Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 1 of 18 EXHIBIT 2
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 2 of 18 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ et al., Civil Action No. Plaintiffs, 5:11-CV-0360-OLG-JES-XR CONSOLIDATED with Civil Actions Nos. v. 5:11-CV-0361-OLG-JES-XR and STATE OF TEXAS, et al., 5:11-CV-0490-OLG-JES-XR Defendants. DEFENDANTS INITIAL DISCLOSURES TO: Consolidated Plaintiffs and Intervenors, by and through their attorneys of record, David Richards, 816 Congress, Avenue, Suite 1200, Austin, Texas 78701; Jose Garza, 7414 Robin Rest Dr., San Antonio, Texas 78209; Nina Perales, 110 Broadway, Suite 300, San Antonio, Texas 78205; Luis Roberto Vera, 1325 Riverview Towers, 111 Soledad, San Antonio, Texas 78205-2260; and Rolando Rios, 115 E Travis Street, Suite 1645, San Antonio, Texas 78205. Defendants the State of Texas, Rick Perry, in his official capacity as Governor, David Dewhurst, in his official capacity as Lieutenant Governor, Joe Straus, in his official capacity as Speaker of the Texas House of Representatives, and Hope Andrade, in her official capacity as Secretary of State, (collectively, Defendants ) hereby submit their Initial Disclosures to Plaintiffs, pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure. Defendants reserve the right to supplement these Initial Disclosures as additional discovery, investigation, and analysis may warrant. Defendants also do not waive any protections provided by the attorney work product protection, attorney-client privilege, or any other applicable privilege, protection, doctrine, or immunity. Defendants likewise do not waive the right to object, on any and all grounds, to (1) the evidentiary use of the information contained in these Initial Disclosures; and (2) discovery requests relating to these Initial Disclosures. Dated: July 13, 2011 DEFENDANTS INITIAL DISCLOSURES PAGE 1
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 3 of 18 Respectfully Submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General BILL COBB Deputy Attorney General for Civil Litigation DAVID C. MATTAX Director of Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General /s/ David Schenck DAVID SCHENCK Deputy Attorney General for Legal Counsel Texas Bar No. 17736870 MATTHEW H. FREDERICK Special Counsel to the Attorney General Texas Bar No. 24040931 ANGELA COLMENERO Assistant Attorney General Texas Bar No. 24048399 ANA MARIE JORDAN Assistant Attorney General Texas Bar No. 00790748 P.O. Box 12548, Capitol Station Austin, TX 78711-2548 (512) 936-1342 (512) 936-0545 (fax) ATTORNEYS FOR THE STATE OF TEXAS, RICK PERRY, DAVID DEWHURST, JOE STRAUS, AND HOPE ANDRADE DEFENDANTS INITIAL DISCLOSURES PAGE 2
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 4 of 18 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Defendants Initial Disclosures was sent by email on July 13, 2011, to: DAVID RICHARDS Richards, Rodriguez & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, TX 78701 (512) 476-0005 Email: davidr@rrsfirm.com ATTORNEY FOR PLAINTIFFS SHANNON PEREZ, HAROLD DUTTON, JR., AND GREGORY TAMEZ IN CAUSE NO. 5:11-CV- 0360-OLG-JES-XR JOSE GARZA Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 78209 (210) 392-2856 Email: jgarza@trla.org ATTORNEY FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES IN CAUSE NO. 5:11-CV-0361-OLG-JES-XR NINA PERALES Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX 78205 (210) 224-5476 Email: nperales@maldef.org ATTORNEYS FOR PLAINTIFFS TEXAS LATINO REDISTRICTING TASK FORCE, JOEY CARDENAS, ALEX JIMENEZ, EMELDA MENENDEZ, TOMACITA OLIVARES, JOSE OLIVARES, ALEJANDRO ORTIZ, AND REBECCA ORTIZ IN CAUSE NO. 5:11-CV-0490-OLG-JES-XR LUIS ROBERTO VERA, JR. Law Offices of Luis Roberto Vera, Jr. & Associates 1325 Riverview Towers 111 Soledad San Antonio, Texas78205-2260 (210) 225-3300 Email: lrvlaw@sbcglobal.net ATTORNEY FOR LEAGUE OF UNITED LATIN AMERICAN CITIZENS, INTERVENOR IN CAUSE NO. 5:11-CV-0361-OLG-JES-XR ROLANDO L. RIOS Law Offices of Rolando L. Rios 115 E Travis Street Suite 1645 San Antonio, TX 78205 (210) 222-2102 Email: rrios@rolandorioslaw.com ATTORNEY FOR U.S. CONGRESSMAN HENRY CUELLAR, INVERVENOR CHAD W. DUNN Brazil & Dunn FM 1960 West, Suite 530 Houston, Texas 77068 (281) 580-6310 ATTORNEYS FOR Email: chad@brazilanddunn.com ATTORNEY FOR TEXAS DEMOCRATIC PARTY and BOYD RICHIE IN CAUSE NO. 5:11-cv-00360- OLG-JES -XR /s/david Schenck DAVID SCHENCK Deputy Attorney General for Legal Counsel DEFENDANTS INITIAL DISCLOSURES PAGE 3
