texas, Houston Div., No. H ; U.S. District Court, Southern District of Texas, Houston Div., No. H Plt Intervenors NAACP & Congresspeople000118

132 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 118 of 127 Burton Report, page 62 2) PVAMU students are the only group in Waller County who Kitzman specifically refers to as not meeting his definition of domicile; 3) PVAMU students attend a historically black university, and understood the letter to mean that the District Attorney would prosecute them if they were to exercise their right to vote. In researching for this report, I learned that there has been an even more recent case involving Waller County. A Department of Justice complaint against Waller County is on the DOJ website.104 This case, United States v. Waller County, TX (S.D. Tex. 2008), involved officials in Waller County, Texas, who implemented questionable practices that discouraged voting. Waller County implemented its new voting practices without first obtaining Section 5 preclearance as mandated by the Voting Rights Act. These practices included: a) Rejecting voter registrations because of missing a zip code on a registration form or failure to use the most recent voting registration form. b) Limiting the amount of registrations that may be turned in to the county by a single voting registration deputy (who is usually a student at PVAMU). c) Requiring that the registration deputies (the PVAMU students performing voting drives) personally notify those who failed to fill out their forms correctly. d) Not notifying applicants that their application had been forwarded to a different county Plt Intervenors NAACP & Congresspeople000119

133 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 119 of 127 Burton Report, page 63 According to the consent decree issued in October 2008, these practices were legally unenforceable because Waller County had not yet submitted the proper paperwork themselves to obtain pre-clearance from the US government. 105 Work at the precinct level has a major impact on a citizen s right to vote. Turned away there, or not helped with questions of where to go and how to handle the voting mechanisms, means the right to vote is jeopardized. During the election of November 2010, Precinct 204 in Killeen, Texas, caused deliberate procedural problems for African American and Hispanic voters. The clerks were rude and sometimes simply got up from the table and walked away from voters. Problems at this precinct include causing trouble for soldiers who tried to vote. Although it is possible that some confusion might arise for election judges when soldiers are on leave and want to vote in person rather than the standard operating procedure of soldiers who are away from home sending in an absentee ballot, soldiers in this precinct were consistently turned away and denied the right to vote. 106 I have been told of other incidents, and I plan to investigate these allegations at a later date. One such incident was in Dallas County, where NAACP National Board Members, Bob and Linda Lydia, were confronted and racially insulted by Tea Party persons outside a health reform Town Hall. The second is similar. An African American woman was racially insulted outside a John Carter Town Hall. This incident made the Temple newspaper with a photograph. IV. Conclusion 105 The United States of America v Waller County, Texas, Consent Decree, Oct 17 th 2008, p Interview with Phyllis L. Jones, Democratic Election Judge in Killeen, Texas, August 5, 2011 and an exchange. Jones is also the Texas State Conference NAACP Education Chair & Central Texas Area Coordinator. Plt Intervenors NAACP & Congresspeople000120

134 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 120 of 127 Burton Report, page 64 Given the time constraints surrounding this report, I may need to revise and update it. Section 2 of the Voting Rights Act requires that plaintiffs prove that minority voters do not have an equal opportunity to participate in the electoral process and elect candidates of their choice. To show this lack of opportunity, they need to investigate a totality of circumstances, that is an examination of the evidence of discrimination. This report has looked very specifically at the Senate Factors used to define whether or not citizens have this equal opportunity. A survey of the history of racial discrimination in regard to voting, education, and public accommodations in Texas shows that politics in that state was shaped by racial considerations in the years before 1965 and has continued to be substantially affected by these racial considerations during the decades since. The dean of Texas historians, Randolph Campbell in Gone to Texas (2003), argues strongly against anyone who declares that Texas is not a southern state. He contends that Texas is indeed part of the South because it has a serious problem with race relations. 107 Like other southern states from the Confederacy, Texas has come a long way in race relations since the 1960s, but like sister southern states it has a ways to go in its treatment of minorities and minority voting rights. My finding, based on the evidence as presented above, shows that the plaintiffs do not have an equal opportunity to participate in the electoral process and elect candidates of their choice. Report August 8, 2011 in Ninety Six, SC Respectfully submitted, 107 Randolph B. Campbell, Gone to Texas: A History of the Lone Star State (New York: Oxford University Press, 2003). Plt Intervenors NAACP & Congresspeople000121

135 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 121 of 127 Burton Report, page 65 Dr. Orville Vernon Burton Plt Intervenors NAACP & Congresspeople000122

