Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs and EDDIE BERNICE JOHNSON, et al., CIVIL ACTION NO. 11-CA-360 OLG-JES-XR TEXAS CONFERENCE OF NAACP (Lead Case) BRANCHES, et al., Plaintiff-Intervenors v. STATE OF TEXAS, et al., Defendants MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC), Plaintiff and THE HONORABLE HENRY CUELLAR, CIVIL ACTION NO. 11-CA-361 Member of Congress, CD 28, OLG-JES-XR [Consolidated Case] and THE TEXAS DEMOCRATIC PARTY, et al. and LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), et al., Plaintiff-Intervenors v. 1
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 2 of 16 STATE OF TEXAS, et al., Defendants TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs v. CIVIL ACTION NO. 11-CA-490 OLG-JES-XR RICK PERRY, in his official capacity [Consolidated Case] as Governor of the State of Texas, Defendants MARGARITA QUESADA, et al., Plaintiffs v. CIVIL ACTION NO. 11-CA-592 OLG-JES-XR RICK PERRY, et al., [Consolidated Case] Defendants EDDIE RODRIGUEZ, et al., Plaintiffs v. CIVIL ACTION NO. 11-CA-635 OLG-JES-XR RICK PERRY, et al., [Consolidated Case] Defendants JOINT ADVISORY TO THE COURT REGARDING SUBMISSION OF PROPOSED INTERIM COURT ORDERED PLANS Pursuant to this Court s October 4, 2011 order the parties to this action file this joint prehearing advisory. The Court s order requested the parties submit this advisory to address the following matters: a. The estimated length of time for a hearing on the proposed plans; 2
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 3 of 16 b. A list of witnesses and documents that they may offer at the hearing; c. Suggestions as to the manner in which evidence may be presented at the hearing; d. Any other matters that should be brought to the attention of Court. The parties have conferred and endeavored to reach agreement on these matters. This Advisory to the court will address those matters by presenting the Plaintiffs submission on these issues and then the State Defendants submission. Plaintiffs Estimated Time of Hearing The parties believe that the hearing will cover at least the three days set aside by the Court for the presentation of the plans for the Congress, State House and Senate. The Plaintiffs believe that they can complete the presentation of the Congressional proposed plans by the end of the day on Monday, October 31, 2011, provided the Court allows the presentation to go through 6 p.m. In addition, the Plaintiffs believe the State House presentation of proposed plans can be completed by the end of the day on November 3, 2011. The Senate proposed plans can then be submitted on Friday, November 4, 2011, and we understand the parties to the senate case have estimated that the remedial hearings for the senate case will take three and a half hours. Plaintiffs propose that the Court accept declarations, in lieu of live testimony, from lay witnesses regarding communities of interest and proposed plans. Plaintiffs believe that declarations in lieu of live testimony will preserve the court s time and the scarce resources of the parties, who otherwise would be required to pay for the travel of their witnesses to San Antonio. Plaintiffs List Of Witnesses And Exhibits That May Be Offerred The following is a list of the witnesses and exhibits that may be offered by the parties: 3
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 4 of 16 I. Plaintiff MALC A. Plaintiff MALC may offer the following witnesses: 1. Martin Golando. Mr. Golando is the primary author of the plans submitted by MALC. 2. Jacquelyn F. Callanen. Ms. Callanen is the Bexar County Elections Administrator. B. Plaintiff MALC will offer the following exhibits: 1. Exhibit No. 1 - Balderas Step 1 & 2 2. Exhibit No. 2 - Balderas Step 3 3. Exhibit No. 3 - Balderas Final Step 4. Exhibit No. 4 - Balderas on Partisanship 5. Exhibit No. 5 - Balderas on Section 2 Districts 6. Exhibit No. 6 - PLANC211 Maps 7. Exhibit No. 7 - PLANC211 Reports 8. Exhibit No. 8 PLANH295 - Maps 9. Exhibit No. 9 - PLANH295 Reports 10. Exhibit No. 10 - New Population by County Dot Density 11. Exhibit No. 11 - Population Growth Magnitude by County 12. Exhibit No. 12 - PLANC211 Only Existing VRAs 13. Exhibit No. 13 - PLANC211 Growth and Section 2 Districts 14. Exhibit No. 14 - CD 28 in PLANC100 15. Exhibit No. 15 - CD 28 in PLANC211 4
