Perez et al v. Perry et al
ORDER on Plan H358. Signed by Judge Xavier Rodriguez, Chief Judge Orlando Garcia and Circuit Judge Jerry E. Smith. (aej) Modified on 8/24/2017 to include all judges (aej).
In the United States District Court
Western District of Texas
SHANNON PEREZ, ET AL.
GREG ABBOTT, ET AL.
ORDER ON PLAN H358
Before Circuit Judge SMITH, Chief District Judge GARCIA, and District
This Order addresses Plaintiffs’ statutory and constitutional claims
against Plan H358, enacted by the 83rd Texas Legislature in 2013.
The following Plaintiffs assert claims against Plan H358: The Texas Latino
Redistricting Task Force1 (limited to HD90), MALC,2 the Perez Plaintiffs,3 and
The Texas Latino Redistricting Task Force “is an unincorporated association of individuals and
organizations committed to securing fair redistricting plans for Texas” and includes Hispanics Organized
for Political Education (“HOPE”), the Mexican American Bar Association of Texas (“MABA”), the
National Organization for Mexican American Rights (“NOMAR”), Southwest Voter Registration
Education Project, the William C. Velasquez Institute, and Southwest Workers’ Union. Docket no. 891
¶ 4. The Task Force individual Plaintiffs include Joe Cardenas III, Florinda Chavez, Cynthia Valadez,
Emelda Menendez, Alejandro Ortiz, Rebecca Ortiz, Armando Cortez, Gregorio Benito Palomino, Cesar
Eduardo Yevenes, Jose Olivares, Tomacita Olivares, Renato De Los Santos, Alex Jimenez, Gilberto
Torres, Socorro Ramos, and Sergio Coronado. Id. ¶¶ 5-20.
MALC is a non-profit Latino legislative caucus established to serve the members of the Texas
House of Representatives and their staffs in matters of interest to the Mexican American community of
Texas. Docket no. 897 ¶ 18. MALC-1 is a list of current MALC members.
Shannon Perez, Gregory Tamez, Sergio Salinas, Carmen Rodriguez, Nancy Hall, Dorothy
DeBose, Jessica Farrar, Wanda F. Roberts, Richard Nguyen Le, and TJ Carson. The Perez Plaintiffs
have joined with MALC in this phase of the litigation.
the NAACP Plaintiffs.4 At this stage of the litigation, Plaintiffs’ remaining
claims involve statutory claims under § 2 of the Voting Rights Act (“VRA”) and
constitutional claims under the Fourteenth Amendment to the United States
I. Background and Summary of Claims
Although the Governor called the special session to adopt the Court’s
interim map H309, some changes were made to the map in Dallas, Tarrant,
Harris, and Webb Counties, and the Legislature incorporated those changes into
Plan H358. At second reading, Chairman Darby outlined criteria that he would
apply in evaluating any proposed amendment:
that it does not create a harm or a risk to further litigation by
violating the constitution’s “one person, one vote” principle
regarding population deviation; that it does not dilute nor dismantle
a Section 2 protected district under the Voting Rights Act or violates
the Texas Constitution regarding contiguous districts or the county
line rule. If those measures can be satisfied, I want to see that it
addresses a concern, for example, the splitting of a community of
interest. And finally, I’d like to see an agreement amongst the
JX-17.3 at S1-2. After three amendments were adopted, Darby stated that they
were “small tweaks to districts between members that unite communities of
The NAACP Plaintiffs include the Texas State Conference of NAACP Branches, an association
of local chapters of the NAACP, Howard Jefferson, and Rev. Bill Lawson. Individual Plaintiff Juanita
Wallace passed away in 2016. According to the affidavit of Carmen Watkins, Regional Director for
Region VI of the National NAACP, the Texas NAACP has well over 10,000 members and members who
are registered to vote in almost every county. NAACP-1. She further attests that “the NAACP has at
least one branch in each of the implicated counties,” 884 members in Tarrant County, 320 members in
Bell County, 1,232 members in Harris County, and 147 members in Fort Bend County. Id. She further
states that she reviewed the official membership lists in each of those counties and determined that
there are members who reside in CD9, CD18, CD30, CD33, and House districts 100, 109, 110, and 111
(Dallas County), 95 and 101 (Tarrant County), 54 and 55 (Bell County), and 26 and 27 (Fort Bend
interest and don’t have any implications with regard to Section 2 of the Voting
Rights Act or the constitution.” Id. at S5.
discrimination/vote dilution claims based on the changes made to HD90 in
MALC and the NAACP Plaintiffs assert § 2 results claims based on the
Legislature’s continued failure to draw additional minority coalition opportunity
districts in Harris, Fort Bend, Dallas, and Bell Counties, as shown in their
proposed demonstration Plans H391 (MALC) and H392 (NAACP). Defendants
maintain their position that § 2 cannot require the creation of coalition districts,
but that argument has already been rejected by this Court as inconsistent with
binding Fifth Circuit authority. Defendants further contend that these districts
are not required by § 2 because Plaintiffs have failed to prove the necessary
cohesion among the minority groups included.
MALC also contends that the Legislature was required to draw additional
Latino opportunity districts in Nueces County and Midland/Ector Counties.
Defendants argue that these districts cannot be required by § 2 because their
creation would violate Texas’s County Line Rule. This Court has already held
that § 2 of the VRA may require the State to break the County Line Rule if § 2
requires the district under the totality of circumstances.
Plaintiffs contend that the intentional discrimination found by this Court
in Plan H283 remains in Plan H358, and that Plan H358 was operated or
maintained as a device to further intentional vote dilution. This Court’s analysis
in the Order on Plan C235 concerning the intent of the 2013 Legislature applied
to both Plan C235 and Plan H358.
Thus, the Court finds that the 2013
Legislature purposefully maintained the intentional discrimination contained
in Plan H283 where the district lines remain unchanged or substantially
unchanged. The Court will discuss the implications of its prior intent findings
in the analyses of the various areas affected.
Last, Plaintiffs assert that the Legislature again acted with intent to
discriminate in adopting Plan H358 in 2013 by the Legislature’s continued
hostility toward minority districts, pretextual use of the County Line Rule to
avoid creating new Latino opportunity districts, and refusal to consider minority
coalition opportunity districts, despite the minority population growth. While
the Court agrees that the circumstantial evidence remains unchanged in terms
of the Legislature’s refusal to recognize minority growth due to its continued
hostility toward minority districts as perceived Democrat districts, the Court
finds that the intentional discrimination in 2013 was limited to the Legislature’s
intent to maintain and perpetuate (without remedy) any infirmities in the plan
that already existed.5
II. Analysis by County
The Court thus turns to its analysis of the various claims in each of the
Judge Garcia and Judge Rodriguez adopt the prior fact findings and opinions and incorporate
them into this Order because they are relevant to the 2013 plan claims. In this Order, Judge Smith
agrees that the Court’s orders on the 2011 plans are law of the case. The findings and conclusions in this
order are therefore not inconsistent with what this district court panel has already decided.
specific challenged areas.
A. Harris County
With regard to Plan H283, Plaintiffs asserted a § 2 results claim and
intentional discrimination/intentional vote dilution claims. They challenged
mapdrawers’ failure to draw a new Latino or coalition opportunity district,
despite the minority population growth, while protecting slower-growing Anglo
districts. They also challenged the elimination of HD149, which they contended
was a multi-ethnic coalition minority opportunity district as part of the
Legislature’s decision to reduce the number of districts in Harris County from
25 to 24.
In fashioning the interim plan H309, this Court found that Plaintiffs had
demonstrated a likelihood of success on the merits of the § 2 claim in eastern
Harris County. Specifically, the Court found that Plaintiffs had presented
numerous demonstration plans illustrating that an additional compact majorityHCVAP district could be drawn there, and made a preliminary finding that
creation of a new Latino opportunity district was justified by the totality of
Docket no. 690 at 8-9.
The Court’s interim plan thus
reconfigured HD144 in the manner requested by Plaintiffs to have a majority
HCVAP. Id. The Court also maintained HD149, finding that the § 5 claims
were not insubstantial. Id.
In its Order on Plan H283, the Court found that Plaintiffs failed to prove
intentional racial discrimination with regard to the decision to reduce the
number of districts to 24 or the elimination of HD149. Docket no. 1365 at 52-54.
However, the Court found that the failure to draw an additional Latino
opportunity district in Harris County violated § 2 and was intentionally racially
discriminatory. The Court noted that: the member-driven process failed to
consider § 2 compliance insofar as minority members were essentially shut out
of the process; Hanna’s recommendation to consider drawing an additional
Latino opportunity district (as he was able to do) was ignored; and when faced
with a map that failed to create any new Latino opportunity districts,
mapdrawers decided to shuffle minority population within the minority districts
to artificially (and without legal basis) inflate the SSVR and HCVAP of existing
Latino ability district HD148 to claim VRA compliance, knowing that this was
already a performing Latino district and that no new opportunity district was
being created.6 Docket no. 1365 at 53-57.
During the 2013 legislative session, some changes were made to HD133,
HD137, and HD149 and incorporated into Plan H358. These changes were the
result of Amendment 3 (Plan H318) offered by Reps. Wu, Vo, and Murphy. On
the House floor, Rep. Wu stated that the amendment was agreed to by the three
affected members and “swaps out sections of our districts.” JX-17.3 at S4. He
stated, “One of the main things it does is it helps reintegrate part of a very large
Vietnamese population that has very strong language and cultural issues that
As discussed in the Opinion on Plan H283, mapdrawers not only used their unjustified increase
in SSVR and HCVAP in HD148 to defend their failure to create any new Latino districts in Harris
County, they also used it to try to “offset” the loss of existing opportunity district HD33 in bad faith (an
attempt that the D.C. Court properly rejected).
neither Representative Murphy nor I can really address and are better placed
in Representative Vo’s district so he can better represent them. This helps make
this area more constitutionally sound . . . .” Id.; see also Tr1525-26. No party
complains of these changes.
With regard to Plan H358, MALC7 asserts § 2 results claims and
intentional vote dilution claims based on the intentional failure to create
additional coalition opportunity districts.8 MALC’s demonstration Plan H391
creates two additional coalition districts—HD132 is a Black + Hispanic CVAP
coalition district and HD135 is a Black + Hispanic + Asian coalition district. JX107; Tr32; MALC-24. Defendants contend that Plaintiffs cannot satisfy Gingles
because minority groups do not vote cohesively in Harris County, citing the lack
of evidence of cohesion in primary elections.
As noted in the Order on Plan C235, the evidence is undisputed that
African Americans and Latinos choose primarily to participate in the Democratic
primaries in Harris County. The undisputed evidence further shows that
Latinos and African Americans are strongly cohesive in support of Democrat
candidates in general elections. See MALC-22 Table 7 (2014 and 2016 elections).
Brischetto characterized African American and Latino cohesion as “extremely
high” in general elections. MALC-19 ¶ 64. Dr. Chervenak also found high levels
The NAACP Plaintiffs do not have a claim for a new minority district in Harris County, but
assert that HD149 is protected under § 2 and must be protected in any remedial map. Docket no. 1529
It is not possible to draw an additional BCVAP or HCVAP-majority district in Harris County
using 2011-2015 ACS data. Tr60 (Korbel).
of cohesion between African Americans and Latinos in general elections, with
each group cohesively supporting candidates of each race. NAACP-2 Table 5.
As discussed in the Order on Plan C235, however, the evidence indicates
a lack of cohesion between African Americans and Latinos in the primaries. Dr.
Engstrom’s countywide analysis of statewide elections involving Latino and nonLatino candidates indicates lack of Democratic primary cohesion between
African-American and Latino voters. African Americans and Latinos shared
support for only two of six Latino candidates in Harris County between 2006 and
2010 (both groups also shared a lack of support for candidate Alvarado). Docket
no. 307-1 at 16. However, in one case where both groups supported the Latino
candidate (Yanez for Supreme Court Place 8), African-American support was
only 52.7% and in the other case (Uribe for Land Commissioner), Latino support
was only 59%. Id. Table 6. For three Latino candidates, African-American
support for the Latino candidate was lower than “others.” Docket no. 307-1 at
Dr. Brischetto did not study any primary elections. Dr. Chervenak did
examine the 2016 Democratic primary in HD149 in southwest Harris County,
where Asian-American candidate Hubert Vo ran against an African American.
He found that a majority of African-American (56.4%) and Latino (60.6%) voters
supported Vo. NAACP-2 Table 5A. But Vo also received majority support from
Asian (62%) and white (55.4%) voters, meaning that all racial groups supported
Vo in the primary, though none at very high levels. Id. Further, while HD149
is located within Harris County and is somewhat near (though not adjacent to)
proposed tri-ethnic coalition district HD135, it is unclear how voting patterns in
HD149 would translate to proposed HD135.
As discussed in the Court’s prior orders, there was lay testimony about
Hispanic and African-American coalitions in Harris County. And there was lay
testimony, such as from Rogene Calvert, Sarah Winkler, Rep. Hubert Vo, and
Rep. Sylvester Turner, that Asians, Latinos, and African Americans in Harris
County had formed coalitions, though this testimony referred to southwest
Houston, farther south than where proposed HD135 would be. Docket no. 1364
¶¶ 410, 424-27, 451, 460, 503. Rep. Senfronia Thompson provided general
testimony that African Americans, Latinos, and Asians work in cooperation
together politically in Harris County.
But as it concluded with regard to the proposed congressional districts, the
Court finds that there is simply insufficient evidence of cohesion to show that,
when combined, Black and Hispanic voters in proposed HD132 or Black,
Hispanic, and Asian voters in proposed HD135 would cohesively support their
candidates of choice. Thus, the § 2 results claims in Harris County fail.
To the extent MALC, Perez Plaintiffs, or the NAACP Plaintiffs contend
that discrimination found by the Court in Plan H283 remains in Plan H358,9 the
Court rejects such a claim.
E.g., docket no. 1454 at 41 (stating that it is “unclear whether all the intentional discrimination
established by the NAACP and other parties has been adequately remedied”); docket no. 1529 (NAACP
Post-Trial Brief) at 62 (the NAACP takes the position that “all the intentional discrimination in Harris
County has not yet been remedied”).
No further changes are required in Harris County.
B. Fort Bend County
The NAACP and MALC argued that the Fort Bend County configuration
in Plan H283 violated § 2 because it resulted in minority vote dilution, and that
an additional minority coalition district was required.
(primarily minority) in Fort Bend County resulted in the addition of a new
district there, but no additional minority district was drawn.
The Court considered the NAACP’s proposed tri-ethnic coalition district
HD26 in Plan H202, but found that the NAACP had failed to establish the
Specifically, the districts appeared compact, but
Plaintiffs had not offered evidence that the minority communities contained
within the district were compact, taking into account traditional districting
principles. Docket no. 1365 at 59.10
And even if the districts were compact, the Court found that the NAACP
offered only lay testimony concerning minority cohesion in Fort Bend County,
and the Court would not infer cohesion from other evidence in Harris County.
Id. at 60. MALC’s expert Dr. Brischetto provided the only expert testimony on
racially polarized voting in Fort Bend County, and found cohesion among African
Americans, Latinos, and Asians and polarized Anglo bloc voting. MALC-161
Table 22. But he only looked at elections in 2012, and he did not conduct a
The Court declined to consider MALC’s Plans H329 and H366 because these plans were first
introduced during the 2013 legislative session and were more properly considered as part of the 2013
plan case. Docket no. 1365 at 60.
multivariate analysis of the primary elections. Docket no. 1364 ¶ 533.11
To support its § 2 results claims in Fort Bend County in this phase of the
litigation, MALC offers demonstration Plan H391, which creates a new majorityminority Black+Hispanic+Asian district HD26. Tr30; MALC-24. Plan H391
redraws HD26, HD27, HD28, and HD85 in the “Fort Bend Mix” of Fort Bend,
Jackson, and Wharton Counties, and is set up to be plugged into Plan H358.
