Perez v. Abbott, 042017 TXWDC, SA-11-CV-360

Court:United States District Courts, 5th Circuit
Judge Panel:Before Circuit Judge SMITH, Chief District Judge GARCIA, and District Judge RODRIGUEZ JERRY E. SMITH, Circuit Judge, dissenting:
Case Date:April 20, 2017
Docket Nº:SA-11-CV-360




No. SA-11-CV-360

United States District Court, W.D. Texas

April 20, 2017

          Before Circuit Judge SMITH, Chief District Judge GARCIA, and District Judge RODRIGUEZ

          ORDER ON PLAN H283


         This Order addresses Plaintiffs' claims concerning Plan H283, enacted by the 82nd Legislature in 2011. Plaintiffs assert “results” claims under § 2 of the Voting Rights Act (“VRA”), intentional vote dilution claims under § 2 of the VRA and the Fourteenth Amendment, and Shaw-type racial gerrymandering claims under the Equal Protection Clause of the Fourteenth Amendment. The Perez, LULAC, and MALC Plaintiffs also assert one person, one vote claims under the Equal Protection Clause of the Fourteenth Amendment based on population deviations among the districts. This opinion is intended to be read in conjunction with the Court's fact findings, which are issued separately, as well as the Court's opinion on Plan C185 (docket no. 1339).

         I. VRA § 2 results claims generally

         The Task Force, NAACP Plaintiffs, and MALC[1] assert § 2 results claims on the basis that Texas could have enacted a plan with more minority opportunity districts (both single-minority and coalition) than were contained in Plan H283 and that enacting a plan with such additional districts was required by the § 2 results test. In their Fourth Amended Complaint, the Task Force Plaintiffs allege that “Plan H283 fails to create at least three additional Latino-majority House districts that afford Latinos the opportunity to elect their preferred candidate.” Docket no. 891 ¶ 37; see also Id. ¶ 68 (“The Latino population of Texas is sufficiently geographically compact to comprise the majority of citizen voting age persons in at least 33 Texas House districts.”). They also assert so-called “nudge factor” claims against two HCVAP-majority districts in Plan H283, HD117 in Bexar County and HD78 in El Paso. Docket no. 1282 at 4-5.

         The Task Force Plaintiffs contend that “Latinos are sufficiently numerous and compact to comprise the citizen voting age majority in more districts than contained in Plan H283, including in Harris County, Nueces County, and the Rio Grande Valley.” Docket no. 1282 at 4. However, somewhat inconsistently, they offer Plan H292 as a demonstration plan, asserting that it has 34 Latino opportunity districts, created by restoring HD33 in Nueces County, “balancing” the Latino population in Bexar County to restore HD117, “balancing” the Latino population in El Paso to add HD78, and adding a Latino opportunity district in the Rio Grande Valley by combining population overages from Cameron and Hidalgo Counties to capture the “organic” district that grew in the Valley. Docket no. 1282 at 6; docket no. 444 at 20.2 Defendants correctly note that “only 32 districts exceed 50% HCVAP or SSVR” in Plan H292. Docket no. 468 at 19.

         The NAACP's Third Amended Complaint alleges that the Texas Legislative Black Caucus introduced a plan with four additional African-American opportunity districts (Plan H202), and alleges a § 2 results claim. Docket no. 900 ¶¶ 22, 58; see also docket no. 406 at 30 (arguing that four additional minority opportunity districts could have been drawn compared to the enacted plan).3

         MALC also asserts § 2 results claims and contends that up to six additional minority opportunity districts were required. Docket no. 897 ¶¶ 74-75; docket no. 412 at 16-18. MALC has offered numerous demonstration maps, including statewide Plans H201, H205, H295, and H329, and various limited plans for certain geographic areas.

