State of Texas v. United States of America

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

STATE OF TEXAS, )

)

Plaintiff, )

)

v. ) Civil Action No. 11-1303

) (TBG-RMC-BAH)

UNITED STATES OF AMERICA, )

and ERIC H. HOLDER, in his )

official capacity as Attorney General )

of the United States )

)

Defendants, and )

)

Wendy Davis, et. al., )

)

Intervenor-Defendants. )

)

MEMORANDUM OPINION

Before: GRIFFITH, Circuit Judge, COLLYER and HOWELL, District Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH, in which District Judge HOWELL

joins and District Judge COLLYER joins all except section III.A.3. Separate opinion for the Court

with respect to retrogression in Congressional District 25 filed by District Judge HOWELL, in

which District Judge COLLYER joins.

Dissenting opinion with respect to retrogression in Congressional District 25 filed by

Circuit Judge GRIFFITH.

Appendix filed by District Judges COLLYER and HOWELL, in which Circuit Judge

GRIFFITH joins.

Opinion for the Court by GRIFFITH, Circuit Judge:

Table of Contents

I. Background.............................................................................................................................. 3

II. Principles of Section 5 Analysis ............................................................................................. 5

A. Retrogression ..................................................................................................................... 5

1. Texas’s Burden of Proof............................................................................................. 7

2. Election Analysis Methodologies ............................................................................... 8

a. Types of Elections ....................................................................................................... 8

b. Election Analysis Sample Sets ................................................................................. 11

3. Statewide Retrogression Analysis ........................................................................... 13

4. Coalition and Crossover Districts ........................................................................... 18

a. Section 5 Analysis ..................................................................................................... 18

b. Standard of Proof ..................................................................................................... 22

B. Discriminatory Intent ..................................................................................................... 25

III. Congressional Plan .............................................................................................................. 27

A. Retrogression in the Congressional Plan ...................................................................... 27

1. Congressional District 27 ......................................................................................... 29

2. Congressional District 23 ......................................................................................... 29

3. Retrogression with New Congressional Seats ........................................................ 34

B. Discriminatory Intent in the Congressional Plan ........................................................ 38

IV. State Senate Plan ................................................................................................................. 43

A. Retrogression in the Senate Plan ................................................................................... 43

B. Discriminatory Intent in the Senate Plan ..................................................................... 45

V. State House Plan................................................................................................................... 51

A. Retrogression in the State House Plan .......................................................................... 51

1. Alleged Retrogressive Districts................................................................................ 51

a. State House District 33 ............................................................................................. 51

b. State House District 35 ............................................................................................. 53

c. State House District 41 ............................................................................................. 55

d. State House District 117 ........................................................................................... 58

e. State House District 149 ........................................................................................... 60

f. State House Districts 26, 106, and 144 .................................................................... 66

2. Alleged New Ability Districts................................................................................... 67

B. Discriminatory Intent in the State House Plan ............................................................ 70

VI. Conclusion ............................................................................................................................ 72

2

The latest Census reports that since 2000 the population of Texas grew by over four

million. This dramatic increase required the Texas legislature to create new voting districts for

the four seats added to the State’s congressional delegation, U.S. CONST. art. I, § 2, cl. 3; id.

amend. XIV, § 2, and draw new boundaries for the state and congressional voting districts to

comply with the mandate of one-person, one-vote, see Georgia v. Ashcroft, 539 U.S. 461,

488 n.2 (2003).

Because Texas is a covered jurisdiction under section 5 of the Voting Rights Act of 1965

(VRA), 42 U.S.C. § 1973, the Attorney General of the United States or a three-judge panel of

this Court must approve, or “preclear,” any redistricting plan before it can take effect. Id.

§ 1973c(a). Texas chose not to seek administrative preclearance and instead seeks from this

Court a declaratory judgment that its redistricting plans will neither have “the purpose nor will

have the effect of denying or abridging the right to vote on account of race or color, or [language

minority group].” Id. The United States opposes preclearance of the redistricting plans for

Texas’s congressional delegation and the State House of Representatives, but has no quarrel with

the plan for the Texas Senate. Seven Intervenors raise a variety of challenges that collectively

encompass all three plans. We conclude that Texas has failed to show that any of the redistricting

plans merits preclearance.1

I. Background

On July 19, 2011, Texas filed a complaint in this Court seeking a declaratory judgment

that its newly enacted redistricting plans for the U.S. House of Representatives (Plan C185 or

1

Texas sought declaratory judgment that the three plans comply with section 5 in counts two, three, and four

of the complaint. In its first count, Texas also sought from this Court preclearance of its redistricting plan for the

State Board of Education. No party objected to the plan, either in their written answers or during a conference call

the Court held with the parties on September 21, 2011. With no opposition and satisfied that the State Board of

Education plan complies with section 5, we granted preclearance for that plan on September 22, 2011. See Minute

Entry Order, Sept. 22, 2011.