MALC-17 (Korbel 2017 Report) ¶ 26. MALC’s expert George Korbel drew the
plan, and he states that HD26, HD27, and HD28 are essentially located in
suburban Houston areas, the districts are simplified, the split of the City of
Richmond is eliminated, and the adjacent cities of Rosenberg and Richmond are
combined in HD85. Id.
NAACP offers demonstration Plan H392, which creates tri-ethnic coalition
district HD26, and Dr. Fairfax’s testimony regarding compactness. County
Commissioner Grady Prestage also testified to the compactness of proposed
HD26. Tr567-68. The Court agrees that NAACP’s proposed HD26 is compact
and satisfies the first Gingles precondition of numerosity when all the groups are
NAACP Plaintiffs offer the expert testimony of Dr. Chervenak to show
racially polarized voting. NAACP-2 Table 4. He examined 2012, 2014, and 2016
In his 2014 Supplemental Report, Dr. Alford noted that Dr. Brischetto found that in Fort Bend
County, Asian voters supported Democrats in the general election at an average of only 60%. Alford
2014 Supp. Report at 17. Hispanic support was 72.2%, while Black support was 97.8%. MALC-161 Table
25. Dr. Alford further highlighted the lack of evidence of cohesion in the primaries, and predicted based
on minority voter behavior in other areas that these groups would not be cohesive in the primaries.
Alford 2014 Supp. Report at 21-22.
general elections in HD26, finding in each case that African Americans, Latinos,
and Asians were cohesive in support of the minority candidate, while nonHispanic whites were strongly polarized against those candidates (with support
never exceeding 13%). Id. Dr. Chervenak testified that there had not been a
contested Democratic primary in HD26 for many years. Tr422. The NAACP
Plaintiffs argue that this demonstrates that voters of color are not acting in
opposition to each other, and each group supports the minority candidates in the
general election. They further contend that lay witness testimony supports a
finding of cohesion, citing Commissioner Prestage’s testimony about K.P. George
(Fort Bend ISD Trustee), Neeta Sane (HCC Board of Trustees), and Q Imam
(Sugarland City Council). Tr557-58.
The State contends that Plaintiffs cannot satisfy Gingles because there is
no evidence of cohesion among Asian-American, Black, and Hispanic voters in
Fort Bend County. Docket no. 1526 at 63. They note that Plaintiffs’ experts did
not analyze primary elections, that Dr. Murray testified that Asian-American
voters in Fort Bend County tended to split their vote almost evenly between
Democrats and Republicans,12 and that lay witness testimony failed to show
cohesion within the Asian population. Defendants also cite the testimony of
Jacey Jetton, who testified that Asian Americans are not cohesive among
themselves, with South Asian voters and Chinese voters differing in preference,
Tr699, and the testimony of Commissioner Grady Prestage, who also confirmed
Tr1274-75 (Asians were between 45 and 55% Republican); Tr1288 (Asians in Fort Bend County
are more Republican than nationally).
that the Asian-American community is not “monolithic.” Tr581-82.
NAACP Plaintiffs argue that the Latino community is also not monolithic,
but “that does not negate their ability to obtain fair representation under the
Voting Rights Act.” Docket no. 1529 at 56. However, the lay witness and expert
witness evidence indicates that national origin subgroups within the Fort Bend
Asian community13 may have distinct political preferences such that they cannot
all be considered together in determining cohesion. Jetton testified that the
Asian community did not necessarily vote cohesively, citing instances where the
South Asian and Chinese communities had differed.
Jetton’s testimony was not particularly compelling for several reasons, Dr.
Murray also stated that “you really need to look at national origin groups in Fort
Bend County, because the South Asians are much more Democratic and have
been since – a lot of them since 2001, too. So it’s complicated communities, and
to lump them all together is somewhat problematic in terms of analysis.”
Tr1290. He contrasted this with Latinos in Texas, which he said are mostly of
Mexican origin, which “simplifies things a lot.” Id.
Further, there is evidence that Latinos are not cohesive with other
minorities in their choice of primaries. In his 2014 report, Dr. Brischetto found
that more Latino voters in Fort Bend County chose to participate in the
Republican primary (2.758) in 2012 than in the Democratic primary (576).
MALC-161 Table 21. This was also true in 2010, where 2,176 Hispanics chose
Commissioner Prestage noted that the Asian population in Fort Bend County includes South
Asian (Indians and Pakistanis), Chinese, and Vietnamese. Tr562.
to participate in the Republican primary, while only 1,305 participated in the
Democratic primary. Joint Expert Ex. E-3 (Lichtman Report) at 5 (Table 1). In
2008, however, 9,252 Hispanics chose the Democratic primary, while only 2,715
chose the Republican primary. Id.
Based on his general election analysis, Dr. Brischetto noted “severe” racial
bloc voting between Anglos and African Americans, between Anglos and
Hispanics, and between Anglos and Asians in Fort Bend County, and concluded
that “[t]here is clearly a tri-ethnic coalition in support of Democrats in the
general election” in Fort Bend County. MALC-161 ¶¶ 89, 91. However, he noted
that “[v]oter cohesion among Asian American voters for Democrats in general
elections is . . . considerably lower (60%) in Ft. Bend. In some of the contests,
however, the Asian point estimates are not reliable.” Id. ¶ 89. The mean vote
for Latinos was 72.2% and for African Americans it was 97.8%, compared to
Anglo support of 5.9%. Id. at Table 25. Dr. Brischetto did not analyze any Fort
Bend County elections in his 2017 report.
Considering all the evidence, the Court finds that Plaintiffs have failed to
prove minority group cohesion sufficient for their § 2 results claims based on triethnic minority coalition districts in Fort Bend County.
The Court previously rejected the NAACP’s intentional vote dilution claim
concerning Fort Bend County for insufficient evidence. The NAACP continues
to pursue its intentional vote dilution claim in Fort Bend County, arguing that
the county is reportedly the most diverse in the country, and thus the
minimization of minority voting strength, with only one of four districts having
a representative of color, is circumstantial evidence of an intent to discriminate
against voters of color. Docket no. 1529 at 52. In addition, the NAACP offers
racial density shading maps to show that minority communities are cracked in
the districts’ configuration, with HD26 fragmenting a high-density AsianAmerican population in Sugarland and a substantial Asian-American population
in the Four Corners and New Territory region. Id. The NAACP notes that
County Commissioner Gary Prestage confirmed how Plan H358 fractures AsianAmerican communities, and the oddly shaped appendages reach out to grab
predominantly white pockets of voters, in complete disregard for city boundaries
The NAACP does offer circumstantial evidence of intentional vote dilution
—minority communities are split, and the result is a lack of proportionality of
representation (in 2010 Fort Bend County was 36.2% Anglo, yet only one district
has a representative of color). And the HD26 configuration is bizarre, but some
explanations were given for the districts’ shapes, and Plaintiffs have failed to
prove discriminatory intent as opposed to discriminatory effects. Plaintiffs’
shading exhibit shows an Asian community in Meadows Place is cracked, but
there was evidence that Rep. Reynolds wanted population to the north, which
could account for that cracking (the specifics of this possibility were not
explored). In addition, mapdrawers offered race-neutral explanations for some
of the bizarre shape of HD26. The Court maintains its finding that Plaintiffs
have not shown intentional vote dilution in the Fort Bend County configuration.
No changes are required in Fort Bend County.
C. Bell County
In the prior phase of litigation, MALC, the Perez Plaintiffs, and the
NAACP Plaintiffs asserted § 2 results and intentional vote dilution claims in
Bell and Lampasas Counties. The Court found no § 2 results violation in Plan
H283, noting that Plaintiffs’ proposed districts combined three or four different
minority groups but Plaintiffs lacked the necessary evidence of such multi-ethnic
cohesion. Docket no. 1365 at 75. The Court also found that, considering all the
evidence, the Legislature’s intentional failure to create the proposed districts
was not intentional vote dilution. Id.
However, the Court found evidence that mapdrawers (specifically Anglo
Republican HD54 incumbent Aycock) intentionally racially gerrymandered the
district by cracking minority population, thus diluting the minority vote to
ensure Anglo control over both remaining districts. Rather than respecting the
boundaries of the City of Killeen, which included significant minority population
and had been mostly within HD54 in the benchmark, he and mapdrawers split
the City to divide its minority population. Plans were introduced by minority
members that would have kept the City more whole, but they were rejected.
Rep. Aycock, who drew the configuration, offered unconvincing and pretextual
explanations for the split (such as that portions of the Killeen community were
more of a community of interest with Lampasas than with the remainder of
Killeen), leading the Court to find that the decision to split Killeen and the
minority community within it (removing minorities from HD54 and moving in
Anglos) was to ensure that HD54 and HD55 remained Anglo-majority and to
make HD54 less likely to perform for minority voters.14
The Plan H283 configuration of Bell and Lampasas Counties remains
unchanged in Plan H358.
The NAACP Plaintiffs, MALC, and the Perez
Plaintiffs continue to assert § 2 results and intentional vote dilution claims.
E.g., Docket no. 897 (MALC) ¶ 54 (Plan H358 “unnecessarily fragments the
minority community of Killeen to minimize its political impact on Texas House
elections”). They contend that the violations found by this Court concerning
Plan H283 remain in Plan H358.
The NAACP Plaintiffs offer Plan H392, which draws HD54 as a 30.3%
Black Alone CVAP and 20.9% HCVAP coalition district, and the expert
testimony of Dr. Fairfax to show compactness. JX-108.3; Tr972 (Fairfax).
MALC and Perez Plaintiffs offer Plan H391, which draws HD54 as a 30.1%
Black Alone CVAP and 20.4% HCVAP coalition district. JX-107.3. Plan H391
The Court also relied on evidence of racially polarized voting in Bell County. Anglos make up
55% of the adult population in Bell County, African Americans 21%, Latinos 19%, and Asians/Others 5%.
MALC-161 ¶ 70. Dr. Brischetto conducted a multivariate analysis and found that, in each of the three
federal elections, “there were clear patterns of severe polarization between Anglo voters, on the one
hand[,] and Latino, African American voters, and Asian voters, on the other.” Id. ¶ 73. On average,
more than 9 in 10 Anglos preferred the Republican candidate while at least 8 in 10 Latinos and Asians
and about 9 in 10 African Americans supported the Democrat. Id.
In the 2012 HD54 election, Anglos supported Anglo Republican Jimmie Don Aycock at 88.81%,
while none of the minority groups supported him (19.13% Latino support, 6.77% African-American
support, and 29.9% Other (Asians) support). Id. Table 19. All three minority groups supported AfricanAmerican Democratic candidate Brown (80.87% Latino support, 93.23% African-American support, and
70.1% Other/Asian support). Id. In the race for Bell County Sheriff, Anglo support for the Anglo
Republican candidate was 90.43%, while Latinos (85.81%), African Americans (97.35%), and
Others/Asians (87.59%) voted for the Latino Democrat. Id. & ¶ 75.
reunites the City of Killeen in proposed minority opportunity district HD54,
respecting municipal boundaries and creating a compact district, while also
equalizing population variances this Court previously found to violate one
person, one vote principles. Tr20 (Korbel). These districts satisfy Gingles’
numerosity requirement as a coalition.
Both are also compact, especially
MALC’s district in Plan H391.
However, Defendants contend that Plaintiffs cannot satisfy Gingles 2
because Plaintiffs did not establish that Black and Hispanic votes in Bell County
are cohesive. Although Dr. Brischetto found racially polarized voting in Bell
County in the 2012 general elections he analyzed,15 he did not analyze any Bell
County elections from 2014 or 2016. Dr. Chervenak analyzed general elections
in 2012, 2014, and 2016 and found racially polarized voting, but did not analyze
primaries.16 And Defendants contend that Plaintiffs’ lay witness testimony does
In his 2014 report, Dr. Brischetto found racially polarized voting in Bell County. MALC-161
Table 19. He found “[t]here is clearly a tri-ethnic coalition in support of Democrats in the general
election in the two counties where African American and Asian American voters were separated in the
analyses [Bell and Fort Bend Counties]. Latino, Black and Asian voters are supporting Democrats,
regardless of the race of the candidate.” Id. ¶ 89. He also found “ clearly cohesive bloc voting among
Anglo voters, found to be very solid in Ft. Bend and Bell counties, where Black and Asian voters are
separated in the analyses. On the average, 95% of the Anglos in those counties supported the
Republican candidates in the general election.” Id.
Dr. Chervenak conducted a racially polarized voting analysis for six general elections within
Bell County in 2012, 2014, and 2016. NAACP-2 Table 1. He found strong cohesion (93.4 to 97.6%)
among African-Americans supporting African-American candidates in both district and statewide
elections, and African-Americans also strongly supported Latino candidates in the general elections (93.6
to 98.9%). Similarly, he found cohesive Latino support for Latino candidates (82.9 to 89.9%) and for
African-American candidates (82.9 to 88.6%). “Other” voter support for Latino or African-American
candidates never came close to a majority (13.2 to 18.3%). In the 2012 HD54 general election, African
Americans gave 95.1% support to African-American candidate Brown, Latinos gave 88.6% support, and
other voters gave only 18.3% support. Thus, Dr. Chervenak found, the district (HD54) and statewide
elections reveal a high level of racial polarization, with African Americans and Latinos cohesive in
support of both African-American and Latino candidates, while minority preferences were not shared
by other voters.
not provide a basis for finding cohesion.
The Court found that the lines in Bell County were drawn with a racially
discriminatory purpose, and that the minority population was intentionally split
to ensure Anglo Republican voting strength in both districts in the area. That
intent and harm remain in Plan H358 and must be remedied.
Defendants argue that any intentional discrimination claim fails due to the lack
of evidence that any legislator acted with a racially discriminatory purpose in
voting for Plan H358 in 2013, the Court has found that the 2013 Legislature
intended to continue the intentional discrimination found in Plan H283.
The Court need not decide whether Plaintiffs have proven that a coalition
minority district is required under the § 2 results test. Defendants conceded
during the interim map phase, with respect to DFW and CD33, that an
appropriate remedy for cracking a minority population would be to reunite that
population.17 As noted, Killeen was mostly whole in Plan H100 but its minority
population was then intentionally split to minimize minority voting strength.
As a possible remedy, MALC’s Plan H391 reunites the City of Killeen and its
Plaintiffs’ intentional discrimination/vote dilution claims have merit, and
a remedy is required in Bell County.
Because the reunited population is not being purposefully drawn into a minority coalition
district for § 2 purposes, evidence of cohesion in the primaries is unnecessary.
D. Dallas County
In Dallas County, the Court rejected the NAACP Plaintiffs’ § 2 results
claims with regard to Plan H283 because they failed to meet their burden under
Johnson v. De Grandy to show that Plan H202 contained more compact
opportunity districts than Plan H283, and found that the remaining § 2 results
claims were best addressed in the 2013 plan case. Docket no. 1365 at 62 n.49.
And while the Court did not find racial gerrymandering or intentional vote
dilution in eastern Dallas County, it did find an improper use of race to dilute
Latino voting strength in western Dallas County. Specifically, the Court found
that mapdrawers improperly used race to make HD103 and HD104 more
Hispanic and HD105 more Anglo to protect an Anglo Republican.
