IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN ...€¦ · Rebecca M. Couto MALDEF 110...

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

SHANNON PEREZ, et al., Plaintiffs, - and - EDDIE BERNICE JOHNSON, et al., - and - TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Plaintiff Intervenors, v. RICK PERRY, et al., Defendants, ____________________________________ MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES (MALC), Plaintiffs, - and - HONORABLE HENRY CUELLAR, et al., Plaintiff Intervenors, v. STATE OF TEXAS, et al., Defendants ____________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO.

SA-11-CA-360-OLG-JES-XR [Lead case]

CIVIL ACTION NO. SA-11-CA-361-OLG-JES-XR

[Consolidated case]

Case 5:11-cv-00360-OLG-JES-XR Document 656 Filed 02/16/12 of 4

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TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, v.

) ) ) ) ) )


[Consolidated case]

) RICK PERRY, et al., )

)

) Defendants, ) ) ____________________________________

MARAGARITA V. QUESADA, et al., ) ) )


[Consolidated case] Plaintiffs, v.

) ) ) )

) RICK PERRY, et al., ) ) Defendants, ) ____________________________________

) JOHN T. MORRIS, )

) )


[Consolidated case] Plaintiff, ) ) v. ) ) STATE OF TEXAS, et al., ) ) Defendants, ) ____________________________________


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EDDIE RODRIGUEZ, et al., ) ) )


[Consolidated case] Plaintiff, ) ) v. ) ) STATE OF TEXAS, et al., ) ) Defendants. )

NOTICE OF FILING OF TEXAS LATINO REDISTRICTING

FORCE PLAINTIFFS’ POWERPOINT PRESENTATION

The Texas Latino Redistricting Task Force Plaintiffs files this Notice of Filing Interim

Plans of February Hearing PowerPoint Presentation attached as Exhibit A.

Dated: February 16, 2012 Respectfully submitted,

/s/ Nina Perales Nina Perales Marisa Bono Rebecca M. Couto MALDEF 110 Broadway Street, #300 San Antonio, TX 78205 (210) 224-5476 Fax: (210) 224-5382 Robert W. Wilson Mark Anthony Sanchez Gale, Wilson & Sanchez, PLLC 115 East Travis, 19th Floor San Antonio, TX 78205 (210) 222-8899 Fax: (210) 222-9526

COUNSEL FOR PLAINTIFFS TEXAS LATINO REDISTRICTING TASK FORCE, RUDOLFO ORTIZ, ARMANDO CORTEZ, SOCORRO RAMOS, GREGORIO BENITO PALOMINO, FLORINDA CHAVEZ, CYNTHIA VALADEZ, CESAR EDUARDO YEVENES, SERGIO


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CORONADO, GILBERTO TORRES, RENATO DE LOS SANTOS, JOEY CARDENAS, ALEX JIMENEZ, EMELDA MENENDEZ, TOMACITA OLIVARES, JOSE OLIVARES, ALEJANDRO ORTIZ, AND REBECCA ORTIZ

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that she has electronically submitted a true and correct copy of the above and foregoing via the Court’s electronic filing system on the 16th day February 16, 2012. The undersigned counsel hereby certifies that she caused a true and correct copy of the above and foregoing to be mailed to the persons listed below by the close of the next business day.

David Escamilla Travis County Asst. Attorney P.O. Box 1748 Austin, TX 78767

/s/ Rebecca M. Couto___ Rebecca M. Couto


Perez v. Perry

Hearing on Interim Plans

Texas Latino Redistricting Task Force

February 14, 2012

Case 5:11-cv-00360-OLG-JES-XR Document 656-1 Filed 02/16/12 Page 1 of 56

Perry v. Perez, 565 U. S. ____ (2012)

• Sec. 2 and U.S. Constitution: “likelihood of success on the merits”

• Sec. 5: “reasonable probability of failing to gain §5 preclearance” (§5 challenge is not insubstantial)


§5: Texas House

• Retrogression

• Discriminatory Purpose


Bexar County: Weakening of HD117


H283 reduces HD117 Latino Ability to Elect

• H283 HD117 now elects Latino preferred candidate in only 3 out of 7 General Elections (PL 201)

• H283 withdraws HD 117 from more active South Side precincts and extends into rural areas with relatively lower Latino turnout (TX v. US Day 6 pm 8:15‐9:4, 13:7‐

17)• H283 HD117 features greatest gap between HCVAP and SSVR (13%) of any district in Texas, indicating low Latino voter engagement (TX v. US DX883)


Racial Purpose in Changes to HD117• 30

• 6 Q. Do you remember the names of the areas that you

• 7 requested?