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 5 of 18 DEFENDANTS INITIAL DISCLOSURES A. The name, and if known, the address and telephone number of each person likely to have information that bears significantly on any claim or defense, identifying the subjects of the information and a brief, fair summary of the substance of the information known by these persons. 1. The Honorable Burt Solomons Texas Representative and Chairman, Texas House Redistricting Committee Room 1W.11 Capitol P.O. Box 2910 Austin, Texas 78768 (512) 463-0478 Representative Solomons authored HB 150, which created the Texas House of Representatives Redistricting Plan H283 at issue in these consolidated cases. He also sponsored SB 4 in the Texas House of Representatives, which created the Texas Congressional Redistricting Plan C185, and which is also at issue in these cases. As chairman of the House Redistricting Committee and bill author/sponsor for each plan, Representative Solomons may have information concerning the goals motivating the drawing of particular districts, debates concerning map lines, amendments to the bills that were offered and considered, any alternative plans considered, and any other matters related to 2010 redistricting and the State s efforts to comply with state and federal law, including the Voting Rights Act. 2. The Honorable Kel Seliger Texas Senator and Chairman, Senate Select Committee on Redistricting Capitol Extension, Room E1.606 P.O. Box 12068 Austin, Texas 78711 (512) 463-0131 Senator Seliger authored SB 4, which created the Texas Congressional Redistricting Plan C185 that is at issue in these consolidated cases. He also sponsored HB 150, which created the Texas House of Representatives Redistricting Plan H283, and which is also at issue in these cases. As chairman of the Senate Select Committee on Redistricting, and bill author/sponsor for each plan, Senator Seliger may have information concerning the goals behind the drawing of particular districts, debates concerning map lines, amendments to the bills that were offered, any alternative plans considered, and other matters related to 2010 redistricting and the State s efforts to comply with state and federal law, including the Voting Rights Act. 3. Ryan Downton Committee Counsel Texas House Redistricting Committee DEFENDANTS INITIAL DISCLOSURES PAGE 4
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 6 of 18 E.2.1006, Capitol P.O. Box 2910 Austin, Texas 78768 (512) 463-9948 Mr. Downton assisted with the drawing of the state House and Congressional maps in the Texas House of Representatives. He communicated directly with House members regarding their concerns and suggestions for map draws. Mr. Downton also provided legal counsel and guidance regarding compliance with state and federal law, including the Voting Rights Act. 4. Gerardo Interiano Counsel to the House Speaker Room 2W.13, Capitol P.O. Box 2910 Austin, Texas 78768 (512) 463-0921 Mr. Interiano assisted with the drawing of the state House and Congressional maps in the Texas House of Representatives. He communicated directly with House members and the public regarding their concerns and suggestions for map draws. Mr. Interiano also provided legal counsel and guidance regarding compliance with state and federal law, including the Voting Rights Act. 5. Doug Davis Counsel to the Senate Select Committee on Redistricting P.O. Box 12068 Austin, Texas 78711 (512) 463-8802 Mr. Davis assisted with the drawing of the Senate and Congressional maps in the Texas Senate. He also coordinated, scheduled and attended all Senate Interim and Senate Redistricting Committee Hearings. He provided legal counsel and guidance regarding compliance with state and federal law, including the Voting Rights Act. 6. David Hanna Counsel Texas Legislative Council P.O. Box 12128 Austin, Texas 78711 (512) 463-1155 7. Jeff Archer Counsel Texas Legislative Council P.O. Box 12128 Austin, Texas 78711 DEFENDANTS INITIAL DISCLOSURES PAGE 5
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 7 of 18 (512) 463-1155 Mr. Hanna and Mr. Archer provided legal analysis and guidance to Legislative staff and members regarding compliance requirements of state and federal law, including the Voting Rights Act, to include comparison analysis of proposed plans with benchmark plans. 8. Clare Dyer Manager, Mapping & Redistricting Section Texas Legislative Council P.O. Box 12128 Austin, Texas 78711 (512) 463-1155 Ms. Dyer oversees the division at the Texas Legislative Counsel that produced the data, maps and reports that were provided to the Legislature during the redistricting process. 9. Bonnie Bruce Chief of Staff for the Honorable Burt Solomons and Clerk, Texas House Redistricting Committee E.2.1006, Capitol P.O. Box 2910 Austin, Texas 78768 (512) 463-9948 Ms. Bruce assisted with the coordination and scheduling of House redistricting hearings. She also attended and observed the House redistricting committee hearings related to the plans at issue in these cases, and the State Board of Education (SBOE) map. B. A copy of all documents, data compilations, and tangible things in the possession, custody, or control of the party that is likely to bear significantly on any claim or defense. The following documents will be made available to the Plaintiffs for viewing and copying at a mutually convenient time and place and/or, where indicated, are equally available, or will soon be available, to the Plaintiffs online. 1. Election Data a. 2002 Election Data (1) 2002 Democratic Primary Election Returns (2) 2002 Democratic Primary ElectionVRTO (3) 2002 Democratic Runoff Election Returns (4) 2002 Democratic Runoff Election VRTO (5) 2002 Republican Primary Election Returns (6) 2002 Republican Primary Election VRTO (7) 2002 Republican Runoff Election Returns (8) 2002 Republican Runoff Election VRTO DEFENDANTS INITIAL DISCLOSURES PAGE 6