The Court’s interim Plan H309 did not alter the Dallas County
configuration from Plan H283. However, during the 2013 legislative session,
some changes were made to HD103 and HD115 through an agreed amendment
(Amendment 2, Plan H324) proposed by Rep. Anchia (HD103) and Rep. Ratliff
(HD115). Anchia testified that the change was requested by Rep. Ratliff, and
Anchia wanted to accommodate him to maintain good relationships. Tr131-133.
The amendment swapped some population between the two districts. On the
House floor, Rep. Villalba explained that Rep. Anchia would receive the entire
community of Farmers Branch in exchange for keeping together the Carrollton
Community in HD115. JX-17.3 at 4. Chairman Darby testified (as he also
stated on the House floor) that the amendment also “helped the [population]
deviations.” Tr1525; JX-17.3 at 6 (“Anchia was way over the deviation, and
Bennett Ratliff’s district was way under. What that did—what this amendment
did was help bring those deviations back into line.”). No party complains about
The NAACP Plaintiffs, MALC, and the Perez Plaintiffs assert results and
intentional vote dilution claims under § 2. Plaintiffs contend that certain
violations found by this Court concerning Plan H283 remain in Plan H358,
specifically this Court’s findings concerning HD103, HD104, and HD105 in
western Dallas County. NAACP Plaintiffs continue to assert “that minority
voters across the county, not just in the western part of the county, were
intentionally cracked and packed” beyond those identified areas. Docket no.
1529 at 58.
For the § 2 results claim, MALC’s Plan H391 proposes four new minoritymajority CVAP coalition districts in Dallas County. Tr31; JX-107; MALC-24.
HD102 and HD107 would be Black + Hispanic coalition districts, and HD105
and HD113 would be tri-ethnic coalition districts including Asians.
NAACP Plaintiffs assert that Plan H392 “presents a configuration that
corrects [the] intentional discrimination [found by the Court in Plan H283], and
when the districts are drawn fairly, three additional majority-minority districts
naturally occur, reflecting the population present in those areas.” Docket no.
1529 at 58. Those districts are HD105 in western Dallas County, and HD102
and HD107 in eastern Dallas County. All three districts are Black + Hispanic
coalition districts, though HD105 and HD102 are Hispanic-plurality districts
and HD107 is a black-plurality district. NAACP Plaintiffs contend that lay
expert testimony demonstrates that the proposed districts are compact. They
assert that these districts are required by § 2 and to remedy the intentional
discrimination across Dallas County.
Whether § 2 requires these districts again boils down to whether minority
voters in the proposed districts are politically cohesive. Plaintiffs assert that
they have established racially polarized voting through expert and lay witness
testimony. The evidence discussed in the Opinion on Plan C235 is equally
relevant here. Dr. Chervenak examined six elections in Dallas County. NAACP2 Table 2. His multivariate analysis revealed racially polarized voting—African
Americans and Latinos are cohesive in support of African-American and Latino
candidates, while other voters did not share the candidate preferences of
African-American and Latino voters. In the 2016 general election for HD107 in
Dallas County, Dr. Chervenak found Latinos (83.8%) and African Americans
(87.5%) were cohesive in their support of Neave, while Anglos gave only 41.1%
Dr. Brischetto found racially polarized voting in the five general election
contests in 2014 and 2016 that he analyzed—African Americans and Latinos
voted cohesively in support of three Latino Democratic candidates and Anglos
were cohesive in their lack of support; Anglos gave 64 and 69.4% support to the
Latino Republican candidate, while African Americans and Latinos did not
support those candidates. MALC-19 Table 5. Thus, “[i]n all five of these
contests, African American and Latino voters were supporting the same
candidates and opposing the candidates preferred by Anglo voters. The degree
of cohesiveness in voting between African Americans and Latinos was extremely
high in Dallas County.” Id. ¶ 50. Plaintiffs also cite to the testimony of Rep.
Eric Johnson from Dallas, who stated that African-American voters were
strongly supportive of Latino House representatives currently serving in the
areas encompassed in HDs 103, 104, and 105. Tr520-21.
Dr. Engstrom’s analysis of general elections also found strong cohesion
between African Americans and Latinos in support of the Democratic candidate,
with Anglo voter support in the 20-30% range. Docket no. 307-1 Table 5. But
Dr. Engstrom’s analysis of primaries found that African Americans were “the
least likely group to support Latino candidates in Democratic primaries.” Id. at
15 (African American support was lower than “Other” support in six of eight
primaries); see also id. Table 5.
Defendants note that Korbel did not consider primary cohesion when he
drew the districts and did not offer any opinion on cohesion, and that MALC’s
expert Dr. Brischetto did not look beyond general elections. They further note
that NAACP expert Dr. Chervenak did not examine primary elections in Dallas
County and could not make any statements about the characteristics of Latino,
African American, or Asian American candidates of choice. Tr443-45. Further,
Defendants assert, to the extent the record contains any evidence regarding
cohesion, it shows that Black and Hispanic voters are not cohesive.
Considering all of the evidence, the Court finds, as it did in the Order on
Plan C235, that Plaintiffs have failed to demonstrate the necessary cohesion for
their § 2 results claims in Dallas County.
However, the Court finds that the intentional discrimination it found in
western Dallas County in Plan H283 still exits in Plan H358. H309 made no
changes to Dallas County. Although some changes were made in H358, these
did not remove or remedy the intentional discrimination.
Accordingly, changes are necessary in Dallas County to remedy the
intentional discrimination previously found by the Court in HD103, HD104, and
E. Nueces County
MALC challenges the configuration of districts in Nueces County under
§ 2 and the Fourteenth Amendment. As discussed in the Court’s opinion on Plan
H283, it is undisputed that Nueces County had two benchmark Latino
opportunity districts (HD33 and HD34, though both failed to elect Latinopreferred candidates in 2010) and part of a third district (HD32) represented by
Anglo Republican Todd Hunter. Because Nueces County grew at a slightly
slower rate than the statewide average, all three districts were underpopulated
compared to the 2010 county population ideal. The 2010 census population
entitled Nueces County to almost exactly two (2.02) districts under the County
During the 2011 redistricting process, mapdrawers chose to
eliminate one of the Latino opportunity districts (HD33) and draw two districts
wholly within Nueces County—one strongly Latino (HD34) and one a safe Anglo
Republican seat (HD32) to protect incumbent Hunter.
Although the HCVAP of Nueces County was above 50%, mapdrawers did
not look into whether two majority-HCVAP Latino opportunity districts could
be maintained in Nueces County, either wholly within the County or by breaking
the County Line Rule, despite advice from David Hanna of the Texas Legislative
Council to consider those options. Instead, they relied on countywide SSVR
(which was below 50%) to assert that it was mathematically impossible to draw
two Hispanic districts wholly within the County, and they categorically refused
to consider breaking the County Line Rule to comply with the VRA.
They then tried to offset the § 5 retrogression caused by the loss of HD33
by increasing the SSVR of two districts that were electing Democrats, HD90 and
HD148, even though, as the D.C. Court held, these were already ability
districts.18 They did not consider whether § 2 required two Latino opportunity
districts in Nueces County because, they believed, increasing the number of
majority-SSVR (in Interiano’s view) or majority-HCVAP (in Downton’s view)
districts statewide also precluded that claim. Thus, as this Court previously
concluded, the motive for increasing the SSVR in HD90 and HD148 was not to
increase Latino electoral opportunity in the spirit of the VRA, but to undermine
As noted below in the discussion of Tarrant County, the Task Force contends in this phase
of the litigation that HD90 did need an increase in HCVAP/SSVR to allow Latinos to control the
Democratic Primary. Even if that is true, that was not the basis for the Legislature’s actions in
increasing HD90’s SSVR in 2011.
Latino voting strength statewide by attempting to mask the loss of HD33 and
preclude § 2 results claims.
Although Plaintiffs challenged the Nueces County configuration in Plan
H283, this Court did not alter the districts in Plan H309. The Court lacked the
benefit of the full record in making its preliminary determinations. Thus, at the
time, the Court also focused on SSVR rather than HCVAP.19 Further, the Court
concluded that the loss of HD33 for § 5 purposes was offset by the new Latino
opportunity district HD144 in the interim map. The Court could not conclude,
at that time, that plaintiffs were likely to succeed on their § 2 claim because it
appeared that the only way to maintain two Latino districts in Nueces County
was to cut a county line, which seemed inappropriate absent a § 5 violation
(which existed in Plan H283 but not H309). But the Court did not rule out a
conclusion that the VRA could require a county line cut:
This is not to say that Section 2 of the VRA could never require a
county line cut. This Court can envision a situation in which the
refusal to cut a county line could, even in the absence of
discriminatory purpose, result in vote dilution. However, in the
particular circumstances of this case, traditional redistricting
principles counsel in favor of maintaining two districts in Nueces
Docket no. 690 at 8.
During the 2014 trial, the Task Force Plaintiffs argued for the first time
that two HCVAP-majority districts could be drawn wholly within Nueces
A review of the full record indicated that HCVAP data was available to mapdrawers before
the map went to the floor, that the HCVAP of Nueces County was comfortably above 50% in 2010, that
it had been above 50% since the last census in 2000, and that mapdrawers were aware of these facts, yet
continued to focus on SSVR because it was below 50%.
County, but did not offer a demonstration map with such districts. The Court
found that consideration of the § 2 results claim concerning Plan H283 was
premature because, while mathematically two HCVAP-majority districts could
be drawn in the area, no Plaintiff demonstrated whether or not two Ginglescompliant districts could have been drawn wholly within the County,20 and it
was improper to consider whether § 2 required a County Line Rule violation in
Nueces County until that issue was decided.
However, this Court did find evidence of intentional vote dilution in the
Legislature’s refusal to consider whether the VRA required HD33 to be
preserved and its attempted offset for the elimination of HD33 (described above)
and also in the configuration of remaining HD32 and HD34. Docket no. 1365 at
37-40. The Court found that HD32 and HD34 were racially gerrymandered to
dilute Latino voting strength and protect Anglo incumbent Hunter. HD34 was
intentionally packed with Hispanic voters, Hunter intentionally drew out
potential Hispanic rivals (both Republican and Democrat), and Hunter
intentionally overpopulated HD34 and underpopulated HD32 without legitimate
justification in violation of one-person, one-vote principles. The Nueces County
configuration remains unchanged in Plan H358, and MALC asserts § 2 results
and intentional vote dilution claims.
Although Defendants have not raised the issue, these claims require us to
No Plaintiff submitted a proposed map or other information to support the Gingles
preconditions for such a map.
determine whether MALC has standing. MALC’s standing argument in Nueces
County centers on Raul Torres, a registered voter in current HD34 and a former
Texas House representative and MALC member from HD33, the eliminated
Nueces County Latino opportunity district.
MALC argues that it has
organizational standing “to seek judicial relief from injury to itself and to
vindicate whatever rights and immunities the association itself may enjoy.”
Warth v. Seldin, 422 U.S. 490, 511 (1975). In this respect, MALC argues that its
organizational strength and membership depend on growth, but that Plan H358
impedes this purpose by eliminating MALC member Torres and preventing
potential MALC members from being elected. Docket no. 1462 at 5.
Separately from its argument on organizational standing, MALC asserts
that it has associational standing, which requires that an individual MALC
member have standing to sue in his or her own right. Docket no. 1462 at 2. To
support this requirement, MALC points again to Torres, who “at the time of the
filing of this action and the initial redistricting, had his district completely
eliminated and was then paired with Anglo Republican Representative Connie
Scott.” Id. at 3.21
The general elements of standing are well established:
MALC briefly asserts a third independent argument for standing in Nueces County (and other
areas): “MALC also relies on the standing of co-Plaintiffs LULAC and NAACP in the areas of [Nueces
County and others], all of whom are seeking the same relief. See e.g. Ruiz v. Estelle, 161 F.3d 814 ([5th
Cir.] 1998).” Docket no. 1462 at 5 n.1. MALC contends Ruiz supports the proposition that “intervenors
and similarly situated litigants may not independently require standing if one co-litigant has standing
and the intervenor or co-litigant is seeking the same relief.” Id. Even assuming Ruiz can be read this
broadly and extends beyond the intervenor context to cover “similarly situated litigants” more generally,
this argument fails because neither LULAC nor the NAACP is similarly situated with MALC in Nueces
County—MALC is the only plaintiff challenging the configuration of Nueces County in Plan H358.
[T]he irreducible constitutional minimum of standing contains three
elements. First, the plaintiff must have suffered an “injury in fact”
—an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) “actual or imminent, not ‘conjectural’ or
‘hypothetical[.]’” Second, there must be a causal connection between
the injury and the conduct complained of—the injury has to be
“fairly . . . trace[able] to the challenged action of the defendant, and
not . . . th[e] result [of] the independent action of some third party
not before the court.” Third, it must be “likely,” as opposed to
merely “speculative,” that the injury will be “redressed by a
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted)
(most alterations original).
There are two main types of standing for entities such as MALC. First,
through organizational standing, “an association may have standing in its own
right to seek judicial relief from injury to itself and to vindicate whatever rights
and immunities the association itself may enjoy.” Warth, 422 U.S. at 511.
Organizational standing is to be distinguished from associational standing (more
descriptively termed representational standing) through which “[a]n association
has standing to bring suit on behalf of its members when  its members would
have standing to sue in their own right,  the interests at stake are germane
to the organization’s purpose, and  neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167,
181 (2000) (emphasis added).
The Court agrees that MALC has organizational standing, and
alternatively, that MALC has associational/representational standing.
The Supreme Court in Warth, by simply recognizing that an organization
may seek judicial relief from an injury to the organization itself, articulated
what is often cited as the origin of organizational standing. 422 U.S. at 511.
Several years later, the Supreme Court refined this concept by deciding the
seminal case on this topic, Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
The relevant portion of Havens dealt with the standing of an organization—
Housing Opportunities Made Equal (“HOME”)—to bring racial steering claims
against a realty company under the Fair Housing Act. Id. at 378-79. Relying
partly on Warth to conduct “the same inquiry as in the case of an individual,” the
Supreme Court looked to the following allegations from HOME’s complaint
regarding its expenditures of resources to determine whether HOME alleged a
“Plaintiff HOME has been frustrated by defendants’ racial steering
practices in its efforts to assist equal access to housing through
counseling and other referral services. Plaintiff HOME has had to
devote significant resources to identify and counteract the
defendant's [sic] racially discriminatory steering practices.”
Id. at 379 (internal citations to HOME’s Complaint omitted). The Supreme
Court held that the district court improperly dismissed for lack of standing:
If, as broadly alleged, petitioners’ steering practices have
perceptibly impaired HOME’s ability to provide counseling and
referral services for low- and moderate-income homeseekers, there
can be no question that the organization has suffered injury in fact.
Such concrete and demonstrable injury to the organization’s
activities—with the consequent drain on the organization's
resources—constitutes far more than simply a setback to the
organization’s abstract social interests.
Beyond this main holding, the Supreme Court made two noteworthy
First, the Court contrasted its finding that these allegations
exceeded a simple setback to HOME’s abstract interests with prior case law
holding that a mere interest in a problem could not support organizational
standing. Id. at 379 (citing Sierra Club v. Morton, 405 U.S. 727, 739 (1972)).
Second, the Supreme Court noted that HOME was not deprived of standing
simply because its injury was noneconomic. Id. at 379 n.20.
The Fifth Circuit has applied this concept of organizational standing on
many occasions, helping define its boundaries by focusing on whether a
plaintiff’s alleged injury is sufficiently concrete and traceable to the defendant’s
conduct. In Louisiana ACORN Fair Housing v. LeBlanc, the Fifth Circuit
recognized that an organization’s redirection of “some of its resources to
litigation and legal counseling in response to actions or inactions of another
party is insufficient to impart standing upon the organization.” 211 F.3d 298,
305 (5th Cir. 2000). But outside of costs expended pursuing litigation, an
organization will have organizational standing if it “prove[s] a drain on its
resources resulting from counteracting the effects of the defendant’s actions.”