• 8 A. We wanted to spin the district further north.

• 23 Q. And why did you want to go far north?

• 24 A. Well, I mean, those numbers tended to be ‐‐ like you

• 25 had mentioned, they were more Anglo and more conservative.

John Garza Dep. 30:6‐8, 30:23‐25, U.S. v. Texas (D.D.C.), Oct. 19, 2011.


Nueces County Elimination of HD 33

PL 324 PL 325


Failure to Add New “Valley” House Seat

PL 342


Rejection of Federal LawCircumstantial Evidence of Purpose

• Elevation of County Line Rule over Voting Rights Act– Elimination of HD 33

– Refusal to create new district in Rio Grande Valley

• Chairman Solomons testified he would need the U.S. Supreme Court to tell him to break the county line to comply with the VRA. (DX580 Perez Tr. 1593:15‐24)


TX v. US DX 381: Texas Legislative Council’s presentation in March 2011

Redistricters Knew The County Line Rule Yields to Federal Law


County Line Rule

• It is well‐established in the Fifth Circuit that Texas’s County line rule must yield to the Voting Rights Act. See U.S. Const. art VI, cl. 2

• LULAC No. 4434 v. Clements, 884 F.2d 185, 188 (5th Cir. 1989): “If the present [judicial election] district lines are found to violate the Voting Rights Act and/or the United States Constitution, Texas’constitutional and statutory provisions protecting district lines will be nullified under the Supremacy Clause.”


• Voinovich v. Quilter, 507 U.S. 146, 159 (1993): “ [The drafter’s] preference for federal over state law when he believed the two in conflict does not raise an inference of intentional discrimination; it demonstrates obedience to the Supremacy Clause of the United States Constitution.”

• Katzenbach v. Morgan, 384 U.S. 641, 645‐47 & nn.1‐2 (1966) (Voting Rights Act prevailed over election laws of New York requiring an ability to read and write English as a condition of voting)

• South Carolina v. Katzenbach, 383 U.S. 301, 311 & n.9, 333‐34, 337 (1966) (Voting Rights Act was an appropriate remedy to overcome racially biased constitutions, such as South Carolina’s)

• Sanchez v. Colorado, 97 F.3d 1303, 1306‐07 (10th Cir. 1996) noted that Colorado recognizes that the Voting Rights Act prevails over the whole county rule and applying that standard

• Lopez v. Monterey Cnty., 871 F. Supp. 1254, 1258 (N.D. Cal. 1994), vacated on other grounds, 519 U.S. 9 (1996) noted that some provision of the California Constitution may have to be violated to remedy violations of the Voting Rights Act

• Marylanders for Fair Representation, Inc. v. Schaefer, 849 F. Supp. 1022, 1047 n.21 (D. Md. 1994) (most citations omitted) (recognizing that “nesting”requirement in state law must yield, and explaining, “Plaintiffs are correct in arguing that state statutes or constitutional provisions that result in violations of the U.S. Constitution or the Voting Rights Act are preempted by federal law.”)


No “Offset” to Remedy Retrogression

• HD 90 and HD 148 are ability to elect districts in the benchmark

• Rep. Solomons considered HD 90 and HD 148 ability to elect districts in the benchmark– Rep. Solomons testimony (TX v. US DX580 Tr. 1600:24‐1601:8)

– Letter to Rep. Solomons (TX v. US DX649)

• All election analyses show ability to elect (TX v. US DX799)


HD 74

• State considered 74 effective in the benchmark– Interiano identified HD 74 as effective in the benchmark. (Tr. Day 1 pm 25:5‐22)

• HD 74 has elected the Latino preferred candidate since 1991 (Tr. Day 8 pm 12:7)

• HD 74 in benchmark has SSVR of 58.1 (TX v. US DX799)

• State mentioned HD 74 for the first time after summary judgment


Discriminatory Purpose in HD 78: “Antlers in El Paso”


HD78: 14 Precinct Splits

PL 327


HD78 Doesn’t follow the Franklin Mountains

PL 323


HD 78: Follows Race

PL 328


Refusal to Examine VRA ComplianceCircumstantial Evidence of Purpose

• Mr. Interiano said he dropped in whole county plans without questioning VRA compliance (Tr. 1443:23‐1444:8, Tr. 1445:9‐18)

