Petteway, et al. v. Galveston County, Texas, et al.

Filing 32

ORDER vacating temporary restraining order, Judge Hoyt dissenting. (Signed by Emilio M. Garza, Melinda Harmon, Kenneth M. Hoyt) Parties notified.(ccarnew, )

UNITED STATES DISTRTCT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

THE HONORABLE TERRY PETTEWAY,
et al.,

CIVIL ACTION

Plaintiffs,
NO. 11-511

THE HONORABLE MARK HENRY, et al.,
Defendants.

ORDER
Before the court is the plaintiffs' application for a temporary restraining order and injunction.
The district court's previous older granting a temporary restraining order is VACATED. The motion
until
for a preliminary injunction is held for ~~esolution after December 13,201 1, I

I
This is a Voting Rights Act case arising out of redistricting in Galveston County following
the 2010 Census. Galveston County, the defendant, has adopted new redistricting plans for county
commissioner, justice of the peace and constable districts2 The Voting Rights Act, which applies
to Texas and its political subdivisions, requires Galveston County to first obtain judicial or
adnlinistrativepreclearance before implementinga voting change, including a reapportionment plan.
42 U.S,C. 1973c; McDuniel v. Sanchez, 452 U.S. 130,137 (1 98 1). Specifically, 5 5 of the Voting
8

'

Judge Kenneth Hoyt has dissented from this order.
C O U IJudge Mark Henry, sued in his official capacity as Galveston C u t ' Chief Officer, is also a
I~~
onys

defendant.

Rights Act requires Galveston County to either (1) submit the proposed change to the Attorney
General of the United States, who must then object to the plan within sixty days; or (2) file a
declaratolyjudgment action in the U.S. District Court for the District of Columbia. McDcmiel, 452

US,at 137, Plaintiffs concede that if the Attorney General does not interpose an objection within
sixty days of the plan's submission to the Department of Justice, Galveston County may inlple~nent
its plans in future elections. See 28 C.F.R. §51.l(a)(2). It is undisputed that Galveston County
submitted for preclearanceits n w plan for the commissionerselection to the Department of Justice
e
on October 14,201 1.3 But it is also undisputed that preclearance has not yet occurred. Galveston
County maintains that it has no intention of enforcingthe plans without first obtainingpreclearance.
Plaintiffs are one citizen and seven elected officials in Galveston County, all of whom are
registered to vote in that county. The plaintiffs assert that pltclearance under § 5 of the Voting
Rights Act likely will not occur before December 15,2011, the deadline for filing to

for office

in Galveston County.' Asserting that Galveston County's new redistricting plans are therefore
unlawful, the plaintiffs moved the district court for a ti~nporaiy
restraining order and preliminaiy
injunction to prevent their implementation. Also involved in this lawsuit are three citizens and
registered voters who have intervened, claiming effects from Galveston County's newly adopted
plans.
The district court granted a temporary restraining order against i~nplementation Galveston
of

'

Galveston County also has sought preclearance from the D.C.court. See Galveston Cnry, Tex.v. U~~iled
States, No. 1: 1 1-CV-01837. The answer to that case is due on December 18,2011. Galveston County submitted for
preclearance its justice of the peace mid constable redistricting plans 0 1 October 19, 201 1. The patties assei-t that a
1
preclearance response is anticipated by either December 15 or 19,2011. These electionsdo not face the same obstacles
as thoso in the commissioners elections, for the reasons discussed in footnote 4 below.
'' The litigation addressing state-wide redistricting in the State ofTexas set the deadline for filing for elections
as December IS, 201 1. See Perez v. Stale, No. 5:l I-CA-00360 (W.D. Tex. Nov. 4,201 1).