Id.; ACORN v. Fowler, 178 F.3d 350, 356-62 (5th Cir. 1999).
In Fowler, the court addressed the standing of a voter advocacy
organization to force state compliance with the National Voter Registration Act
(“NVRA”). 178 F.3d at 356-62. The court concluded that neither litigation costs
nor expenditures made to monitor state compliance with the NVRA supported
organizational standing because these injuries were not fairly traceable to the
state. Id. at 358-59. But for some claims, the court found that the organization
had standing based on its voter registration activities, the cost of which
increased out of a need to “counteract[ ] the effects of [the state’s] alleged failure
to implement [the NVRA].” Id. at 360-61; see also Scott v. Schedler, 771 F.3d
831, 837 (5th Cir. 2014) (affirming a district court’s finding of standing for the
Louisiana NAACP because the head of its voter registration efforts personally
conducted registration drives to counteract a state’s alleged noncompliance with
the NVRA, even though the NAACP itself may not have spent any money to
conduct these drives).
Still, not all diversions of resources counteracting a defendant’s conduct
establish an injury in fact. NAACP v. City of Kyle, Tex., 626 F.3d 233, 238-39
(5th Cir. 2010). In City of Kyle, the court concluded that organizations had not
suffered an injury in fact arising from a city’s new housing ordinances where
they failed to explain how their activities, “which basically boil[ed] down to
examining and communicating about developments in local zoning and
subdivision ordinances, differ[ed] from [their] routine lobbying activities.” Id.
at 238. Further, the court considered the plaintiffs’ failure to identify specific
projects that were delayed or curtailed as a result of resources being diverted to
the challenged ordinances. Id. The court characterized the plaintiffs’ alleged
injuries as simple setbacks to the organizations’ abstract interests rather than
perceptible impairments to their abilities to carry out their purposes, despite the
fact that the plaintiffs commissioned a $15,000 study on the impact of the
challenged ordinance. Id. at 238-39.
The Fifth Circuit has also indicated that a conflict between the defendant’s
conduct and the organization’s mission is necessary but not sufficient to
establish organizational standing. Fowler, 178 F.3d at 361-62 (“[U]nless it [is]
clear that an organization’s stated goals [are] ‘at loggerheads’ with a defendant’s
conduct, ‘it is entirely speculative whether the defendant’s conduct is impeding
the organization’s activities.’” (quoting Nat'l Treasury Employees Union v.
United States, 101 F.3d 1423, 1429-30 (D.C. Cir. 1996)). This requirement was
satisfied in Fowler where the voter advocacy organization’s purpose of increasing
the political power of low and moderate income people was at odds with the
state’s alleged failure to facilitate voter registration. Id.
This Court is aware of no redistricting case in which an organizational
plaintiff has based its standing on an injury to itself, as described in Havens.
Nor is this Court aware of any redistricting decisions rejecting such a theory.
But while Havens and many other decisions on organizational standing deal
with the Fair Housing Act, nothing in Havens limits organizational standing to
such challenges. Indeed, as noted above, the Fifth Circuit and other courts have
extended this concept of organizational standing beyond the housing context.
E.g., Fowler, 178 F.3d at 356-62 (the NVRA); Schedler, 771 F.3d at 836-37
(same); Georgia State Conference of N.A.A.C.P. v. Kemp, 841 F. Supp. 2d 1320,
1336-37 (N.D. Ga. 2012) (same). Most importantly for present purposes, despite
not dealing specifically with redistricting claims of the type asserted in this case,
courts have consistently found standing under Havens for organizations to
challenge alleged violations of § 2 of the VRA and the Fourteenth Amendment.
A majority of the Supreme Court has accepted this approach in the § 2
context. In Crawford v. Marion County Election Board, the Seventh Circuit
found that the Indiana Democratic Party had organizational standing to assert
§ 2 and Fourteenth Amendment claims against an Indiana voter ID law because
it “injure[d] the Democratic Party by compelling the party to devote resources
to getting to the polls those of its supporters who would otherwise be discouraged
by the new law from bothering to vote. See Havens[, 455 U.S. at 378].” 472 F.3d
949, 951 (7th Cir. 2007). Subsequently, a splintered Supreme Court affirmed the
Seventh Circuit’s grant of summary judgment against the plaintiff’s claims on
the merits. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 188-89 (2008).
In doing so, five justices across two opinions explicitly approved of the Seventh
Circuit’s standing analysis. Id. at 189 n.7 (Stevens, J., joined by Roberts, C.J.,
and Kennedy, J., announcing the judgment of the Court); id. at 209 n.2 (Souter,
J., joined by Ginsburg, J., dissenting).
Other circuit and district courts have unanimously reached similar
conclusions on organizational standing for § 2 and Fourteenth Amendment
claims. See, e.g., Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 624
(6th Cir. 2016), cert. denied, 137 S. Ct. 2265 (2017) (finding organizational
standing to bring § 2 and Fourteenth Amendment claims against a state law
restricting absentee ballots and in-person voting assistance because the
organization planned to expend resources to counteract the law’s effect on the
African-American community). In one case, for example, the Democratic Party
of Virginia alleged § 2 and Fourteenth Amendment claims against a Virginia
voter ID law. Lee v. Va. State Bd. of Elections, 155 F. Supp. 3d 572, 575-76 (E.D.
Va. 2015), on reconsideration, 3:15CV357-HEH, 2016 WL 6921611 (E.D. Va. Feb.
At the pleadings stage, the district court found that the Party
sufficiently alleged its organizational standing based on expected expenditures
of additional resources and longer lines at polling places. Id. at 579. The court
added that the Party also “claim[ed] direct injury to its raison d’être—electing
candidates who support the democratic platform, as opposed to the
individualized interests of its members.” Id. at 578.
Following a trial, the court found that the Party proved its standing and
its injury, “primarily in the form of diversion of time, talent, and resources to
educate their voters and implement the requirements of the Virginia voter
identification law.” Lee v. Va. State Bd. of Elections, 188 F. Supp. 3d 577, 584
(E.D. Va. 2016). Without mentioning standing, the Fourth Circuit affirmed. 843
F.3d 592 (4th Cir. 2016).
The only case indicating a contrary result is Lopez v. Merced County,
California, in which the court granted summary judgment for lack of
organizational standing against the Mexican American Political Association’s §
5 claims because the Association failed to proffer evidence “that [it] ha[d]
suffered organizational harm, including any evidence that [it] actually diverted
significant organizational resources in an effort to assure Hispanic voter rights.”
1:06-CV-1526OWWDLB, 2008 WL 170696, at *8 (E.D. Cal. Jan. 16, 2008). But
Lopez was a summary judgment decision where the Association’s claim to
organizational standing foundered not because it was invalid as a matter of law
but because the Association failed to meet its evidentiary burden. And as noted,
other courts have unanimously recognized this application of organizational
standing in the § 2 context.
Plan H358, like Plan H283, eliminates the district of former MALC
member Raul Torres. At trial, MALC presented the testimony of Representative
Rafael Anchia, the present chairman of MALC. Anchia testified that MALC has
“dual purposes.” Tr117. One purpose is to represent Latinos in Texas, and one
is to grow MALC’s membership. Id. Defendants presented no contrary evidence
on MALC’s purposes. On the basis of this evidence, MALC has organizational
standing to challenge Plan H358's configuration of Nueces County, which
perpetuates the elimination of HD33. MALC’s injury due to this configuration
is hardly speculative—MALC’s loss of a member was caused directly by the
elimination of Torres’s district.
This is not a case where the Court must assess the expenditure of
resources to counteract a certain enactment’s effect to determine whether there
is a sufficient injury; nor is this a case where MALC’s nonmonetary efforts in
counteracting the Plan are at issue. Instead, the injury here is as direct as can
be—MALC’s very existence, its raison d’être, depends on its membership and
growing that membership, and Plan H358’s treatment of Nueces County reduced
that membership by eliminating Torres’s district and deliberately placing Torres
in a district he could not win. See Lee, 155 F. Supp. 3d at 578. As a result,
MALC has organizational standing to challenge Plan H358 in Nueces County.
The Court also finds alternatively that MALC has representational
standing for its Nueces County claims. As mentioned, “[a]n association has
standing to bring suit on behalf of its members when  its members would have
standing to sue in their own right,  the interests at stake are germane to the
organization’s purpose, and  neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.”
Friends of the Earth, 528 U.S. at 181. MALC easily satisfies the second and
third prongs because the district lines are important to MALC’s purposes of
growing its membership and representing Latinos in Texas, and this litigation,
like other similar redistricting cases, has proceeded without the participation of
individual members. Accordingly, the only issue for associational standing is
whether MALC has a member who would have standing to sue in his or her own
The only current MALC member in Nueces County is Abel Herrero, the
representative for HD34 in Plan H358. MALC-1 at 3. Herrero is also a voter in
HD34. As discussed above, Nueces County in Plan H358 includes two districts,
HD32 and HD34. HD34, Herrero’s district, is a Latino opportunity district.
Thus, Herrero’s standing (and therefore MALC’s representational standing
through Herrero) must exist even though Herrero lives in a Latino opportunity
district in Plan H358.
“No circuit has developed a framework specifically for a Section 2 standing
inquiry.” Pope v. Cty. of Albany, No. 1:11-CV-0736 LEK/CFH, 2014 WL 316703,
at *5 n.13 (N.D.N.Y. Jan. 28, 2014). As a result, this Court will look to the
alleged injury and determine whether it is sufficiently concrete, causally
connected to the Defendants’ conduct, and redressable. Lujan, 504 U.S. at
560-61. Pope, in which a district court found that minority plaintiffs residing in
existing majority-minority districts had standing to bring vote dilution claims
based on the possibility of drawing an additional majority-minority district, is
the most analogous authority in conducting this analysis. 2014 WL 316703. at
“Nothing in [§ 2] establishes a right to have members of a protected class
elected in numbers equal to their proportion in the population.” 42 U.S.C. §
1973(b). This concept of proportional representation, which refers to “the
success of minority candidates, as distinct from the political or electoral power
of minority voters” is expressly not the right guaranteed by § 2. Johnson v. De
Grandy, 512 U.S. 997, 1014 n.11 (1994).
Therefore, lack of proportional
representation alone cannot be the alleged injury in a § 2 vote dilution plaintiff’s
claim to standing. See Pope, 2014 WL 316703 at *5.
The Court in Pope contrasted “proportional representation” as that term
was used by the Court in De Grandy with “substantial proportionality of political
opportunity,” which it defined as “per capita voting power on par with the
majority.” Id. A denial of this proportional opportunity under the existing
voting system, said the court in Pope, was the “putative injury” suffered by a
minority bringing a § 2 claim. Id. The Pope court concluded that “supported
allegations that Plaintiffs reside in a reasonably compact area that could support
additional MMDs [majority-minority districts] sufficiently proves standing for
a Section 2 claim for vote dilution” because the personalized injury is “that the
apportionment of 4 MMDs to the sufficiently numerous and geographically
compact minority population, as opposed to the 5 MMDs that Plaintiffs contend
are required by the VRA, dilutes Plaintiffs’ individual voting power—including
those in existing MMDs.” Id.
Supporting this conclusion is other Supreme Court language, not cited by
the Pope court, indicating that the injury suffered by a § 2 plaintiff asserting a
claim that additional minority opportunity districts are required goes beyond the
boundaries of a single district and includes a geographic area. In Shaw v. Hunt,
the Court stated that “[i]f a § 2 violation is proved for a particular area, it flows
from the fact that individuals in this area ‘have less opportunity than other
members of the electorate to participate in the political process and to elect
representatives of their choice.’ 42 U.S.C. § 1973(b).” 517 U.S. 899, 917 (1996).
In De Grandy, the Court recited “how manipulation of district lines can dilute
the voting strength of politically cohesive minority group members, whether by
fragmenting the minority voters among several districts where a bloc-voting
majority can routinely outvote them, or by packing them into one or a small
number of districts to minimize their influence in the districts next door.” 512
U.S. at 1007 (citing Voinovich v. Quilter, 507 U.S. 146, 153-54 (1993)).
Thus, while the Court has said that § 2 rights are individual rights and not
the right of the minority group as a whole, a claim that an additional minority
opportunity district is required concerns individuals in a particular geographic
area. As described in De Grandy, the basis of such a § 2 results claim in the
single-member district context is typically cracking or packing (or a combination
of them). The claim will generally thus involve two or more districts within the
geographic area where minority population is cracked or one or more districts
in which the minority population is packed (and from which additional districts
could be drawn), or some combination.22 A voter such as MALC member Abel
Herrero, who lives in HD34, essentially lives in an allegedly packed district
because MALC’s claim is that the Latino population in the area is sufficient for
two Latino opportunity districts, but the plan contains only one. See, e.g.,
Barnett v. City of Chicago, No. 92 C 1683, 1996 WL 34432, at *5 (N.D. Ill. Jan.
In LULAC v. Perry, 548 U.S. 399, 437, 504 (2006), Justice Kennedy stated that the question
was “whether line-drawing dilutes the voting strength of the Latinos in District 23,” disagreeing with
Chief Justice Roberts’ framing of the § 2 inquiry as “whether line-drawing in the challenged area as a
whole dilutes minority voting strength.” But the focus of this disagreement was not whether additional
minority opportunity districts could be drawn in West Texas, but whether CD23 had been impermissibly
29, 1996) (finding standing where “[p]laintiffs allege that many of their class
members live in packed wards which could be redrawn into non-excessive
majority African American wards”). Thus, the claim focuses on Herrero’s district
in the context of the broader geographic area.
For these reasons, this Court agrees with the conclusion of Pope and holds
that plaintiffs who reside in a reasonably compact area that could support an
additional minority opportunity district have standing to pursue § 2 claims, even
if they currently reside in an opportunity district. Herrero would have standing
to bring these claims in his own right, and thus MALC has representational
standing to assert these claims.
In sum, MALC has standing to bring its challenges to Plan H358’s
configuration of Nueces County on two theories. First, MALC has organizational
standing based on the loss of Raul Torres’s seat in HD33 and its resulting loss
of a member. Second, MALC has associational standing to represent the
interests of its members because MALC member Abel Herrero would have
standing to sue in his own right.
Analysis of the Merits
Having determined that MALC has standing to assert its claims, the Court
considers its § 2 results claim. MALC offers two demonstration plans: Plan
H400 and Plan H391. In Plan H400, Korbel drew two majority-HCVAP districts
(55.2% HCVAP HD32 and 59.9% HCVAP HD34 using 2011-2015 ACS data)
wholly within Nueces County, but found their performance on his exogenous
election index to be so low as to indicate a lack of real electoral opportunity in
both districts. Tr28; MALC-13 at 2. HD32 performed in 7/35 statewide elections
(both state and federal), and HD34 performed in 0/35 statewide elections
between 2010 and 2016. Tr28; MALC-13.
Despite its lower SSVR (ranging from 47.2% in 2010 to 47.7% in 2016),
HD32 performed for Democrats (presumed to be the minority preferred
candidate) in 4/5 elections in presidential election year 2012 and 3/8 in
presidential election year 2016, but not at all in the non-presidential years, when
Latino voter turnout is typically lower. MALC-13. And despite its higher (and
increasing) SSVR (ranging from 50% in 2010 to 51.9% in 2016), HD34 did not
perform at all in any year. Id.