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 8 of 18 (9) 2002 General Election Returns (10) 2002 General Election VRTO b. 2004 Election Data (1) 2004 Democratic Primary Election Returns (2) 2004 Democratic Primary ElectionVRTO (3) 2004 Democratic Runoff Election Returns (4) 2004 Democratic Runoff Election VRTO (5) 2004 Republican Primary Election Returns (6) 2004 Republican Primary Election VRTO (7) 2004 Republican Runoff Election Returns (8) 2004 Republican Runoff Election VRTO (9) 2004 General ElectionReturns (10) 2004 General Election VRTO c. 2006 Election Data (1) 2006 Democratic Primary Election Returns (2) 2006 Democratic Primary ElectionVRTO (3) 2006 Democratic Runoff Election Returns (4) 2006 Democratic Runoff Election VRTO (5) 2006 Republican Primary Election Returns (6) 2006 Republican Primary Election VRTO (7) 2006 Republican Runoff Election Returns (8) 2006 Republican Runoff Election VRTO (9) 2006 General ElectionReturns (10) 2006 General Election VRTO (11) 2006 General Special Election Returns (12) 2006 General Special Election VRTO (13) 2006 Special Runoff Election Returns (14) 2006 Special Runoff Election VRTO d. 2008 Election Data (1) 2008 Democratic Primary Election Returns (2) 2008 Democratic Primary ElectionVRTO (3) 2008 Democratic Runoff Election Returns (4) 2008 Democratic Runoff Election VRTO (5) 2008 Republican Primary Election Returns (6) 2008 Republican Primary Election VRTO (7) 2008 Republican Runoff Election Returns (8) 2008 Republican Runoff Election VRTO (9) 2008 General ElectionReturns (10) 2008 General Election VRTO e. 2010 Election Data (1) 2010 Democratic Primary Election Returns (2) 2010 Democratic Primary ElectionVRTO DEFENDANTS INITIAL DISCLOSURES PAGE 7
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 9 of 18 (3) 2010 Democratic Runoff Election Returns (4) 2010 Democratic Runoff Election VRTO (5) 2010 Republican Primary Election Returns (6) 2010 Republican Primary Election VRTO (7) 2010 Republican Runoff Election Returns (8) 2010 Republican Runoff Election VRTO (9) 2010 General ElectionReturns (10) 2010 General Election VRTO 2. 2010 Texas Legislative Redistricting Public Hearings a. Texas House Interim Public Hearings (available:http://www.house.state.tx.us/videoaudio/committeebroadcasts/ committeearchives/?committee=080&session=81): (1) 6/2/2010 Joint Hearing: House Redistricting and House Judiciary and Civil Jurisprudence (Austin) (2) 6/21/2010 Joint Hearing: House Redistricting Subcommittee on San Antonio Redistricting and House Judiciary and Civil Jurisprudence (3) 7/19/2010 Joint Hearing: House Redistricting Subcommittee on McAllen Redistricting and House Judiciary and Civil Jurisprudence (4) 7/20/2010 Joint Hearing: House Redistricting Subcommittee on Laredo Redistricting and House Judiciary and Civil Jurisprudence (5) 7/21/2010 Joint Hearing: House Redistricting Subcommittee on Corpus Christi Redistricting and House Judiciary and Civil Jurisprudence (6) 8/16/2010 Joint Hearing: House Redistricting Subcommittee on El Paso Redistricting and House Judiciary and Civil Jurisprudence (7) 8/18/2010 Joint Hearing: House Redistricting Subcommittee on Lubbock Redistricting and House Judiciary and Civil Jurisprudence (8) 9/20/2010 Joint Hearing: House Redistricting, House Judiciary and Civil Jurisprudence Subcommittee on Downtown Dallas Redistricting and Senate Select Committee on Redistricting (9) 9/21/2010 Joint Hearing: House Redistricting Subcommittee on Tarrant County Redistricting, House Judiciary and Civil Jurisprudence (10) 9/22/2010 Joint Hearing: House Redistricting Subcommittee on Richardson/UT-Dallas Redistricting and House Judiciary and Civil Jurisprudence (11) 10/18/2010 Joint Hearing: House Redistricting Subcommittee on Beaumont Redistricting and House Judiciary and Civil Jurisprudence (12) 10/20/2010 Joint Hearing: House Redistricting Subcommittee on Marshall Redistricting and House Judiciary and Civil Jurisprudence (13) 11/17/2010 House Redistricting Subcommittee on Austin Redistricting (14) 11/20/2010 Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston) b. Senate Interim Public Hearings DEFENDANTS INITIAL DISCLOSURES PAGE 8