• Chairman Solomons says he relied on staff (Tr. Day 4 pm 67:17‐23)

• Chairman Seliger says he relied on assurances (Tr. Day 6 am 31:6‐14)

• Redistricters did not analyze benchmark districts to aid in sec. 5 compliance. Interiano Texas v. U.S. Tr. Day 1 pm 26:3‐28:19


§5: Congress

• Discriminatory Purpose


Population Growth in the 6 Latino‐majority Districts in South Texas


Congressional District 23

• Ability to elect transformed to 1/10 (D‐2)

• Downton swapped precincts with knowledge of turnout differentials (TX v. US Tr. Day 2 am 110:4‐11)

• Interiano: result was achieved (TX v. US Tr. Day 1 pm 52:4‐54:11)

• Chairman Seliger: it “would be a violation” (TX v. US Tr. Day 6 am 14:10‐22)


CD 23, cont.• Redistricters never looked at impact on Latino candidates in the Republican primary (TX v. US Tr. Day 2 am 117:25‐118:8)

• Alford: “déjà vu” with LULAC v. Perry (Tr. 1929: 5‐21)– Cut Maverick County in half (last time it was Webb) (Tr. 768:6‐15)

– State sought to protect incumbent not preferred by Latino voters (TX v. US Tr. Day 2 am 107:24‐108:3, 116:7‐14)

– Changes made at the expense of Latino voters


“certain data would be useful in identifying a nudge factor by which one can analyze which census blocks, when added to a particular district, especially50 plus 1 majority -minority districts, help pull the districts total Hispanic pop[ulation] and the Hispanic CVAP up to majority status, but leave the Spanish surnamed registered voters and turnout the lowest. This is especially valuable in shoring up Canseco and Farenthold.” (TX v. US Jan. 17 PM at 52:22-53:15.)


CD23 OAG Analysis° The AG’s internal estimates show that the State's new CD 23 disproportionately reduced the average number of Latino voters in each election by 3,151. (Ex. D‐2)

• The AG’s estimates show that in the 2002 election for Governor, the State's new CD 23 reduced the number of Latino voters by 10,269 and increased the number of Anglo voters by 1,059 when compared to the benchmark. (TX v. US DX0331 p.5‐12; DX0331 p. 9‐12; DX0365 p. p.5‐12)


Congressional District 27

• Redistricters knew Rep. Farenthold is not candidate of choice (TX v. US Tr. Day 6 am 16:24‐17:1)

• Nueces County is Latino majority and part of S.TX (Pl‐292, PL‐299)

• Nueces County voters removed from S.TX district and put in a district where they no longer have the opportunity to elect (Alford: TX v. US DX581 1829:11‐1832:19)

• CD 34 may be an offset under Section 5 but does not preclude a finding of purpose with respect to Nueces County Latino voters.

• Pulling out Nueces County “political decision” which limited map to 6 Latino districts in STX (Downton TX v. US Tr. Day 2 102:13‐104:9)


Texas Congressional Plan ‐ DFW


CD26 “Lightning Bolt” by Race

DX702


Fracturing of Latino Population

• “Lightning bolt” SSVR: 40.3%• CD 26 SSVR: 12%.

• CD 6 intrusion into Dallas County SSVR: 34.0%

• CD 6 SSVR: 20.2%

(DX0706, see Dkt. No. 615.)


“Changes made to keep the Black population together in

District 12.”


H303: State of Texas

The Task Force believes the Latino opportunity districts in this plan are

an acceptable compromise


H303 Restores Two Latino Opportunity Districts in Nueces County


El Paso: Antlers Modified


Harris County: Latino‐majority HD 144 and Restores HD136 (Vo)


Shift of HD35 to the Rio Grande Valley


C226: State of Texas

The Task Force believes the Latino opportunity districts in this plan are

an acceptable compromise


Restoration of CD23 to Benchmark Opportunity Levels


C226 CD23


Seven Latino Opportunity Districts in South TX


CD 33: Remedy to Eliminate Fracturing in Dallas Ft. Worth


C226 CD 33

• HCVAP 39.4%

• SSVR 35.8%

• BCVAP 24%

• Anglo CVAP 33.5%

• Latinos have a toss‐up opportunity to nominate in the D Primary (AG RPV Analysis, CD 33 in C226)