Therefore, in Plan H391, Korbel “open[ed] up the county line” to draw two
districts that would perform sufficiently to create “effective” Latino opportunity
districts. Tr28; MALC-17 (Korbel Report) ¶ 80. The simplest way to accomplish
this would be by adding Hispanic population from another county to a Nueces
County district or placing Nueces County Anglo population in a district based
outside Nueces County, either of which would break the Nueces County line only
once. But Korbel testified that he could not create two effective districts by
breaking the county line only once, and thus he maintained HD34 in a
configuration very similar to that in Plan H358, removed Anglo Nueces County
population and joined it with HD30 in Aransas, Calhoun, and Victoria Counties,
and then joined the remainder of Nueces County in HD32 with all of Kleberg
County.23 Tr29; MALC-17 ¶¶ 80-82. This resulted in two districts with higher
HCVAP than in Plan H400: HD32 in this plan is 61.2% HCVAP and HD34 is
66.4%. We are not informed of the specific performance of HD34, but since it
maintains its general location and high HCVAP (66.4%) and SSVR (59.2%),
presumably it would perform effectively. Proposed new HD32 performs 0/10 in
2010, 4/5 in 2012, 2/12 in 2014, and 6/8 in 2016 on Korbel’s index. MALC-24.
To establish its claim, MALC must first establish the three Gingles
preconditions: (1) the racial group is sufficiently large and geographically
compact to constitute a majority in a single-member district; (2) the racial group
is politically cohesive; and (3) the majority votes sufficiently as a bloc to enable
it usually to defeat the minority’s preferred candidate. Thornburg v. Gingles,
478 U.S. 30, 50-51 (1986).
If MALC satisfies these three preliminary
requirements, it must then satisfy the ultimate § 2 inquiry by showing from the
“totality of the circumstances” that Hispanics have less opportunity than do
other members of the electorate to participate in the electoral process and elect
candidates of their choice.
The first Gingles precondition includes the requirements of numerosity
and geographical compactness. For the numerosity requirement, the Court
agrees with the Second Circuit in Pope v. Albany County, that a plaintiff need
MALC’s demonstration Plan H295 also breaks the Nueces County line two times–first by
joining part of San Patricio County with HD34, and second by removing part of Nueces County
population and joining it with HD32 in Aransas County. And demonstration Plan H205 took a similar
approach, yet broke the county line a third time by joining some Nueces County population with HD43
to the south.
only show a simple majority of the relevant minority group (here, HCVAP) at the
first Gingles step. “[T]his initial majority-minority inquiry serves a useful gatekeeping role by identifying, in broad terms, when a minority group has at least
‘the potential to elect representatives in the absence of the challenged structure
or practice.’” 687 F.3d 565, 575 (2d Cir. 2012) (quoting Gingles, 478 U.S. at 50
n.17). The court there noted that
[t]he relative size of a minority group’s majority in a district may
well be among the totality of circumstances that can inform the
ultimate determination of vote dilution and the appropriate remedy.
But it is simply the fact, not the size, of a minority group’s majority
presence in a proposed district that permits a plaintiff to satisfy the
first of Gingles’s preliminary requirements.
Id. at 574.24 Thus, concerns about whether Hispanics have a “realistic” potential
to elect representatives considering such things as voter registration rates and
turnout “may well warrant careful consideration when a court reviews the
totality of the circumstances in deciding the ultimate Gingles inquiry . . . [and]
may also inform the appropriate remedy for a Section 2 violation.” Id. at 575.
Both of MALC’s demonstration maps include two districts with greater than 50%
HCVAP and thus satisfy the numerosity threshold.
In Plan H400, Nueces County is divided into two compact districts— HD32
and HD34. Although Corpus Christi is split, its population is too large to be
The Second Circuit indicated that its position was in accord with the Fifth Circuit’s decision
in Westwego Citizens for Better Government v. City of Westwego, 946 F.2d 1109 (5th Cir. 1991). The Fifth
Circuit did not expressly decide this issue, but did say that the “potential to elect” is all that is required
under § 2 such that “[a]ll that must be shown is that ‘the minority’s voting age population exceeds 50%.’”
Id. at 1117 n.9. However, the Court also referred to testimony that the minority-preferred candidate
would have won, and noted that “it is entirely proper to refer to evidence other than census data to
establish the ‘potential to elect.’” Id. at 1117 & n.10.
placed entirely within one district, and it is likewise split in Plan H358. In Plan
H391, HD34 tracks most of existing HD34, changing some boundaries only
within Corpus Christi, and it includes Rep. Herrero’s residence. Thus it can be
said to respect the traditional redistricting principle of respecting existing
district lines and member/constituent relationships. And the County Line Rule
dictates that the remainder of Nueces County be joined with an entire county,
and thus, under the strictures of the County Line Rule, HD32 reflects a compact
community insofar as it connects the remaining Nueces County population to the
whole of adjoining Kleberg County. But the fact that Plan H391 must also then
excise Anglo population in two distinct areas in Nueces County (from both HD32
and HD34) joined only by water is troubling. If all that were required was to add
adjoining similar Hispanic population from Kleberg County that would
otherwise be separated solely by operation of the County Line Rule, the case for
compactness would be much more compelling.25 However, the Court will assume
for sake of argument that Plan H391 also demonstrates compactness.26
The second and third Gingles requirements have already been established
For example, if an identifiable compact community straddled the county line and thus would
be divided solely by operation of the County Line Rule, keeping that community whole to provide voting
opportunity where it would otherwise be lacking would present a strong case. However, MALC’s
demonstration maps indicate that creating two “effective” districts is not so simple. In MALC’s
demonstration Plan H205, Nueces County is placed into five districts. In MALC’s Plan H295, HD32
takes part of Nueces County in two separate areas as well as part of San Patricio County, and HD34
spills out of Nueces County into the northern and eastern portions of San Patricio County.
The Court notes that in MALC’s demonstration Plan H201—its Whole County Plan that
minimized county line breaks (it has three)—MALC left HD33 and HD34 wholly within Nueces County
and then excised 6% of Nueces County’s population (that was 76% Anglo) and joined it with HD32.
However, rather than excising a whole area, it cherry picks several distinct areas along the Corpus
Christi coast. But it demonstrates that, in the earlier phase, MALC proposed a plan with only one
county line break related to Nueces County.
for Nueces County. This Court found legally significant racially polarized voting
between Latinos and non-Latinos in Nueces County. Docket no. 1390 at 48.
After examining the data and conclusions provided by several experts, the Court
found that Latinos in Nueces County are highly cohesive, and that Anglos vote
as a bloc usually to defeat minority preferred candidates.27
The updated expert analysis continues to show high levels of racially
polarized voting in Nueces County. E.g., MALC-22 Table 3. Plaintiffs have also
provided expert testimony from Dr. Brischetto showing racially polarized voting
in Kleberg County and the 52 South Texas counties, which includes Kleberg
County. Brischetto 2014 Report Table 7; MALC-22 Table 4.
The Court thus turns to the totality of circumstances analysis. As noted,
the County Line Rule would dictate that two districts be drawn wholly within
Nueces County. When MALC’s expert attempted to draw two HCVAP-majority
districts, he felt that Latinos were essentially worse off than under Plan H358
because one district would not perform at all and one performed poorly
(compared to Plan H358, where one district does perform consistently for
Latinos28). Thus, the logic goes, application of the County Line Rule, combined
The Court found extreme levels of racially polarized voting, and noted that, even if Defendants
correctly argued that Plaintiffs must prove a non-partisan/racial basis for the polarization, Plaintiffs
sufficiently did so by demonstrating racially polarized voting in the primaries. Dr. Engstrom analyzed
both general elections and primaries and found legally significant racially polarized voting in both. Dr.
Alford, Defendants’ expert, endorsed Dr. Engstrom’s methodology and report, and agreed that the levels
of bloc voting (levels in the 90/10 range) found by Dr. Engstrom were legally significant. Docket no. 1390
at 50-51 n.50.
HD34 performance in Plan H358 is 5/10 in 2010, 5/5 in 2012, 10/12 in 2014, and 8/8 in 2016
under Korbel’s index. MALC-13; Tr26-28. HD32 does not perform at all.
with other factors, is responsible for the vote dilution, and the County Line Rule
must yield. But the Court finds that while MALC may have shown that
Hispanics are entitled to two opportunity districts in Nueces County, it has
failed to show that the County Line Rule must yield.
As this Court explained in its opinion on Plan H283, the VRA can require
the State to violate the County Line Rule. Docket no. 1365 at 16-21. Traditional
districting principles such as the County Line Rule may be subordinated to race
to remedy a § 2 violation, so long as it is no more than reasonably necessary to
comply with § 2. Id.
MALC contends that the two districts wholly within Nueces County shown
in Plan H400 do not provide electoral opportunity because they do not perform
sufficiently on Korbel’s exogenous election index, and thus the County Line Rule
must yield to allow creation of districts with better performance. This Court has
already concluded that the results of an exogenous election index alone will not
determine opportunity. Such indices often do not mirror endogenous election
performance, though in demonstration districts we do not have the benefit of
actual elections in the district to study.
Rather than just relying on an
exogenous election index to measure opportunity, the Court must conduct an
intensely local appraisal to determine whether real electoral opportunity exists.
The totality of the circumstances inquiry directs us to consider the Senate
factors. “Another relevant consideration is whether the number of districts in
which the minority group forms an effective majority is roughly proportional to
its share of the population in the relevant area.” LULAC, 548 U.S. at 426.
Although statewide Hispanics lack proportionality, in Nueces County they are
around 56% of the relevant population (CVAP) and they have one of two (50%)
of districts. Creating a second district would result in over-representation in
Nueces County, but Hispanics statewide would still be under-represented.
Turning to the Senate factors, the Court need not again review the history
of voting-related discrimination. Texas has a long history of such discrimination,
and the Court found intentional vote dilution in the Legislature’s enactment of
the 2011 plan.
Another key Senate factor is the extent of racially polarized voting in the
political subdivision. As discussed above, not only does racially polarized voting
exist in Nueces County and its house district elections, the level is high, and the
high degree of Anglo bloc voting plays a role in the defeat of Hispanic candidates.
Dr. Engstrom found that, in the general elections, Latino support for the Latino
Democratic candidate consistently exceeded 90%, while non-Latino support
ranged between 7.5% and 17.6%. Docket no. 307-1 Table 2. This is similar to
polarization levels that the Supreme Court characterized as “especially severe”
in LULAC v. Perry, 548 U.S. 399, 427 (2006) (noting that 92% of Latinos voted
against Bonilla while 88% of non-Latinos voted for him).
In the 2010 general election in HD33, in which incumbent Solomon Ortiz,
Jr. was defeated, Latinos supported Ortiz with 92.3% support, while non-Latinos
gave only 11% support. Ortiz lost the election, receiving 47.49% (11,306 votes)
of the vote to Torres’s 52.51% (12,499 votes), a margin of only 1,200 votes.
Latinos were only 45.08% of the turned out vote. Docket no. 1364 ¶ 234.
There was also extreme polarization in the 2012 HD34 general election,
where Latinos supported Herrero with 95.55%, while non-Latinos gave only
11.09% support. MALC-161 Table 4. Non-Latinos voted cohesively in favor of
Anglo incumbent Connie Scott with 88.91% of the vote, and Latino support was
4.45%. Id. Despite this extreme polarization, Herrero won the election with
57.17% (25,482) of the vote to Scott’s 42.83% (19,088 votes). Countywide, Dr.
Brischetto found that less than half (44.1%) of voters in the 2012 general election
were Latino. MALC-161 ¶ 46 & Table 3 (approximately 42,000 voters were
Latino and 53,000 were non-Latino). The Spanish Surname turnout (SSTO) was
55.1%. D-109 at 57. Hispanics were 68.2% of the CVAP in HD34 using 20112015 ACS data.
Another Senate factor is the extent to which minority group members bear
the effects of past discrimination in areas such as education, employment, and
health, which hinder their ability to participate effectively in the political
There was evidence in the prior phase showing that Hispanics,
including in Nueces County, suffer a “continuing pattern of disadvantage”
relative to non-Hispanics.29 They suffer disparities in health, income/
employment, and education, and these disparities are strongly associated with
Docket no. 1364 ¶ 286. Korbel examined updated data and found that the information had
not materially changed, and “[t]he large financial, educational, employment and social gap remains.”
MALC-17 at 2. Expert testimony also tied those lingering effects to past discrimination.
lower rates of registration, voting, and participation in the political system. See
docket no. 1390 at 27; docket no. 1364 ¶ 286.
Thus, statewide, Hispanics generally have substantially lower voter
turnout than do Anglos, often attributed to the lingering effects of past
discrimination. E.g., Joint Expert Ex. E-3 (Lichtman Report) ¶ 11.30 But there
are significant turnout differences across counties. Countywide, Dr. Brischetto
found that less than half (44.1%) of voters in the 2012 general election were
Latino. MALC-161 ¶ 46 & Table 3 (approximately 42,000 voters were Latino
and 53,000 were non-Latino). And Dr. Engstrom’s analysis of the 2010 HD33
general election in which Ortiz lost showed that Latinos were 45.08% of the
turned-out vote. Docket no. 307-1 at 26. Thus, it appears that Latinos are
turning out to vote in Nueces County at lower rates than non-Hispanics.31
Defendants contend that Latinos have been elected to public office in the
jurisdiction in high numbers, demonstrating equal opportunity. The evidence
shows that there have been a significant number of Latinos in elected office in
Nueces County, including the county attorney, district clerk, three of eight
district court judges, and three of eight Corpus Christi council members. Docket
no. 1364 ¶ 285. And Latinos, such as Abel Herrero and Raul Torres, have been
elected to house districts.
Dr. Lichtman found the percentage of Hispanic VAP participating in elections was 14%
statewide, and that it ranged from 4% to 19% of the VAP in the counties he studied. But he did not look
at Nueces County. And he notes that this percentage is from the VAP, not the CVAP, and thus reflects
the much lower citizenship rates for Latinos in certain areas.
In 2011, the SSVR in Nueces County was just below 50%. The Court is not aware of any
evidence showing the countywide SSVR% in 2013 or more recently.
“The Report notes also that evidence demonstrating . . . that the policy
underlying the State’s or the political subdivision’s use of the contested practice
or structure is tenuous may have probative value.” LULAC, 548 U.S. at 426
(quoting Gingles, 478 U.S. at 44-45). MALC contends that the Legislature has
a newfound appreciation for the County Line Rule and is using it pretextually
to avoid creating Latino opportunity districts. The Court finds that the County
Line Rule is a legitimate and important traditional districting principle in Texas.
See Clements v. Valles, 620 S.W.2d 112 (Tex. 1981). Even though MALC
presented evidence through its expert Korbel that the Legislature has not
always adhered so strictly to the County Line Rule in the past, a violation of the
County Line Rule could result in litigation on that basis.
Legislature used the County Line Rule for its political advantage in 2011 and
2013, the Court finds that it nevertheless must be respected unless § 2 requires
Based on an analysis of the Gingles requirements and the totality of the
circumstances, the Court finds that MALC has demonstrated that an additional
compact minority district could be drawn in Nueces County—Plan H358 has one,
when two could be drawn. Although Hispanic voters in Nueces County have a
§ 2 right to an additional district, the main question presented is whether it
entitles them to a configuration such as that in Plan H400 (two HCVAP-majority
districts that are poorly performing or not yet performing) or a configuration
such as that in Plan H391, where the County Line Rule is broken to create two
“effective” districts.32 To find that Plan H391 is appropriate, the Court must
conclude that subordinating the County Line Rule is necessary to comply with
§ 2. But the Court concludes that Plaintiffs have not adequately demonstrated
that they lack equal opportunity in a configuration such as that in Plan H400
such that a county line break is necessary.