3

Congressional Plan), the Texas House of Representatives (Plan H283 or House Plan), and the

Texas Senate (Plan S148 or Senate Plan) comply with section 5 of the VRA. This Court has been

properly convened as a three-judge court, 28 U.S.C. § 2284; 42 U.S.C. § 1973c(a), and we took

jurisdiction under 42 U.S.C. § 1973c and 28 U.S.C. §§ 1346(a)(2), 2201. After the United States

and several Intervenors2 filed answers, Texas moved for summary judgment for all three plans

on September 14, 2011. We heard argument on the motion on November 2, 2011, and issued an

order denying summary judgment on November 8, 2011. Our memorandum opinion followed on

December 22, 2011.

The same three redistricting plans have been challenged under section 2 of the VRA

before a three-judge district court in the Western District of Texas. The State’s population

growth and the addition of four seats to its congressional delegation make it impossible for Texas

to conduct elections using the district boundaries last approved under section 5. Our denial of

Texas’s motion for summary judgment required the district court in the section 2 litigation to

draw interim maps for the State’s fast-approaching primaries and the ensuing general election.

After the Supreme Court invalidated those maps, see Perry v. Perez, 132 S. Ct. 934 (2012), the

court issued a second set, which have not been challenged. See Feb. 28, 2012 Order, Perez v.

Perry, No. 11-cv-360 (W.D. Tex. filed May 9, 2011), ECF No. 681 (Congressional Plan interim

map); Feb. 28, 2012 Order, Perez, No. 11-cv-360, ECF No. 682 (House Plan interim map); Feb.

2

This Court has granted Defendant-Intervenor status to seven parties, each of whom challenges various aspects

of some or all of Texas’s proposed plans in their capacities as individual voters, elected state representatives, or civil

rights advocacy groups. The Davis Intervenors are Texas State senators and representatives from districts in the Fort

Worth area. The Mexican American Legislative Caucus is a caucus in the Texas House of Representatives. The

Gonzales Intervenors are a group of Hispanic and Black Texas voters. The Texas Legislative Black Caucus is

composed of seventeen members of the Texas House of Representatives. The Texas Latino Redistricting Task Force

is a group of Hispanic organizations focusing on redistricting and voter registration. The Texas State Conference of

NAACP Branches and the League of United Latin American Citizens are civil rights and advocacy groups

concerned with minority voting rights in Texas.

4

28, 2012 Order, Davis v. Perry, No. 5:11-cv-00788 (W.D. Tex. filed May 9, 2011), ECF No. 141

(Senate Plan interim map).

Meanwhile, after expedited discovery, this Court sat for trial January 17-26, 2012, with

closing arguments on January 31, 2012.3 The voluminous trial record includes evidence taken in

open court, party exhibits, expert reports, post-trial briefing, and designated portions of the

transcript from the section 2 trial in Texas.4 After reviewing this record and carefully considering

the arguments of all parties, we now deny Texas preclearance and enter judgment for the

defendants.

In the discussion that follows, we do not recount the extensive background of the Voting

Rights Act or of this case. Much of that is contained in our opinion at summary judgment. In

addition, we do not repeat many of the factual findings set out in the appendix to this opinion.

Using the framework for applying section 5 described in our summary judgment opinion, we

first address a series of legal issues that remain outstanding after trial about what section 5

requires for preclearance. Then, we examine the Congressional, Senate, and House Plans in turn.

II. Principles of Section 5 Analysis

A. Retrogression

Texas must show that its redistricting plans have neither the effect nor the purpose of

abridging minority voting rights. 42 U.S.C. § 1973c(a). We will take up the “purpose” prong

below in section B. The goal of the “effect” prong is “to insure that no voting-procedure changes

3

Given the parties’ unanimous desire to proceed quickly to trial but faced with scheduling constraints from the

panel members’ previously scheduled proceedings, the Court adopted a trial schedule in which all three judges heard

evidence during the first four days of trial and two judges heard evidence the last four days, with the third judge

reviewing the evidentiary record and transcript from those days. All three judges were present for closing

arguments. The Court divided trial time so that Texas and the United States and the Intervenors would have equal

time for argument when all three judges were physically present. No party raised an objection to these arrangements.

4

The full record in this case runs many thousands of pages, including over a thousand exhibits introduced by

the parties.

5

would be made that would lead to a retrogression in the position of racial minorities with respect

to their effective exercise of the electoral franchise,” Beer v. United States, 425 U.S. 130, 141

(1976), regardless of whether the change was intended to do so. “Effective exercise,” in turn, has

long been understood to include not only the “ability of minority groups to participate in the

political process,” but also the ability “to elect their choices to office.” Id. (quoting H.R. REP.

NO. 94-196, at 60 (1975)). In the most recent reauthorization of the VRA, Congress further

reinforced the meaning of the effect prong by stating that minority voters’ “ability to elect” their

candidates of choice is the appropriate measure of whether a proposed change will be

retrogressive. See 42 U.S.C. § 1973c(b) (stating that section 5 blocks voting changes that

diminish minority citizens’ “ability . . . to elect their preferred candidates of choice”), id.

§ 1973c(d) (explaining that the “purpose of subsection (b) . . . is to protect the ability of

[minority] citizens to elect their preferred candidates of choice”).