County's new plans. The Voting Rights Act charges this three-judge panel with more filly
evaluating the plaintiffs' request for an injunction. 28 U.S.C. 5 2284 (An order previously ruled
upon by a singlejudge in a three-judge matter, "unless previously revoked by the districtjudge, shall
remain in force only until the hearing and determination by the district court of three judges of an
application for a preliminary injunction."). The panel's review encompasses determining "what
temporary

if any, is appropriate," pending the plans' preclearance. Lopez v. Monterey Cnty.,

CaliJ, 519 U.S. 9, 23 (1996). The plaintiffs and intervenors have submitted for the panel's

consideration proposed interim redistricting plans to govern the upcoming elections.
I1

Although plaintiffs do not dispute that Galveston County's request for preclearance is
pending, they assert that Galveston County did not submit its request for preclearance in a timely
manner. Plaintiffs further maintain that preclearance is unlikely to be granted and urge the
imposition of their proposed interim voting plan to govern upcoming election^.^ Galveston County
maintains that this court's intervention is premature. Galveston County has made clear it has no
intention of implementing its redistricting plans without first obtaining preclearance. Galveston

County further asserts that it is highly likely that it will obtainpreclearance in time to allow elections
for County Commissioners to be held under districts submitted for preclearance.

We find that any action on plaintiffs' motion is premature until after December 13,201 1.
Section 5 of the Voting Rights Act does not grant this court authority to determine whether a voting

Its proposed plan would govern the cominissionerelections only. The plaintiffs concede that the justices of
d
the peace ~ n constable redistrictingneed not comply with the Constitution's one-vote, oneperson principle, and that
if the Department of Justice does not grant preclearance, elections may proceed tmder old plans. See Chisorn v. Roemer,
50 1 U.S. 380 (198 I) (noting only that the one-person, one-vote principle does not apply to judicial elections). Despite
this distiliction, we need not assess the validity of remedies at this phase.

change was adopted with a discriminatorypuspose and whether it would have a discrin~inatoiy
effect
on minority voting strength, Lopez v. Monferey Cnty., CalK, 519 U.S. 9,23-24 (1 996). The Act
reserves that substantive determination exclusively for the U.S. Department of Justice and thi: U.S.
District Court for the District of Columbia, Id Our role is strictly limited:
[We] inay determine only [I] whether § 5 covers a contested change,
~
[2] whether $ 5 ' approval requirements were satisfied, and [3] if the
requirements were not satisfied, what temporary remedy, if any, is
appropriate. The goal of a three-judge district court facing a 5 5
challenge must be to ensure that the covered jurisdiction submits its
election plan to the appropriatefederal authorities for preclearance as
expeditiously as possible.
Id (citations omitted).
Plaintiff has not shown that these requirements are met. Although it is undisputed that $ 5
applies to Galveston County's reapportionment plan, plaintiffs have not shown that 5 5's approval
requirements were not satisfied. Section 5 demands our intei-vention only where a legislative body
has failed to seek preclearance for a voting change. See 42 U,S,C. 5 1973c. Galveston County has
followed the statute's terms by seeking the approval of the Department of Justice and the District
of Columbia Distlict Court. Plaintiffs' request that we impose an interim plan is prematuie.6 We
cannot properly consider "what temporay remedy, ifany, is apprbpriate," see Lopez, 5 19U.S. at 23,
without first allowing the Department of Justice or the District of Columbia District Court to assess
the validity of Galveston County's plans. Our "goal [when] facing a 5 5 challenge must be to ensure

It does not matter that Galveston County has not yet received preclearance-only that it has requested it.
Further, it appears that preclearance, or an objection to illlplementation, will occur before the deadline to file for
elections. By statute, the Department of Justice has sixty days &om the time Galveston County submitted its
reapportio~unent to object to it. See id. The deadline to register to run in these elections is not until December 15,
plan
201 1. See Perez v, State, No. 5:1t -CA-00360(W.D. 201 1). Galveston County submitted its plans to the Justice
Tex.
Department for preclearance on October 14,2011. If the JusticeDepartment does not objectto GalvestonCounty's plans
sixty days fiom that date--by December 13,20114alveston County will receive tlie preclearance it needs in order to
move forward with elections under its newly-adopted reapportionment plans. See id.