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 10 of 18 (available at http://www.senate.state.tx.us/75r/senate/commit/c625/c625_81.htm) (1) 9/1/2010 Austin (2) 9/20/2010 Joint Hearing: House Redistricting, House Judiciary and Civil Jurisprudence Subcommittee on Downtown Dallas Redistricting and Senate Select Committee on Redistricting (3) 10/4/2010 Amarillo (4) 10/5/2010 Midland (5) 10/21/2010 Edinburg (6) 11/4/2010 San Antonio (7) 11/20/2010 Joint Hearing: Subcommittee of Judiciary and Civil Jurisprudence and Senate Select Committee on Redistricting (Houston) c. Texas 82nd Legislature House Redistricting Committee Hearings: (1) April 7 House Committee Hearing (a) Notice: http://www.capitol.state.tx.us/tlodocs/82r/ schedules/pdf/c0802011040709001.pdf (b) Minutes: http://www.capitol.state.tx.us/tlodocs/82r/ minutes/pdf/c0802011040709001.pdf (c) Witness List: http:www.capitol.state.tx.us./tldocs/82r/ witlistmtg/pdf/c0802011040709001.pdf (2) June 2 House Committee Hearing: (a) Notice: http://www.capitol.state.tx.us/tlodocs/ 82R/schedules/pdf/C0802011060210451.PDF (b) Minutes: http://www.capitol.state.tx.us/tlodocs/ 82R/minutes/pdf/C0802011060210451.PDF (c) Witness List: http://www.capitol.state.tx.us/tlodocs/ 82R/witlistmtg/pdf/C0802011060210451.PDF (3) June 9 House Committee Hearing: (a) Notice: http://www.capitol.state.tx.us/tlodocs/ 82R/schedules/pdf/C0802011060909001.PDF (b) Minutes: http://www.capitol.state.tx.us/tlodocs/ 82R/minutes/pdf/C0802011060909001.PDF d. Texas 82nd Legislature Senate Select Committee on Redistricting Hearings: (1) June 3 Senate Committee Hearing: (a) Notice: http://www.capitol.state.tx.us/tlodocs/ 82R/schedules/pdf/C6252011060309001.PDF (b) Minutes: http://www.capitol.state.tx.us/tlodocs/ 82R/minutes/pdf/C6252011060309001.PDF (c) Witness List: http://www.capitol.state.tx.us/tlodocs/ 82R/witlistmtg/pdf/C6252011060309001.PDF DEFENDANTS INITIAL DISCLOSURES PAGE 9
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 11 of 18 3. Texas Congressional Benchmark Plan C100 Maps a. Maps of state and split counties with districts b. Maps of split counties with racial/ethnic shading by VTD c. Maps of split counties with Spanish surname voter registration by VTD d. Maps of split counties with natural boundaries and geographic features e. Maps of split counties with cities 4. Texas House Benchmark Plan H100 Maps a. Maps of state and split counties with districts b. Maps of split counties with racial/ethnic shading by VTD c. Maps of split counties with Spanish surname voter registration by VTD d. Maps of split counties with natural boundaries and geographic features e. Maps of split counties with cities 5. Texas Congressional Redistricting Plan C185 Maps a. Maps of state and split counties with districts b. Maps of split counties with racial/ethnic shading by VTD c. Maps of split counties with Spanish surname voter registration by VTD d. Maps of split counties with natural boundaries and geographic features e. Maps of split counties with cities 6. Texas House Redistricting Plan H283 Maps a. Maps of state and split counties with districts b. Maps of split counties with racial/ethnic shading by VTD c. Maps of split counties with Spanish surname voter registration by VTD d. Maps of split counties with natural boundaries and geographic features e. Maps of split counties with cities 7. Public Maps Considered by the 82nd Legislature a. Shapefiles of 54 public Texas Congressional plans b. Shapefiles of 111 public Texas House plans 8. Texas Legislative Council Reports a. Plan Overlap Analysis-Comparing Plans C185 and C100 b. Plan Overlap Analysis-Comparing Plans H283 and H100 c. Two-Plan Comparison by Incumbent-Comparing Plans C185 and C100 d. Two-Plan Comparison by Incumbent-Comparing Plans H283 and H100 e. Election Analysis of Congressional Districts under Plan C100 using 2010 General Election and 2010 Census Data f. Election Analysis of Congressional Districts under Plan C185 using 2010 General Election and 2010 Census Data g. Election Analysis of Congressional Districts under Plan H100 using 2010 General Election and 2010 Census Data h. Election Analysis of Congressional Districts under Plan H283 using 2010 General Election and 2010 Census Data DEFENDANTS INITIAL DISCLOSURES PAGE 10
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 12 of 18 i. American Community Survey (ACS) Special Tabulation with Special Tablulation of Citizen Voting Age Population (CVAP) under Plan C185 using 2010 Census and 2005-2009 ACS data j. American Community Survey (ACS) Special Tabulation with Special Tablulation of Citizen Voting Age Population (CVAP) under Plan C100 using 2010 Census and 2005-2009 ACS data k. American Community Survey (ACS) Special Tabulation with Special Tablulation of Citizen Voting Age Population (CVAP) under Plan H283 using 2010 Census and 2005-2009 ACS data l. American Community Survey (ACS) Special Tabulation with Special Tablulation of Citizen Voting Age Population (CVAP) under Plan H100 using 2010 Census