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 5 of 16 16. Exhibit No. 16 - CD 33 in PLANC211 17. Exhibit No. 17 - PLANC211 - Tarrant & Dallas County 18. Exhibit No. 18 - PLANH295 Cameron & Hidalgo County 19. Exhibit No. 19 - PLANH295 - Existing VRAs 20. Exhibit No. 20 - Congressional 1846-1848 21. Exhibit No. 21 - Congressional 1902-1908 22. Exhibit No. 22 - Congressional 1976-1980 23. Exhibit No. 23 - Congressional 1982 24. Exhibit No. 24 - Congressional 1984-1990 25. Exhibit No. 25 - Congressional 1996G - 2000 26. Exhibit No. 26 - Congressional 2002 27. Exhibit No. 27 - Congressional 2004-2006 28. Exhibit No. 28 - Congressional 2006G - 2010 29. Exhibit No. 29 - State House Map 1972 30. Exhibit No. 30 - State House Map 1975-1976 31. Exhibit No. 31 - State House Map 1976-1980 32. Exhibit No. 32 - State House Map 1982-1986 33. Exhibit No. 33 - State House Map 1986-1990 34. Exhibit No. 34 - State House Map 1992 35. Exhibit No. 35 - State House Map 1994 36. Exhibit No. 36 - State House Map 1996 5
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 6 of 16 37. Exhibit No. 37 - Comparison of all Submitted Interim Congressional Maps Exhibit Ex 38 - Comparison of Interim House Plans II. Plaintiffs Perez, et al., A. Plaintiffs Perez, et al., will offer no witness but will present their Texas House plan through oral argument. B. Plaintiffs Perez, et al,. will offer the following exhibits: Exhibit No. Description of Exhibit 1. Map for H296 Harris County 2. Statistics for H296 Harris County; including data regarding precinct cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 3. Map for Amended H296 (H297) Harris County 4. Statistics for Amended H296 (H297) Harris County; including data regarding precinct cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 5. Map for H296 Dallas County 6. Statistics for H296 Dallas County; including data regarding precinct cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 7. Map for Amended H296 (H297) Dallas County 8. Statistics for Amended H296 (H297) Dallas County; including data regarding precinct cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 9. Map for H296 Hidalgo County 10. Statistics for H296 Hidalgo County; including data regarding precinct cuts, county cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 11. Map for H296 El Paso County 12. Statistics for H296 El Paso County; including data regarding precinct cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 13. Map for H296 Tarrant County 6
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 7 of 16 14. Statistics for H296 Tarrant County; including data regarding precinct cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 15. Map for H296 Nueces County 16. Statistics for H296 Nueces County; including data regarding precinct cuts, county cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 17. Map for H296 Ft. Bend County 18. Statistics for H296 Ft. Bend County; including data regarding precinct cuts, county cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 19. Map for H296 Statewide 20. Statistics for H296 Statewide; including data regarding precinct cuts, county cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents 21. Map for Amended H296 (H297) Statewide 22. Statistics for Amended H296 (H297) Statewide; including data regarding precinct cuts, county cuts, deviation, new minority opportunity districts, new coalition districts, and the pairing of incumbents Election analysis showing effectiveness of districts regarding the minority community s ability to elect their candidate of choice III. Plaintiffs Latino Redistricting Task Force, et al., A. Plaintiffs Latino Redistricting Task Force, et al., may offer the following witness: 1. Texas Senator Jose Rodriguez 2. Former Texas Senator Joe Bernal (by trial transcript) 3. Former Texas Senator Gonzalo Barrientos (by trial transcript) 4. Joe Cardenas III, Texas HOPE 5. Mexican American Bar Association of Texas 6. Alex Jimenez, Texas Association of Mexican American Chambers of Commerce Chairman 2009-11 (by trial transcript) 7
