Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. REPLY BRIEF OF THE DAVIS PLAINTIFFS AND THE LULAC PLAINTIFFS The Davis Plaintiffs and the LULAC Plaintiffs respectfully submit this Reply Brief to the Briefs filed on February 10, 2012, by the State Defendants and the Estes Intervenors. ARGUMENT 1. The State Has Failed To Establish That Their Enacted Plan Is Free Of A Racially Discriminatory Purpose And Effect. The Brief filed by the State Defendants devotes a mere one page of their sixty (60) page brief to arguments regarding the state senate plan. In the brief, the State has made just two arguments in support of its enacted plan (S148): that it was enacted with partisan intent to protect Republican voting strength, and that the process used to enact it
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 2 of 11 was free of a racially discriminatory intent because the Senate Committee Redistricting Chair (Sen. Seliger) and the Senate Redistricting Committee Director (Doug Davis) met with every state senator and because 29 of 31 senators voted in favor of the plan on final passage. We addressed each of these arguments in our post-trial brief (at pp. 14-15) and in our proposed findings of fact (at pp.30-31). We would note here only a couple of additional points. First, regarding the purpose behind the plan, the State concedes that [i]n Texas, minority voters are predominantly Democratic. State s Brief at 52. Thus, even if it were true that the State sought to minimize the voting strength of Democrats, the State knew it was doing so at the expense of racial and language minorities. The state also contends that by fracturing off minority neighborhoods from SD 10, the State did not engage in purposeful discrimination simply because the senate map-drawer was aware that the areas being removed from SD 10 were heavily minority. Of course, there is much more evidence of racial purpose than the mere fact that the senate map drawers knowingly fragmented and carved out politically cohesive minority voters in SD 10, and that evidence is detailed in Plaintiff s Post-Trial Brief and in our Proposed Findings of Fact. See Plaintiffs post-trial brief (at pp. 4-15) and in Plaintiffs proposed findings of fact (at s 22-52). Regarding the process used to enact the map, it appears to be true that the Senate Redistricting Committee Chair and Mr. Doug Davis did meet with every senator at some point early on in the process to solicit their views about their districts. This much is not in dispute and is largely beside the point because the evidence offered from all 12 senators who represent majority-minority senate districts (Wendy Davis, Ellis, Gallegoes, 2
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 3 of 11 Hinojosa, Lucio, Rodriguez, Uresti, Van de Putte, Watson, West, Whitmire, and Zaffirini) was that senators representing minority opportunity districts were not given equal access throughout the process. PX 5. In their May 17, 2011 statement on the floor of the Senate, which was entered into the Senate Journal and made an official part of the record, these twelve senators protested that the views of their constituents were neither solicited nor given fair consideration. Id. The fact that Senator Seliger and Mr. Davis may have met with each senator once says very little and certainly doesn t dispel a finding that that the process was intentionally discriminatory. What speaks volumes about the discriminatory and racially exclusionary redistricting process is that Anglo Republican senators had numerous meetings and access to those drawing the senate map, while senators representing majority-minority districts, in the words of Senator Judith Zaffirini (PX 55 at 10), were excluded : 10 Q. Do you know whether any other senators 11 representing minority districts were able to have any 12 input into the drafting during this time? 13 A. They were not. 14 Q. How do you know that? 15 A. Because they told me. And because we signed a 16 letter explaining our vote regarding the Senate map. 17 And in that map we stated that we were not consulted 18 and, in fact, that we were excluded. Senator Rodney Ellis similarly testified that he was left out of the process and most of the members who represented minority districts, all of us were left out of the process. Sen. Rodney Ellis DC Trial Testimony at 95 (1/20/2012 am session). 3
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 4 of 11 2. PLAN S167 Proposed By the State and Senator Estes Is Racially Discriminatory, Retrogressive of Minority Voting Strength, and Was Drawn with the Purpose of Denying Minority Voters in SD 10 an Effective Ability to Elect Their Candidate of Choice. The State and Intervenor Estes now proposes S167. These proponents of S167 make the following claims about S167, each of which is demonstrably false: Plan S167 proposed by Senator Craig Estes is not a compromise or even a legitimate effort to find middle-ground. It is a retrogression of minority voting strength in Senate District 10 because it will significantly reduce the current ability of Hispanics and African American voters in the district to elect their candidate of choice. The Anglo voting age population goes up, while the black and Hispanic voting age population BHVAP) goes down. The black population is reduced significantly, by 13%. The proponents of S167 claim that these demographic changes in SD 10 are de minimis (Estes Brief at 6), but they are wrong. What makes these demographic changes even more pernicious is they appear to be done in a manner that makes it appear the minority population demographics stay roughly the same but in fact there is a serious reduction of black and Latino voting strength. It is also noteworthy that the person who drew Plan S167 was Doug Davis, who drew the State s enacted map (S148) which was enacted with a racially discriminatory purpose and will have a retrogressive effect, and the same Doug Davis who helped draw the congressional map in 2003 that was struck down as a violation of the Voting Rights Act in LULAC v. Perry. Seliger DC Trial Testimony at 89 (1/24/2012am session). The changes to SD120 in Plan S167, though less subtle, are quite to those the State attempted in Congressional District 23 where population was manipulated to 4