CD 33 Follows State Senate Map for1992 Elections


CD 33 Follows SD 12 in State Map for 1992 Elections


CD 33 Reflects Population Growth in the Region

Dallas & Tarrant Population Growth (2000-2010)*

61,623

152,825

440,898

‐156,742

-300,000

-100,000

100,000

300,000

500,000

Hispanic or Latino Black alone, NotHispanic or Latino

Asian alone, NotHispanic or Latino

White alone, NotHispanic or Latino

Data Sources: 2000 Census Redistricting Data PL002; 2010 Census Redistricting Data P2


Any Loss of Ability in CD 25 is Offset by CD 35


Benchmark CD25

• Anglo CVAP 63.1%

• HCVAP 25.3%

• SSVR 20.4%

• BCVAP 9.1%


Analysis Contest CandidateLatino

SupportNon-Latino

Support

African American Support

Other Support

Bivariate 2006 Lt. Gov. Alvarado and De Leon 93 49.1Multivariate 2006 Lt. Gov. Alvarado and De Leon 89.4 47.6 47.7

Bivariate 2006 Lt. Gov. Alvarado 68.3 42.4Multivariate 2006 Lt. Gov. Alvarado 71 26.9 41.9

Bivariate 2006 Lt. Gov. Runoff Alvarado 91.5 35.5Multivariate 2006 Lt. Gov. Runoff Alvarado 85.6 38.9 33.7

Bivariate 2008 U.S. Senator Noriega 65.3 60Multivariate 2008 U.S. Senator Noriega 69.2 36.7 61.4

Bivariate 2008 Supreme Court, Pl. 7 Cruz 78.4 36.5Multivariate 2008 Supreme Court, Pl. 7 Cruz 79.1 23.7 35.7

Bivariate 2008 Supreme Court, Pl. 8 Yanez 92.6 46.3Multivariate 2008 Supreme Court, Pl. 8 Yanez 89.2 46.3 43.6

Bivariate 2010 Lt. Gov. Chavez-Thompson 39.4 21.6Multivariate 2010 Lt. Gov. Chavez-Thompson 36.3 19.3 21.6

Bivariate 2010 Land Comm. Uribe 65.5 61.5Multivariate 2010 Land Comm. Uribe 72.4 25.1 63.6

Dr. Richard Engstrom’s Analysis of Racially Polarized Voting in Statewide Democratic Primaries in Travis County


Contest CandidateEstimated % Latino Votes for Candidate

Estimated % Anglo Votes for Candidate

Estimated % Black Votes for Candidate

2006 Lt. Gov. Alvarado & De Leon 100 49 39.12008 U.S. Senator Noriega 100 55.9 33.82008 Supreme Court, Pl. 8 Yanez 100 42.4 39.52010 Lt. Gov. Chavez-Thompson 100 23.2 15.12010 Land Comm. Uribe 100 54.1 28.2

The OAG’s Analysis of Racially Polarized Voting in CD 25 in Plan C100


Anglos Select the Democratic Party Nominees in Benchmark CD25

• 2002 D Primary Governor: 73% Anglo

• 2006 D Primary Lt. Governor: 76% Anglo

• 2006 D Primary Ag Comm: 81% Anglo

• 2008 D Primary Senator: 78% Anglo

• 2008 D Primary RR Comm: 76% Anglo

• 2008 D Primary S.Ct.: 73% Anglo

• 2010 D Primary Lt. Gov: 80% Anglo

• 2010 D Primary Land Comm: 78% AngloSource: D‐2, Table T 3 for CD 25 in C100


White Primaries

• Applied to Mexican Americans in South Texas in the early 1900’s

• The Dimmit Co. WMPA was so effective that Carrizo Springs Javelin in June 12, 1914 said it “absolutely eliminates the Mexican vote as a factor in nominating county candidates, though we graciously grant the Mexican the privilege of voting for them afterwards.”

Tijerina Report Dkt. 149‐6 at pg. 12


Smith v. Allwright, 321 U.S. 649, 661‐62 (1944) (citations omitted)It may now be taken as a postulate that the right to vote in . . . a primary for the nomination of candidates without discrimination by the State, like the right to vote in a general election, is a right secured by the Constitution. The Voting Rights Act protects the right to vote in vote in primary elections (the right to nominate) from vote dilution.

Voting Rights Act, 42 U.S.C. § 1973(b) (emphasis added)(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [Latinos].

The right to vote includes the right to vote in the primary elections.