Certainly the high levels of racially polarized voting and the lingering
effects of past discrimination affecting voter turnout weigh in MALC’s favor.
This Court previously discussed how Plaintiffs could assert that HCVAPmajority districts do not present real electoral opportunity due to racially
polarized voting and lower registration and turnout caused by the lingering
effects of official discrimination. But there is simply not enough evidence to
conclude that the districts in Plan H400 do not provide real electoral
Nueces County was estimated to be about 56% HCVAP in 2010. Docket
no. 1364 ¶ 237. Its growth between 2000 and 2010 was Hispanic growth, as both
African-American and Anglo population declined, and its HCVAP continues to
climb. Id. Hispanics are being elected to countywide offices and as house
district representatives, indicating a lack of barriers to candidacy and election.
Although Dr. Brischetto found that, given the high levels of racially polarized
voting, minorities generally win in districts only if the combined minority VAP
exceeded 66%, his analysis also showed Abel Herrero won HD34 with HCVAP
A third option is to maintain the current configuration (one safe district and one not).
levels of 59.4% in 2004 and 2008. MALC-165; MALC-166 Table 1. In Plan H400,
proposed HD34 has an HCVAP of 59.9%. Although the HCVAP in proposed
HD32 is lower at 55.2%, that district provides opportunity, at least in
presidential election years, under Korbel’s index.33
Further, whether Hispanics win elections is not the same thing as whether
they have the opportunity to win elections. LULAC, 548 U.S. at 428 (“The
circumstance that a group does not win elections does not resolve the issue of
vote dilution.”). In 2008, HD33 (60.4% HCVAP) and HD34 (58.2% HCVAP) were
performing Latino opportunity districts with total SSVR of 54.3% and 53.6%,
respectively.34 D-100. In 2010, they were still Latino opportunity districts, but
the Latino-preferred candidate lost (though by only 1,193 votes and 2,037 votes).
Korbel’s analysis was the only election analysis of the proposed districts in Plan
H400. Most of the elections in his index did not involve a Latino Democrat
candidate, who would presumably be the Latino-preferred candidate. Such
elections would be more probative because Latinos would have a “horse in the
In addition, Korbel only looked at statewide races and no county races.
Districts may perform quite differently in local elections than they do in state
and federal elections. Thus, we know that Democrats in statewide elections and
In Salas v. Southwest Texas Jr. College District, 964 F.2d 1542, 1556 (5th Cir. 1992), the Fifth
Circuit held that the fact that Hispanics were 53% of registered voters was “persuasive evidence that
Hispanic voters are not deterred from participation in the political process because of the effects of prior
discrimination, including unemployment, illiteracy, and low income.”
In 2012, Herrero easily defeated Scott in the reconfigured “safe” Latino opportunity district
HD34, and has not had a challenger since.
federal elections (President and U.S. Senate) would generally lose in these
proposed districts, but we do not know how they might perform in local elections
with Latino candidates. It is conceivable that, in competitive local races with
Latino candidates, Hispanic voters would mobilize in significantly higher
Moreover, in Plan H400, both HD32 and HD34 include demographic
distributions strongly favoring Hispanic voters. In HD32, with 55.2% HCVAP,
there are approximately 68,700 Hispanic citizens of voting age and only 55,800
non-Hispanics.35 Thus, there are approximately 13,000 more Hispanic citizens
of voting age than all other groups combined. In HD34, with 59.9% HCVAP,
there are approximately 73,500 Hispanic citizens of voting age, compared to
49,000 non-Hispanics.36 Thus, there are approximately 24,500 more Hispanic
citizens of voting age than all other groups combined. These numbers translate
into a significant advantage in house district elections, given that in none of the
elections analyzed by Korbel did more than approximately 50,000 total voters
even participate in either HD32 or HD34, and in non-presidential election years
the number was closer to 30,000 voters.37 In other words, if these Hispanic
2011-2015 ACS data show approximately 124,510 citizens of voting age in HD32, 55.2% of
whom (68,729) are Hispanic. MALC-13 (Red-116 Report) at 5. Thus, the Court counts the remainder
(~55,800) as non-Hispanic.
2011-2015 ACS data show approximately 122,645 citizens of voting age in HD34, 59.9% of
whom (73,464) are Hispanic. MALC-13 (Red-116 Report) at 5. Thus, the Court counts the remainder
(~49,200) as non-Hispanic.
In presidential election years, voter turnout levels were around 50%. In 2008, the HD32
turnout was 50,567 voters and the HD34 turnout was 53,493 voters. MALC-13 at 7. In 2012, the HD32
turnout was 46,044 voters and the HD34 turnout was 51,757 voters. Id. at 17. In 2016, HD32 had
47,927 voters and HD34 had 56,626 voters. Id. at 21.
citizen voting age persons registered and turned out (and voted cohesively), they
could easily control elections.
As noted, Korbel found that HD32 performed 0/10 in 2010, 4/5 in 2012,
0/12 in 2014, and 3/8 in 2016, with the unsurprising trend that performance for
Latinos increased significantly in presidential election years. Although Korbel
did not include 2008 in his chart, he did include the underlying election data,
and using his criteria, the Latino-preferred candidate (Democrat) received more
votes than the Republican candidate in 8 of 8 elections. MALC-13 at 10.
Similarly, although Democrats won no elections in HD34 in 2010 through 2016
in Korbel’s index, they received more votes than Republican candidates in 4 of
8 elections in 2008 (and lost two by margins of .2 and .4%). Id. This also
indicates that the districts provide potential to elect.
Although it cannot be denied that Hispanics suffer the effects of lingering
discrimination and that this affects their voting and turnout, the Court finds
that Hispanics have equal opportunity in two districts drawn wholly within
Nueces County (or at least MALC has failed to show that they do not).38 These
In non-presidential years, total voter turnout was around 30%. In 2010, there were 29,044 voters
in HD32 and 32,965 voters in HD34. MALC-13 at 11. In 2014, HD32 had 27,250 voters and HD34 had
30,825 voters. Id. at 22. Given these numbers of total voters, the fact that Hispanics have 13,000 more
citizen voting age persons in HD32 and 24,500 more in HD34 than all non-Hispanics combined is
In Gingles, the Supreme Court noted that, “[u]nless minority voters possess the potential to
elect representatives in the absence of the challenged structure or practice, they cannot claim to have
been injured by that structure or practice.” 478 U.S. at 50 n.17 (emphasis in original). Similarly, if they
possess the potential to elect (real electoral opportunity) even with application of the challenged
structure or practice, they cannot claim to have been injured by that structure or practice. That Latino
voters might be more successful under districts drawn without the strictures of the County Line Rule
is not the relevant focus under § 2.
districts may not be the best configuration for minority success, but the
“ultimate right of § 2 is equality of opportunity, not a guarantee of electoral
success.” LULAC, 548 U.S. at 428. Based on the evidence before the Court,
breaking the County Line Rule twice to remove Anglos and incorporate even
more Hispanics to improve electoral outcomes goes beyond what § 2 requires.
In sum, Nueces County had two minority opportunity districts, but they
could not be maintained in their benchmark configurations due to population
loss. Rather than exploring whether two HCVAP-majority districts wholly
within Nueces County should be drawn, the Legislature drew one safe district
for Hispanics and one safe district for incumbent Republican Todd Hunter. The
evidence shows that two HCVAP-districts could have been drawn that would
provide Hispanics with equal electoral opportunity, and that § 2 could require
those two districts. But the evidence does not show that the Legislature was
required to break the County Line Rule to draw what Plaintiffs consider to be
Thus, the Court must consider whether § 2 requires a remedy for this
results violation. In addition, the Court previously found that the Legislature
intentionally discriminated and violated one person, one vote principles in
configuring the HD32/HD34 border in Plan H358, and that discrimination was
purposefully maintained in Plan H358. That intentional discrimination requires
This does not necessarily mean that two districts must be drawn in Nueces
County as proposed in Plan H400. In Georgia v. Ashcroft, 539 U.S. 461, 480
(2003), the Supreme Court discussed the choice between “creating ‘safe’ districts
. . . or a greater number of districts in which it is likely, although perhaps not
quite as likely . . . , that minority voters will be able to elect their candidates.”
Either option will present the minority group with its own array of
electoral risks and benefits, and presents hard choices about what
would truly maximize electoral success. On one hand, a smaller
number of safe majority-minority districts may virtually guarantee
the election of a minority group’s preferred candidate in those
districts. Yet even if this concentration of minority voters in a few
districts does not constitute the unlawful packing of minority voters,
such a plan risks isolating minority voters from the rest of the State,
and risks narrowing political influence to only a fraction of political
districts. And while such districts may result in more “descriptive
representation” because the representatives of choice are more
likely to mirror the race of the majority of voters in that district, the
representation may be limited to fewer areas. On the other hand,
spreading out minority voters over a greater number of districts
creates more districts in which minority voters may have the
opportunity to elect a candidate of their choice. Such a strategy has
the potential to increase “substantive representation” in more
districts, by creating coalitions of voters who together will help to
achieve the electoral aspirations of the minority group. It also,
however, creates the risk that the minority group’s preferred
candidate may lose.
Id. at 480-81 (internal quotations and citations omitted). Thus, Plaintiffs should
consider their preferred configuration for the remedy stage. But, as noted, the
intentional discrimination previously found (and the one person, one vote
violation) requires a remedy.
F. Midland/Ector Counties
MALC has consistently contended that a new Latino opportunity district
was required in Midland and Ector Counties. No new Latino opportunity
districts were considered or drawn in Midland/Odessa because the proposed
HCVAP-majority districts all broke the County Line Rule. During the prior
phase of litigation, MALC offered four plans that proposed a new Latino
opportunity district in the Midland/Ector County area—Plans H205, H295,
H329, and H360. In its Opinion on Plan H283, the Court found that Plaintiffs
failed to prove the first Gingles precondition for the proposed districts in Plan
H205 and H295 because they failed to demonstrate a compact minority
The Court found that Plan H329 and Plan H360 were best
considered in the 2013 plan trial phase because these plans were first introduced
during the 2013 legislative session.
In the 2013 session, the Legislature
continued its steadfast refusal to consider any districts that would cause a
County Line Rule violation, and no new Latino opportunity districts were drawn
in the Midland/Odessa area. See, e.g., JX-15.3 at 126.
MALC continues to pursue its § 2 results claims. It notes that Hispanic
growth requires a Latino opportunity district in Midland and Ector Counties
despite the fact that its creation would violate the County Line Rule. MALC
relies on Plan H329 and Plan H360, and now additionally offers Plan H321, a
plan proposed by Rep. Martinez Fischer during the 2013 session.
(Martinez-Fischer); MALC-28 (plan map and data). MALC contends that HD81,
which was 51.7% HCVAP using the ACS data available to the Legislature at the
time, combines a “vibrant community of interest of cohesive Latino
neighborhoods in Midland and Odessa” with seven other whole counties and
dividing no other county line except Midland and Ector Counties. Docket no.
1525 at 16-17.
Plan H329 proposed HD81 with 55.3% HCVAP and 53.7% SSVR. MALC14 at S47; MALC-96. In Plan H329, proposed HD81 takes in part of Midland
and Ector Counties and large portions of West Texas, while HD82 takes in the
remainder of Midland and Ector Counties. MALC also offers Plan H360 as a
plug-in plan. MALC-91 (map). HD81 in this plan includes Ward, Crane, Upton,
and minority parts of Ector and Midland Counties. Proposed HD81 is 50.1%
HCVAP using 2008-2012 ACS data. MALC-93. HD82 takes the remainder of
Ector County and Midland County and pairs them with Dawn, Martin, Andrews,
and Winkler Counties. Korbel testified that the minority populations of Midland
and Odessa are only about 12 to 15 miles apart. TrJ1396. Plan H360 has no
VTD splits. TrJ1398 (Korbel).
MALC’s proposed districts satisfy the numerosity requirement and MALC
offers strong evidence that the minority population is compact (especially as
demonstrated by Plan H360 and the testimony of Luis Sanchez). See LULAC,
548 U.S. at 435 (members of a racial group in different areas could share similar
interests and therefore form a compact district “if the areas are in reasonably
close proximity”). MALC also offered testimony showing racially polarized
voting between Latinos and non-Latinos in Midland and Ector Counties.
TrJ947, TrJ969; MALC-161 (2014) (Brischetto).
But the Court cannot reach the merits of this claim (or any intentional
vote dilution claim based on the failure to draw this district) because MALC
lacks standing, and it is the only Plaintiff that has pled this claim. Although the
Perez Plaintiffs have joined MALC (and LULAC has joined the Perez Plaintiffs
for certain House claims) in this phase for litigation purposes, only MALC has
pled a claim for vote dilution in Midland/Ector Counties, such that MALC cannot
rely on the Perez Plaintiffs or LULAC for standing.39
MALC's arguments for standing to bring its claims in Midland/Ector
Counties are essentially the same as its arguments for standing in Nueces
County. Docket no. 1462 at 12. In particular, MALC argues that it has
organizational standing to seek a remedy for an injury to itself as an
organization and that it has representative/ associational standing to sue on
behalf of its members. As discussed above, MALC prevailed on both of these
arguments with respect to Nueces County. But applying the same principles
from that discussion, MALC’s arguments fail in Midland/Ector Counties.
MALC does not fully describe how its claim to organizational standing
would apply in Midland/Ector Counties. But the claim to standing here on this
basis is far weaker than in Nueces County, where the changes to the House Plan
directly caused MALC's membership to decrease because of the loss of Raul
Torres’s seat. In order to claim that Plan H358's configuration of Midland and
The NAACP notes that it has members in Midland County, but the NAACP also did not plead
a claim for a § 2 Latino opportunity district in Midland, so MALC cannot rely on the NAACP members'
standing. Perhaps recognizing this, MALC seeks to rely on NAACP member standing only in Fort Bend,
Harris, Dallas, Nueces, and Bell Counties. Docket no. 1462 at 5 n.1.
Ector Counties injures it, MALC must argue that the configuration prevents
MALC membership from growing. This basis for standing is too speculative, as
it relies on the possibility that if such a district were drawn, it would elect
someone who would then join MALC. Further, accepting this argument would
mean that MALC would have similar standing in any county in which it argued
that a district should be drawn that might elect a Latino. Unlike in Nueces
County, where the record clearly demonstrates that the removal of HD33
decreased MALC's membership by ousting Torres, there has been no similar
effect here. This theory does not support standing.
MALC's claim to representational standing in Midland/Ector Counties
likewise fails. MALC argues that its “membership in the West Texas area
includes a Latino member,” without further elaboration. Docket no. 1462 at 12.
Reviewing MALC's membership list, MALC has numerous members in the “West
Texas area,” particularly in the El Paso area. MALC-1. But the “West Texas
area” is vast, and MALC has no members who represent districts containing any
part of Midland or Ector County. The only MALC member who might be
affected by MALC's proposed changes to these districts is HD74 representative
Poncho Nevarez. In Plan H321, HDs 81 and 82 (containing Midland and Ector
Counties) are reconfigured to slightly affect the northeast corner of Nevarez's
HD74. In Plan H329, HD74 grows in the northeast to extend through Ward,
Crane, and Upton Counties and encompass southern portions of Midland and
Ector Counties. That Nevarez’s district might be affected by the drawing of a
new opportunity district is not alone sufficient to give MALC standing at the
MALC has not put on evidence of where Nevarez resides within HD74,
which would allow the Court to determine whether Nevarez himself lives in an
area that is directly affected by either change. In any event, Nevarez resides in
a Hispanic opportunity district in HD74. Thus, Nevarez’s individual standing
must be similar to that of Abel Herrero in Nueces County, who lives in an
opportunity district yet has standing because of the packing in his district. But
the essence of MALC's claim is that the Hispanic population in Midland/Ector
Counties is cracked, not packed, and Nevarez does not live in the cracked area.