As we explained in our summary judgment opinion, ensuring that a proposed plan will

not undo the gains minority voters have achieved in electoral power requires a multi-factored,

functional analysis. Texas v. United States, 831 F. Supp. 2d 244, 262-64 (D.D.C. 2011). A

single-factor inquiry, such as the test Texas proposed relying on racial and ethnic population

statistics alone, is inconsistent with precedent and too limited to provide an accurate picture of

the on-the-ground realities of voting power.5 Id.; see also, e.g., Ashcroft, 539 U.S. at 480 (“The

5

Indeed, analysis of the full record developed at trial has made it more clear that the test Texas initially

proposed is insufficient to measure whether minority voters have an ability to elect. Several districts in the proposed

plans show that population statistics alone rarely gauge the strength of minority voting power with accuracy. For

example, the discussion that follows shows that Congressional District 23 and House District 117 were selectively

drawn to include areas with high minority populations but low voter turnout, while excluding high minority, high

turnout areas. Such districts might pass a retrogression analysis under Texas’s population demographics test (40%

Black Voting Age Population or 50% Hispanic Citizen Voting Age Population as sufficient to establish ability

status), even though they were engineered to decrease minority voting power. The 65% presumption of ability status

we employ, discussed further below, is less susceptible to such problems. Our threshold is significantly higher than

Texas’s proposed 50% test, and where it is met a district is only presumptively an ability district, not conclusively

6

ability of minority voters to elect a candidate of their choice is important but often complex in

practice to determine.”). We do not repeat here the rationale for our conclusion, but instead

address the additional arguments raised at trial about the appropriate standard to determine

retrogression.

1. Texas’s Burden of Proof

Texas bears the burden of proving by a preponderance of the evidence that its

redistricting plans are not retrogressive.6 City of Pleasant Grove v. United States, 479 U.S. 462,

469 (1987). Texas does not deny that it bears this burden. Instead, relying on the Supreme

Court’s observation that a state is entitled to select its “own method of complying with the

Voting Rights Act,” Bartlett v. Strickland, 556 U.S. 1, 23 (2009) (plurality opinion), Texas

claims that “the flexibility to choose one theory of effective representation over the other,”

Ashcroft, 539 U.S. at 482, gives it significant latitude in how to prove its case. Tex. Post-Trial

Br. 3.

We agree that section 5 does not interfere with many of the policy judgments a state must

make during redistricting, such as whether to retain an ability district — a district in which

minority citizens have the ability to elect their preferred candidates — or create a new one

elsewhere. Yet Texas takes this point too far, claiming that the prerogative to choose among

methods of redistricting extends to the type of evidence we should use to measure retrogression.

so. The 65% presumption may be rebutted by other factors, such as voter turnout, that indicate the district is not

effective for minority voters.

6

Significantly, the State’s expert, Dr. John Alford, declined to offer an opinion on whether the enacted plans

are retrogressive, even when this Court directly questioned him on the point. He testified that his analysis provided

only the first steps in the more complicated inquiry this Court must undertake, refused to offer an opinion on the

number of districts protected by section 5 in the existing and enacted plans, and stated he was not offering an answer

to the question whether the enacted plans preserve the current degree of ability to elect. See Trial Tr. 63:21-67:10,

94:21-96:25, Jan. 24, 2012 PM. The State’s failure to produce testimony showing the enacted plans are not

retrogressive may well be sufficient for us to find that Texas has not met its burden of proof under section 5.

Nevertheless, because we find that the trial record is sufficient to show that the enacted plans cannot be precleared,

this failing is not the only ground for our conclusions.

7

For example, Texas argues that we must defer to its decision to use the results of statewide

elections to measure compliance with section 5. Id. at 5. We disagree. Ashcroft holds that states

may choose between “theor[ies] of effective representation,” 539 U.S. at 482 (emphasis added),

but gauging effectiveness is a legal judgment that we must make. Texas is entitled to advocate its

preferred methods of measuring minority voting strength, and we address those arguments

below, but we need not defer to a state’s legal theory on how best to measure minority voters’

ability to elect. That is a measure at the heart of the preclearance analysis that section 5 has left

to the Attorney General or the judiciary.

2. Election Analysis Methodologies

The parties have submitted reports and testimony from fourteen experts in fields such as

redistricting, election analysis, voting rights law, and the history of voting discrimination in

Texas. Although we do not find the analysis of any one expert sufficient to guide our

retrogression inquiry, we rely most heavily on the reports and testimony of Dr. Lisa Handley,

expert for the United States; Dr. Richard Engstrom, expert for the Texas Latino Redistricting

Task Force (TLRTF); and Dr. Stephen Ansolabehere, expert for the Gonzales Intervenors. We

find their methodologies sound and their conclusions helpful to our analysis of the State’s

redistricting. To explain our use of these experts we address two areas of disagreement between

the parties about the merits of the various approaches the experts use: which type of elections to

examine and the appropriate sample sets to use.

a. Types of Elections

Endogenous analysis examines the results of elections held within a district to determine

how often minority-preferred candidates succeed.7 See, e.g., Defs.’ Ex. 326, Dr. Lisa Handley, A

7

All parties have agreed throughout this litigation that minority voters in Texas vote overwhelmingly

Democratic, and thus there is generally no dispute about the identity of minority-preferred candidates in a given

8

Section 5 Voting Rights Analysis of the Proposed Texas State House Plan 3 [hereinafter Handley

House Rep.]. Because endogenous analysis is based on actual election results within a single

district, it is necessarily retrospective. It can only be used to determine whether a district in the

existing, or benchmark, plan has an ability to elect. It cannot be used to assess whether a

proposed district does as well, because a proposed district has not yet conducted any district-

wide elections.