Opportunity to Elect Includes Primary Elections

Session v. Perry, 298 F. Supp. 2d 451, 478 (E.D. Tex. 2004), aff’d in part, LULAC v. Perry, 548 U.S. 399 (2006)Plaintiffs cite Brewer v. Ham for the proposition that minority groups may be combined to satisfy Gingles’s

majority requirement. Brewer, however, allowed for minority combination when the groups votecohesively. Here, there is no serious dispute but that Blacks and Hispanics do not vote cohesively in primary elections, where their allegiance is free of party affiliation. Minority voters must have the potential to elect in the absence of the accused practice or structure if their claim of injury by that practice or structure is to be sustained.

LULAC v. Perry, 548 U.S. 399, 443‐446 (2006)The District Court found, however, that African–Americans could not elect their candidate of choice in the

primary. . . .. . . The fact that African–Americans preferred Frost to some others does not, however, make him their

candidate of choice. Accordingly, the ability to aid in Frost's election does not make the old District 24 an African–American opportunity district for purposes of § 2.

Rodriguez v. Pataki, 308 F. Supp. 2d 346, 421‐22 (S.D.N.Y. 2004) (quoting Session v. Perry)Where, as here, the two minority groups are generally affiliated/registered with the same party . . . and vote

for that party’s candidates at high rates, primary elections for that party’s candidate are by far the most probative evidence of cohesion. And, the Democratic primary results presented here show that Hispanics and blacks are cohesive barely one third of the time.

. . .We find that ‘Blacks and Hispanics do not vote cohesively in primary elections, where their allegiance is free of

party affiliation.’


Fifth Circuit case law shows the importance of cohesion in coalition claims:

Brewer v. Ham, 876 F.2d 448, 453‐54 (5th Cir. 1989)Affirming the district court, which [stated]:[F]or the Court to make a finding of minority group political cohesiveness here

requires some sort of information, statistical or otherwise, that Blacks, Hispanics, and Asians usually vote together or usually vote for the same candidate.... These ... groups must be shown to vote together by some sort of reliable evidence for this Court to be able to make a finding of political cohesiveness.

(emphasis added by 5th Cir.).

Campos v. City of Baytown, Tex., 840 F.2d 1240, 1245 (5th Cir. 1988)The key is the minority group as a whole. Of course, if one part of the group cannot be

expected to vote with the other part, the combination is not cohesive. If the evidence were to show that the Blacks vote against a Hispanic candidate, or vice versa, then the minority group could not be said to be cohesive. But if the statistical evidence is that Blacks and Hispanics together vote for the Black or Hispanic candidate, then cohesion is shown.


Overton v. City of Austin, 871 F.2d 526, 536 (5th Cir. 1989)[T]he court rated as significant the voting statistics concerning the frequency with which blacks and Mexican‐

Americans supported the same candidates. . . . Between 1975 and 1983, the Mexican‐American preferred candidate was supported by an average of 69% of Austin’s black voters, and the black preferred candidate was supported by an average of 73% of Mexican‐American voters. More significantly, however, in those same elections, Anglos voted with one or the other minority groups more frequently than the two groups voted together. Thus, in elections where Anglos ran against minorities and supported a different candidate than did the minority groups, minorities voted together five times and voted differently four times. This result, the court found, is hardly evidence of cohesiveness.FN6

FN6. Between 1975 and 1983 a minority was a candidate in 19 races. Anglos supported the minority in eight of those 19 races. Thus, in those eight races, the entire city voted cohesively. In two of the 19 races, the minority candidate did not receive plurality support of either community. In the remaining nine races, blacks and Mexican‐Americans supported a different candidate than did Anglos. Significantly, the court found that in four of these nine races, the black‐supported candidate did not receive a majority of Mexican‐American votes and the Mexican‐American‐supported candidate did not receive a majority of black votes.

The court also compared the results of a 1987 race for Place 1 in which a black, Terry Davis, and a Mexican‐American, Gilbert Martinez, were candidates. In that race, Davis received 12.1% of the vote in Mexican‐American precincts, to Martinez's 46.7%. In the black precincts Martinez garnered 10.8% of the vote, compared to Davis's 63.5%. The court held that such evidence likewise failed to support a finding of cohesiveness between blacks and Mexican‐Americans. The court considered it likely that in a district with a large percentage of both minorities, black and Mexican‐American candidates will oppose each other for office, and if they did so, the residual Anglo vote would determine the outcome of the election.

Fifth Circuit case law shows the importance of cohesion in coalition claims (cont.)


Thank You


IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN ...€¦ · Rebecca M. Couto MALDEF 110...

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Transcript of IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN ...€¦ · Rebecca M. Couto MALDEF 110...