and 2005-2009 ACS data m. Compactness Analysis under Plan C185 using 2010 Census data n. Compactness Analysis under Plan C100 using 2010 Census data o. Compactness Analysis under Plan H283 using 2010 Census data p. Compactness Analysis under Plan H100 using 2010 Census data q. District Population Analysis under Plan C185 using 2010 Census data r. District Population Analysis under Plan C100 using 2010 Census data s. District Population Analysis under Plan H283 using 2010 Census data t. District Population Analysis under Plan H100 using 2010 Census data u. List of Incumbents by Congressional Districts for Plan C185 v. List of Incumbents by Congressional Districts for Plan C100 w. List of Incumbents by Congressional Districts for Plan H283 x. List of Incumbents by Congressional Districts for Plan H100 y. Analysis of Population and Voter Data with Voter Registration Comparison for C185 plan z. Analysis of Population and Voter Data with VoterRegistration Comparison for C100 plan aa. Analysis of Population and Voter Data with Voter Registration Comparison for H283 plan bb. Analysis of Population and Voter Data with Voter Registration Comparison for H100 plan cc. Analysis of Split Cities and Census Designated Places (CDPs) by District for Plan C185 dd. Analysis of Split Cities and Census Designated Places (CDPs) by District for Plan C100 ee. Analysis of Split Cities and Census Designated Places (CDPs) by District for Plan H283 ff. Analysis of Split Cities and Census Designated Places (CDPs) by District for Plan H100 DEFENDANTS INITIAL DISCLOSURES PAGE 11
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 13 of 18 C. A computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34, the documents or other evidentiary material on which such computation is based, including materials bearing on the nature and extent of injuries suffered. Not applicable. Defendants are not claiming damages. D. For inspection and copying, any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. None. E. A party shall disclose to other parties the identity of any person who may be used in trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. Defendants will disclose their experts following the disclosure of experts by the Plaintiffs and in accordance with the Court s scheduling order. F. Summary of Defendants Position and/or Defenses to Plaintiffs Claims. 1. CHALLENGE TO THE TEXAS HOUSE OF REPRESENTATIVES PLAN As currently pleaded and understood, in MALC v. State of Texas, et al. and Latino Redistricting Task Force, et al. v. Perry the Plaintiffs allege that the newly adopted H283 Plan (the House Plan ) dilutes the voting strength of Latinos. Specifically, MALC claims that additional Latino majority districts could have been drawn in Harris County and within the boundaries of Hidalgo and Cameron Counties. Although the Latino Redistricting Task Force Plaintiffs allege that at least 35 districts could have been created wherein Latino voters could elect their candidate of choice, they have not identified where or how these districts could be drawn while still adhering to traditional redistricting principles. As a result, Defendants are unable to respond to the Latino Redistricting Task Force allegations at this time. In a challenge under Section 2 of the Voting Rights, Plaintiffs must demonstrate that a standard, practice, or procedure has been imposed or applied by the State in a manner which results in the denial or abridgement of the right of any citizen of the United States to vote on account of race or color. In particular, to prove a violation, Plaintiffs must show that the political processes leading to the elections are not equally open to participation by members of their race or that its members have less opportunity than other members of the electorate to participate in the political process and to elect the representatives of their choice. The Texas House of Representatives is divided into 150 districts. Based on the state s population of 25,145,561, the ideal House district contains 167,637 residents. In the benchmark plan, the population shifts over the last decade resulted in wide variations among the districts, DEFENDANTS INITIAL DISCLOSURES PAGE 12
