Vera v. Bush

• Decision Date: 06 August 1996
• Docket Number: Civil Action No. H-94-0277.
• Parties: Al VERA, Edward Chen, Pauline Orcutt, Edward Blum, Kenneth Powers and Barbara L. Thomas, Plaintiffs, v. George W. BUSH, in his official capacity as Governor of the State of Texas, Bob Bullock, in his official capacity as Lt. Governor and President of the Texas Senate, Dan Morales, in his official capacity as Attorney General for the State of Texas, Pete Laney, in his official capacity as Speaker of the House of Representatives, and Antonio Garza, in his official capacity as Secretary of State of the State of Texas, Defendants.
• Court: U.S. District Court — Southern District of Texas

933 F. Supp. 1341

Al VERA, Edward Chen, Pauline Orcutt, Edward Blum, Kenneth Powers and Barbara L. Thomas, Plaintiffs, v. George W. BUSH, in his official capacity as Governor of the State of Texas, Bob Bullock, in his official capacity as Lt. Governor and President of the Texas Senate, Dan Morales, in his official capacity as Attorney General for the State of Texas, Pete Laney, in his official capacity as Speaker of the House of Representatives, and Antonio Garza, in his official capacity as Secretary of State of the State of Texas, Defendants.

Civil Action No. H-94-0277.

United States District Court, S.D. Texas, Houston Division.

August 6, 1996.

Paul Loy Hurd, Monroe, LA, Ted Hirtz, Houston, TX, for Plaintiffs.

Richard E. Gray, III, Gray & Becker, Austin, TX, Javier Aguilar, Austin, TX, Deborah Anne Verbil, Office of Attorney General, Austin, TX, for Defendants George Bush, Dan Morales, Bob Bullock, Antonio Garza and Pete Laney.

Robert A. Kengle, Steven H. Rosenbaum and Gaye L. Hume, U.S. Department of Justice, Washington, DC, Nancy Herrera, U.S. Attorney's Office, Houston, Texas, for U.S., Defendant-Intervenor.

Elaine Jones and Penda Hair, NAACP Legal Defense & Education Fund, Inc., Washington, DC, for Defendants-Intervenors William Lawson, et al.

Judith A. Sanders-Castro, Mexican-American Legal Defense & Education Fund, San Antonio, TX, for Defendants-Intervenors LULAC and Robert Reyes, et al.

Luis Wilmot and Alabert H. Kauffman, Mexican-American Legal Defense & Education Fund, San Antonio, TX, for Defendants-Intervenors MALDEF.

J. Gerald Herbert, Alexandria, VA, for Amicus Eddie Bernice Johnson.

Keith P. Ellison, Houston, TX, for Amici Sheila Jackson Lee and Gene Green.

Before JONES, Circuit Judge and HITTNER and HARMON, District Judges.

MEMORANDUM OPINION ON INTERIM REMEDY

Pending before the Court are Plaintiffs' Motion for Remedy filed shortly after the Supreme Court's affirmance of this Court's judgment in Bush v. Vera, ___ U.S. ___, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996), and the Motion of Defendants Lieutenant Governor Bullock ("Bullock") and Speaker of the Texas House Laney ("Laney") to Stay Imposition of a Court-Ordered Remedy. Governor Bush, together with the Secretary of State Garza and Attorney General Morales (hereafter collectively referred to as "the Governor"), take no position on the propriety of a Court-ordered remedy but have assisted the Court in its decisionmaking process. The Court has considered voluminous pleadings and affidavits submitted by all parties and by various amici curiae and has heard arguments of counsel and testimony at hearings conducted July 11, July 22 and July 31, 1996. Having done so, the Court has decided for the reasons stated below that an interim Court-ordered redistricting plan is mandatory in this case.

The Court has redrawn the boundaries for congressional districts 18, 29 and 30, as well as portions of districts 7, 8, 9, 22, 25, 3, 5, 6, 24 and 26. Under the Court's interim plan, voters in the 13 affected congressional districts will participate in an open primary conducted along with the 1996 presidential elections. All qualified candidates will compete in the primary, which will follow Texas's special election law insofar as possible. If necessary, runoff elections will be held December 10, 1996. The legislature is directed to fashion a constitutional apportionment scheme during its 1997 session. The attached order formally describes the new districts; the Appendix attached hereto includes maps of the interim districts; and the Exhibits contain information on population deviation, split precincts, and a bill description of the court-ordered districts.

