League of United Latin Am. Citizens v. Abbott
| Decision Date | 04 May 2022 |
| Docket Number | 3:21-CV-259-DCG-JES-JVB [Lead Case], No. 1:21-CV-991-LY-JES-JVB [Consolidated Case] |
| Parties | LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al., Plaintiffs, v. Greg ABBOTT, in his official capacity as Governor of the State of Texas, et al., Defendants. Roy Charles Brooks, et al., Plaintiffs, v. Greg Abbott, in his official capacity as Governor of the State of Texas, et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
PRELIMINARY-INJUNCTION MEMORANDUM OPINION AND ORDER
This case concerns a district of the Texas Senate centered in southern Tarrant County. Until recently, Senate District ("SD") 10 was contained entirely within Tarrant County. But as part of the recent redistricting, the Texas Legislature redrew the district, removing portions of Tarrant County and adding seven rural counties. The new district is significantly more Republican and significantly more Anglo.
Plaintiffs seek a preliminary injunction barring Texas from using the newly enacted map in the 2022 election cycle. Though Plaintiffs have also alleged that the new map has discriminatory effects that violate Section 2 of the Voting Rights Act ("VRA"), they do not press that theory in seeking this injunction. Instead, they advance two overlapping theories: The legislature engaged in intentional dilution of minority voting power, and it engaged in racial gerrymandering.
This three-judge Court conducted a four-day hearing involving thirteen witnesses and 175 exhibits to assess Plaintiffs’ request for preliminary relief. As explained below, Plaintiffs have not made the showings necessary to entitle them to a preliminary injunction.
Most importantly, they have not demonstrated a likelihood of success on the merits—although the new senate map may disproportionately affect minority voters in Tarrant County, and though the legislature may at times have given pretextual reasons for its redistricting decisions, Plaintiffs have pointed to no evidence indicating that the legislature's true intent was racial. On the remaining preliminary-injunction factors, Plaintiffs have demonstrated that they would suffer an irreparable injury, but they have failed to demonstrate that either the balance of equities or the public interest weighs in their favor.
Because Plaintiffs have failed to carry their burden, the Court DENIES a preliminary injunction. Also, having considered Plaintiffs’ Rule 65(a)(2) motion to consolidate these preliminary findings with a final merits determination, the Court DENIES that motion as well.
A. Standard of Review...158
B. Intentional Vote Dilution and Racial Gerrymandering...159
C. Discriminatory Effect and the Role of Gingles ...162
A. The Arlington Heights Factors...164
B. Plaintiffs’ Alternative Maps...176
C. The Presumption of Legislative Good Faith...179
D. Conclusion on Likelihood of Success...181
A. Senate District 10
SD 10 is one of thirty-one districts that elect members of the Texas Senate. Benchmark SD 10 (that is, the district as it existed per the 2010 census) was entirely within Tarrant County, as shown below:
The new SD 10, however, is, to say the least, more geographically dispersed—in addition to a reduced portion of Tarrant County, in the northeast corner of the district, the district includes all or part of seven less-populous counties to the south and west. The new SD 10 is shown below:
The district is currently represented by Senator Beverly Powell, a Democrat, and has experienced partisan swings for at least two decades. It was once a Republican bastion, and initially remained one after the 2001 redistricting cycle, when it was redrawn to roughly its benchmark borders. But in 2008, it elected Senator Wendy Davis, a Democrat. The seat then flipped back to Republicans in 2014, and flipped yet again in 2018, when Senator Powell was elected. The district's recent electoral history is summarized in Defendants’ Exhibit 17:
Raw Data*
Year R D Margin (R)
2002 58.7 39.9 18.8
2004 59.3 40.1 19.2
2008 47.5 49.9 -2.4
2012 48.9 51.1 -2.2
2014 52.8 44.7 8.1
2018 48.2 51.7 -3.5
In addition to its partisan performance, benchmark SD 10 is notable, for this Court's purposes, for its racial and ethnic makeup. According to the 2015–2019 ACS,1 a source credited by both parties, benchmark SD 10 is 61.5% minority and 39.5% Anglo; more specifically, it is 32.2% Hispanic, 21.5% Black, and 5.7% Asian. Its voting age population ("VAP") is 43.9% Anglo, 28.8% Hispanic, 20.3% Black, and 5.5% Asian. Its citizen voting age population ("CVAP") is 53.9% Anglo, 20.4% Hispanic, 20.9% Black, and 3.6% Asian. Pls’ Ex. 44 at 4. The district was thus not majority-minority by CVAP according to the five-year ACS figures, but the parties dispute whether it may have since become majority-minority. The Court returns to that dispute below.
