Perez v. Perry , 835 F. Supp. 2d 209 ( 2011 )

ORDER

ORLANDO L. GARCIA and XAVIER RODRIGUEZ, District Judges.

The court, by majority, adopts PLAN H302 as the interim plan for the districts used to elect members in 2012 to the Texas House of Representatives. A map showing the redrawn districts in PLAN H302 is attached to this Order as Exhibit A. The textual description in terms of census geography for PLAN H302 is attached as Exhibit B. The statistical data for PLAN H302 is attached as Exhibit C. This plan may also be viewed on the District-Viewer website operated by the Texas Legislative Council (http://gisl.tlc.state.tx. us/) under the category “Court-ordered interim plans.” Additional data on the interim plan can be found at the following website location maintained by the TLC under the “Announcements” banner: http://www.tlc.state.tx.us/redist/redist.htm

This interim map is not a ruling on the merits of any claims asserted by the Plaintiffs in this case, any of the other cases consolidated with this case, or the case pending in the United States District Court for the District of Columbia (“D.C. Court”).

The decennial census was conducted last year, pursuant to Article I, § 2 of the United States Constitution. After the census figures were released, it became clear that the current apportionment plan for the Texas House of Representatives violates the one person, one vote principle under the United States Constitution as a result of the dramatic population growth in the last decade. Thus, the State of Texas undertook redistricting efforts to apportion seats in the Texas House of Representatives. See U.S. Const. Art. I, § 2; see also Tex. Const. Art. III, § 26.

The 82nd Texas Legislature enacted House Bill 150 (“H.B. 150”), which established a new redistricting plan for the Texas House of Representatives. (“Plan H283”). House Bill 150 was signed in the Texas House and Texas Senate on May 2, 2011 and signed into law on June 17, 2011. A lawsuit for preclearance of the State’s enacted plan was filed on July 19, 2011 and is currently pending in the United States District Court for the District of Columbia. In that case, the United States has stated that it believes the State’s enacted House plan was “adopted with a discriminatory purpose” and “has a retrogressive effect” on the voting strength of minority voters. The D.C. Court, hearing this argument, concluded that “the State of Texas used an improper standard or methodology to determine” if its maps would adversely affect minority voters. The D.C. Court therefore denied the State’s request for summary judgment, electing to conduct a trial to determine factual issues related to the alleged discrimination by the Texas Legislature.

The D.C. Court’s refusal to approve the State’s map places this Court in the unwelcome position of having to “designate a substitute interim plan for the 2012 election cycle by the end of November.” ¹ Because the current plan is malapportioned and the State’s enacted plan has not been precleared, the Court prepared a court drawn plan so that the 2012 elections could proceed in a timely manner.² With the invaluable technical assistance of the staff at Texas Legislative Council, the Court was able to draw a redistricting plan that met with the approval of a majority of the Court.

Despite the allegations of intentional discrimination and widespread constitutional violations in the enacted House plan, the State objects to issuance of a court-drawn map and insists that this Court must adopt the enacted plan “[bjecause unelected federal judges possess neither the constitutional power nor the political competence to make the policy choices essential to redistricting[.]” While redistricting is generally a task for legislatures, a legislature’s powers are not unbounded. Here, Texas failed to receive the necessary Voting Rights Act approval for the House plan before the 2012 elections. In such cases, federal courts are required to step in to create a lawful map that will allow free and fair elections to go forward.³

In crafting an interim map, this Court may not simply fix the problematic parts of the enacted map as the State suggests.⁴ Doing so would interfere with the lawsuit currently pending in the D.C. Court, a lawsuit initiated by the State of Texas. Rather, this Court is tasked with drafting an independent map that will enable elections for the 2012 election cycle. Once the D.C. Court rules, and if the State receives preclearance for its enacted plan, this Court would then remedy any constitutional defects while deferring to State policy for the rest of the map.⁵ If the D.C. Court denies preelearance, the enacted plan will be null and the Legislature will be required to enact a new plan. But until that time comes, this Court’s hands are tied and it must draft an interim map.

The Court’s primary goal in crafting its map was to preserve the status quo as much as possible. All proposed maps, including the State’s enacted map, were considered.⁶ But ultimately, the Court was obliged to adopt a plan that complies with the United States Constitution and also embraces neutral principles that advance the interest of the collective public good, as opposed to the interests of any political party or particular group of people. The Court therefore declined to adopt any of the Plaintiffs’ proposed plans, and has instead crafted a plan that embraces the neutral districting principles required of court-drawn plans.