Exogenous election analysis examines how minority-preferred candidates fared in a

particular district in statewide or national elections. See, e.g., Pl.’s Ex. 175, Direct Written Test.

of Dr. John Alford 5-6 [hereinafter Alford Rep.]. Take the 2008 presidential election as an

example. In a state where minority voters almost always prefer Democratic candidates,

exogenous election analysis suggests that minority voters lack an ability to elect in a benchmark

district carried by John McCain over Barack Obama. Because exogenous analysis considers

results from elections that occur across all districts in a state, such analysis allows comparison

between benchmark and proposed districts. Precinct-level data from statewide or national

elections can show if the minority-preferred candidate won the benchmark district, and by

assembling, or “reconstituting,” the precinct-level returns into a district’s proposed new shape,

exogenous election analysis can indicate whether the minority-preferred candidate would have

won in the proposed district as well.

Texas urges us to consider exogenous election analysis alone, see Tex. Post-Trial Br. 4-5,

but we conclude that endogenous results are often more probative of ability to elect. As Dr.

district. See, e.g., Trial Tr. 12:8-14, Jan. 17, 2012 AM (State’s opening statement, noting that “in virtually all of the

elections in fact, all of the elections you’re going to hear about during this trial” the Hispanic-preferred candidate

was the Democrat). In light of the parties’ agreement on this point, as a general matter we do not address the racially

polarized voting data that makes this point. In the few districts in which there is a dispute over who is the candidate

of choice of minority voters, discussed further below, we credit Dr. Handley’s assessment, which is based on her

analysis of racial bloc voting in the districts.

9

Engstrom explained, exogenous elections are “not a good basis for predicting the specific

number of elections in many new districts that will result in Hispanic preferred candidates

winning,” partly because there are significant contextual differences between exogenous and

endogenous elections. Defs.’ Ex. 747, Rebuttal Report of Dr. Richard Engstrom 6 [hereinafter

Engstrom Reb. Rep.]. Likewise, Dr. Handley concluded that “the most essential piece of

information” when determining benchmark ability districts “is whether minority voters have

been successful at electing their preferred candidates to the legislative office at issue in the

district.” Defs.’ Ex. 794, Rebuttal Report of Dr. Lisa Handley to Supplement Expert Report of

Dr. John Alford 3 [hereinafter Handley Reb. Rep.]. Candidates in endogenous elections live in a

particular district and focus their campaigns on local voters. Candidates in statewide elections are

likely to make an appeal with a less direct connection to voters in that district. Nationwide

contests are even more attenuated. Local connections and direct campaigning, then, may allow a

minority-preferred candidate to win an endogenous election in a district the minority-preferred

candidate for statewide office could not carry. We agree with Dr. Engstrom and Dr. Handley.

Given the numerous and difficult-to-quantify factors that go into determining ability to elect, the

best evidence is whether and how often minority voters have actually elected their candidate of

choice to the position at issue, not the indirect proxy offered by exogenous analysis.

Texas argues that endogenous analysis is an “impracticable” tool because it is available

only for benchmark plans and does not provide the “common unit of measurement” available

with exogenous results. Tex. Post-Trial Br. 4. As we have stated, we agree that endogenous

elections are not well suited to prospective analysis, but when predicting the impact of

redistricting changes on minority voters’ ability to elect, more information is better than less. We

should not discount the powerful evidence of minority voting power that endogenous elections

10

provide in favor of a single tool that may be a less accurate gauge. When endogenous and

exogenous analyses yield different results, we will give special attention to other relevant

characteristics of the voting district.

Texas argues that endogenous analysis may overvalue minority voting power and

undervalue the advantage of incumbency in districts where the minority-preferred candidate has

been repeatedly reelected. See id. at 5. We disagree with the premise that an incumbent’s

advantage does “not bear on the ability-to-elect inquiry.” Id. The advantage incumbents enjoy

during reelection campaigns is a factor that minority voters, like any other voters, often use to

help elect their preferred candidate. Ability to elect is not less real simply because subsequent

elections are easier to win than the first. Texas raises the more specific objection that endogenous

results may be misleading in a district in which ability status is closely contested if a long-term

incumbent plans to retire. Id. Yet as our analysis below bears out, our finding that endogenous

elections are particularly probative evidence does not mean that a high endogenous score

automatically implies ability status. Careful consideration of all factors matters, especially in

close cases.

We thus see no reason to exclude all endogenous election data from our analysis, nor to

weigh exogenous data more heavily. Both types of data provide information about whether

minority voters are or will be able to participate in the political process.

b. Election Analysis Sample Sets

The experts also vary widely in which elections they used for their sample sets. All use a

similar methodology for their exogenous analysis. Starting with the boundaries in the benchmark

plan, they count the number of times the minority-preferred candidate carried the district.

