Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 1 of 13

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1 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs, v. STATE OF TEXAS, et al., Defendants. CIVIL ACTION NO. SA-11-CA-360-OLG-JES-XR [Lead case] DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA,

2 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 2 of 13 Defendants Rick Perry, in his official capacity as Governor, John Steen, in his official capacity as Secretary of State, and the State of Texas (collectively, Defendants file this Brief on Updated ACS Data, 2012 Election Data, and Additional Expert Analysis pursuant to the Court s order dated May 29, INTRODUCTION The Court should reject Plaintiffs request to introduce updated ACS data, the 2012 election results, and new expert analysis for the purpose of determining whether the Legislature s 2011 redistricting plans for Congress and the Texas House of Representatives violate the Constitution or Section 2 of the Voting Rights Act. These data were not available to the Legislature in 2011 and are therefore irrelevant to Plaintiffs claims about the propriety of the legislatively enacted plans. If the Court finds a violation, however, it may consider the new ACS data and 2012 election results to fashion a remedy. ARGUMENT & AUTHORITIES I. The Court Should Not Consider Updated ACS Data or 2012 Election Results in Attempting to Prove Their Constitutional and Section 2 Claims. Plaintiffs contend that the Court should consider updated ACS data on citizen voting age population ( CVAP and 2012 election results before reaching judgment on the constitutional and Section 2 claims. See Joint Advisory (Doc. 738 at 13 (emphasis added. Plaintiffs contend the updated data would be an important addition to the evidence that they have already introduced in this case, DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 2

3 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 3 of 13 but do not provide any persuasive legal precedent to support their position. Id. at 14. Contrary to their position, the weight of the legal authority including rulings from the U.S. Supreme Court strongly counsels against using data that was not available to the Legislature to determine the legal merits of legislative plans. Moreover, neither data set is relevant to the question whether the legislatively enacted plans violate the Constitution or Section 2 of the Voting Rights Act. The Court should reject Plaintiffs attempt to expand the record and further extend these proceedings. A. The Updated ACS Data and 2012 Election Results Were Not Available to the Legislature at the Time the 2011 Plans Were Enacted and Thus Should Not Be Used to Determine Whether the 2011 Plans Are Legal. In considering whether the legislatively enacted redistricting plans violate the Constitution or the Voting Rights Act, the Court should reject introduction of new ACS data or 2012 election results (and any new expert analysis based on these data because neither data set was available to the Legislature when it enacted the redistricting plans in See Karcher v. Daggett, 462 U.S. 725, 728 n.1 (1983 (noting, in the context of a constitutional challenge to New Jersey s reapportionment of its congressional districts, that the Court need not consider a set of corrected census data because it was not available to the Legislature at the time it enacted the plan at issue ; LULAC v. Perry, 548 U.S. 399, 438 (2006 (rejecting plaintiff s claim that updated ACS survey data should be utilized because the data was neither available at the time of redistricting nor presented to the DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 3

4 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 4 of 13 district court. Even DOJ s regulations governing the preclearance process under Section 5 make clear that voting changes should be judged by the conditions existing at the time of the submission. See 28 C.F.R (c(2 (2012. The only alternative to this sensible, bright-line rule is endless litigation. Should the Court proceed with supplementing the record to introduce these new data, redistricting would become an unending task for the federal court system, forcing courts to reopen or supplement the record every time an election occurs or new population data is released while a case is pending. This would turn the court system not the Legislature into the primary forum for redistricting and cause continual upheaval in the election process. It also flies in the face of the long-standing position of the U.S. Supreme Court that [s]tates operate under the legal fiction that their plans are constitutionally apportioned throughout the decade. See, e.g., LULAC, 548 U.S. at 421 (Kennedy, J. ( [A] presumption that is necessary to avoid constant redistricting, with accompanying costs and instability.. Plaintiffs provide no support or argument as to why federal courts should not also operate under the same legal fiction. The Court should reject Plaintiffs invitation to further prolong litigation of the legislatively enacted redistricting plans, nearly two years after the conclusion of trial, with evidence that was unavailable to the Legislature that enacted those plans. DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 4