In determining the standards, principles, and criteria to follow in drawing this plan, the Court carefully considered the parties’ briefs, the relevant case law, and the approach taken by other district courts.⁷ The legal standards and neutral redistricting criteria employed by the Court in drawing the House map are based on clearly established principles and ensure the fairness and impartiality expected in any judicially crafted redistricting plan. Those neutral principles-including primarily compactness, contiguity, and respect for county and municipal boundaries-place the interests of the citizens of Texas first.

In drawing the map, the Court began by considering the uncontested districts from the enacted plan that embraced neutral districting principles. Although the Court was not required to give any deference to the Legislature’s enacted plan, the Court attempted to embrace as many of the uncontested districts as possible. After inserting those districts into the map, the Court adjusted them to achieve de minimis population deviations.⁸ When asked for comments on the proposed map, the Plaintiffs did not object to the Court’s use of the enacted map for those districts.

In his dissent, Judge Smith⁹ argues that the Court should have given more deference to the State’s enacted plan in crafting an independent court-drawn plan. However, the Court embraced as many of the uncontested districts as possible. The myriad of significant legal challenges to the State’s enacted plan under the Voting Rights Act and the United States Constitution made it impossible to give substantial deference to the State’s plan as the dissent has suggested.¹⁰ Those challenges include: Districts 26, 27, 31, 32, 33, 35, 36, 39, 40, 41, 54, 78, 90, 93, 95, 102, 103, 104, 105, 107, 112, 113, 114, 117, 137, 139, 144, 145, 146, 147, and 149. With the border-to-border challenges to the State’s enacted map, the Court was forced to undertake the delicate task of creating an independent map, giving as much consideration to the State’s enacted map as possible without compromising the legal standards and neutral redistricting criteria that it set out to follow.

Thus, after incorporating as many of the uncontested districts as possible into the interim map, the Court turned to the districts that are challenged as unconstitutional and attempted to return them to their original configuration in the benchmark. The dissent states that in doing so the Court has made “radical alterations in the Texas political landscape.” The reality is that demographics, not this Court’s actions, have changed the landscape. Since the 2000 census, the population of Texas has grown by 4,293,741.¹¹ The vast majority of that growth is attributable to growth in the Latino and African American communities. Specifically, the Hispanic population in Texas grew by 2,791,255 and the Black population grew by 522,570, while the Anglo population increased by less than 465,000 people.¹²

Despite the population growth stated above, the challenged enacted plan reduced minority opportunity districts from 50 to 45. The Court’s interim map merely restores the minority opportunity districts to their original configuration in the benchmark. The result of this restoration is a map that includes the original 50 minority districts, while “creating” three additional performing minority districts that emerged naturally once neutral districting principles were used. Indeed, the dissent’s own map creates two additional minority districts — one in Tarrant County and one in Hidalgo County. The majority interim map also creates the district in Hidalgo County, but excludes the one in Tarrant County and instead adds the second one in Harris County and a third in El Paso. The district in Harris County sprang naturally from the population growth in the region. Similarly, the El Paso district had been gerrymandered in the enacted plan so that it ended up configured into the shape of a deer with antlers.

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Interim Plan (H302)

While the dissent includes this deer-shaped district despite allegations that it was unconstitutional, the interim map merely restores the district to its original configuration while making adjustments for population growth. The ultimate inclusion of one additional minority district compared to the dissent hardly seems like “radical alterations in the Texas political landscape.” Indeed, it is the dissent’s Tar-rant County district that is the result of an intentional effort to create a minority district, unlike the Court’s attempt to merely maintain the status quo.

Likewise, although acknowledging that neither this Court nor the D.C. Court has made any rulings regarding the merits of the cases, and that this Court is precluded from making such rulings until the D.C. Court rules on the Section 5 claims,¹³ the dissent proceeds to conclude that the plaintiffs have failed to demonstrate a substantial likelihood of success on the merits and that accordingly the Legislature’s judgments should be respected.

The dissent argues that “the majority seems to take the plaintiffs’ complaints as true for purposes of interim relief on every colorable claim.” The dissent apparently ignores the fact that it interprets many of the Plaintiffs’ and Department of Justice’s objections as baseless. The dissent does so while simultaneously acknowledging that “the Legislature created substantial population disparities in Dallas and Harris Counties in a manner that may raise concerns of racial or partisan gerrymandering in violation of Larios v. Cox.” Remarkably, after that concession, the dissent states: “Nothing in the State’s enacted plan will hinder, in the slightest, Hispanic opportunity to register and vote in greater numbers than before.” The dissent further discounts that the D.C. Court concluded that the State “used an improper standard or methodology to determine” if its map would adversely affect minority voters.