that the covered jurisdiction submits its election plan to the appropriate federal authorities for
preclearance as expeditiously as possible." Id. at 24. That has already been done. Any remedial
action on our past before December 13,201 1would disregard the lin~ited
authoritythe Voting Rights
Act grants us. See id.; 42 U.S.C. 5 1973c.
IT IS THEREFORE ORDEED: The district court's previous order granting the plaintiffs'
temporary restraining order is VACATED pending our further review.
IT IS FURTHER ORDERED: Any person wishing to stand for election as county
cumntly
commissioner, justice ofthe peace, or constable of Galveston County, Texas in the prima~y
scheduled for March 6, 201 1 may file for election under the unprecleared plan, with the
understanding that if the U,S. Department of Justice or U.S. District Court for the District of
Columbia disallow preclearance by the end of the day on December 15,201 1, their filing fees will
be refunded, and this three-judge court will determinewhat temporary remedy to adopt at that time.7

December 9,20 11

Zw&d m*f
w

Z

EMILIO M. GARZA
UNITED STATES CIRCUlT JUDGE

MELINDA HARMON
UNITED STATES DISTRICT JUDGE

If forced to craft an interim remedy, this court has the authority to postpone these local election deadlines if
necessaly. See Perez v. State, No. 5: 1 1 -CA-00360
(W.D. Nov. 4,201 1).
Tex.

I, Kenneth M. Hoyt, respectfully dissent:
I.

INTRODUCTION

Before the Court is the plaintiffs' application for a temporary restraining order and
preliminary injunction and supporting memorandum (Docket Entry No. 2) and the defendants'
response (Docket Entry No. 7). The plaintiffs, the Honorable Terry Petteway, Derreck Rose,
Michael Montez, Penny Pope, Sonny James and Roosevelt Henderson, are justices of the peace
serving in Galveston County, Texas. The Honorable Stephen Holmes and Patrick Doyle serve
Galveston County as county commissioners for districts13 and 1, respectively. The defendants
are Galveston County, Texas and the Honorable Mark Henry, the at-large county judge. Also,
joining this suit are intervenors Timothy Paulissen, Todd Kinsey and Heidi ~ h i e s s . ~

I have reviewed the pleadings and memoranda filed by the parties, the testimony and
exhibits presented and admitted and am of the opinion that the plaintiffs' request, to draw an
interim map, modifying the "Benchmark ~ a ~ addressing the existing population variance
, " ~
only in the county commissioner districts, should be granted.
11.

FACTUAL AND PROCEDURAL BACKGROUND

Galveston County, Texas has a population of over 150,000 citizens and is subject to the
section 5 preclearance requirements of the 1965 Voting Rights Act ("the Act"). See 42 U.S.C.

5

1973c, as amended by Pub. L. No. 109-246, 120 Stat. 577 (2006). On or about October 14 and
19, 201 1, Galveston County submitted a plan to modify its Benchmark Map to the Attorney

'

It should be noted that the defined areas within which justices of the peace and county commissioners are elected
are referred to as "precincts." Because the defined areas within which voters may cast ballots are also referred to as
"precincts," I will refer to the former as "districts."
On November 30,201 1, Timothy Paulissen, Todd Kinsey and Heidi Thiess filed a motion to intervene pursuant to
Federal Rule of Civil Procedure 24(a) and (b). The Court granted the intervenors' motion but denied their motion
for continuance, setting December 1, as the date for presentation of their evidence.
The Benchmark Map is the last legally approved map used by Galveston County in its local elections. In this case,
it is the 2001 map.

General of the United States, and filed a companion declaratory judgment action in the District
Court for the District of Columbia. See Galveston County, Texas v. United States of America, et
al., (CA. No. 1 :11-CV-1837-ABJ-JRB-RMC).
At the time the plaintiffs filed their suit for a temporary restraining order and preliminary
injunction [November 4, 201 11, neither the Attorney General nor the District Court for the
District of Columbia had acted on Galveston County's plan to implement voting changes. The
preclearance process permits the Attorney General 60 days to address a new redistricting plan.
And, in the event the Attorney General determines that a plan is incomplete or lacks sufficient
data for a proper evaluation, additional time or delay will occur. At the time of the issuance of
this Memorandum and Order, the Galveston County Plan has not been precleared.
Galveston County has four single member district offices for county commissioners and
one at-large district. See Tex. Const. Art. 5,

9 18(a). It is undisputed that Galveston County's

plan reduces the number of offices for justice of the peace and constable.
With regard to the county commissioner districts, Galveston County has one single
member district [district 31, a majority-minority district, represented by an African-American. A
second district has a minority population of 41.2 percent [district 11, which seat is currently held
by a non-Hispanic Caucasian. The remaining two county commissioner districts and the countywide position are held by three non-Hispanic Caucasians.