5 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 5 of 13 B. Plaintiffs Must Make a Preliminary Showing That the New ACS and Election Data Impact Whether the 2011 Legislatively Enacted Plans Violate the Constitution or the Voting Rights Act. In the event the Court chooses to depart from the legal precedent cited above, Plaintiffs must, at the very least, make a preliminary showing that the new ACS data and 2012 election results would alter the evidence previously introduced regarding the propriety of the legislatively enacted plans. Otherwise, the introduction of the ACS and 2012 election data would only needlessly draw out already protracted litigation and threaten further disruption to the State s election process. The record before the Court is already voluminous, including ten days of trial testimony and argument, expert reports and testimony, substantial statistical evidence, along with numerous depositions and thousands of documents produced by the parties. In similar circumstances, the Fifth Circuit rejected a request to supplement the record with post-trial election results to support claims that a school district s at-large voting system violated the Voting Rights Act and the Fourteenth Amendment. See Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d 1205, (5th Cir The Rollins court reasoned, in part, that the election results were duplicative of the mountain of evidence adduced at trial and that the district court had appropriately concluded the results would not alter the evidence presented at trial after evaluating the quality of the proposed evidence. Id. DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 5

6 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 6 of 13 Plaintiffs cited Westwego Citizens for Better Government v. City of Westwego, 906 F.2d 1042 (5th Cir. 1990, to justify reopening the evidence. 1 However, the Rollins court explicitly distinguished its facts from Westwego. See Rollins, 89 F.3d at In Westwego, the Fifth Circuit held that the district court should have considered post-trial election results in evaluating claims that the voting system for city aldermen violated the Voting Rights Act because the post-trial election data drastically changed the evidentiary landscape. Westwego, 906 F.2d at As the Rollins court recognized, the district court in Westwego had initially concluded that it was significant that there had never been a Black candidate for alderman but had later rejected post-trial election results involving the first ever Black candidate. See Rollins, 89 F.3d at 1223 (citing Westwego, 906 F.2d at As a result, the post-trial election results in Westwego were highly relevant and could have altered the district court s decision. See Westwego, 906 F.2d at 1045; Rollins, 89 F.3d at Without a similar showing by the Plaintiffs, the Court should reject the introduction of additional evidence. 1 Plaintiffs also cited Teague v. Attala County, Miss., No. 1:91-CV GHD, 1995 WL (N.D. Miss. Mar. 20, 1995, rev d on other grounds, 92 F.3d 283 (5th Cir. 1996, to support the Court s consideration of updated ACS citizenship data and 2012 election results; however, this case is not on point for this issue. Teague did not involve the release of new census data during the pendency of the case. Additionally, unlike the mountain[s] of evidence adduced at trial in Rollins and the current case, the post-trial election results in Teague were likely to impact plaintiff s vote dilution claim in light of the limited analysis previously conducted by the district court. Teague, 92 F.3d at Other voting rights cases allowing for parties to supplement the record with post-trial election results have similarly involved unique circumstances that are not in play here. See, e.g., Levy v. Lexington Cnty., 589 F.3d 708, 715 (4th Cir (concluding that the district court s failure to reopen the record for post-trial election results involving only the second African-American elected to the defendant school board in thirty years worked an injustice because the results were important and probative to defeating plaintiffs Section 2 claims (citation and internal quotation marks omitted. DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 6