Reconfiguring the districts by regrouping precincts as called for in the enacted plan, their

11

analyses then look to see how many times the minority-preferred candidate would have carried

that district. Outcomes are determined by inputs, of course, and whether the analysis shows an

ability to elect turns on variations in the sample set such as the number of elections chosen, the

length of time they span, whether the sample is weighted toward more recent contests, and the

offices at stake. For example, Texas’s expert, Dr. Alford, relies on reconstituted election results

from a set of ten statewide elections weighted toward more recent years provided by the Texas

Office of the Attorney General (the OAG 10). See Alford Rep. 9 tbl.2.8 Texas argues that we

should give greatest weight to these exogenous results because they used a larger data set and

relied more heavily on recent elections than did any other expert in the case.9 Tex. Post-Trial

Br. 5.

Although we agree that a larger data set generally improves accuracy, we are not

persuaded that the OAG 10 is the best indicator of minority voting strength. A preference for

recent elections may in fact distort the results. Dr. Handley, the expert for the United States,

cautions against giving more weight to some years than others. To do so, she warns, would allow

atypical election years to skew the picture of long-term minority voting power. See Handley Reb.

Rep. 4 n.6. This caution is especially appropriate here because three of the OAG 10 elections are

from the 2010 election cycle. As the evidence in this case shows, 2010 was an unusual year with

8

The OAG 10 includes one 2002 contest; two contests each from 2004, 2006, and 2008; and three contests

from 2010. Dr. Alford’s analysis includes results using all ten of these contests, and also using only the five most

recent elections on this list. See Alford Rep. 8-9.

9

Texas’s reliance on the OAG 10 exogenous analysis is a litigation position; the record is clear that this

functional election analysis played little to no role in the map-drawing process itself. The OAG did not identify

which districts were protected in the benchmark plans or even how many benchmark ability districts existed. In fact,

the only evidence that analysis was performed regarding these critical facts was testimony from the primary House

mapdrawer, Gerardo Interiano, that he made an effort to identify Hispanic ability districts in the benchmark. Trial

Tr. 25:5-26:10, Jan. 17, 2012 PM. Both Interiano and the other main mapdrawer, Ryan Downton, testified that they

did not look at the OAG 10 analysis of the benchmark and enacted districts until their work was essentially

complete. See id. at 57:17-25, Jan. 18, 2012 AM; Trial Tr. 14:51-52, Perez, No. 11-cv-360, Sept. 12, 2011. And

there is no evidence that the legislators and mapdrawers made any modifications to the proposed district lines when

they did consult the OAG 10 analysis late in the process.

12

low Democratic turnout in which Republicans won several seats that had long been held by

Democrats. See, e.g., Defs.’ Ex. 776, Seliger Dep. 15:1-7, Sept. 1, 2011, Perez, No.

11-cv-360 [hereinafter Seliger San Antonio Dep.] It is too soon to tell if 2010 was an aberration

or marked the start of a lasting change in Texas politics.

Our concerns with the OAG 10 extend to the other sample sets used by the parties’

experts. Dr. Engstrom’s exogenous election sample also places greater weight on recent years,

considering elections from only 2006-2010. See Defs.’ Ex. 726, Supplemental Expert Report of

Dr. Richard Engstrom 2 [hereinafter Engstrom Suppl. Rep.]; Defs.’ Ex. 799, Dr. Richard

Engstrom Analysis: Retrogression in State’s Adopted House Plan [hereinafter Engstrom Chart].

And all the experts in this case use relatively small sample sets. Dr. Handley, for example, uses

only five elections from 2002-2010, and Dr. Engstrom uses just seven general elections. Handley

House Rep. 3-4; Engstrom Suppl. Rep. 2; Engstrom Chart. Where there are so many elections

from which to choose — the record contains analysis using races ranging from governor to

railroad commissioner — it is hard to assess the merits of any one expert’s data when the sample

sets are small and often do not overlap. In short, we are uncomfortable relying exclusively on the

exogenous analysis of any single expert. Our solution is to consider the exogenous results from

all three of these sources — the OAG 10, Dr. Handley, and Dr. Engstrom — as well as the

analysis for the Congressional Plan conducted by Dr. Stephen Ansolabehere, the expert for the

Gonzales Intervenors, finding all to be probative but none dispositive.

3. Statewide Retrogression Analysis

As the Supreme Court has made clear, our analysis of minority voting power “must

encompass the entire statewide plan as a whole.” Ashcroft, 539 U.S. at 479. Section 5 is not

concerned with the location of particular ability districts, but rather with whether the enacted

13

plan, in its entirety, preserves minority voters’ ability to elect. In other words, section 5 allows a

state to dismantle an ability district as long as it offsets that loss by drawing a new ability district

elsewhere.

But Texas asks us to expand this principle to a point that is inconsistent with section 5.

Texas’s expert submitted two reports to the Court, one at summary judgment and another at trial.