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 5 of 11 made what appeared to be minor demographic changes, while actually doing material harm to minority voting strength. S167 boosts the influence of Anglo voters by increasing their raw numbers and their VAP population significantly relative to minority overall and particularly African American voters. S167 removes and adds far more people than required to accommodate the intrusion of SD22 into Tarrant County as occurred under the state s enacted plan or to allow for the western extension of SD9. SD22 requires only about 100,000 persons from either Tarrant County or Parker County. To bring this amount of population into SD 22, 30,000 to 50,000 persons at most must be removed from the Northeast Arm of SD10 to allow SD9 to extend west as the State desires. Yet, S167 removes nearly 200,000 persons from SD10 and then adds back into the district just over 180,000 persons. This extensive disruption of population is far more than needed to accomplish either Senator Estes or the State s stated goals. This movement of additional population, however, does allow the State to remove more minority voters who have effectively elected their candidate of choice and replace them with Anglos who reliably vote against minority candidates of choice. Precincts Removed from SD10 Under Plan S167 Just over 198,000 persons live in the precincts that are removed from SD10 under Plan S167. In 2008, these precincts cast approximately 78,690 votes and in 2010 cast 44,379 votes. The Anglo VAP in these precincts is 59.2%, the Black VAP is 21.2%, the Hispanic VAP is 16.8% and the B+H VAP is 33.1 percent. In raw numbers, the persons removed from SD 10 in these precincts under Plan S167 were 42,070 Blacks and 33,346 Hispanics, totaling over 75,000 combined. Approximately 5
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 6 of 11 108,859 Anglos are removed. In 2008, President Obama received 43.4% support in the precincts removed from SD10 under Plan S167. Precincts Added to SD10 Under Plan S167 Just fewer than 184,000 persons live in the precincts added to SD10 under Plan S167. In 2008, these precincts cast approximately 63,553 votes and in 2010 35,442 votes. The Anglo VAP in these precincts is 66%, the Black VAP is 8.5%, the Hispanic VAP is 22.3 percent and the B+H VAP is 30.5 percent. In raw numbers, approximately 17,442 Blacks and 50,005 Hispanics totaling barely over 65,000 combined. Approximately 111,000 Anglos are added to SD10. President Obama received 40.8% support in these precincts. We detail the specific demographic changes to benchmark SD 10 made by S167 to show how minority voting strength was diminished, looking at three distinct geographic areas where changes were made to SD 10 that weaken minority voting strength: southwest Fort Worth, Arlington, and the northeast arm of SD 10. A. Fort Worth. One of the areas of Tarrant County where there is already a quite large African American base that is also experiencing significant growth in its minority population is the area of southwest Fort Worth, west of I35 and east of Benbrook Lake between Edgecliff Village to the North and Crowley to the South. Most of this area (which is two-thirds minority) is removed from SD10 under Plan S167 and will be left stranded in SD22. Thus, S167 takes the current and growing African American and Hispanic population in this area of southwest Fort Worth and submerges the voting strength of blacks and (and Hispanics) in this area into a strong Anglo-controlled Republican district (SD22). The roughly 60,000 people removed from this area by S167 are 61 % Black and Hispanic (B+H) and only 33 % Anglo. This population of 60,000 people in Southwest Fort Worth is replaced in S167 by population in far west Fort Worth north of I30, South of River Oaks going from Westover Hills west to the county line. The roughly 60,000 people added to SD10 from this area are nearly exact demographic opposite of the area 6
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 7 of 11 removed: 64% Anglo and only 33% Black plus Hispanic (B+H). Moreover, this is one of the few areas in Tarrant County where the Anglo population is growing more rapidly than the minority population. B. Arlington Precincts Removed Nine precincts in the City of Arlington with significant and growing minority populations were also removed from SD10 by SD 10. The approximately 44,000 people removed from these precincts are only 39% Anglo. Moreover, there was simply no reason to remove these precincts. Their removal is not required to accommodate Senator Estes desire to retain SD30 s configuration, the intrusion of SD22 into Tarrant County, or to maintain the Republican political strength of adjacent Districts 9 or 12. Clearly, these precincts were removed for the sole purpose of weakening current minority voting strength in SD10 and to render the minority growth taking place in these precincts as irrelevant to any election in the years ahead. C. Adjustments in Northeast Arm designed to further weaken minority voting strength in SD10 Rather than simply shortening the Northeast Arm in benchmark SD10 to accommodate the extension of SD9 to the north and west, S167 shifts the lower part of the arm to the west picking up an Anglo growth area in the cities of Bedford and Hurst. Though the Estes Intervenor claims that race was not used in the drawing of SD 10, the telltale sign that racial considerations were dominant in this shift is the obvious omission of Precinct 3247, which has a growing African American population. Senator Estes map drawer (Doug Davis) carefully but obviously cut around this precinct to avoid it being part of the shift of the Northeast Arm to the west. Doug Davis knows which neighborhoods