136 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 122 of 127 Burton Report, page 66 Selected Bibliography Legal Documents Beare v. Briscoe, 498 F.2d 244 (5th Cir. 1974). Beare v. Smith, 321 F. Supp (S.D. Tex. 1971). Bush v. Vera, 116 S. Ct (1966). Graves v. Barnes, 343 F. Supp. 704, 725 (W.D. Tex. 1972). Jackson v. Edgefield County, South Carolina School District, 650 F.Supp. 1176, (D.S.C. 1986). McCain v. Lybrand, 465 U.S. 236 (1984). Mobile v. Bolden, 446 U.S. 55 (1980). Northwest Austin Min. Utility Dist. Number One v. Mukasey, 573 F. Supp 2d 221, 248 (D.D.C. 2008). Rodríguez. v. San Antonio Independent School District, 337 F. Supp. 280 (W.D. Tex. 1971). Seaman v. Upham, 536 Supp. 931 (1982). Smith v Allwright, 321 US 649 (1944) Strake v. Seaman, 469 U.S. 801 (1984). Sweatt v. Painter, 339 U.S. 629 (1950). United States v. State of Texas, 252 F. Supp. 234, 245 (W.D. Tex. 1966). United States v. Waller County, TX (S.D. Tex. 2008) Vera v. Richards, 861 F. Supp (S.D. Tex. 1994). White v. Regester, 412 U.S. 755 (1973). Minority Health and Health Disparities Research and Education Act of Pub. L. no , 114 STAT S.Rep., at 28-29, U.S.Code Cong. & Admin.News Plt Intervenors NAACP & Congresspeople000123

137 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 123 of 127 Burton Report, page 67 Voting Rights Act: Evidence of Continuing Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong. Volume III (2006). Census Reports ACS. Geographical Mobility in the Past Year by Race for Current Residence in the United States. B Year Estimate. ACS. Language Spoken at Home by Ability to Speak English for the Population 5 Years and Over (Hispanic or Latino). B Year Estimate. ACS. Per Capita Income in the Past 12 Months (In 2009 Inflation-Adjusted Dollars. B Year Estimate. ACS. Place of Birth by Race in the United States. B Year Estimate. ACS. Poverty Status in the Past 12 Months by Sex by Age. B Year Estimate. ACS. Sex by Age by Employment Status for the Population 16 Years and Over. C Year Estimate. ACS. Tenure. B Year Estimate. U.S. Census Bureau. Current Population Survey. Reported Internet Usage for Households, by Selected Householder Characteristics: October U.S. Census Bureau. Current Population Survey. Reported Internet Usage for Individuals 3 Years and Older, by State: October U.S. Census Bureau. Multimedia Audiences Summary: 2001 Statistical Abstract of the U.S., December U.S. Census Bureau Census Redistricting Data (Public Law ) Summary File, Tables P1, P2, P3, P4, H U.S. Census Bureau. Place of Birth by Citizenship Status U.S. Census Bureau. Population 5 Years and Over by Language Spoken at Home and Ability to Speak English U.S. Census Bureau. Poverty Status in 1999 by Age U.S. Census Bureau. Residence in 1995 for the Population 5 Years and Over Plt Intervenors NAACP & Congresspeople000124

138 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 124 of 127 Burton Report, page 68 U.S. Census Bureau. Vehicles Available Other Reports Anti-Defamation League. Extremists Declare Open Season on Immigrants; Hispanics Target of Incitement and Violence. Fabelo, Tony, Michael D. Thompson, Martha Plotkin, Dottie Carmichael, Miner P. Marchbanks III, and Eric A. Booth. Breaking Schools Rules: A Statewide Study of How School Discipline Relates to Students Success and Juvenile Justice Involvement. Justice Center, The Council of State Government, and Public Policy Research Institute. July Institute for Research & Education on Human Rights, Special Report. Tea Party Nationalism. Fall Texas Education Agency, Division of Performance Reporting. Academic Excellence Indicator System, State Performance Report. Texas Education Agency Texas AEIS Report. BR Texas Education Agency. TEA Pocket-Edition Performance Statistics, Texas Higher Education Coordinating Board. High School Graduates in the Top 10% of Their Classes Found in Texas Public Higher Education, Fall 2009 and Fall 2010 Cohorts. Secondary Sources Barr, Alwyn. From Reconstruction to Reform: Texas Politics, Austin: University of Texas Press, Bickerstaff, Steve. Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom DeLay. Austin: University of Texas Press, Black, Earle and Merle Black. The Rise of Southern Republicans. Cambridge: Harvard University Press, Blue, Carroll Parrot. The Dawn at My Back: Memoir of a Black Texas Upbringing. Austin: University of Texas, Burton, Orville Vernon. The Age of Lincoln. New York: Hill & Wang, Plt Intervenors NAACP & Congresspeople000125