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 8 of 16 7. San Antonio Hispanic Chamber of Commerce 8. Hidalgo County Judge Ramon Garcia (by trial transcript) 9. Dallas County Commissioner Elba Garcia B. Plaintiffs Latino Redistricting Task Force may offer the following exhibits a. Map of Plan C213 b. TLC reports on Plan C213 c. Map of Plan H292 d. TLC reports on Plan H292 e. Powerpoint IV. Plaintiffs LULAC, et al., A. LULAC Witnesses: George Korbel B. LULAC Exhibits 1. LULAC Congressional Plan 1 C-208 2. LULAC Congressional Plan 2 C-214 4. Split VTD Comparison Among Plans suggested by parties as reported by Texas Legislative Council 5. Maps of the Dallas and Harris Metropolitan areas. 6. Certain individual exhibits from the trial on the merits demonstrating the concentration of the minority populations in Dallas, Tarrant Harris, Travis and Bexar Counties. 7. Proposed State House Districts for 26, 27, 28 and 85. These districts would simply plug into the geography currently assigned to these districts in planh283. V. Plaintiff Cuellar A. Cuellar Witnesses 8
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 9 of 16 Congressman Cuellar will testify for approximately 1 hour: He will be referring to the various plans before the court. Documents he will be referring to will include but not be limited to the following: B. Cuellar Exhibits 1. Declarations attached to his filing Doc #s 437 and # 463: Hidalgo County Area Declarations of: a. Rosendo Cheno Benavides, Mayor of the City of Sullivan b. Eduardo A. Eddie Lucio Jr., Texas State Senator District -27 c. Marcos Ochoa, Mayor of City of Penitas d. Norberto Beto Salinas, Mayor of the City of Mission e. Leopoldo Polo Palacios Jr., Mayor of the City of Pharr f. John David, Mayor of City of Hidalgo g. Richard Cortez, Mayor of the City of McAllen h. Rafael Garza, Mayor of the City of Granjeno i. Jose A. Fito Salinas, Mayor of the City of La Joya j. Salvador Vela, Mayor if the City of Alton k. Sergio Munoz Jr., Texas State Representative District -36 l. Brenda Villarreal, Mayor of La Grulla m. Jose Alfredo Guerra Jr., Mayor of Roma n. Noel Escobar, Mayor of Escobares o. Eloy Vera, Starr County Judge Guadalupe County Area Declaration of: p. Resolution Adopted by Guadalupe County Commissioners Court requesting they not be placed in CD 28. Bexar County Declarations of: q. State Representative Ruth Jones McClendon r. Joseph A. Scott Jr. Community Leader s. Joseph A Scott III, Lt. Col. U.S. Army t. Ben Alexander, Pastor of New Way Bible Fellowship & former SDEC u. Alan E. Warrick II, CEO World Technical Services, Inc. v. Declarations from East Bexar County leadership. Federal Projects: w. List of projects being worked on in South Texas by Congressman Cuellar s office 9
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 10 of 16 2. One additional witness may testify VI. Plaintiffs Eddie Bernice Johnson et al., and Texas Conference of NAACP Branches et al., The NAACP/African-American Congressional Intervenors contemplate that they will have Offers of Proof as well as live testimony at the hearing(s) on the Interim Maps. We expect Dr. Richard Murray to testify and 2 or 3 persons from the following group, and will complete our presentation in the time allotted (one hour per party has been discussed): 1. Congressman Alexander Green 2. Congresswoman Sheila Jackson Lee (if she can testify on the 4 th ) 3. Congresswoman Eddie Bernice Johnson 4. Howard Jefferson, NAACP National Board Member and Texas NAACP Political Action Chairperson 5. Jeff Travillion, NAACP Texas Executive Committee Member, former President of the Austin NAACP 6. Dawnna Dukes, State Representative In reference to the State House Map we would expect to have Lemuel Price and Chairman Sylvester Turner of the Legislative Black Caucus (who may have a legal conflict, however). The above witnesses may provide offers of proof as well. The exhibits to be offered include Offers of Proof, and we may utilize the maps that are already in evidence. We will also offer the report, trial testimony and deposition testimony of Anthony Fairfax and the associated numbers with our maps. The offers of proof may also include offers of proof from members of the Texas Legislative Black Caucus. VII. Plaintiffs Rodriquez et al., A. Witnesses 1. Congressman Charles Gonzalez 2. Professor Stephen Ansolabehere B. Exhibits 10