in Tarrant County contain minority population whether he had the racial shading indicator on when he drew the map or not, because he admitted knowingly carving up these minority neighborhoods when he drew Plan S148. See Doug Davis DC Trial Testimony at 20-21 (1/18/2012 a.m. session). Though Senator Estes claims his map was free of efforts to engage in partisan gamesmanship, there is evidence that the changes in SD 10 under Plan S167 in the northeast arm of the district were made to advantage a potential Republican candidate. For example, in addition to putting new predominately Anglo precincts into SD10 in that area, S167 also shifts arm of SD westward, apparently designed to make sure that as much of HD92 as possible was included in SD10 and not in SD9. The Northeast Arm shifts to the west to ensure that virtually all of HD 91, represented by right wing Republican Kelly Hancock, is placed within the newly configured SD9. 7
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 8 of 11 Simply put, Plan S167 is a cynical and disingenuous effort by Senator Estes and the State AG s office to undermine minority voting strength in SD 10 and thus to preclude an agreement on an interim map regarding SD10 s boundaries. The reduction in the minority population and the swaps of minority growth areas for Anglo growth areas were unnecessary in order for Senator Estes to retain Parker County and his overall desired configuration of SD30 (his claimed interest in intervening). In fact, no changes at all need to be made to SD30 in order to retain SD10 in essentially its benchmark configuration uniting the minority neighborhoods that share a distinct community of interest in Tarrant County. Rather, S167 is a subterfuge to hide the desire of the AG and Senator Estes to reduce the minority population and the minority voting strength in SD10 enough to make it far more difficult for minority voters in the district to elect their candidate of choice in 2012, and but to deny this ability to elect throughout the decade. Finally, we would note that Plans S168 and S169, which the Davis and LULAC Plaintiffs have made public today, are plans that each accomplish the stated goals of Senator Estes and the Attorney General with regard to an interim map. They put Senator Estes district back to its exact configuration as it existed in the state s enacted plan (S148). That should have resolved Senator Estes concerns, but it didn t. In fact, Senator Estes should have no standing to challenge SD 10 in this Court where, as here, he has been presented with two separate proposed interim maps that resolve his concerns by restoring his district as it existed in the state s enacted plan (S148). Instead, he insists on weakening minority voting strength in SD 10. Senator Estes and the State have refused to consider either of these plans (S168 or S169) as a proposed interim state senate plan because it does not accomplish their major goal of converting SD 10 to a district in which 8
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 9 of 11 the ability of minority voters to elect their preferred candidate of choice is diminished. It would be ironic indeed (and a violation of the Voting Rights Act) if this Court, in a case brought to protect voting rights of blacks and Hispanics, were to impose S167 as an interim state senate map, elevating the concerns of an Anglo senator who wants his Anglo-dominated district protected over the rights of minority voters in SD 10. This Court s priority in crafting a new senate redistricting plan should be protecting the voting rights of blacks and Hispanics in Tarrant County and not the rights of an Anglo senator to keep Parker County. CONCLUSION Plan S167 should be rejected by this Court as an interim map. Plans S168 and S169 could serve as interim state senate plans if this Court decides, contrary to our recommendation, to issue interim plans for 2012 before the DC court renders its decision. As we have previously advised this three-judge Court, we respectfully submit that this Court should await the decision of the DC preclearance court before crafting any interim plans. We recognize that this would necessitate the delay of primary elections, but the voters in Texas will be far better off going to the polls later under plans that have undergone the preclearance process and which, to the extent necessary, remedy any Voting Rights Act or Constitutional violations. It would render the Section 5 preclearance decision a nullity if this Court draws a plan now and then fails to revise its plan a few weeks from now as needed after the DC issues its ruling. Proceeding in such a manner would also be inconsistent with the Supreme Court s decision in Upham v. Seamon. Waiting until the DC Court rules before this Court issues either an interim or 9
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 10 of 11 final remedial plan is the best way to bring some degree of finality to the redistricting process. Respectfully submitted, /s/ David Richards DAVID RICHARDS State Bar No. 16846000 Richards, Rodriquez and Skeith, LLP 816 Congress Avenue, Suite 1200 Austin, TX 78701 Tel (512) 476-0005 Fax (512) 476-1513 /s/ J. Gerald Hebert J. GERALD HEBERT D.C. Bar #447676 Attorney at Law 191 Somerville Street, #405 Alexandria, VA 22304 Telephone: 703-628-4673 Counsel for Davis Plaintiffs /s/ Luis Roberto Vera, Jr. LUIS ROBERTO VERA, JR. League of United Latin American Citizens 111 Soledad St., Suite 1325 San Antonio, TX 78205 Counsel for LULAC Plaintiffs 10
Case 5:11-cv-00788-OLG-JES-XR Document 138 Filed 02/13/12 Page 11 of 11 CERTIFICATE OF SERVICE I hereby certify that on this 13th day of February 2012, I filed and served the foregoing Reply Brief of the Davis Plaintiffs and the LULAC Plaintiffs by filing the same in this Court s ECF system, which caused copies of this document to be sent to counsel of record in this litigation. Those attorneys not registered in the ECF system were served via first-class mail. /s/ J. Gerald Hebert J. GERALD HEBERT 11