139 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 125 of 127 Burton Report, page 69 Campbell, Randolph B. An Empire for Slavery: The Peculiar Institution in Texas, Baton Rouge: Louisiana State University Press, Gone to Texas: A History of the Lone Star State. New York: Oxford University Press, Grass Roots Reconstruction in Texas, Baton Rouge: Louisiana State University Press, Cantrell, Gregg. Kenneth and John B. Rayner and the Limits of Southern Dissent. Urbana: University of Illinois Press, Stephen F. Austin: Empresario of Texas. New Haven: Yale University Press, Cantrell, Gregg and Kristopher B. Paschal, Texas Populism at High-Tide: The Case of the Sixth Congressional District, Under consideration Southwest Historical Quarterly. Cantrell, Gregg, et. al. Texas Populists and the Failure of Biracial Politics. Journal of Southern History, Vol. 55 No. 4, Nov. 1989: Crouch, Barry A. The Freedman s Bureau and Black Texans. Austin: University of Texas Press, Davidson, Chandler. Bi-Racial Politics: Conflict and Coalition in the Metropolitan South. Baton Rouge: Louisiana State Press, Race and Class in Texas Politics. Princeton: Princeton University Press, Davidson, Chandler and Bernard Grofman, eds. Quiet Revolution in the South: Impact of the Voting Rights Act, Princeton, N.J.: Princeton University Press, Donziger, Steven, et. al. America s Modern Poll Tax: How Structural Disenfranchisement Erodes Democracy. Washington, D.C.: Advancement Project, Foley, Neil. The White Scourge: Mexicans, Blacks and Poor Whites in Texas Cotton Culture. Berkeley: University of California Press, Goldberg, Robert A. Racial Change on the Southern Periphery: The Case of San Antonio, Texas, The Journal of Southern History Vol. 49 No. 3. Aug. 1983: Goodwyn, Lawrence. Democratic Promise: The Populist Moment in America. New York: Oxford University Press, Johnson, Benjamin H. A Revolution in Texas: How a Forgotten Rebellion and its Blood Suppression Turned Mexicans into Americans. New Haven: Yale University Press, Plt Intervenors NAACP & Congresspeople000126

140 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 126 of 127 Burton Report, page 70 Kellar, William Henry. Make Haste Slowly: Moderates, Conservatives, and School Desegregation in Houston. College Station: Texas A&M University, Kousser, J. Morgan. Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction. Chapel Hill: University of North Carolina Press, Lack, Paul D. The Texas Revolution Experience: A Political and Social History. College Station: Texas A&M University Press, Lind, Michael. Made in Texas: George W. Bush and the Southern Takeover of American Politics. New York: Lipsitz, George. How Racism Takes Place. Philadelphia: Temple University Press, The Possessive Investment in Whiteness: How White People Profit from Identity Politics. Philadelphia: Temple University Press, Loewen, James W. Preliminary Report on Racial Bloc Voting, Political Mobilization, and Redistricting Plans in New York City. 8 July Montejano, David. Anglos and Mexicans in the Making of Texas, Austin: University of Texas Press, Niemi, Richard G. and Herbert F. Weisberg, eds. Controversies in Voting Behavior. Washington, D.C., 2001, 4th ed. Olivery, Melvin L. and Thomas M. Shapiro. Race and Wealth. Review of Black Political Economy 17 (1989). O Loughlin, John. The Identification and Evaluation of Racial Gerrymandering. Annals of the Association of American Geographers Vol. 72 No. 2. June 1982: Paschal, Kristopher B. Melvin Wade, The Dallas People s Party, and Bi-Racial Political Fellowship. Under consideration, Southwest Historical Quarterly. Piatt, Robert William, Jr. Black and Brown in America: The Case for Cooperation. New York: New York University Press, Raston, Dina Temple. A Death in Texas: A Story of Race, Murder, and a Small Town s Struggle for Redemption. New York: H. Holt, Rodriquez, Alicia. Urban Populism: Challenges to Democratic Party Control in Dallas, Texas. PhD diss., University of California-Santa Barbara, Rosenstone, Steven J. and John Mark Hansen. Mobilization, Participation, and Democracy in America. New York: Macmillan, Plt Intervenors NAACP & Congresspeople000127