His first report counted any district in which the number of registered Hispanic voters exceeded

50% or the Black Voting Age Population (BVAP) exceeded 40% as an ability district, without

giving attention to actual election performance. See Texas, 831 F. Supp. 2d at 263 n.23. After we

rejected this single-factor test, Dr. Alford changed tack in his trial report, which uses what he

calls a “statewide functional analysis.” See Alford Rep. 7. Rather than determine if particular

districts are ability districts, Dr. Alford’s latest approach examines changes in the degree of

minority voting power across the entire plan. Using the benchmark ability districts the United

States listed, Dr. Alford counted every instance in which a minority-preferred candidate carried

the district in an exogenous election. He then counted how many times the minority-preferred

candidate would have carried the district in the enacted plan. If the total number of “wins” in the

enacted plan meets or exceeds the number in the benchmark, Dr. Alford concludes that the plan

is not retrogressive. See id. at 7-12. Dr. Alford contrasts his statewide approach to what he calls

the “binary” approach of every other expert in the case. Those experts examine each district

individually, using exogenous results as one factor when determining if a district is an ability

district. See id. at 12-13. They then compare the number of ability districts in the benchmark

map with the number in the proposed plan. Dr. Alford’s method counts election victories across

all districts and does not label a district as “ability” or not. Texas argues this approach is superior

14

to the “blunt technique” of the binary method because it “captures the degree of minority voting

strength across all relevant districts.” Tex. Post-Trial Br. 6.

Perhaps, but this approach is a variation on the type of retrogression analysis that

Congress rejected when it amended the VRA in 2006. In Georgia v. Ashcroft, 539 U.S. 461

(2003), the Supreme Court concluded that courts “should not focus solely on the comparative

ability of a minority group to elect a candidate of its choice,” but instead should consider the

“totality of the circumstances” regarding minority participation in the electoral process. Id. at

479-80. Specifically, the Court concluded that states could draw maps containing a combination

of two different types of districts to satisfy section 5: traditional majority-minority districts, and

“influence districts,” which are not ability districts, but rather those in which minority voters play

a “substantial, if not decisive, role in the electoral process.” Id. at 480-83.

Congress rejected this holding in 2006 when it reauthorized section 5, making it clear that

retrogression is not concerned with the degree of influence minority voters exert, but with their

ability to elect their preferred candidates. See 42 U.S.C. § 1973c(b) (stating that voting changes

must not diminish minority citizens’ “ability . . . to elect their preferred candidates of choice”),

id. § 1973c(d) (defining subsection (b)’s purpose as protecting “the ability of [minority] citizens

to elect their preferred candidates of choice”). The House Report explained that the 2006

amendments were a response to Georgia v. Ashcroft, which allowed “the minority community’s

own choice of preferred candidates to be trumped by political deals struck by State legislators

purporting to give ‘influence’ to the minority community while removing that community’s

ability to elect candidates.” H.R. REP. NO. 109-478, at 69 (2006). Congress decided that

“[p]ermitting these trade-offs is inconsistent with the original and current purpose of Section 5.”

Id.; see also id. at 68-72; S. REP. NO. 109-295, at 18-20 (2006) (stating that the amendments

15

“clarify that [section 5] protects the ability of minority voters ‘to elect their preferred candidates

of choice,’” id. at 19). Congress does not view “ability to elect” in degrees; states may not add up

districts in which minority voters have “partial” ability to elect to satisfy section 5. Instead,

Congress views ability status as an on-off switch: minority voters either have an ability to elect

in a district or they do not.

Endorsing Dr. Alford’s analysis would be a return to the approach Congress rejected in

2006. Consider, for example, a benchmark map with three districts. In two of the districts,

minority voters elect their preferred candidates in six out of ten elections in a sample set, but in

the third, they fail to win a single election. In all three districts in the enacted plan, minority-

preferred candidates win in four out of the ten elections. A traditional binary approach would

likely conclude that the benchmark map has two ability districts (where minority voters can elect

their candidate of choice more often than not), and the enacted plan has no ability districts, just

three influence districts. Such a plan would be clearly retrogressive under the current version of

section 5. Yet Dr. Alford’s approach would show no retrogression because the total number of

minority electoral victories remains the same (6 + 6 + 0 = 12 in the benchmark; 4 + 4 + 4 = 12 in

the enacted).

Texas argues that Dr. Alford’s approach yields better policy results, but such

determinations belong to Congress, not the courts. In any event, the “benefits” Texas touts are

illusory. Texas argues that the binary approach “ignores gradations in minority abilities to elect

and gives States no credit for improving electoral performance in districts that stay above or

below the ability-to-elect cutoff.” Tex. Post-Trial Br. 6.10 In other words, Texas seeks credit for

10

This observation is accurate, but we also note that the binary approach runs both ways: under a retrogression

analysis, a State may not claim credit for strengthening an ability district, but neither is it penalized for reducing

minority voting power in districts that are trending toward minority ability status but have not yet achieved it, as we

discuss below with respect to HDs 26, 106, and 144.

16

strengthening an already-performing district from, say, six out of ten victories to ten out of ten.