In its original opinion, the Court found that congressional districts 18, 29 and 30 were created as the product of overt racial gerrymandering rather than as a response to legitimate political districting concerns or the requirements of the Voting Rights Act. This Court found, for instance, that in each of these districts, the state utilized a computer program that revealed the race of inhabitants in census tracts on a block-by-block basis and used those data either to include or exclude whites, African-Americans and Hispanics from the challenged districts and those adjoining them. The Supreme Court also recognized the intricacy of the state's racial reapportionment, emphasizing that "the availability and use of block-by-block racial data was unprecedented; before the 1990 census, data were not broken down beyond the census tract level. By providing uniquely detailed racial data, REDAPPL, the state's computer program, enabled districters to make more intricate refinements on the basis of race than on the basis of other demographic information." Bush v. Vera, ___ U.S. ___, ___, 116 S.Ct. 1941, 1953, 135 L.Ed.2d 248 (1996).

The result of this racial gerrymandering was the creation of congressional districts whose boundaries follow no conceivable standards of traditional districting criterion such as compactness, contiguity, or community or natural boundaries. The Supreme Court agreed that the districts were radically unconventional and observed that in these bizarre, contorted districts,

in numerous instances, the correlation between race and district boundaries is nearly perfect.... The borders of Districts 18, 29, and 30 change from block to block, from one side of the street to the other, and traverse streets, bodies of water, and commercially developed areas in seemingly arbitrary fashion until one realizes that those corridors connect minority populations.

Vera, ___ U.S. at ___, 116 S.Ct. at 1953 (quoting Vera v. Richards, 861 F.Supp. 1304, 1334 (S.D.Tex.1994)). Indeed, the pattern behind the seemingly illogical boundaries became evident once the clarity and detail of the state's racial information and input were exposed.

Evidence of confusion among voters and candidates attempting to campaign in these districts was graphic and abundant.¹ These congressional districts had been shaped, in short, for the benefit of preferred candidates. But this perversion both of race and of representative government did not escape the attention of either this Court or of the Supreme Court, which reiterated that

as enacted in Texas in 1991, many incumbent protection boundaries sabotaged traditional redistricting principles as they routinely divided counties, cities, neighborhoods, and regions. For the sake of maintaining or winning seats in the House of Representatives, Congressmen or wouldbe Congressmen shed hostile groups and potential opponents by fencing them out of their districts. The Legislature obligingly carved out districts of apparent supporters of incumbents, as suggested by the incumbents, and then added appendages to connect their residences to those districts. The final result seems not one in which the people select their representatives, but in which the representatives have selected the people.

Vera, ___ U.S. at ___, 116 S.Ct. at 1954 (quoting Vera v. Richards, 861 F.Supp. 1304, 1334 (S.D.Tex.1994) (citations and footnotes omitted)) (emphasis added). The flagrant and pervasive use of the race of Texan voters in the state's gerrymander gave this Court obvious and "ample bases on which to conclude both that racially motivated gerrymandering had a qualitatively greater influence on the drawing of district lines than politically motivated gerrymandering, and that political gerrymandering was accomplished in large part by the use of race as a proxy." Vera, ___ U.S. at ___, 116 S.Ct. at 1956.

On appeal, the Supreme Court agreed with this Court's analysis of the evidence and our ultimate conclusion that the districts were unconstitutional. The Supreme Court "found that all three districts are bizarrely shaped and far from compact, and that those characteristics are predominantly attributable to gerrymandering that was racially motivated and/or achieved by the use of race as a proxy." Id. at ___, 116 S.Ct. at 1961 (emphasis added). Subjecting these contorted districts to strict constitutional scrutiny, the Court reasoned that the districts did not pass muster, for the "characteristics of the districts defeat any claim that the districts are narrowly tailored to serve the State's interest in avoiding liability under § 2 of the Voting Rights Act, because § 2 does not require a State to create, on predominantly racial lines, a district that is not `reasonably compact.'" Id. at ___, 116 S.Ct. at 1961 (citation omitted). Put differently, the Voting Rights Act neither compelled nor tolerated the state's unconstitutional racial gerrymander:

If, because of the dispersion of the minority population, a reasonably compact majority-minority district cannot be created, § 2 does not require a majority-minority district; if a reasonably compact district can be created, nothing in § 2 requires the race-based creation of a district that is far from compact.... Rather, significant deviations from traditional districting principles such as the bizarre shape and noncompactness demonstrated by the districts here, cause constitutional harm insofar as they convey the message that political identity is, or should be predominantly racial.... The districts ... exhibit a level of racial manipulation that exceeds what § 2 could justify.

Id. at ___ - ___, 116 S.Ct. at 1961-62. As the Supreme Court reminded, because traditional districting practices "which acknowledge voters as more than mere racial statistics, play an important role in defining the political identity of the American voter. The Fourteenth Amendment jurisprudence evinces a commitment to eliminate unnecessary and excessive governmental use and reinforcement of racial stereotypes." Id. at ___, 116 S.Ct. at 1964 (citations omitted).

To recap briefly the litigation underlying the Supreme Court's opinion, the plaintiffs' lawsuit was filed in January, 1994, shortly before Texas's primary election season. This Court tried the case and rendered its judgment...