An excellent example of the dissent’s interference with the D.C. Court’s preclearance proceedings is seen in House District 117, which is located in the southwest corner of Bexar County. In the D.C. Court, the Department of Justice has alleged that HD 117 was intentionally reconfigured by the State in an effort to trade out mobilized Hispanic voters who regularly vote for Hispanic voters who do not regularly vote. The dissent simply tosses this issue aside as being “without foundation,” and adopts HD 117 into the dissenting map. However by doing so, the dissent has done “[w]hat is foreclosed” to this Court because “Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General the determination whether a covered change does or does not have the purpose or effect ‘of denying or abridging the right to vote on account of race or color.’ ”¹⁴

The Court’s map in contrast merely returns HD117 to its original configuration in the benchmark in order to maintain the status quo until the D.C. Court rules. When viewed in the images below, this hardly seems like the “radical alterations in the Texas political landscape” alleged by the dissent:

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Benchmark (Plan H100)

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Enacted (Plan H283)

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Interim Plan (H302)

The dissent also wrongly alleges that the interim map “creates” coalition districts that are not required by the Voting Rights Act. Once again, the dissent misstates the Court’s approach to drawing the interim map. This Court has not made any merits determinations as to whether coalition districts are required under the Voting Rights Act. Rather, like the minority opportunity districts discussed above, when these districts were restored to their baseline configuration and population shifts were taken into account, these districts resulted quite naturally.

For example, House District 26, situated in Fort Bend County to the southwest of Houston, increased from 44 percent minority population to 60.6 percent minority in 2010. The image below shows that the enacted plan substantially reconfigured HD26 in a way that made it irregularly shaped. Evidence presented at trial indicates that this reconfiguration may have been an attempt by the State to intentionally dismantle an emerging minority district. As the images below demonstrate, the interim plan attempts to take this district back to its original configuration in the benchmark while making slight adjustments for population changes.

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Benchmark (Plan H100)

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Enacted (Plan H283)

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Interim Plan (H302)

The dissent’s incorporation of the State’s bizarrely shaped House District 26, despite alleged constitutional violations, constitutes an improper merits determination regarding the validity of that claim. In contrast, the Court’s decision to return the challenged district to its original configuration is simply a method of preserving the status quo until the D.C. Court has made a preclearance determination.

The State’s objections to the Court’s interim map suffer from even greater flaws. During the course of these proceedings the State has acknowledged that it separated a number of Latino and African American communities from their benchmark districts. It was also apparent from these proceedings that the Legislature started from the presumption that it could have population deviations as high as ten percent, and from that presumption it began to gerrymander districts to meet its goal of creating or maintaining as many Republican districts as possible. The State insists that it did not engage in racial gerrymandering, but rather only engaged in these actions to make various districts more Republican. Accordingly, the State argues that any discrimination by the Legislature was directed against Democrats, not minorities. The State argued to the D.C. Court that it was entitled to summary judgment in that case, but the D.C. Court found that a fact issue existed as to whether the State engaged in racial discrimination. Having failed to secure preclearance from the D.C. Court, the State fails to comprehend that this Court undertakes an interim map process, not a remedial map process. It is clear the State fails to understand the difference when it has statements such as “the Court has not identified any particular Voting Rights Act (VRA) or constitutional violation that would provide a compelling or narrowly tailored explanation for the proposed revisions.” This Court is precluded from making any rulings on the merits at this juncture. When it became apparent that the Court would be required to draw an interim map, the Court provided all parties (including the State) an opportunity to submit a proposed map. The State refused to do so, arguing that the Court was required to adopt its non-precleared map in its entirety. For the reasons stated above, the Court cannot adopt the State’s unprecleared map. After arguing throughout these proceedings that its entire map was legal, the State then proceeds to attack the Court for failing to merely correct any “perceived legal defects in the recently-adopted redistricting plan,” without detailing what “limited” legal defects should have been corrected.

In sum, the Court’s map simply maintains the status quo as to the challenged districts pending resolution of the preclearance litigation, while giving effect to as much of the policy judgments in the Legislature’s enacted map as possible. Not everyone will get what they want from the Court’s interim map. But, the Court concludes by stating expressly what is implicit in the Court’s explanation of how it drafted the interim map: the plan was developed without regard to political considerations or the interests of particular groups of people.

The Legislature’s enacted plan is by the State’s own admission a radical partisan gerrymander. By asking the Court to adopt it, the State is asking the Court to conspire with the Legislature to enact a partisan agenda. This a court cannot do. As Judge Higgenbotham noted in Balder-as:

political gerrymandering, a purely partisan exercise, is inappropriate for a federal court drawing a[ ] redistricting map. Even at the hands of a legislative body, political gerrymandering is much a bloodfeud, in which revenge is exacted by the majority against its rival. We have left it to the political arena, as we must and wisely should. We do so because our role is limited and not because we see gerrymandering as other than what it is: an abuse of power that, at its core, evinces a fundamental distrust of voters, serving the self-interest of the political parties at the expense of the public good.¹⁵

A more comprehensive opinion addressing additional legal issues will follow.