Because of a population variance,

Galveston County determined, and without dispute, that the county commissioner districts, in
particular, dictated a population reappointment.

111.

THE CONTENTIONS OF THE PARTIES AND TESTIMONIAL SUMMARIES
A.

The Plaintzffs ' Contentions

The plaintiffs do not dispute that Galveston County has suffered population losses in
commissioner districts 1 and 3, and/or that increases in population have occurred in districts 2
and 4. They dispute the manner that Galveston County and the intervenors would apportion the
population to reduce the deviation so that the "one-man, one-vote" requirement is met. See
Baker v. Carr, 369 U.S. 186 (1962). In this regard, the plaintiffs point out that the intervenors'
plan would satisfy the population variance by moving minority voting precincts from district 1
into district 3, and by shifting non-minority voting precincts to district 1 from district 4. The
plaintiffs argue that these adjustments would move minorities from district 1 into district 3, a
district that is already a majority-minority district, capable of reducing the opportunity for district

1 to remain or become a coalition district whereby a minority might be elected or might
otherwise impact voting outcomes. The plaintiffs' argument rests on testimony that Galveston
County's greatest population growth over the past 10 years was among African-Americans and
Hispanics.
The plaintiffs also dispute Galveston County's claim that it is not a proper party to this
suit. They contend that the evidence, even that presented by the intervenors, supports the fact
that the political parties' [Republican and Democrat] contract with Galveston County to conduct
primary elections, and are merely in-charge of collecting ballots for Galveston County.
Otherwise, the plaintiffs contend, Galveston County sets the date(s) for elections, prints the
ballots, provides voting machines and tabulates the votes.
Finally, the plaintiffs assert that their suit is not premature and the Court should proceed
and make any necessary adjustments to satisfy the population variance since there is no sign that

a favorable decision from the Attorney General or the District Court for the District of
Washington, D.C. is forthcoming and will be issued before the filing deadline of December 15,
201 1.
B.

Galveston County and Intervenors ' Contentions

Galveston County and the intervenors contend, without dispute, that districts 1 and 3 are
under-populated by 16.03% and 12.76%, respectively. They assert that simply adding 10,000
residents to district 3, while resulting in a reduction of the minority population in that district, the
addition will not affect minority performance. Simultaneously, they argue, the addition will
meet the "one person, one vote" requirement and thereby cure the population deviation that
currently exists. See Baker, 369 U.S. 186.
Separately, Galveston County argues that the plaintiffs' suit is premature in that the
statutory deadline for preclearance is December 15, 20 11. Hence, Galveston County contends,
there is time for the Attorney General or the District Court of Columbia to act. Therefore, the
Court should cancel its preliminary injunction and defer to the Attorney General.

In an

additional argument, Galveston County asserts that this Court should not go forward because
Galveston County is not a proper party in this suit. Because primary elections are to be
conducted by the respective political parties, the two political parties are proper and necessary
parties to this litigation.
C.

Summary of Processes Used by the Plaintiffs and Intervenors

The plaintiffs present expert testimony from George Korbel in support of their proposed
plan. He testified that he based his proposal and conclusions on six factors. See [Plaintiffs
Exhibit No. 2, Galveston County Interim Apportionment GE 1931. First, he sought to comply
with section 5 of the Act. Next, he considered the population deviation and the "one-person,

one-vote" requirement of Baker v. Carr.