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 14 of 18 with the largest district, District 70, at 79.4% over the ideal population, and the smallest district, District 103, at 30.0% under the ideal population. The stated goals of the Legislature during the reapportionment process were to equalize population to the greatest extent feasible, abide by the state constitutional requirement to preserve county lines, avoid pairing incumbents when possible, respond to the public and advocacy groups when appropriate, maintain communities of interest, and preserve the cores of prior districts. All of these goals were accomplished in the House Plan that the Legislature ultimately adopted. The House Plan is in compliance with all applicable state and federal laws and neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or membership in a language minority. In the House Plan, the districts have an overall deviation of 9.92% with the smallest district populated at -4.9% under the ideal population and the largest district being 5.02% over the ideal population. In response to various population shifts within the state, the Legislature created seven new districts in high-growth areas and eliminated seven districts in areas with slowing or negative growth. This resulted in the paring of incumbents. In order to provide each paired member of the House a fair chance at reelection, the pairings were all of the same party (e.g., six Republican-Republican pairings and one Democrat-Democrat pairing). Hidalgo County is entitled to 4+ districts (four districts contained within the district plus excess population contained in one additional district shared with a neighboring county). The districts in Hidalgo County all contain over 75% Hispanic voting age population ( HVAP ) in both the benchmark and the House Plan. Citizen voting age population ( CVAP ) and Spanish surname voter registration ( SSVR ) numbers are also generally high in that area. Nueces County was apportioned 2+ seats in 2001 (two districts entirely contained within the county plus excess population shared with a neighboring county). According to the 2010 census, Nueces County grew at a slower rate than the state as a whole and the county s population of 340,223 no longer entitles it to 2+ districts. Therefore, one district needed to be eliminated. As a result, Nueces County now has two districts wholly contained within its boundaries: Districts 34 and 32. The Legislature complied, whenever possible, with the state constitutional requirement that county lines should be preserved. In this case, to add a third district to Nueces County would have necessitated breaking county lines in violation of the Texas Constitution. Nueces County contains 36.7% Anglo voting age population ( AVAP ) and 56.8% HVAP. Under the benchmark plan, neither District 33 nor District 34 was consistently electing the Latino candidate of choice. It would not have been possible to draw two performing Latino districts wholly contained within the county. Indeed, none were submitted for consideration. The Legislature chose to strengthen the Latino influence in one of the two remaining districts in the county. As a result, that district is a more solidly performing Latino district electing the Latino candidate of choice in nine out of ten statewide elections where one candidate was Latino. Although Harris County experienced growth between 2000 and 2010, its growth did not keep pace with the rest of the state. Growth in Harris County was 20.3%, while the state as a DEFENDANTS INITIAL DISCLOSURES PAGE 13
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 15 of 18 whole grew at a rate of 20.6%. Based on the census, dividing the population of Harris County (4,092,459) by the ideal district size (167,637) yields 24.4126 seats. Accordingly, the Legislature apportioned Harris County with 24 seats. 2. CHALLENGE TO THE CONGRESSIONAL PLAN As currently pleaded and understood, in the MALC and Latino Redistricting Task Force Plaintiffs allege that the newly adopted C185 Plan (the Congressional Plan ) dilutes the voting strength of Latinos. Specifically, the Latino Redistricting Task Force Plaintiffs claim that additional Latino majority congressional districts could have been drawn in the Dallas-Fort Worth area and Harris County. The complaint does not allege how either such district could have been drawn in compliance with applicable Texas or federal law. As a result, Defendants are unable to respond to its allegations at this time. According to the 2010 Census, the State of Texas has a population of 25,145,561. Texas was notified in December 2010 that it would be apportioned 36 congressional districts a gain of 4 additional seats. Each of those 36 districts is ideally populated at 698,488. The goals of the Legislature in drafting the Congressional Plan were to equalize population as required by the United States Constitution s one-person, one-vote principle, avoid pairing incumbents, and preserve city and county lines when possible. The Congressional Plan adopted by the Legislature is in compliance with all applicable state and federal laws and neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or membership in a language minority. All but one of the existing 32 seats was overpopulated, some by as much as 50.6% over the ideal population. These districts were redrawn to accommodate population growth and still maintain, to the greatest extent possible, the cores of existing districts. There are seven majorityminority districts both in the benchmark map and in the Congressional Plan