7 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 7 of 13 II. The Court May Consider New ACS Data and the 2012 Election Results in Fashioning a Remedial Plan. Even though the Court should reject Plaintiffs attempts to introduce new data in their attempts to prove constitutional and Section 2 claims, the data may still be utilized in crafting a remedial plan. In doing so, the Court will be utilizing the most recent data on which to approve a remedial plan so as to ensure that it is effectively cur[ing] any constitutional or statutory defect, as it must do under the principles outlined in Upham v. Seamon, 456 U.S. 37, 43 (1982 (per curiam. Indeed, the proceedings conducted in the context of the Texas Legislature s 2003 redistricting demonstrate how evidence of the most recent election data can be utilized in the remedial phase. See LULAC v. Perry, 457 F. Supp. 2d 716 (E.D. Tex In LULAC, the State proffered data from the most recent general election for certain districts to determine the Hispanic strength of the districts. See LULAC, No. 2:03-cv TJW (E.D. Tex. July 14, 2006, State Defendants Opening Brief in the Remedial Phase (Doc. 308 and Affidavit of Todd Giberson (Doc ; see also Bone Shirt v. Hazeltine, 387 F. Supp. 2d 1035, (D.S.D (reviewing post-trial election data in developing new apportionment for South Dakota s state legislative districts, during remedial phase of Voting Rights Act case, aff d, 461 F.3d 1011 (8th Cir Similarly, if the Court concludes that the 2011 legislatively enacted plans violate the Constitution or Section 2 of the Voting Rights DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 7

8 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 8 of 13 Act, it can utilize the new ACS citizenship data and the 2012 election results in the remedial phase. CONCLUSION For the reasons stated above, the Court should deny the request by the Plaintiffs to introduce new ACS data, the 2012 election results, or any expert analysis regarding these data sets in Plaintiffs attempts to prove Section 2 and constitutional claims regarding the Legislature s 2011 districting plans. The Court may, however, consider that evidence if it finds a violation and proceeds to a remedial phase. DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 8

9 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 9 of 13 Dated: June 5, 2013 Respectfully Submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General /s/ David C. Mattax DAVID C. MATTAX Deputy Attorney General for Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General PATRICK K. SWEETEN Division Chief, Special Litigation Division ANGELA COLMENERO Assistant Attorney General JENNIFER S. JACKSON Assistant Attorney General MATTHEW H. FREDERICK Assistant Solicitor General P.O. Box 12548, Capitol Station Austin, TX ( ( (fax ATTORNEYS FOR THE STATE OF TEXAS, RICK PERRY, AND JOHN STEEN DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 9

10 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 10 of 13 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this filing was sent on June 5, 2013, via the Court s electronic notification system and/or to the following counsel of record: DAVID RICHARDS Richards, Rodriguez & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, TX davidr@rrsfirm.com RICHARD E. GRAY, III Gray & Becker, P.C. 900 West Avenue, Suite 300 Austin, TX / (facsimile Rick.gray@graybecker.com ATTORNEYS FOR PLAINTIFFS PEREZ, DUTTON, TAMEZ, HALL, ORTIZ, SALINAS, DEBOSE, and RODRIGUEZ JOSE GARZA Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas garzpalm@aol.com MARK W. KIEHNE mkiehne@lawdcm.com RICARDO G. CEDILLO rcedillo@lawdcm.com Davis, Cedillo & Mendoza McCombs Plaza 755 Mulberry Ave., Ste. 500 San Antonio, TX / (facsimile ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS GERALD H. GOLDSTEIN ggandh@aol.com DONALD H. FLANARY, III donflanary@hotmail.com Goldstein, Goldstein and Hilley 310 S. St. Mary s Street San Antonio, TX / (facsimile PAUL M. SMITH, MICHAEL B. DESANCTIS, JESSICA RING AMUNSON Jenner & Block LLP 1099 New York Ave., NW Washington, D.C J. GERALD HEBERT 191 Somervelle Street, # 405 Alexandria, VA hebert@voterlaw.com JESSE GAINES P.O. Box Fort Worth, TX gainesjesse@ymail.com ATTORNEYS FOR PLAINTIFFS QUESADA, MUNOZ, VEASEY, HAMILTON, KING and JENKINS DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 10