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 11 of 16 1. Travis County Map Plan C211 (shaded for minority VAP) [See Ex. 1 to Rodriguez Plaintiffs Objections to Proposed Interim Plans] 2. Travis County Map Plan C213 (shaded for minority VAP) [See Ex. 2 to Rodriguez Plaintiffs Objections to Proposed Interim Plans] 3. S. Ansolabehere, Report on Electoral Performance of Minority Preferred Candidates in Plans C209 and C212, Compared with C166 [See Ex. 5 to Rodriguez Plaintiffs Objections to Proposed Interim Plans] 4. Comparison Basic Features Statewide Proposed Interim Plans [See Ex. 6 to Rodriguez Plaintiffs Objections to Proposed Interim Plans] 5. S. Ansolabehere, Analysis of Racial Voting Patterns in 2004 Democratic Primary in Texas Congressional District 25, Lloyd Doggett versus Leticia Hinojosa [1 page text, 2 tables, 1 figure] 6. Maps and reports published on REDAPPL for C100, C185, and the statewide proposed interim plans [for projection and discussion at hearing] 7. S. Ansolabehere, Report on Minority and White Representation Under the Texas Congressional District Plans C185 and C100 [submitted October 21, 2011, in Texas v. U.S.] 8. Lisa Handley report in DC 9. Arrington DC report VIII. Plaintiffs Quesada et al., 11
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 12 of 16 The Quesada Plaintiffs do not intend to call any live witnesses but instead will present their plan through documentary evidence and oral argument. The following are the exhibits Quesada Plaintiffs intend to offer at the hearing: Ex. No. Description of Exhibit 1 Map and statistics for C100 (See Joint Agreed Maps and Data) 2 Map and statistics for C166 (See Joint Agreed Maps and Data) 3 Map and statistics for C185 (See Joint Agreed Maps and Data) 4 Map and statistics for C193 (See Joint Agreed Maps and Data) 5 Map and statistics for C205 6 Map and statistics for C208 7 Map and statistics for C211 8 Map and statistics for C213 9 Demographic shade maps for C205 10 Dallas and Tarrant County Census statistics 11 Plan overlap report for C205 and H100 12 Map of C205 with H100 overlay 13 Map of C185 with H100 overlay 14 Map of Texas with Percent Change in Population by County: 2000 to 2010 Plaintiffs Suggested Manner of Presentation The parties suggest that the presentation of the proposed plans follow the following process: a. The hearing commence with 30 to 40 minutes on argument regarding standards and limits for court ordered plans, including a discussion of the court s authority to order the use of the State s unprecleared plans for use in the 2012 election. The Plaintiffs and Defendants will each designate no more than two persons per side to argue their respective positions and each side will then have 15 or 20 to provide argument and legal authorities, with the State presenting their position first. 12
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 13 of 16 b. The parties will then present their respective plans in the same order as the trial presentations; limiting their presentation to one hour, including opening and closing and cross examination of other parties witnesses for each category of plan; and with the presentations being sequential, by plan type, with all testimony and evidence on Congressional plans going first, followed by all testimony and evidence on Texas House plans, and the presentation on the Senate going third. Additional Matters For the Court s Consideration The parties will attempt to keep the Court apprised of the status of the preclearance litigation in the District Court for the District of Columbia. AMICUS CONGRESSMAN FRANCISCO QUICO CANSECO S ADVISORY TO THE COURT ON INTERIM MAP HEARING a. Estimated Length of Time For Hearing on Proposed Plans. Congressman Canseco plans to present his plans through documentary evidence and oral argument, and he anticipates that his presentation should take approximately 45 minutes. To the extent Congressman Canseco decides to call a witness, Congressman Canseco anticipates that the presentation of evidence should take no longer than 45 minutes. b. List of Potential Witnesses and Documents Congressman Canseco May Offer at the Hearing. Congressman Canseco may call the following witness: (1) Scott Yeldell Defendants may offer the following exhibits at the hearing: (1) Texas Legislative Council Reports for Proposed Interim Plans (2) Executed letters in support of Proposed Interim Plan(s) (3) Brief Amicus Curiae previously submitted to the Court and the exhibits attached thereto (Document 443) c. Suggestions as to the Manner in Which Evidence May Be Presented at the Hearing. 13