141 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 127 of 127 Burton Report, page 71 San Miguel, Guadalupe, Jr. Let All of Them Take Heed: Mexican Americans and the Campaign for Educational Equality in Texas, Austin: University of Texas Press, Teja, Jesús F. de la, Paula Marks, and Ron Tyler. Texas: Crossroads of North America. Houghton Mifflin, Temple-Raston, Dina. A Death in Texas. Henry Holt & Co, Verba, Sidney, Kay Lehman Schlozman, and Henry E. Brady. Voice and Equality: Civic Volunteerism in American Politics. Cambridge: Harvard University Press, Williams, Patrick G. Patrick. Suffrage Restrictions in Post Reconstruction Texas: Urban Politics and the Specter of the Commune. Journal of Southern History Vol. 68 No. 1 (Feb. 2000). Williamson, Joel. The Crucible of Race: Black-White Relations in the American South Since Emancipation. New York: Oxford University Press, Wolfinger, Raymond E. and Steven J. Rosenstone. Who Votes? New Haven: Yale University Press, Woodward, C. Vann. The Burden of Southern History. Baton Rouge: Louisiana State University Press, Origins of the New South. Baton Rouge: Louisiana State University Press, The Strange Career of Jim Crow. New York: Oxford University Press, Plt Intervenors NAACP & Congresspeople000128

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143 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 2 of 16 I. Chairman Seliger lays out SB 4 (Plan C125) II. III. Senate Committee on Redistricting Meeting 6/3/2011 a. Says the map complies with Sections 2 & 5 of VRA and is fair and legal. Says the committee has retained some of the most distinguished redistricting experts to draw the map. b. Acknowledges that deviation must be as close to zero as possible. c. Particularly proud of how the map accommodates the population growth. d. District 35 is a new Latino opportunity district the concept for this district came from MALDEF s map. Questions/Comments from Senator Lugio a. Seliger answers that the map should account for Hispanic population growth in so far as the law determines its appropriateness. Questions/Comments from Senator West a. Asked which members of Congress had input on the map (plan C125) Barton, Connoway, Al Green, Lloyd Doggett, Michael McCall, and Lamar Smith came to the Capitol. Others (Hall) made calls. LEFT FROM 9:22 until about 11:20 (came in during heated argument between African-American tea party member saying race shouldn t be taken into account during redistricting and Lucio taking offense to some of his implications) IV. AJ Pate a. Acknowledged vast improvement in Plan 130 over the disastrous Plan 125. He wouldn t say he s for 130 though. b. Cites the same two cases from CA (similarly diverse in population and geography, like TX) as evidence that redistricting doesn t have to lead to litigation, when the map is drawn fairly. c. Warns Republicans that if Democrats are in power during redistricting again, the same thing can happen to them as they re trying to do with Travis County. d. A fan of Senator Rodriguez s bill. V. Gus Pena (native East Austinite) a. Takes major issue with saying we shouldn t take race into account in redistricting. b. I ll see you in court. VI. Cynthia Garza, on behalf of Congressman Ruben Hinajosa (District 15) VII. VIII. a. The Rio Grande valley has had significant growth b. No additional representation to the people of the Rio Grande valley, nor does it add an additional minority opportunity district in the valley. c. Senator Hinajosa agrees, saying we can easily draw three districts in the valley, but the proposed plan does nothing to improve the valley s representation. Greg Gonzales a. Speaking of District 20 Austin and San Antonio have different interests, and shouldn t be represented by the same Congressperson. Elise Alvarado a. A citizen of the Rio Grande valley. b. Everyone has a number that s convenient, so she s not talking about statistics or numbers. 1 EXHIBIT 625 Plt Intervenor NAACP & Congresspeople000578