Yet giving credit in a scenario like this would allow Texas to use those four “additional”

victories to offset a four-election decrease elsewhere. Such an approach would create a legal tool

to dismantle ability districts as long as the state increases the effectiveness of others. In short, it

would give states credit for packing minority voters into districts. A starker example would be a

plan in which six benchmark districts perform for minority voters nine out of ten times, but

perform ten out of ten times in the enacted plan. Statewide functional analysis would allow a

state to use this six-election “increase” in minority effectiveness to weaken or even destroy

ability districts in other parts of the state.

We also find it significant that Dr. Alford can point to no other advocates of his approach

within the well-populated field of voting rights and redistricting. Statewide functional analysis is

not only foreclosed by the 2006 amendments, but it lies outside accepted academic norms among

redistricting experts. See, e.g., Engstrom Reb. Rep. 2-6 (critiquing Dr. Alford’s approach and

noting he was “not aware of any analysis, prior to this one by Dr. Alford, by any expert that

completely ignores the results of endogenous elections in a benchmark plan in a retrogression

analysis,” id. at 2); Handley Reb. Rep. 2-6 (critiquing Dr. Alford’s approach).

Moreover, statewide functional analysis would be much more difficult to administer than

the already fact-intensive binary approach because courts would need to make even more precise

findings than whether a district is or is not an ability district. Courts would need to determine, for

example, the difference between districts with effectiveness levels of 60% and 70%. Dr. Alford

claims he can make these fine distinctions based on a district’s electoral performance in the

limited set of elections that he chose. Yet as the multitude of experts in this case demonstrates,

there is no agreed-upon method to choose how many elections are necessary to demonstrate

17

voting strength, much less which elections and over how long a period of time. We lack

confidence that we, or any court, would be able to make findings at the level of precision Dr.

Alford’s approach requires.

Finally, we reject Texas’s argument that refusing to accept statewide functional analysis

would increase the “substantial federalism costs” of preclearance by further limiting state

flexibility, at the risk of rendering section 5 unconstitutional.11 See Tex. Post-Trial Br. 7 (quoting

Reno v. Bossier Parish Sch. Bd. (Bossier II), 528 U.S. 320 (2000)) (internal quotation marks

omitted). The constitutional avoidance canon is no aid to Texas because we are not faced with

two competing yet permissible interpretations of section 5. See United States v. X-Citement

Video, Inc., 513 U.S. 64, 69 (1994) (describing the interpretative presumption “that a statute is to

be construed where fairly possible so as to avoid substantial constitutional questions” (emphasis

added)). As we have just discussed, retrogression analysis under section 5 as amended limits our

analysis to ability to elect and does not permit us to weigh degrees of effectiveness. We cannot

adopt an interpretation at odds with the statutory text to avoid possible constitutional concerns.

4. Coalition and Crossover Districts

a. Section 5 Analysis

In a crossover district, a minority group “is large enough to elect the candidate of its

choice with help from voters who are members of the majority and who cross over to support the

minority’s preferred candidate.” Bartlett, 556 U.S. at 13. In a coalition district, two or more

minority groups work together to elect their preferred candidate. Id. We held at summary

11

Because Texas has not raised the argument, we have no opportunity in this case to consider whether the

federalism costs of preclearance, when weighed against current conditions, call into question the constitutionality of

section 5’s remedial scheme. Cf. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202-05 (2009)

(noting the Court’s serious concerns that “current needs” may no longer justify the burdens preclearance imposes on

covered jurisdictions). The constitutionality of section 5 was neither briefed nor argued to us, and we express no

opinion on this significant point. In fact, our Circuit has recently held that section 5 is constitutional. See Shelby

Cnty. v. Holder, 679 F.3d 848 (D.C. Cir. 2012).

18

judgment that because existing “coalition and crossover districts provide minority groups the

ability to elect a preferred candidate, they must be recognized as ability districts in a Section 5

analysis of a benchmark plan.” Texas, 831 F. Supp. 2d at 267-68. Texas asks us to reconsider our

ruling in light of Bartlett v. Strickland, 556 U.S. 1 (2009) (plurality opinion), and the Supreme

Court’s recent decision in Perry v. Perez, 132 S. Ct. 934 (2012). Having considered the parties’

arguments, we reaffirm our conclusion that coalition and crossover districts are protected under

section 5.

The Supreme Court has never directly addressed whether section 5 protects coalition or

crossover districts. A close reading of Georgia v. Ashcroft, however, suggests that it does. The

Court described districts with “coalitions of voters who together will help to achieve the electoral

aspirations of the minority group,” 539 U.S. at 481, concluding that such districts count as

“effective representation” for purposes of section 5, just like “safe majority-minority districts.”

Id. at 480-82 (“Section 5 gives States the flexibility to choose one theory of effective

representation over the other.” Id. at 482.).12 The Court’s statements in Georgia v. Ashcroft are

reinforced by the House Report accompanying the 2006 amendments, which spoke of coalition

districts as a type of ability district: “Voting changes that leave a minority group less able to elect

a preferred candidate of choice, either directly or when coalesced with other voters, cannot be

precleared under Section 5.” H.R. REP. NO. 109-478, at 71 (emphasis added).13

12

Although the 2006 amendments rejected the portion of Georgia v. Ashcroft that directed courts to consider

factors other than ability to elect in their retrogression analyses, this passage is from the opinion’s earlier section

describing ability to elect.