He then sought to avoid or minimize cutting

jurisdictional lines. As well, he sought to avoid cutting voting precinct lines while making
population adjustments. Fifth, he sought to avoid pairing incumbents in a single district. And,
finally, he attempted to deviate as little as possible from the last legal plan, the Benchmark Map.
During his testimony, Korbel stated that he had observed the voter turnout numbers and
election information presented by the state of Texas in Perez v. State o Texas, [Civ. Action No.
f
5:ll-CA-00360 (W.D. Texas, 201 I)]. In his view, the changes to the Benchmark Map that he
proposes: (a) did not modify minority and/or minority opportunity districts 1 and 3. He further
observed that the fastest population growth occurred in districts 2 and 4. His sentiments,
nevertheless, were to leave districts 1 and 3 as they are under the Benchmark Map and make
adjustments between districts 2 and 4. This approach results in a top to bottom deviation of
6.8% when measured against the ideaL4 Korbel testified that, while this percentage deviation is
not 0%, it adheres to section 5 and addresses the "one-person, one-vote" equal protection
requirement, although imperfectly.
The intervenors also presented expert testimony. They called Thomas Brooks Hofeller,
who testified concerning his observations of the plaintiffs' plan and his own plan. In his opinion,
a court-ordered plan should "aim for equality."

While a 0% deviation cannot always be

achieved, he stated, deviations should be "kept low" in any interim court-ordered plan. Hofeller
testified that because of the short notice in requesting his testimony, he had not studied the
Benchmark Map to determine how it relates to his proposed plan, or to that of the plaintiffs. His
proposal, therefore, was based on communications with a Galveston County representative and a
review of Galveston County's proposal now before the Attorney General.

District 1 reveals a -2.8% in population, while district 4 reveals a 4% deviation. Together they total 6.8%
deviation.

Hofeller also testified that he did not analyze the voting data for the commissioner
districts to determine how minority candidates had performed in non-minority majority districts.
Therefore, he could not testify what impact his plan might have on minorities in districts 1 , 2 and
4 as it relates to whether minorities might suffer setbacks by his plan. Nor had he looked to see
how, for example, moving voting precincts, 105, 106, 108 and 1 15 into commissioner district 3,
while removing from district 3 voting precincts 339, 341, 344, 389 and 398, might result in
"packing" minorities into one district, district 3, and thereby negating in district 1, a minority
opportunity or coalition district. See [Intervenors' Exhibit No. 1, Intervenors' Plans A and B].
Finally, Hofeller testified that he was unaware of whether the Hispanic and African-American
growth, over the past 10 years, had exceeded the growth of the non-Hispanic Caucasian
population.

IV.

LEGAL STANDARD
Section 5 of the Voting Rights Act of 1965 (42 U.S.C. 8 1973c), requires designated

political subdivisions to obtain federal preclearance, either from the Attorney General of the
United States or from the District Court of the District of Columbia, before implementing a
change in its voting laws. Lopez v. Monterey County [Lopez 14, 525 U.S. 266, 270 (1999).
Therefore, when an interested party determines that a political subdivision's plan has not been
precleared, that party may file a suit under the Act challenging the imposition of the nonprecleared plan. In this circumstance, the Chief Judge of the United States Court of Appeals is
required to appoint a district court composed of three judges pursuant to 28 U.S.C. § 2284, to
hear the evidence and determine, if appropriate, any necessary alterations to Benchmark Map or
the last legal plan.

A section 5 enforcement court is authorized to implement a temporary restraining remedy
where delay would seriously jeopardize implementation of an election cycle. See Lopez v.
Monterey County [Lopez 4, 519 U.S. 9, 23-24 (1996) (internal citations omitted). The issue
before the Court in such a case is what temporary remedy, if any, is appropriate. Lopez I, 5 19
U.S. at 23-24. When constructing an interim court-ordered plan, an enforcement court is to be
guided by a stricter standard than the state or county political machinery. The objective is a de
minimis population deviation.

See Chapman v. Neir, 420 U.S. 1, 26-27 (1975).