with an HVAP greater than 60% (and one new seat with an HVAP over 50%). Four new districts were created as a result of the 2010 Census Data. The new districts are located in East Texas (District 36), North Texas (District 33), South Texas (District 34), and Central Texas (District 35). District 35 joins communities from Travis and Bexar County and results in a district which contains 58.3% HVAP, 51.9% CVAP, and 45.0% SSVR. District 35 was created based on a proposal by the Mexican American Legal Defense and Education Fund in public plan C122. On the same day the Legislature passed the new districts, Representative Joaquin Castro publicly stated that he was considering running in the new seat, that he believes the district will survive legal challenges, and that the new district is a blessing in disguise for two cities that really complement each other, that are intertwined. The other three new districts were designed to incorporate high growth areas throughout the state. Dallas County grew at a much slower rate than the rest of the state during the last decade. While the state as a whole grew at a rate of 20.6%, Dallas County grew at only 6.7%. Tarrant County grew at a higher rate than the state as a whole. During the course of the legislative process, the Legislature discussed and debated whether a new majority-minority seat could have DEFENDANTS INITIAL DISCLOSURES PAGE 14
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 16 of 18 been created in the Dallas/Fort Worth region. No plans were publicly submitted for consideration that created a compact majority-minority district because the population in the region is too scattered and suffers from both low citizenship numbers and low voter registration among eligible voters. Ultimately, the new District 33 accommodates population growth in Tarrant County and contains 558,265 residents of Tarrant County in the district. Over the last decade, Harris County grew at a slightly slower pace than the state as a whole. Currently, Harris County contains two districts which elect the African-American candidate of choice and one which elects the Latino candidate of choice. The Congressional Plan maintains these districts. 3. PRISONER POPULATION CHALLENGE As currently pleaded and understood, in Perez, et al. v. State of Texas, et al., Plaintiffs challenge the state s practice of classifying prisoners as residents of the district in which they are incarcerated. As set forth in Defendants motion to dismiss (see Docket No. 29), Plaintiffs challenge to the prison population is not justiciable because the classification of prisoners for redistricting purposes is a political question entrusted to the Legislature. Plaintiffs lack standing in any event because they cannot show that they have suffered an individualized injury, that their alleged injuries were caused by Defendants they have sued, or that their injuries can be redressed by the Court. The defects in causation and redressability reduced to Plaintiffs failure to identify a feasible alternative method of classifying the prison population for redistricting that would have prevented their injuries or would redress them if ordered by the Court. Even if Plaintiffs could establish standing, however, their prison population claim must be dismissed under Rule 12(b)(6) because the classification of prisoners is subject to rational-basis scrutiny, and the State has a rational basis for counting prisoners as residents of the districts in which they actually live. 4. POLITICAL GERRYMANDERING/EQUAL POPULATION CHALLENGE As set forth in Defendants motion to dismiss (see Docket No. 29), the Perez Plaintiffs political gerrymandering/equal population challenge to the House redistricting plan should be dismissed under Rule 12(b)(1) because Plaintiffs cannot identify a concrete, individualized injury. The claim should also be dismissed under Rule 12(b)(6) because Plaintiffs charge of unconstitutional political gerrymandering has no support in the pleadings or the facts. The variation in population among the new House districts is concededly within the range of deviation traditionally accorded state legislative plans. Plaintiffs conclusory allegation of political gerrymandering is an attempt to shift the burden to the State to justify the minimal deviations in the House plan. This allegation is insufficient to survive Rule 12(b)(6), however, because they plead no facts to support their claim of political gerrymandering. Given Plaintiffs failure to identify a single defect in the redistricting process or the resulting House plan, Defendants cannot formulate a response to the charge of political gerrymandering. In any case, Plaintiffs fail to identify any applicable legal standard of political gerrymandering, and they cannot produce any evidence that the House plan violates any recognized constitutional limit on the process of redistricting. As a result, Plaintiffs cannot shift the burden to the State to justify the minor differences in the size of House districts. DEFENDANTS INITIAL DISCLOSURES PAGE 15