And there is no allegation that Nevarez’s district is packed and that unpacking
it would create additional Latino opportunity. MALC's own demonstration plans
would increase the HVAP of HD74.40 Stated differently, no MALC member
suffers an injury in HD74 under Plan H358 because the evidence shows that the
district is more “packed” under Plans H321 and H329 than it is in Plan H358.
HD74 is the only district home to a MALC member that could possibly be
affected by the alleged vote dilution through cracking in Midland/Ector Counties.
But the representative and resident of that district suffers no apparent harm
from that vote dilution. For these reasons, MALC does not have standing to
pursue its claims in Midland/Ector Counties, and these claims are dismissed.
Under the challenged Plan H358, HD74 has a HVAP of 76.6%; under Plan H321, HVAP
increases to 77.3%; under Plan H329, HVAP increases further to 78.5%.
G. Bexar County
This Court altered HD117 in Plan H309, and that new configuration
remains in Plan H358. In its Opinion on Plan H283, the Court found that any
§ 2 effects claims in Bexar County were remedied and were thus moot, but it also
found that Plaintiffs proved their intentional vote dilution and discrimination
claims under § 2 and the Fourteenth Amendment regarding HD117. Plaintiffs
succeeded on their “nudge factor” claims with regard to HD117 insofar as
mapdrawers intentionally and successfully minimized Hispanic voter
registration and turnout to decrease Hispanic performance.41
MALC42 asserts claims that Plan H358 did not fully remedy the
intentional discrimination in HD117, and proposes changes shown in Plan H391.
Docket no. 1462 at 12-13; Tr55-56 (Korbel). MALC’s expert opined that the 2014
election returns show that HD 117 “does not perform sufficiently for Hispanic
citizens to elect their candidate of choice” and “[g]iven the finding of
discriminatory intent with respect to HD 117, a full remediation is appropriate.”
Tr804; MALC-17 (Korbel Report) ¶ 86. Korbel bases his conclusion that HD117
did not sufficiently perform for Latinos to elect their candidate of choice on
endogenous election results in 2014 because the Latino candidate of choice did
not prevail in 2014. Tr804.43 He stated that the exogenous election results were
The Court also found that the Task Force Plaintiffs succeeded in their Shaw-type racial
gerrymandering claim with regard to HD117.
MALC member Philip Cortez resides in HD117. MALC-1 at 3.
Philip Cortez won two of three elections since this Court modified HD117 in Plan H309.
Tr56-57. Dr. Brischetto’s EI analysis of five statewide general elections found continued racially
“not particularly helpful.” Id. MALC proposes the configuration in Plan H391,
which “strengthens the electoral performance of HD 117.” Id. ¶ 87.
This Court remedied the nudge factor claim in Plan H309 and returned
HD117 to opportunity status. The fact that HD117 did not perform in 2014 does
not show that it was not fully remedied—even before application of the “nudge
factor,” HD117 did not always perform for Latino-preferred candidates, as
evidenced by Garza’s win in 2010. There is no evidence from which to conclude
that the intentional discrimination found by this Court continues in HD117 in
No further changes are required in Bexar County.
H. Tarrant County
In its Opinion on Plan H283, the Court rejected Plaintiffs’ packing and
cracking claims. However, the Court found that mapdrawers increased the
SSVR of HD90 in bad faith (to claim offset for the loss of HD33) and to
simultaneously shore up the Anglo population of HD93.
In 2011, during the “member-driven” redistricting process, the Tarrant
County delegation submitted an agreed map, and Rep. Lon Burnam (HD90) and
Rep. Marc Veasey (HD95) approved their districts.
Later in the process,
mapdrawers and redistricting leadership decided to increase the SSVR of HD90
above 50% in an attempt to offset the loss of Latino opportunity district HD33
polarized voting in Bexar County in 2014 and 2016, with Latino voters cohesively supporting the
Democratic candidate between 80.6 and 81.6% and Anglo voters supporting the Republican candidate
at 76.1% and 82.8%. Tr85; MALC-22 Table 8.
in Nueces County for § 5 purposes. They increased the SSVR by manipulating
population based solely on race, including by removing the predominantly
African-American community known as Lake Como.44
MALDEF had advocated for the HCVAP in HD90 to be increased, and the
Task Force Plaintiffs argue now that there was nothing wrong legally with
raising the SSVR in HD90 in 2011.45 Regardless of whether § 2 required that
the SSVR in HD90 be raised in 2011 so that Latinos could control Democratic
primaries, it is clear that the Legislature’s motive for the change was to
undermine Latino opportunity rather than enhance it. There is no indication
that the Legislature undertook any analysis of whether HD90 was a performing
district or whether it needed an increase in SSVR to become a performing
district.46 Rather, they increased its SSVR because it was already electing a
This Court’s Order noted that, in increasing the SSVR of HD90, mapdrawers fixated solely on
the 50% racial target and moved a significant number of individuals on the basis of race:
There is undisputed evidence that mapdrawers manipulated the population based on
race, removing some areas and swapping out population to increase the SSVR of HD90
from 40/41.9% in Plan H113 to 47.9/50.1%. There is little indication that they cared
about traditional redistricting factors or maintaining communities of interest; they were
only concerned with raising the SSVR to 50.1%. The district became the most
underpopulated district in the plan. The African–American community of Como was
removed from HD90 and placed into a Republican district represented by Anglo Rep.
Geren. Other population was swapped between HD90 and HD95, and between HD90
and HD93. Overall, substantial Anglo population was removed (approximately 12,000
total population and 11,000 VAP), while Black+Hispanic total population and B+HVAP
Docket no. 1365 at 70.
In this phase of the litigation, the Task Force has argued that Lon Burnam was not the Latino
candidate of choice. However, in 2011 the Task Force also advocated for the Legislature to increase the
HCVAP/SSVR in HD148, where there appears to be no dispute that Jessica Farrar was the Latino
candidate of choice.
Burnam had been HD90’s representative since 1996. Tr205 (Burnam). Between 1996 and
2012, Burnam did not draw a challenger in the Democratic Primary. Tr226-27 (Burnam). Rep. Veasey
had stated on the House floor that HD90 was already a performing opportunity district, and there is no
indication that the Legislature believed otherwise.
Democrat, so raising the SSVR would not cost them politically, and they
attempted to use the increase to offset the loss of HD33. The D.C. Court
properly rejected this claim, noting that “all the experts’ election analyses
show[ed] that” that it was already an ability district. Texas v. United States, 887
F. Supp. 2d 133, 176 (D.D.C. 2012). They also used the increase in HD90 to try
to pre-empt any § 2 claims based on the failure to increase the number of Latino
opportunity districts statewide. The changes to HD90 also allowed them to
shore up the Anglo population of HD93. Docket no. 1365 at 71.
Reps. Burnam and Veasey opposed the changes during the 2011 session,
particularly the removal of Como from HD90. Burnam stated on the floor that
the district had essentially been the same since its creation in 1978, and he and
Veasey both argued that Como should be in HD90.
amendment to return Como to HD90 was tabled.47
The Tarrant County configuration from Plan H283 remained unchanged
in Plan H309. However, changes were made during the 2013 session to HD90,
HD97, and HD99 and incorporated into Plan H358. The main change returned
the Como community to HD90. The Task Force Plaintiffs bring claims targeted
at this change.
The NAACP Plaintiffs, MALC, and Perez/LULAC Plaintiffs bring claims
for intentional discrimination in Tarrant County. No party advocates for the
creation of an additional minority opportunity district under the § 2 results test,
A complete description of what transpired is included in the Court’s fact findings, docket no.
1364 ¶¶ 619-634.
but they contend that the intentional discrimination/vote dilution found by this
Court in Tarrant County requires a remedy that maintains or enhances minority
opportunity. Their proposed remedies are shown in Plan H391 (MALC)48 and
Plan H392 (NAACP).49 Because those plans and arguments go to remedy rather
than liability, the Court will consider them at the remedial phase. The Court
thus turns to the Task Force’s claim regarding changes made to HD90 in Plan
The Texas Latino Redistricting Task Force challenges HD90 in plan H358
as both a racial gerrymander (a Shaw-type claim) and as dilutive of Latino
voting strength in violation of § 2 and the Fourteenth Amendment. Docket no.
891 ¶¶ 41, 78-79; docket no. 1468.
After the 2011 session in which the SSVR of HD90 was increased in part
by removing Como from the district, Como residents had written to and called
Burnam expressing their desire to be returned to his district. Tr231 (Burnam).
Both Geren and Burnam knew that Como’s residents wanted to be in Burnam’s
MALC’s Plan H391 redraws all of the districts in Tarrant County and “eliminates or reduces
the splitting” of numerous cities within the County. MALC-17 (Korbel Report) ¶ 62. Korbel states that
Plan H358 contains three performing minority opportunity districts (HD90, HD95, and HD101), and that
while two are compact, HD90 arguably is not. Id. ¶ 66. According to Korbel, Plan H391 proposes four
“minority opportunity districts” in Tarrant County—majority-BCVAP (50.8%) HD95, majority-HCVAP
(51.1%) HD90, and B+HCVAP-majority coalition district HD101, and HD93, which would not be a
coalition district because its H+BCVAP is below 50% (27% BCVAP and 15.9% HCVAP) but would provide
electoral opportunity. Id. ¶¶ 67-71.
The NAACP contends that HD101 is a minority coalition district protected by § 2 and that any
remedy for found violations in Tarrant County should preserve this district. Docket no. 1529 at 61. In
NAACP demonstration Plan H392, HD95 is converted from 49.3% BCVAP to 51.7% BCVAP. HD90
remains HCVAP-majority and HD101 remains H+BCVAP majority.
district. Id.; D-731 (letter sent from Como community leader Dorothy DeBose
to Burnam, expressing a desire to be returned to Burnam's district; a copy was
also sent to Geren. Tr631 (Kenney)). Burnam too wanted Como back in his
district. Tr231 (Burnam).
In the 2012 Democratic Primary, a Latino candidate, Carlos Vasquez,
challenged Burnam. Burnam attributed the removal of Como from his district
as the reason he drew a challenger in 2012 for the first time in 16 years. Tr227.
Burnam won the primary by 159 votes and went on to win the general election
in November 2012. TF-58; Tr312 (Espino). Vasquez received 70.6% of the
Hispanic vote. D-424 at 20. Burnam received 74.3% of the Anglo vote and 62.3%
of the African American vote. Id.
In the 2013 special session, Burnam successfully returned Como to his
Burnam instructed his chief of staff Conor Kenney to draw an
amendment to return Como to HD90. According to Kenney, Burnam provided
two initial instructions—keep the amendment simple by involving only two (or
maybe three) members,50 and bring Como back into HD90. Tr635 (Kenney).
Working from these instructions, Kenney created an initial draft map—Plan
H328—with an SSVR of 48.2%, a decrease from the 2011 Plan. Tr639 (Kenney);
Tr210 (Burnam); D-799. Kenney sought an “informal kind of temperature
check” on this draft from Representative Martinez-Fischer and Martin Golando
of MALC, who expressed concerns over the low SSVR. Tr638 (Kenney).
This was to comply with Chairman Darby’s constraints on proposed amendments.
Kenney began re-working Plan H328 while keeping an eye on SSVR,
which he discussed with Burnam. Tr640-41 (Kenney). Burnam instructed
Kenney to “draw a version that does a little more swapping between 90 and 99
that restores the SSVR level back up to . . . the plan that we were amending.”
Tr641 (Kenney). Kenney started by swapping whole precincts between the
districts, but quickly began trading populations at the block level, using racial
shading and HVAP as a proxy for SSVR. Tr643-44 (Kenney). Kenney said he
“spent hours trading things back and forth,” and tracked SSVR as he went.
Tr649 (Kenney). Kenney never considered election or political data outside of
SSVR. Tr645 (Kenney). The finished product—Plan H342—had an SSVR of
50.1%, which was a decrease from the 2011 Plan but nevertheless met the 50%
target. D-800 at 2. In Kenney’s opinion, this configuration represents the
highest possible SSVR when working under Burnam’s other two instructions of
returning Como and swapping only with HD99. Tr649-50 (Kenney).
In Burnam’s words,
The first [map] that we drew [H328] that got Como in there had too
much of an impact on the Hispanic percentage of voters, and so we
really made some ugly lines to—basically we got rid of every white
voter near the western boundary of the district to keep the Hispanic
vote over 50 percent, but to get Como back into the district [in
Tr210. Burnam added that “there were too many white people” in H328's HD90.
Tr212. According to Burnam, the purpose of moving white voters into HD99 was
to create a 50+% SSVR district. Tr217.
Burnam’s descriptions of the use of race to create a 50%+ SSVR district
were not limited to generalities. See Tr215-16 (Burnam) (“[I]s it correct to say
that from your first amendment in 2013 till your second amendment in 2013 you
attempted to bring up the [SSVR] by removing white voters from the district?”
. . . “Correct.”). Burnam identified boundaries in the following neighborhoods
and precincts that were split or relocated entirely in order to remove Anglo
population from HD90: Samson Park, Montgomery Plaza Redevelopment,
Precinct 4068, Precinct 4493, Precinct 1015, and Precinct 1674. Tr217-18,
222-26. In other cases, Hispanic areas were brought into HD90 to increase
SSVR; Burnam identified portions of Precincts 4125, 1434, and 1408 as
examples. Tr222, Tr225.
Furthermore, Burnam testified that minimizing
population deviation in the district was “lost in the process” because “we had to
deal with taking as many white folks out as we could.” Tr215.
The finished version (Plan H342 or “the Burnam amendment”) modified
only the western boundary of the district by mostly trading populations with
HD99 in an effort to return Como to HD90 while also keeping HD90's SSVR
But the amendment also affected the boundaries of a third
district—HD97, which borders HD90 to its south and west. Precinct 1472 in
HD97 is an area of railroad tracks and contains no population. In order to make
Como (in Precinct 1120 to the immediate north) contiguous with the rest of
HD90, Burnam’s amendment placed this portion of HD97 into HD90. Tr213
(Burnam). Representative Craig Goldman of HD97 agreed with this change.
Tr213 (Burnam). In a second spot on HD90's western boundary, HD97 moves
Precinct 1434 into HD90. Burnam provided the only evidence regarding the
reason for this change: “It’s low income and Hispanic.” Tr225 (Burnam).
On June 20, 2013, Rep. Burnam offered the final version—Amendment No.
8 (Plan H342)—on second reading. Rep. Burnam stated,
The original amendment has the intent of returning the
neighborhood [Como] to District 90 that has always been in District
90 since the federal court created it back in 1978. The amendment
to the amendment corrects some numbers a little bit. It has an
impact on Craig Goldman’s district, but the precinct that is added
into my district has no population; it’s just a connector precinct. It
has an impact on Chairman Geren’s district, but basically what it
does is take the African American and Hispanic population out of
Representative Geren’s district and puts some of my Anglo
population into his district. I believe it’s acceptable to the author.
JX-17.3 at 29. Chairman Darby then stated, “Members, Representative Burnam
has revised his amendment and it now keeps this district a Hispanic
district—brings the numbers back over 50 percent. That was the objection. I
believe Representative Geren is in favor of this amendment also, so with that I
would move to accept this amendment.” JX-17.3 at 29. It was adopted.