11 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 11 of 13 NINA PERALES MARISA BONO Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX / (facsimile MARK ANTHONY SANCHEZ ROBERT W. WILSON Gale, Wilson & Sanchez, PLLC 115 East Travis Street, Ste San Antonio, TX / (facsimile ATTORNEYS FOR TEXAS LATINO REDISTRICTING TASK FORCE, CARDENAS, JIMENEZ, MENENDEZ, TOMACITA AND JOSE OLIVARES, ALEJANDRO AND REBECCA ORTIZ JOHN T. MORRIS, Pro Se 5703 Caldicote St. Humble, TX MAX RENEA HICKS Law Office of Max Renea Hicks 101 West Sixth Street Suite 504 Austin, TX /512/ (facsimile ATTORNEY FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, MILTON GERARD WASHINGTON, and SANDRA SERNA STEPHEN E. MCCONNICO LUIS ROBERTO VERA, JR. Law Offices of Luis Roberto Vera, Jr. & Associates 1325 Riverview Towers San Antonio, Texas GEORGE JOSEPH KORBEL Texas Rio Grande Legal Aid, Inc North Main San Antonio, TX ATTORNEYS FOR INTERVENOR- PLAINTIFF LEAGUE OF UNITED LATIN AMERICAN CITIZENS ROLANDO L. RIOS Law Offices of Rolando L. Rios 115 E Travis Street, Suite 1645 San Antonio, TX rrios@rolandorioslaw.com ATTORNEY FOR INTERVENOR- PLAINTIFF HENRY CUELLAR GARY L. BLEDSOE Law Office of Gary L. Bledsoe 316 W. 12 th Street, Ste. 307 Austin, TX / (facsimile garybledsoe@sbcglobal.net ATTORNEY FOR INTERVENOR- PLAINTIFFS TEXAS STATE CONFERENCE OF NAACP BRANCHES, TEXAS LEGISLATIVE BLACK CAUCUS, EDDIE BERNICE JOHNSON, SHEILA JACKSON- LEE, ALEXANDER GREEN, HOWARD JEFFERSON, BILL LAWSON, and JUANITA WALLACE DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 11

12 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 12 of 13 SAM JOHNSON S. ABRAHAM KUCZAJ, III Scott, Douglass & McConnico One American Center 600 Congress Ave., 15th Floor Austin, TX / (facsimile ATTORNEYS FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BALAKUMAR PANDIAN, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, ELIZA ALVARADO, JOSEY MARTINEZ, JUANITA VALDEZ-COX, LIONOR SOROLA- POHLMAN, MILTON GERARD WASHINGTON, NINA JO BAKER, and SANDRA SERNA CHAD W. DUNN K. SCOTT BRAZIL Brazil & Dunn 4201 FM 1960 West, Suite 530 Houston, TX / (facsimile ATTORNEYS FOR INTERVENOR- DEFENDANTS TEXAS DEMOCRATIC PARTY and BOYD RICHIE ROBERT NOTZON Law Office of Robert S. Notzon 1507 Nueces Street Austin, TX / (facsimile ALLISON JEAN RIGGS ANITA SUE EARLS Southern Coalition for Social Justice 1415 West Highway 54, Ste. 101 Durham, NC / (facsimile ATTORNEYS FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES, EARLS, LAWSON, WALLACE, and JEFFERSON DONNA GARCIA DAVIDSON PO Box Austin, TX / (facsimile FRANK M. REILLY Potts & Reilly, L.L.P. P.O. Box 4037 Horseshoe Bay, TX / (facsimile ATTORNEYS FOR DEFENDANT STEVE MUNISTERI VICTOR L. GOODE Asst. Gen. Counsel, NAACP 4805 Mt. Hope Drive Baltimore, MD / (facsimile ATTORNEY FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 12

13 Case 5:11-cv OLG-JES-XR Document 757 Filed 06/05/13 Page 13 of 13 Via JOAQUIN G. AVILA P.O. Box Seattle, WA / (facsimile ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS KAREN M. KENNARD 2803 Clearview Drive Austin, TX ( / (facsimile ATTORNEY FOR PLAINTIFF CITY OF AUSTIN DAVID ESCAMILLA Travis County Asst. Attorney P.O. Box 1748 Austin, TX ( ATTORNEY FOR PLAINTIFF TRAVIS COUNTY /s/ David C. Mattax DAVID C. MATTAX DEFENDANTS BRIEF ON UPDATED ACS DATA, 2012 ELECTION DATA, PAGE 13