144 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 3 of 16 IX. Senate Committee on Redistricting Meeting 6/3/2011 c. Merely changing the district number doesn t fool anyone (the new 34 is the same district as Ortiz s). It splits community interests, and concern that the district packs Hispanics, when it is easy to create an additional Hispanic opportunity district. d. People deserve to have a voice, and to be represented, and to have a fair process. e. Senator Gallegos asks if she would consider the attempt to say South Texas got a new district as an attempt to hoodwink. She says yes. Anita Privett on behalf of LWV a. Representative democracy depends on voters freely choosing their elected officials, but instead, officials choose their voters. b. A redistricting plan should fully reflect diversity of the state, and as such, comport with one person, one vote, as well as the VRA. c. We haven t had adequate time to analyze the map s impact, but based on initial analysis, d. Districts 6, 7 and 27 under the proposed plan, minorities would reflect 50%+ minority population, but based on 2008 election data, would not have the opportunity to elect their candidate of choice. e. Dist. 27 fractures and dilutes the communities of interest slicing and dicing through all kinds of lines. f. Community groups and citizens have had virtually no opportunity to weigh in, and this map fiercely protects incumbents. g. Calls on the legislature to look at the MALDEF map, Veasey s map, Pate s map, and Owens map. All are examples that would be much fairer examples of redistricting. h. Lucio asks what she thinks the intent was behind the map. She declines to answer (but she has a great imagination:)). Asks if she believes the map is in violation of the VRA. X. Nina Perales on behalf of MALDEF a. TX Latino Redistricting Task Force has offered two Congressional maps (C122 and C 123) that are fair to Latinos in TX (both have 9 Latino majority districts, and a coalition district in Harris County). By contrast, Plan 125 and Plan 130 are not fair. b. Though Dist. 35 was created, the proposed plans reduce Latino ability to elect in Dist. 20 (8% drop of SSRV unnecessary) and Dist. 23 (retrogresses by altering geography and composition removes large portions of south San Antonio and other areas, and Latinos can no longer elect their candidate of choice). c. Relocating Nueces County (majority Latino) from Dist. 34 is irrational they re now stranded in Dist. 27 in which they re no longer able to elect their candidate of choice. This could be a violation of the VRA, not only here, but because of the ripple effect in other districts. d. Plans 125 and 130 means Latinos are LOSING ground. By retaining 7 districts, now have a smaller percentage. e. Gallegos asks whether she believes both maps are retrogressive in violation of the VRA (both Section 2 and Section 5). She says yes. f. Lucio asks how many minority opportunity districts there should be. She says for Latinos, there should be at least 9. g. Zaffarini asks if MALDEF was communicated with in creation of Plans 125 and 130. She says she had an opportunity to communicate MALDEF s perspective, but was not involved in creation of either plan. h. Uresti asks for an explanation of the difference between Section 2 and Section 5 of the VRA. Section 5 is preclearance for whether there is retrogression compared to the old plan. Section 2 2 Plt Intervenor NAACP & Congresspeople000579

145 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 4 of 16 XI. XII. XIII. XIV. Senate Committee on Redistricting Meeting 6/3/2011 asks whether the required number of majority-minority districts have been created. He asks if you can violate one but not the other. She says yes, it is possible for a plan to receive Section 5 preclearance, but be struck down under Section 2 (hard for her to imagine a situation where a map violates Section 5, but not Section 2). But she wants to be clear, Plans 125 and 130 violate both sections. Reminds the committee that Latinos have had TWO decades in a row where there has been 60+% of Latino population. i. Zaffirini asks whether there are any minorities or legal counsel who have experience in mapdrawing and are available to consult. She says yes, they re available (including her), and can t say they weren t hired because they weren t available. j. Asks why TX is a Section 5 state. She says TX has a history of discrimination of minorities, and then based on substantial findings, an overwhelming bipartisan reauthorization of the VRA in k. Asked about District 34. She says in the new plan Dist. 27 is no longer a minority opportunity district, and District 34 is swapped for it, so that is no net gain. l. Asked if DFW area merits a new Latino opportunity district. Yes, and she makes very clear that it absolutely possible to draw that district (in response to comments at yesterday s hearing that this is not possible). m. Asked if Harris County numbers make it possible to create a second Latino opportunity district. She says yes (or at a minimum, a minority coalition district). Bill Burge, GRIT a. Speaking on his map (Plan C116). Again. b. Thinks way more than 5-6% of the Hispanic growth are not citizens. Not sure where he s getting his numbers. Southwest Latino Voter Registration Education Project and the TX Latino Task Force a. Both proposed plans are unfair to Latinos there is no gain. b. The task force s proposed maps both maintain the seven Latino majority districts, and add two new districts, plus a coalition district. c. Gallegos asks if she would agree that because of the population growth, TX will likely gain federal dollars due to additional representation. She agrees. The additional money benefits EVERY Texan. He asks if she believes the Latino community was undercounted by the Census. She says yes. d. Lucio asks what dollar figure is associated with growth in population. She will get those to him. Mitch Thames, President of the Bay City Chamber of Commerce & Agriculture a. Testifying on behalf of both mayors, a judge, and the head of the economic development/hospital/school district. b. Madagora County share a workforce commission and lots of other things with Brazoria County. Asks that they be moved over to be with Brazoria County. c. He s happy with Ron Paul s representation. Stewart Snyder on behalf of Austin LWV a. In previous hearings, heard witness after witness complain about the 2003 map. That was not an invitation to fragment Travis County even more. b. Thinks one district should be wholly within Travis County. c. Seliger referred to voters in Congressional redistricting, but the constitutional mandate is about residents, not voters. 3 Plt Intervenor NAACP & Congresspeople000580