         “When applied to a claim that single-member districts dilute minority votes, the first Gingles condition requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice.” Johnson v. De Grandy, 512 U.S. 997, 1008 (1994). Generally, to evaluate this claim, it must be determined how many “reasonably compact districts with a sufficiently large minority population to elect candidates of its choice” exist in Plan H283, and whether Plaintiffs have demonstrated that more were required, which is usually done through presentation of demonstration plans. LULAC v. Perry, 548 U.S. 399, 430 (2006) (“De Grandy requires a comparison between a challenger's proposal and the ‘existing number of reasonably compact districts.'”). Because Plaintiffs are alleging § 2 claims based on the number of opportunity districts statewide, analysis of the claims should involve a comparison between the number of opportunity districts in the enacted plan (Plan H283) and a Gingles demonstration plan proposed by Plaintiffs. While normally this would be a straightforward task, it is not in this case.

         This task is made complicated by numerous factors, including that: (1) it remains unclear whether the Perez Plaintiffs are asserting § 2 results claims despite offering statewide demonstration Plan H232 and several limited-area demonstration plans4; (2) the parties (including the Plaintiffs among themselves) disagree concerning which districts in the enacted plan are opportunity districts; (3) even single Plaintiffs present conflicting assertions concerning which districts they are alleging to be additional opportunity districts; (4) some Plaintiffs fail to clearly set out specifically all the districts they contend are opportunity districts either in the enacted plan or their demonstration plan (or both), asserting only that more could have been drawn; (5) Plaintiffs and Defendants disagree on how to determine whether a district is a minority opportunity district and both incorrectly assert that districts with less than 50% minority CVAP are opportunity districts in some instances; (6) many of Plaintiffs' experts reports and analyses focus on VAP instead of CVAP; and (7) certain demonstration plans contain 25 districts in Harris County, compared to 24 in Plan H283, making comparisons outside of drop-in counties more difficult.5

         The Court finds that certain of the § 2 results claims are moot, given the Legislature's adoption of the interim plan, with slight modifications, in 2013. Plan H309 and Plan H358 resolved some of the § 2 results claims, and no § 3(c) relief would be available based on any proven violations of the § 2 results claims. Given these facts, as well as the complicating factors listed above, the Court concludes that it would be a waste of the Court's resources to delve into significant detail into all of the § 2 results claims with regard to Plan H283. Instead, because the Legislature adopted a new plan in 2013, the parties will be permitted to bring their § 2 results claims concerning the 2013 plan based on more recent ACS data. However, the Court will offer some analysis of the 2011 plan § 2 results claims to give preliminary guidance to the parties for the 2013 plan trial and as necessary where the claims relate to the Plaintiffs' intentional vote dilution claims.

         A. How to measure opportunity districts

         For both the enacted plan and Plaintiffs' demonstration districts, Defendants contend that opportunity districts are measured solely on demographics. For the enacted plan, Plaintiffs contend that they are determined by demographics coupled with a functional analysis including election analysis. Some Plaintiffs (such as the Task Force Plaintiffs) also apply a functional analysis to their proposed demonstration districts, though some Plaintiffs (MALC and the NAACP) appear to rely more on meeting the demographic threshold for demonstration districts.[6]

         Some Plaintiffs challenge specific majority-HCVAP districts as not providing real electoral opportunity and not being Latino opportunity districts—specifically, the Task Force Plaintiffs challenge HD78 in El Paso and HD117 in Bexar County under § 2 for both results and intent, and the United States contends that HD35 and HD41 are not opportunity districts as part of its intentional vote dilution claims.7 As this Court held in its congressional plan opinion, Plaintiffs may bring results claims against a particular district despite its majority-HCVAP status; the fact that a district is majority-HCVAP does not, standing alone, qualify it as a Latino opportunity district, and Plaintiffs may attempt to prove that it lacks “real electoral opportunity.” Similarly, as discussed in the congressional plan opinion, the Court views exogenous election indices in enacted districts as probative evidence of whether a district is an opportunity district, but declines to measure whether a district is an opportunity district based solely on a 50% win standard on such indices. Rather, the Court conducts a practical, searching inquiry based on the totality...

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