In

accomplishing this task a temporary court-ordered plan should avoid any taint of discrimination
and be fashioned [apportioned] in a manner that meets the standards of sections 2 and 5 of the
Act. See Connor v. Finch 431 U.S. 407, 415 (1977); see also McDaniel v. Sanchez, 452 U.S.
130, 149 (1 981).
The Equal Protection clause requires that electoral districts achieve population equality as
nearly as possible. See Abrams v. Johnson, 521 U.S. 74, 98 (1997). Therefore, a court-ordered
plan should, if possible, achieve the goal of population equality with little more than de minimis
variation. Abrams, 521 U.S. at 98. However, absolute population equality many not be possible
in local redistricting and should not be done at the expense of the Act. Id.; see also Abate v.
Mundt, 403 U.S. 182, 185 (1971).
The "one-person, one-vote" [Equal Protection] standard applicable to county
commissioner districts does not apply to justice of the peace and constable precincts. See
Chisom v. Roemer, 501 U.S. 380 (1981). Hence, where a request for preclearance of justice of
the peace and constable precinct lines has not been precleared, and the upcoming election cycle
is imminent, an enforcement court may permit elections to go forward in accordance with the last
legally-permitted plan even though the plan does not meet all constitutional requirements. See

Upham v. Seamon, 456 U.S. 37, 43 (1982); Corder v. Kirhey, 639 F.2d 1191, 1196 (5th Cir.
1981); Chisom v. Roemer, 853 F.2d 1186, 1 189 (5th Cir. 1988); Watkins v. Mabus, 771 F.Supp.
789,797 (S. D. Miss. 1991).
V.

DISCUSSION AND ANALYSIS
A.

Benchmark Map Adequately Serves Justices o the Peace and Constables
f

I view the Court's task as making adjustments to the Benchmark Map (2001) to bring the
population deviations within the "one-person, one-vote" principle as it relates only to the county
commissioner districts. See Baker, 369 U.S. 186; see also Gray v. Sanders, 372 U.S. 368, 381
(1963). In the process of making adjustments, I am mindful of the strictures of Connor v. Finch,
that adjustments based on population variances cannot violate sections 2 and 5 of the Act.
According to the 2010 Census, Galveston County enjoys a population of 291,309
residents. Hence, an equalized population for the four county commissioner districts would
result in 72,827 residents in each of the four districts. The evidence shows that district 1 has
61,I 52 persons, district 2 has 76,684 persons, district 3 has 63,534 and that district 4 has 89,939.
These population variances result in a 39.53% top to bottom deviation.'

Therefore, the

Benchmark Map cannot be utilized to conduct elections for county commissioner precincts due
to a population variance in excess of 10%. See Swann v. Adams, 385 U.S. 440,443-44 (1967).
This legal impediment, the population variance, is of no concern in the case of the election of
justices of the peace or constables. See Chism v. Roemer, 501 U.S. 380 (1991). In fact, the
parties agree that the one-person, one-vote principle, does not apply to the justice of the
peace/constable precincts. Therefore, as it relates to the offices of justice of the peace and

District 1, containing 61,152 residents, is 11,675 residents below the ideal population of 72,827. This disparity
constitutes a deviation of -16.03%. District 4, containing 89,939 residents, is 7,112 residents above the ideal
population of 72,827. This disparity constitutes a deviation of 23.50%. Together the two deviations constitute a
39.53% deviation.

constable, the Benchmark Map sufficiently defines the precincts and boundaries for the
respective offices and Galveston County.

B.

Galveston County's Policymaking Authority Versus Federalism

The defendant, Galveston County, raises inferentially, perhaps directly, the issue of
federalism as it relates to its budgetary autonomy. More specifically, Galveston County argues
that under its policy making authority, granted by the state Constitution, it has determined that
fewer constables and justices of the peace are budgetarily appropriate. Hence, under the plan
submitted to the Attorney General and the District Court of the District of Columbia, Galveston
County exercised its discretionary authority to determine the size of its budget for constables and
justices of the peace and that exercise is reflected.
Without doubt, a county government may exercise its discretion on budgetary and policy
making matters. However, Congress' power to legislate under the federal Constitution, i.e., the
Fourteenth and Fifteenth Amendments to guard against voting law changes that give rise to a
discriminatory effect in a jurisdiction that requires federal preclearance is a proper exercise of its
constitutional authority. See Lopez 11, 525 U.S. at 282-83. The Supreme Court recognized that
the Voting Rights Act authorizes federal intrusion into sensitive areas of county policy making,
but pointed out in Miller v. Johnson, 515 U.S. 900, 926 (1995), and in Rome v. United States,
446 U.S. 156, 179 (1980), that the Reconstruction Amendments, by their nature, contemplated
instances of intrusion. Therefore, such intrusion is "within the sweep of Congress' enforcement
power even if in the process it prohibits conduct which is not itself unconstitutional." when it is
necessary to enforce the Act. See Lopez 11,525 U.S. at 282-83. While the decision to reduce the
number of constables and justices of the peace may be a good and honorable act and certainly
within Galveston County commissioners' authority, that authority is trumped here by the