146 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 5 of 16 XV. XVI. XVII. Senate Committee on Redistricting Meeting 6/3/2011 d. Lucio is impressed that he is the first male president of the LWV. Membership in Austin is 300, about 3,000 across the state. Bill Betson a. From Dallas, and against both bills. b. Gave them a map of the Dallas city council districts to illustrate the Hispanic areas of Dallas, and that both of these maps fragment the Hispanic population. c. Our soldiers are fighting for democracy, and this is injuring a critical principle of our democracy one person, one vote. d. Gallegos asks if he is saying that in 6 of the 14 Dallas City Council districts there is a large Hispanic population. He says yes. Concerning Hispanic growth in Tarrant, there is more than enough Hispanics to create an additional Latino opportunity district (nearly 1 million in Dallas County, and about half a million in Tarrant County). Carlos Garcia, TX Latino Redistricting Task Force a. Former mayor pro tem of Dallas, and state senator for three terms.. b. Submits two maps (Exhibit 1 and Exhibit 2) as part of the record. c. Shows they could have easily created four majority minority districts (coalition Latino and African-Americans) by going east/west. Instead there are no Latino opportunity districts in DFW. DFW has the largest amount of Latinos in the US that is not represented by a majority-minority district clearly indicates fracking. d. In Dallas, we re everybody s 30% bitch. Exhibit 1shows they just grabbed minority population to bolster population, but that practice went beyond Dallas. Anglos will have 70% of the representation under either Plans 125 and 130. Joey, State Director for Texas LULAC a. We should redistrict according to what we ll have tomorrow. Two options for the history book this can be the last committee that gerrymandered, or it can be the first not to. We don t learn our lessons you re wasting the tax dollars, because we keep winning, and we ll bring it again. b. You introduced this map so last minute, and we introduced our maps months ago (with majority Latino districts in Harris County, DFW/Tarrant County, I-35 corridor and the valley). c. Even if Latinos got all four new districts, that would still not total the fourteen that Michigan. d. Neither map is fair and both violate the VRA. e. Gallegos asks if LULAC believes all four of the new districts should be Latino opportunity districts f. The Latino population of TX is larger than every state of the union except six. WOW. XVIII. Hector Torez, past national president of LULAC XIX. a. Repeating the mistakes of the past. b. Latinos are under-represented at every level of governance in TX. Latinos have some voice, but not parity. c. Wants another Latino opportunity district in DFW metroplex. d. Gallegos asks whether he s saying Latinos in DFW should also get a new senatorial district. He says yes. Deece Eckstein a. Reiterated his great testimony from yesterday (Travis County doesn t have a single district in which it makes up greater than 35% of the district). 4 Plt Intervenor NAACP & Congresspeople000581