1 . As this Court noted in its order denying summary judgment, because the State's enacted House plan has not been precleared, it is unenforceable and cannot be implemented. Clark v. Roemer, 500 U.S. 646, 111 S.Ct. 2096, 114 L.Ed.2d 691 (1991) (failure to obtain either judicial or administrative preclearance renders the voting change unenforceable). Plaintiffs in this Court also have challenged the legality of the State's enacted House plan and sought to enjoin the State'from implementing the plan.

2 . When an enacted plan is not in place in time for the upcoming election, the Court must step in and craft an independently drawn court plan for the upcoming election. See Branch v. Smith, 538 U.S. 254, 266, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003) (upholding injunction of state court plan because "it had not been precleared and had no prospect of being precleared in time for the 2002 election”); Lopez v. Monterey County, 519 U.S. 9, 24, 117 S.Ct. 340, 136 L.Ed.2d 273 (1996) (where Section 5 preclearance requirements have not been satisfied the remedial court must determine "what remedy, if any, is appropriate.”).

3 . See Lopez, 519 U.S. at 24, 117 S.Ct. 340.

4 . Despite the State's argument that this Court should adopt the State’s enacted plan wholesale, the State recently requested a trial in the D.C. Court to occur in early December, thereby implicitly acknowledging that this Court is not free to remedy defects in the enacted plans until there is a ruling from the D.C. Court.

5 . See Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982).

6 . Smith v. Cobb County, 314 F.Supp.2d 1274 (N.D.Ga.2002) (“That a court must not act as a rubber stamp does not mean, however, that the court cannot consider the proposed legislative plan, just as it considers any other plans submitted to it.”)

7 . When it became clear that the Court would need to craft a court-drawn plan, it sought the parties' comments on the standards that would govern its task. The State appears to completely ignore the legal standards applicable to an independent court-drawn plan. Instead, the State insists that the Court take the State's enacted plan, make only minimal changes, if any, to "cure” any “defects” in the plan, leave the rest untouched, and implement the plan as a court-drawn plan. This approach would be a clear contravention of Section 5 preclearance requirements and would require the Court to rule on the merits of the State's enacted plan, which it is not permitted to do at this juncture. See McDaniel v. Sanchez, 452 U.S. 130, 153, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981) ("But where a court adopts a proposal 'reflecting the policy choices ... of the people [in a covered jurisdiction]’ ... the preclearance requirement of the Voting Rights Act is applicable.”).

8 . When a court is called upon to draw districts, it has less latitude than a legislative body might have when it comes to equality in population. "Court-ordered districts are held to higher standards of population equality than legislative ones. A court-ordered plan should ‘ordinarily achieve the goal of population equality with little more than de minimis variation.' " Abrams v. Johnson, 521 U.S. 74, 98, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997); Chapman v. Meier, 420 U.S. 1, 26-27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Connor v. Finch, 431 U.S. 407, 414, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977).

9 . The two undersigned judges likewise respect Judge Smith's work ethic and professionalism, and thank him for his service. Nothing in this opinion is intended to personally or professionally impugn his judgment in this case. As Judge Smith notes in his dissenting opinion, these are difficult issues and reasonable minds can disagree.

10 . See Abrams v. Johnson, 521 U.S. 74, 86, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (stating that Upham deference is not appropriate where "the constitutional violation [] affects a large geographic area of the State” because " ‘any remedy of necessity must affect almost every district.' ”).

11 . http://www.census.gov/prod/cen2010/ briefs/c2010br-01 .pdf

12 . Texas State Data Center: http://txsdc.utsa. edu/Data/DecenniaI/20 \ O/Redistricting/ Profiles.aspx

13 . See Lopez, 519 U.S. at 24, 117 S.Ct. 340.

14 . U.S. v. Board of Sup’rs of Warren County, Miss., 429 U.S. 642, 645, 97 S.Ct. 833, 51 L.Ed.2d 106 (1977); see also Smith v. Clark, 189 F.Supp.2d 529, 534 (S.D.Miss.2002) (“A three-judge court does not have jurisdiction to determine whether a covered change does or does not have the purpose or effect of denying or abridging the right to vote on account of race or color.’ ”).

15 . Balderas v. State of Texas, No. 6:01cv158, 2001 U.S. Dist. LEXIS 25740, at *19-20 (E.D.Tex. Nov. 14, 2001) (per curiam), summarily aff'd, 536 U.S. 919, 122 S.Ct. 2583, 153 L.Ed.2d 773 (2002).