Plaintiffs’ Exhibits 66 and 68 illustrate the Hispanic (left) and Black (right) population distribution, measured by VAP, overlaid on the benchmark map of Tarrant County:
As the Court noted above, the new SD 10, compared to the benchmark, is both significantly more Republican and significantly more Anglo. The counties appended to Tarrant County are populated mostly by rural Anglos who tend by a large margin to vote Republican. Pls.’ Ex. 44 at 10. With those voters added to the district and many in the Fort Worth area removed, the district's 2020 presidential election result would have been quite different. President Biden won 53.1% of the vote in the benchmark district, but President Trump would have won 57.2% under the new map. Defs.’ Ex. 11, 16. In terms of race, the new district is still only 49% Anglo, compared to 28.2% Hispanic, 17.7% Black, and 3.4% Asian. But Anglos constitute 53.3% of VAP and 62.2% of CVAP. Pls.’ Ex. 44 at 6. Plaintiffs’ Exhibit 44 provides a visualization of the Anglo population's distribution in the new district:
B. Previous Litigation
SD 10 has been subject to redistricting litigation before. Most notably for our purposes, the district was the sole state senate district at issue in a 2012 decision by the U.S. District Court for the District of Columbia. See Texas v. United States , 887 F. Supp. 2d 133, 162 (D.D.C. 2012) (three-judge court), vacated on other grounds , 570 U.S. 928, 133 S.Ct. 2885, 186 L.Ed.2d 930 (2013) (hereinafter " Texas Preclearance Litig . "). That court refused to allow Texas to redraw SD 10 along lines similar to the current plan. See id. at 163–66.
That case was decided under the "preclearance" framework established by Section 5 of the VRA. Under that framework, which has since been invalidated, see Shelby County v. Holder , 570 U.S. 529, 557, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), certain states, including Texas, were required to seek preapproval for changes to their election rules, including redistricting. Importantly, the states seeking preclearance bore the burden to show that their proposed changes were nondiscriminatory. See Texas Preclearance Litig. , 887 F. Supp. 2d at 163.
In the 2012 decision, the three-judge district court concluded that Texas had not carried its burden to show that the redrawing of SD 10 was enacted without discriminatory intent. Id. at 166. In reaching that conclusion, the court considered emails, procedural omissions, and differing treatment of senators from majority-minority districts, suggesting that supporters of the redrawing acted secretively and were not in fact open to outside input on the new senate map. See id. at 163–66. That court's decision applied a legal standard different from the one at issue here, and this Court, of course, is not bound by its findings of fact. But the decision was public knowledge, and it would plausibly have been known to many of those who served in the Texas Senate when it was decided.
On the other hand, SD 10 featured less prominently in the series of redistricting cases heard last decade by a different three-judge court within this district. Notably, the district was not at issue in Perez v. Abbott , 253 F. Supp. 3d 864 (W.D. Tex. 2017) (three-judge court). That decision concerned Texas's federal congressional map rather than its state senate map. See id. at 873. Thus, though the court found impermissible racial discrimination in the drawing of congressional districts around Fort Worth, see id. at 938, it did not address SD 10, and its decision is not part of SD 10's litigation history.
C. The 2021 Redistricting Process
The details of Texas's redistricting process are key to this Court's analysis of whether the legislature acted with discriminatory intent. So the Court revisits that process below. This introductory section is only a high-level summary.
The Texas Legislature ordinarily conducts redistricting during its regular session immediately following the release of the U.S. Census data. But this year, the COVID–19 pandemic delayed that release by several months. So on September 7, 2021, which was promptly after the census data was made public, Governor Abbott called a special...
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