147 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 6 of 16 XX. Senate Committee on Redistricting Meeting 6/3/2011 b. West asks Seliger a number of probing questions about why Travis County was treated differently from other major urban areas. Seliger says he didn t use any particular methodology. Staff member came in to say that while Travis County remains the largest part of District 25, it is still no more than 35% of the total. i. Back and forth (this is awkward) Seliger says he went from the outside in and that s just how it happened. Seliger keeps evading the question, and tells West, if you can t remember what answer I gave, maybe you should take notes. **[See this exchange at Senate Select Committee on Redistricting Hearing on 6/3, Part I approximately 4:34 on the video]**request for committee counsel to come forward and answer West s questions. a. Mike Morrison we weren t part of the line drawing I can t answer that question. The linedrawing was done by staff. b. Bob Heath says he believes the drawing of Travis County is constitutional (but see XX(d)). He says he lives in Travis County, and doesn t agree with it, but he believes it is constitutional. c. David Guinn the Supreme Court has largely said we leave that to you, with respect to communities of interest, economics, etc. West has the Supreme Court ever been asked that question. Answer no. d. They all agree with West that Travis County has been treated differently than it has in the past. 4:41 West asked whether there is retrogression in Travis County. West asks whether the minority community is worse off than they were under the previous plan says that is a judgment call (a very subjective question). West asks what are some of the factors the court has listed that should be taken into account. Heath answers that they look at the ability to elect (election results), statements in the record, they ll call minority groups and read the transcripts, etc. Section 5 usually goes through DOJ, so the case law body is smaller (power of DOJ to pre-clear was expanded in the 2006 amendments). e. West asks whether minorities in current District 25 have the ability to elect their candidate of choice. Heath says he would need to go and look at the election results, but it would probably show that the minority candidate of choice usually gets elected (though the minority population isn t that great). He does admit that they vote together in a coalition to elect a candidate of choice. f. 4:50 West asks whether there should be an analysis done on whether the minorities in Travis County are worse off before adopting a map. Bob Heath says you have to do that, but on a statewide basis. Q: Has that been done w/r/t Section 5, and would the current map pass muster under Section 5? A (Guinn): I think they could. I would want to go back and study all the election results in the past. Q: Should that be done before we vote on this plan? A (Morrison): I think that s going to be a political question for y all to answer. g. 4: 51:40 i. Morrison: This process has been quite different from what we ve seen in the past. We didn t get to congressional we didn t see a plan until the regular session had ended. Nobody has had the opportunity to study it the way it has been done in the past, or the way you would do it ideally. And the question for y all is do you proceed with that amount of information, or do you give up the chance to do it at all, or the governor put this into another call. There s been a very finite amount of time. You recall how we did it in ii. West: I do. iii. Morrison: And the process has not there s not been the time the way the session has run for that process to work the same way on the congressional as it did for the house and the senate. iv. West: Remind me how we did it remind me how we did it in I forget. 5 Plt Intervenor NAACP & Congresspeople000582

148 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 7 of 16 h. 4:53:40 Senate Committee on Redistricting Meeting 6/3/2011 v. Morrison: Well, we went all over Texas, as you said earlier today. We spent 16 years in one place, and 20 hours in another. vi. West: We looked at election results too, didn t we? vii. Morrison: We sure did. We sat down in your office, we visited, we hired experts to do regression analyses. And if time permits, that would be the ideal way to do it this time. viii. West: It wasn t done that way this time though, was it? ix. Morrison: Well, I think you have to do what you can within the time that s available if you re going to go forward with a plan. x. West: Or allowed. Time available or allowed. xi. Morrison: Or allowed. i. Senator Lucio: Something that was just brought up moments ago if election results are seen as most important, how can you conclude that this Travis County configuration is legal if you haven t looked at historic results under this map? ii. A: Again, you re not focused on Travis County alone. Right. That s the thing, we can t focus in just on Travis County on a statewide perspective. And, and the you know, there are some election analysis we have seen that deal with, and looking mostly at District 34, and where it looks, in, in that case, that that would be a district where Hispanics would be able to elect a candidate of their choice. And that is one of the critical issues. i. Gallegos asks questions i. Gallegos asks whether the minority community currently has the ability to elect their candidate of choice in District 25. ii. They say there s a difference between whether the minority candidate of choice happened to be elected and whether they have the power to elect their candidate of choice. They say District 25 is a minority-influence district. iii. Gallegos asks whether District 25 is protected by the VRA. Heath says he thinks it is not protected in that minorities have the ability to elect. It is something DOJ may look some at, but they will also look at the existence of 34 when they re doing that. iv. Gallegos asks, in your opinion, under the [sic] 2006 amendments to Section 5, are influence districts protected? v. They are protected in the sense that if there was a purposeful discrimination or retrogression, both are now covered under Section 5. vi. Gallegos did you hear Domingo Garcia s testimony? We re talking about 8 districts coming into the Dallas-For Worth Metroplex, grabbing up minorities to meet the population threshold. In your opinion, under those amendments, in the Dallas situation, under Section 5, would they be protected? vii. They re protected from purposeful discrimination and retrogression. They don t think that s retrogression in and of itself. Had the minorities had an opportunity to elect their candidate of choice, and it was taken away, i.e. split up into multiple pieces so that that opportunity was no longer there, that would be retrogressive. And under the effect prong of Section 5 would be impermissive. viii. Gallegos: Let s go back to District 25. There s no retrogression at all under this plan? ix. They can t say it would be protected by the VRA (they don t think the district is sufficiently minority). 6 Plt Intervenor NAACP & Congresspeople000583