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 17 of 18 Additionally, the MALC and LULAC Plaintiffs allege, without identifying any specific supporting facts, that there was purposeful discrimination by overpopulating certain districts in the House Plan. Indeed, a review of all the districts within the House Plan shows that there was not a purposeful effort to overpopulate Latino majority districts. 5. CENSUS UNDERCOUNT CHALLENGE As currently pleaded and understood, the MALC and LULAC Plaintiffs claim that the 2010 Census data is defective because the Census undercounted Latinos in Texas by as much as four to eight percent. As described in Defendants motion to dismiss (see Docket No. 17), this claim fails because Plaintiffs cannot establish that they have standing to pursue such a claim. Specifically, Plaintiffs cannot demonstrate a causal link between their injury and Defendants conduct because they have failed to show how an alternative population count would have affected the resulting reapportionment. Plaintiffs do not assert that the population could be counted by any method superior to the procedures used by the Census Bureau. Moreover, Plaintiffs do not present an alternative approach that, taking into account all the unique factors that make counting individuals in the border and urban regions of Texas inherently difficult, promises any significantly different result. Similarly, Plaintiffs have failed to show that any injury they may have suffered due to the use of the allegedly inaccurate 2010 Census numbers can be redressed by the injunctive or declaratory relief they request. Plaintiffs do not explain what they want the Court to do about the allegedly inaccurate Census count, nor can they show that a new redistricting plan (presumably based on some alternative population count or a corrected Census) is substantially likely to improve their position. 6. RAILROAD COMMISSION CHALLENGE As currently pleaded and understood, the MALC and LULAC Plaintiffs assert a claim under Section 2 of the Voting Rights Act that the current at-large, statewide, by place voting system used by the Texas Railroad Commission dilutes the voting strength of Latino voters. At a minimum, in order to make out a Section 2 vote dilution claim, Plaintiffs must prove that: (1) the group is sufficiently large and geographically compact to constitute a majority in a singlemember district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority s preferred candidate. Plaintiffs must also show that, under the totality of the circumstances, they do not possess the same opportunities to participate in the political process and elect representatives of their choice enjoyed by other voters. Plaintiffs are unable to meet these requirements. For instance, Plaintiffs cannot demonstrate that divergent voting patterns among white and minority voters in Railroad Commission elections are best explained by causes that would entitle them to the extraordinary relief they seek. Without evidence that minorities have been excluded from the political process, a minority preferred candidate s alleged lack of success at the polls is not sufficient to trigger judicial intervention under the Voting Rights Act. 7. SECTION 5 OF THE VOTING RIGHTS ACT CHALLENGE As currently pleaded and understood, the MALC, LULAC, and Latino Redistricting Task Force Plaintiffs assert a claim under Section 5 of the Voting Rights Act. As set forth in Defendants motion to dismiss (see Docket No. 17), Plaintiffs Section 5 claim should be DEFENDANTS INITIAL DISCLOSURES PAGE 16
Case 5:11-cv-00360-OLG-JES-XR Document 976-3 Filed 04/16/14 Page 18 of 18 dismissed because the Court lacks jurisdiction over such claims and private parties, such as Plaintiffs, lack standing to bring substantive Section 5 claims. Private citizens may bring coverage suits seeking a declaratory judgment finding that a proposed voting change is subject to preclearance under Section 5. They may also seek an injunction against implementation of an unprecleared change. Coverage suits, however, do not include the question of whether the proposed change has a discriminatory purpose or effect. 8. FOURTEENTH AND FIFTEENTH AMENDMENT CHALLENGES As currently pleaded and understood, the MALC, LULAC, and Latino Redistricting Task Force Plaintiffs assert claims under the Fourteenth and Fifteenth Amendments to the United States Constitutions. As set forth in Defendants motion to dismiss (see Docket No. 17), these claims should be dismissed for failure to state a claim. Plaintiffs have not pleaded sufficient factual allegations to support a conclusion that any actions were taken with the intent to disadvantage Latino voters. DEFENDANTS INITIAL DISCLOSURES PAGE 17