The first election under this new map, which included the Burnam
Amendment, was the 2014 Democratic Primary, in which Ramon Romero, Jr.
challenged Burnam. By all accounts, the race was a hostile one—the Task Force
presented evidence of fliers, phone calls, and online posts that highlight this
hostility. E.g., Tr319-20 (Espino testifying about Latin Kings flier); Tr321
(Espino testifying about Fake Democrats image). In Como’s Precinct 1120,
Burnam won 383 votes of 471 votes cast. TF-39 at 2; Tr317 (Espino). But
Romero defeated Burnam by 110 total votes. D-920 at 3. According to Dr.
Engstrom’s multivariate analysis of the race, Romero received 78.2% of the
Latino vote, 12.6% of the African-American vote, and 24.3% of the remaining
votes. TF-19 at 31. After defeating Burnam in the 2014 primary, Romero went
on to win the general election. Tr341-42 (Espino). Since then, Romero has not
faced a challenger in the primary. Tr342-43 (Espino).
The Task Force Plaintiffs argue that Burnam returned Como to HD90 to
protect himself against a Latino challenger in the Democratic primary, and thus
to intentionally dilute Latino voting strength. They assert that the heavily
African-American community of Como was not likely to support a Latino
challenger, that Burnam knew this, and that Burnam wanted Como back at
least in part for that reason.
They further assert a Shaw-type racial
gerrymandering claim because, regardless of intent, the changes to HD90 were
predominantly based on race without a compelling state interest. The Court
finds that the Task Force has standing to assert both claims because at least one
member of HOPE is a registered Latino voter in HD90. Docket no. 1314-1 at 3;
The Court first considers the Task Force’s Shaw-type claim. The Court
does not find that returning Como to HD90 was a race-based decision—Burnam
did not wish to return Como to HD90 because its residents were AfricanAmerican but rather because they were a high turnout area that had been in his
In its previous opinion on the 2011 Congressional Plan, this Court held that “the Task Force
has associational standing based on the standing of the individual members of its constituent
organizations such as HOPE and NOMAR.” Docket no. 1390 at 94 n.82 (collecting cases).
district since its creation, had supported him, and wanted to be returned. But
the changes to HD90 between Plan H328 and Plan H342 to ensure that its SSVR
was above 50% were dictated solely by race. Burnam and Kenney methodically
scanned the western border of the district, cutting out majority-Anglo areas
precisely because they were Anglo and drawing in majority-Hispanic areas
precisely because they were Hispanic. These changes are described in detail
above, with both Burnam and Kenney explicitly acknowledging the use of race
in their method and Burnam speaking candidly about there being “too many
white people” in HD90.
Neither Burnam nor Kenney examined election results while making these
changes. Tr671 (Kenney). Furthermore, neither Burnam nor Kenney identified
other traditional redistricting criteria that would have justified these changes,
and such criteria were subordinated to the goal of increasing SSVR. The
amendment contains numerous precinct splits that further this goal and no
others. See TF-3I (Red375 Report for Plan H358 showing 10 split precincts in
HD90). In short, the testimony of both Burnam and Kenney is strong direct
evidence that race was the predominate factor motivating the decision of which
individuals to place within and without HD90.
The Court next considers whether the changes involved a “significant”
number of voters and whether race predominated as to the district as a whole.
See Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015)
(plaintiff must demonstrate that race was the predominant factor motiving the
legislature’s decision to place “a significant number of voters within or without
a particular district”); Bethune-Hill v. Virginia State Bd. Of Elections, 137 S. Ct.
788, 800 (2017) (the ultimate inquiry is the legislature’s predominant motive for
the design of the district as a whole). In Bethune-Hill, the Court noted that
[t]he ultimate object of the inquiry . . . is the legislature’s
predominant motive for the design of the district as a whole. A
court faced with a racial gerrymandering claim therefore must
consider all of the lines of the district at issue; any explanation for
a particular portion of the lines, moreover, must take account of the
districtwide context. Concentrating on particular portions in
isolation may obscure the significance of relevant districtwide
evidence, such as stark splits in the racial composition of
populations moved into and out of disparate parts of the district, or
the use of an express racial target. A holistic analysis is necessary
to give that kind of evidence its proper weight.
137 S. Ct. at 800.
In this case, the Burnam amendment did not draw a new district but
instead was limited to making changes only along a portion of the district
because of Chairman Darby’s rules for amendments. Because of these rules,
Burnam and his staff could not have made changes to the district as a whole,
though they made changes all along the western border of HD90 where it
adjoined HD99. Most of the other borders of the district were altered in 2011 by
the racially motivated changes between Plan H113 and Plan H153 to increase
the SSVR of 50% as well. See docket no. 1364 ¶ 629 (fact finding describing
changes made to HD90 to increase the SSVR in 2011). Taken together, the racebased changes between Plan H113 and Plan H358 affect most portions of the
district and thus the design of the district as a whole, and the changes
unquestionably involve a significant number of voters.
Even accepting Defendant’s position that we may consider only the 2013
changes, the Court finds that a significant number of voters were subject to
racial classifications and that race predominated as to the district as a whole.
It is undisputed that the express racial target of 50.1% SSVR applied to the
district as a whole in 2013. And all of the changes made between Plan H328 and
Plan H342 were solely motivated by race to achieve that district-wide racial
target. We know this ultimately resulted in 7,067 persons being added to HD99
and 7,035 persons being removed from HD90, for a total of 14,102 persons being
moved solely as a result of racial gerrymandering.52 14,102 is the minimum
number of voters subjected to racial gerrymandering because that is the number
of voters that were ultimately moved. However, the population of the entire
border between HD90 and HD99 was considered for movement between the
districts, and an unknown number of persons were kept in their respective
districts based on their race, and thus also subjected to racial classifications.
The ideal size of a House district is 167,637, making 14,102 about 8.4% of
a district’s total population. The Court finds that 14,000 voters (8.4% of ideal
district population) is a significant number of voters.53 And because those voters
These numbers are shown in the Red-100 reports for Plan H328 and Plan H342. In Plan H328,
the total population of HD90 was 166,719; in Plan H342 it was 159,684. In Plan H328, the total
population of HD99 was 163,406; in Plan H342 it was 170,473. HD90 went from .55% underpopulated
to 4.74% underpopulated. HD99 went from 2.52% underpopulated to 1.69% overpopulated.
The Task Force contends that the total population of the precincts split or moved whole
because of race by Burnam’s amendment is 33,343 individuals, including an estimated 16,429 registered
voters. Docket no. 1530 ¶¶ 49, 180, 181. Defendants do not refute this assertion.
were assigned into and out of HD90 to meet the district-wide racial target, race
was the predominant factor in the design of the district as a whole in 2013.
Defendants ground their defense in the idea that Kenney and Burnam’s
intent cannot be imputed to the legislature. In Defendants’ view, “Kenney’s
actions cannot be attributed to the Legislature as a whole without evidence that
members of the Legislature were aware of the manner in which Kenney drafted
the amendment.” Docket no. 1526 at 89. Even if this is a correct statement of
the law, the legislators who voted for Burnam’s amendment were aware of how
the district was constructed, or at least aware enough that his intent can be
imputed to them. As noted above, Rep. Burnam introduced the amendment by
noting “it . . . take[s] the African American and Hispanic population out of
Representative Geren’s district and puts some of my Anglo population into his
district.” JX-17.3 at S29. Later, Chairman Darby stated that Rep. Burnam’s
amendment “br[ought] the numbers back over 50%.” Id.
Those statements are enough, in our view, to let legislators know they
were voting for a racial gerrymander. Rep. Burnam’s comments are as naked a
confession as there can be to moving voters into and out of districts purely on the
basis of race, and we cannot say that statements made on the House floor during
the consideration of an amendment cannot fairly put legislators on notice of the
contents of the amendment. We therefore reject Defendants’ lack of intent
argument as to the racial gerrymandering claims.
Having found that race predominated, the Court applies strict scrutiny to
the use of race in HD90. Under strict scrutiny, the challenged plan is invalid
unless the State shows that it is narrowly tailored to achieve a compelling
government interest. Bush v. Vera, 517 U.S. 952, 959, 976 (1996). For a racial
classification to serve a compelling interest, the Legislature must have a strong
basis in evidence to support that interest before it implements the classification.
Shaw v. Hunt, 517 U.S. 899, 910 (1996).
Defendants have articulated no compelling government interest that the
use of race may have been serving other than “avoid[ing] a potential VRA
problem.” Docket no. 1526 at 89.54 But such a vague goal is not a strong basis
in evidence that the VRA required such use of race. Burnam and Chairman
Darby apparently believed that HD90 should have an SSVR above 50%, but the
evidence shows that no one considered the legal significance of the 50% SSVR
target in terms of compliance with the VRA. There is no evidence that any
legislator or staffer evaluated racially polarized voting in HD90 or the
amendment’s effect on Latino voting ability in HD90. Burnam did not consider
any changes in election performance or how primary results might change.
Burnam added that Darby was simply “fixated on the
number,” meaning the 50% SSVR target. Tr226 (Burnam).
Although Darby explained on the floor that the new plan “brings the
numbers back over 50 percent,” there was no accompanying explanation for why
this could be required. Darby offered no testimony to clarify his remarks at the
The Court’s previous opinion and fact findings on the 2011 changes explain why the race-based
changes to HD90 in 2011 were not justified by a compelling state interest.
June 20, 2013 hearing at which the Burnam amendment was adopted. Tr1545
(Darby). Nor did he ever explain the goal of the 50% target or any electoral
impact of the amendment to the legislators on the floor.55 And Darby continually
invoked legislative privilege to decline providing any meaningful testimony as
to the potential significance of a 50% SSVR threshold or whether he considered
any other meaningful election metrics. Tr1545-48, 1550-51 (Darby). As for
Kenney, he did not review election data or political data outside of SSVR. Tr645,
In short, there is no evidence showing that the State’s use of race in
setting and working toward the 50% SSVR target had a strong basis in evidence.
Because the use of race in drawing HD90 was not narrowly tailored to achieve
a compelling government interest, the Task Force succeeds on its Shaw claim in
The Court’s finding that the Legislature violated Shaw rests on changes
made to HD90 after Como was moved back into HD90, and thus remedying that
violation would not necessarily remedy the Task Force’s intentional vote dilution
claim premised on the initial decision to include Como in HD90. Accordingly,
the Court must decide the Task Force Plaintiffs’ intentional vote dilution claim
The Court concludes that the Task Force has failed to carry its burden of
showing discriminatory intent to minimize, cancel out, or dilute the Latino vote
The Burnam amendment was not introduced in committee; it was first introduced on the floor,
and thus was never considered in committee or in a hearing.
in HD90. Although there was some evidence indicating that Burnam may have
been concerned about drawing a Latino challenger in the Democratic primary,
the overall evidence persuasively demonstrates that his motive was not to dilute
Latino voting strength but to simply return Como to his district. It was a high
turnout neighborhood that had been in the district since its creation and had
consistently and overwhelmingly supported him throughout his time as HD90's
Likewise, the evidence shows that Como’s residents generally valued
having Burnam as their representative and were unhappy with the 2011 change
that put them in Geren's district.
Dorothy DeBose, president of Como's
Neighborhood Advisory Council, said in her letter to Burnam and Geren that
“[c]oncern or being steamed is a great understatement of how frustrated and
perturbed the Lake Como Community is at the idea of being removed from
District 90.” D-731. She described this move as a “tragedy,” highlighting Como’s
history in HD90 since 1978. D-731. Both Burnam and Geren knew of Como’s
desire to be returned to Burnam’s district, and Geren agreed to the change.
Despite returning Como, Burnam’s amendment took steps to maintain the SSVR
of HD90 at above 50%, as he had been directed to, but did not attempt to
engineer the changes to dilute performance for Latino-preferred candidates in
primaries or general elections. Although the SSVR was reduced from Plan
H309, Kenney stated that it could not be increased further given the constraints,
Tr649-50, and the Court does not find that Kenney or Burnam reduced the SSVR
to dilute Latino voting strength.
In short, the return of Como to HD90, rather than being a purposefully
discriminatory device meant to minimize, cancel out, or dilute the Latino vote,
was simply meant to bring Como back to its long-held place in HD90, where its
constituents wanted to be. Burnam’s knowledge that the change might also
benefit him against a Hispanic primary challenger does not translate to
discriminatory motive on these facts. Accordingly, the Task Force’s intentional
vote dilution claim in HD90 fails because of a lack of a discriminatory intent.
The Court’s prior findings that the Legislature intentionally discriminated
with regard to HD90 and HD93 in Plan H283 and the Task Force Plaintiffs’
success on their HD90 Shaw-claim in Plan H358 require a remedy in Tarrant
Summary and Conclusion
As explained in the Order on Plan C235, the Legislature in 2013
purposefully maintained the intentional discrimination in Plan H283. Thus,
violations found by this Court in its Order on Plan H283 and not sufficiently
altered in Plan H358 now require a remedy, including specifically in Bell
County, Dallas County, Nueces County, and Tarrant County.
otherwise rejects Plaintiffs’ intentional discrimination and § 2 results claims
directed against the 2013 enactment except that it finds a § 2 results claim in
Nueces County and a Shaw-type violation in HD90 in Tarrant County.
In sum, Harris County, Fort Bend County, and Bexar County require no
MALC lacks standing to pursue its claims in Midland and Ector Counties,
and thus no changes are required there.
In Bell County, the intentional discrimination previously found by the
Court must be remedied, affecting the configuration of HD54 and HD55.
In Dallas County, the intentional discrimination previously found by the
Court must be remedied, affecting the configuration of HD103, HD104, and
In Nueces County, the intentional discrimination previously found by the
Court must be remedied, affecting the configuration of HD32 and HD34. In
addition, the Court finds that MALC has proven a § 2 results violation insofar
as two compact HCVAP-majority opportunity districts could be drawn within
Nueces County, but MALC has not proven that § 2 requires breaking the County
Line Rule to draw such districts.
In Tarrant County, the intentional discrimination previously found by the
Court must be remedied, affecting HD90 and HD93. In addition, although the
Court rejects the Task Force’s intentional vote dilution claim in HD90, the Court
finds that the Task Force established its Shaw-type racial gerrymandering claim
for the district. That violation also requires a remedy.
It is therefore ORDERED that the Office of the Attorney General file a
written advisory within three business days stating whether the Legislature
intends to take up redistricting in an effort to cure these violations and, if so,
when the matter will be considered.
If the Legislature does not intend to take up redistricting, the Court will
hold a hearing to consider remedial plans beginning on September 6, 2017 at
8:30 a.m. in Courtroom 1. In preparation for the hearing, the parties must take
immediate steps to consult with their experts and mapdrawers and prepare
statewide plans that remedy the violations listed above.
The parties must confer and address objections and concerns, to the extent
possible, prior to the hearing. If both sides agree upon a remedial plan, they
should notify the Court, but the hearing will nevertheless proceed so the parties
can present the plan on the record. If the parties cannot agree, they should be
prepared to offer, support, and defend their proposed remedial plan(s) at the
Plaintiffs and Defendants will be permitted to offer up to four
alternative remedial plans per side, and Plaintiffs may (but are not required) to
jointly offer plan(s).
The parties should consult with Texas Legislative Council, to the extent
necessary, to upload their proposed remedial plans into DistrictViewer and
ensure that all relevant data is available to all parties and the Court. If the
parties intend to rely on data or analysis that is not available through TLC, they
must provide that data to all other parties as soon as that data is available.
It is further ORDERED that Texas Legislative Council staff be present at
the remedial hearing for technical assistance in the parties’ presentation of their
proposed plans through DistrictViewer or other available means.
SIGNED this 24th day of August, 2017,
UNITED STATES DISTRICT JUDGE
on behalf of the panel
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