149 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 8 of 16 XXI. XXII. Senate Committee on Redistricting Meeting 6/3/2011 x. Gallegos: So once again, what happened in Dallas, what happened in Travis, a little bit in Houston so you re saying that what s in these maps, there s no retrogression? xi. To the extent that we, like you, have had the opportunity to look at the maps and study the data, we don t believe so. xii. Gallegos: Well, like Senator West, I d like for y all to do that. Since we hired you all didn t we hire you all? xiii. You did. We hope so. xiv. Gallegos: Let s talk about District 27 (Nueces County). xv. Certainly, without District 34, there would be an extremely serious retrogression problem there. j. 5:03:55 Lucio asks whether preventing a minority community from electing a representative of choice is considered discrimination in the redistricting process. i. A: It probably depends on the size of the community, which goes to the ability of the community to select the candidate of choice. If it is sufficiently large and compact, there may well be a problem. k. 5:04:58 Zaffirini asks about the DOJ compliance guidelines issued in February, and whether they provided verbal or written guidance on whether the two proposed plans are in compliance with Section 5. They say no. Zaffirini asks what they actually did for these plans. They say regarding the development, nothing at all. They say they saw the maps when they were distributed to the public. Zaffirini asked with whom they have worked. They say they worked with Doug Davis and with the chair on the general background legal principles. Lorraine a. Citizen of Hays County (divided into three districts) b. Ran against Lloyd Doggett as a libertarian says she thinks he represents Austin interests well. c. Takes issue with District 35 and doesn t know how a Congressperson who can adequately represent both Austin and San Antonio. Voices will ultimately be ignored and washed out. d. District 21 means moving Texas State to be represented by a Congressperson from San Antonio. e. Seems like this effort is really affecting students we need someone in Washington to look out for students. ( I am a libertarian, but I d rather education be cut last, not first. ) f. These districts are good for third-party candidates, so they have more networking opportunities, but there s no liberty in that. g. West Texas and southside San Antonio are being paired together too not good. Ray Gerda (sp?) on behalf of the Greater Houston Civic Coalition a. Aim is to represent the diverse views of Houston. b. With respect to Harris County, its population growth is more than twice the growth of the next two fastest growing counties combined (Bexar and Tarrant). c. Harris County Hispanic growth is directly responsible for one of the new Congressional seats, so not only should Harris County have an additional seat, but it should be a Hispanic opportunity district. d. The community hasn t had an adequate chance to give input on the maps. XXIII. Emily representing herself a. Seventeen year old Travis County resident. 7 Plt Intervenor NAACP & Congresspeople000584

150 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 9 of 16 Senate Committee on Redistricting Meeting 6/3/2011 b. While she isn t old enough to vote, even when she is, this plan will silence her vote, along with the rest of Travis County. c. Disheartened by the process and how members of the committee can be left with very little to do with these plans. XXIV. Robin Rumancik representing herself. XXV. a. Resident of Michael McCall s district, which goes all the way to Houston. b. Agrees with representatives who said districts should be drawn as close to county lines as possible. c. Lucio thanks her for her tone and presentation, as does Eltif d. Urges adoption of AJ Pate s bill that takes the redistricting process out of the hands of legislators. Norina representing herself a. Against the bill. XXVI. Yannis Banks, NAACP a. All four new seats are a result of the growth of minority populations (88% of the growth) b. This map violates federal law. c. DFW area merits a new Black opportunity district presents a proposal for how that could be done. d. Latino voters are also being discriminated against. Deferring to MALDEF on those. e. Also takes issue with District 25 (currently an effective coalition district) f. Texans deserve a fair process. g. Zaffirini said good testimony. XXVII. Katherine Siegman (sp?) a. Fourth generation Austinite. b. Values the democratic process, and to split the student population into four Congressional districts is really disheartening. Students are another under-represented voice. XXVIII. Ann Sagman a. Austin is the largest city in Texas and possibly in the country that doesn t have a Congressional district wholly within it. b. Loves Lloyd Doggett he represents Austin, even of those who technically live in other Congresspersons districts. 8 Plt Intervenor NAACP & Congresspeople000585

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152 Case 5:11-cv OLG-JES-XR Document Filed 07/22/13 Page 11 of 16 EXHIBIT 621 Plt Intervenor NAACP & Congresspeople000369