mandate of section 5 of the Act because the plan has not obtained preclearance. See Lopez v.
Monterey County, California, 5 19 U.S. 9, 20 (1996) (citing to Clark v. Roemer, 500 U.S. 646,
652-653 (1991); McCain v. Lybrand, 456 U.S. 236,249 (1984)).

VII.

CONCLUSION
I am of the opinion that the plan(s) submitted by the intervenors [Intervenor Exhibits 1

and 2 (Plans A and B)] do not meet the requirements of section 5 of the Voting Rights Act and,
therefore, cannot be adopted by the Court. While the plans meet the de minimus population
deviation standards in, for example, Chapman v. Meier, they fail in other significant respects.
First, the plans fail to observe their relationship to the Benchmark Map. The Benchmark Map is
the most likely starting point because it is the last legal plan. Hofeller admitted as much, yet
defaulted to the "one-person, one-vote" necessity. In doing so, he failed to account for the fact
that his plan A would effectively reduce the Hispanic and African-American voting age
population percentage when compared against the Benchmark Map by approximately 7.4%.
Plan B would, moreso, reduce that same population by approximately 9%. He admitted that to
adopt either of his plans would mean that "minorities would form a smaller component of the
voting population in commissioner district I."

And, assuming that one were to look at

commissioner district 1 as a coalition district, one would "look at the citizen voting age
population as compared to the census voting age population." Yet, Hofeller did not analyze that
data. Therefore, I am of the opinion that the intervenors' plan should not be adopted by the
Court.
The plan submitted by the plaintiffs, specifically plaintiffs' Exhibit Number 2, meets the
requirements for a court-ordered plan of redistricting as mandated by Chapman (de minimus
population deviations) and McDaniel v. Sanchez, 452 U.S. 130, 147 (1 98 1) (compliance with the

Voting Rights Act). In developing his plan, Korbel observed the equal protection considerations
as well as those for sections 2 and 5 of the Act. Of key importance in reaching a one-person,
one-vote goal for the citizens of Galveston County, is the recognition that the Act should not be
violated. Exhibit 2 accomplishes that challenge without modifying minority opportunity districts
1 and 3. As well, it reduces the population deviation from a top to bottom deviation of 39.53%

to a top to bottom deviation of 6.8% with an average deviation of 2.0%. The plan maintains
district 1 as a strong Hispanic or minority opportunity district in which the Hispanic population
percentage is 29.9% and the combined Hispanic and African-American percentage of the
population is 4 1.2%.
Other strengths of the plaintiffs plan are, it does not split voting precincts, does not pair
incumbents and does not cut jurisdictional lines in a manner that is detrimental to the Act or
"one-person, one-vote" strictures. Finally, while the top to bottom deviation is not 0%, the tradeoff is that it is below 10% and complies in fact and spirit with the law. Hence, I find that it
comports with the non-retrogression requirements of section 5 of the Act. See Beer v. United
States, 425 U.S. 130, 141 (1976); Upham v. Seamon, 456 U.S. 37,44 (1982). I would, therefore,
adopt the plaintiffs' plan presented in Exhibit 2 for the county commissioner districts, and not
permit Galveston County to proceed with elections on either its non-precleared plan or its last
legal plan, as both violate section 5 of the Act.

Kenneth M. Hoyt
United States District Judge