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 14 of 16 Congressman Canseco understand that the Court has informed the parties that each side should be prepared to argue whether the Court has the authority to implement the enacted congressional, Texas House, and Texas Senate plans even though those plans have not received preclearance. Congressman Canseco believes that it would be most appropriate for the parties to address this issue, as well as the legal standards for the adoption of a court-ordered interim plan, during the opening statements. With respect to the order of the presentation of the proposed interim plans, Congressman Canseco understands that the Plaintiffs will present their proposed interim maps and evidence in the same order as trial. Since Congressman Canseco s proposed interim plans were submitted through a brief amicus curiae, as opposed to intervening in this litigation, Congressman Canseco believes that is would be most appropriate for him to present after the Plaintiffs but before the State. DEFENDANTS ADVISORY TO THE COURT ON INTERIM MAP HEARING a. Estimated Length of Time For Hearing on Proposed Plans. Defendants anticipate that their opening statement and closing argument should take approximately 45 minutes to 1 hour. To the extent Defendants need to call any witnesses, Defendants anticipate that the presentation of their evidence should take no longer than 1 hour. b. List of Potential Witnesses and Documents Defendants May Offer at the Hearing. Defendants may call the following witnesses: (1) Gerardo Interiano (2) Doug Davis (3) Todd Giberson (4) Dr. John Alford Defendants intend to offer the following exhibits at the hearing: (1) Expert report of Lisa R. Handley, PhD submitted in Texas v. United States, Cause No. 1:11-cv-01303-RMC-TBG-BAH (D.D.C.) (2) Texas Legislative Council Reports for Proposed Interim Plans (3) County Line Violation Analysis Comparing Plan H283 with Proposed Interim Plans (4) Split Voter Tabulation District Report 14
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 15 of 16 c. Suggestions as to the Manner in Which Evidence May Be Presented at the Hearing. Defendants understand that the Court has informed the parties that each side should be prepared to argue whether the Court has the authority to implement the enacted congressional, Texas House, and Texas Senate plans even though those plans have not received preclearance. Defendants believe that it would be most appropriate for the parties to address this issue, as well as the legal standards for the adoption of a court-ordered interim plan, during the opening statements. With respect to the order of the presentation of the proposed interim plans, Defendants understand that the Plaintiffs will present their proposed interim maps and evidence in the same order as trial. Defendants object to Plaintiffs proposal that the Court accept declarations in lieu of live testimony from any witness. Any such declarations would constitute inadmissible hearsay and would deprive the State of its ability to cross-examine witnesses. The State does not object, however, to the submission of testimony by trial transcript of witnesses who previously testified at trial in this case. d. Other Matters That Should Be Brought to the Court s Attention. None at this time. DATED: October 28, 2011 Respectfully submitted, /s/ Jose Garza JOSE GARZA Texas Bar No. 07731950 Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas 78209 (210) 392-2856 garzpalm@aol.com JOAQUIN G. AVILA LAW OFFICE P.O. Box 33687 Seattle, Washington 98133 Texas State Bar # 01456150 (206) 724-3731 (206) 398-4261 (fax) 15
Case 5:11-cv-00360-OLG-JES-XR Document 474 Filed 10/28/11 Page 16 of 16 jgavotingrights@gmail.com Ricardo G. Cedillo State Bar No. 04043600 Mark W. Kiehne State Bar No. 24032627 DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite 500 755 E. Mulberry Avenue San Antonio, Texas 78212 Tel.: (210) 822-6666 Fax: (210) 822-1151 rcedillo@lawdcm.com mkiehne@lawdcm.com ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REP. (MALC) CAUSE NO. 5:11-CV-361-OLG-JES-XR CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been sent by the Court s electronic notification system October 28, 2011, to counsel of record registered with the court to receive same and to those not so registered the foregoing document has been sent by email as agreed by the parties for each of the cases referenced above,. /s/ Jose Garza Jose Garza 16