13

As we noted at summary judgment, Senator Kyl wrote separately a week after the passage of the

amendments “to explain why [he] believe[d] that Congress cannot require that state or local governments create or

retain influence or coalition districts,” S. REP. NO. 109-295, at 22 (additional views of Senator Kyl), but those

individual views were filed a week after the VRA had passed both houses of Congress, were not considered by

Congress prior to the vote, and were neither adopted nor affirmed by Congress in its findings accompanying the

2006 amendments. See Texas, 831 F. Supp. 2d at 267 n.30.

19

In addition, the Court’s jurisprudence under section 2, a distinct yet related provision of

the VRA mandating equal opportunity for minority voters to participate in the electoral process,

supports protecting coalition and crossover districts under section 5. The Court has long

acknowledged the existence of coalition and crossover districts, recognizing at times that they

can provide the means for minority voters to elect their candidates of choice. See Johnson v. De

Grandy, 512 U.S. 997, 1020 (1994) (describing “communities in which minority citizens are able

to form coalitions with voters from other racial and ethnic groups, having no need to be a

majority within a single district in order to elect candidates of their choice” (emphasis added));

Voinovich v. Quilter, 507 U.S. 146, 154 (1993) (describing a district in which a minority group

was not large enough to elect its preferred candidate operating alone but could do so if it

“attract[ed] sufficient cross-over votes from white voters”).14 In fact, the Court has suggested

that such districts will become more common over time, replacing majority-minority districts as

waning racial polarization makes it easier for minority voters to elect their preferred candidates

even when they do not make up the majority of a district’s voters. See De Grandy, 512 U.S. at

1019-20. In other words, “ability” may look different now than it did when the VRA was first

enacted. Our responsibility to protect the rights secured by section 5 calls that we be sensitive to

these new, but real, forms of minority voting power.

Texas argues that the Court’s decision in Bartlett precludes recognizing coalition and

crossover districts under section 5. See Tex. Post-Trial Br. 8. But the Bartlett Court only

concluded that section 2 does not compel states to draw new crossover districts under section 2,

not that states can disregard the existence of established crossover and coalition districts in a

14

In lower court section 2 cases, courts have also frequently referred to coalition and crossover districts using

the same adjectives used to describe traditional majority-minority districts, such as “performing,” “effective,” and

“ability.” See, e.g., Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 366 F. Supp. 2d

887, 904 (D. Ariz. 2005) (describing this trend).

20

section 5 inquiry.15 See Texas, 831 F. Supp. 2d at 267-68. Significantly, Bartlett noted that it did

not reach the question of whether states could choose to draw crossover districts “as a matter of

legislative choice or discretion,” and cited Georgia v. Ashcroft to show that drawing such

districts may be the most effective way to strengthen minority voting power. Bartlett, 556 U.S. at

23. Far from revealing skepticism or hostility toward coalition districts, this language suggests

that such districts can increase minority voters’ electoral ability, even while holding that states

are not required to draw districts maximizing this potential.

Nor do the Bartlett Court’s concerns under section 2 speak to our task under section 5.

Part of the Court’s analysis rested on the difficulties of predicting whether a potential coalition

would provide minorities with an opportunity to elect. Id. at 17. Section 5, by contrast, asks

whether an existing coalition has achieved an ability to elect. Section 5 does not call on us to

guess the future, but to determine whether there is past evidence of a demonstrated ability to

elect. And while section 2 does not demand granting “special protection to a minority group’s

right to form political coalitions” or “impose on those who draw election districts a duty to give

minority voters the most potential, or the best potential, to elect a candidate by attracting

crossover voters,” id. at 15, section 5 mandates that we ensure that “the gains thus far achieved in

minority political participation [are] not destroyed,” Beer, 425 U.S. at 141 (quoting S. REP. NO.

94-295, at 19 (1975)). To be sure, forcing a state to create crossover districts would reach beyond

section 2’s equality mandate, but nothing in Bartlett suggests that courts can turn a blind eye

towards a district in which minority voters have already turned electoral opportunity into ability

to elect.

15

Bartlett’s holding was limited to crossover districts. It did not analyze coalition districts. See Bartlett, 556

U.S. at 13-14.

21

And nothing in Perez extends the reasoning in Bartlett to section 5. Perez held only that

the district court had no basis to draw a new coalition district under section 2, without addressing

the separate question before us: whether preexisting coalition or crossover districts merit

protection under section 5. See Perez, 132 S. Ct. at 944. Thus, although section 2 does not

require states to draw new crossover districts, we read section 5’s ban on retrogression to extend

protection to districts in which minority voters have demonstrated an ability to elect their

preferred candidates via either assembling a coalition or attracting sufficient crossover votes, or

both.

b. Standard of Proof

As we stated in our summary judgment opinion, proving the existence of coalition and

crossover districts “require[s] more exacting evidence than would be needed to prove the

existence of a majority-minority district.” Texas, 831 F. Supp. 2d at 268. The discussion that

follows explains the test we have applied.

At the outset, the minority group or groups must vote cohesively in coalition and

crossover districts, just as they must in protected majority-minority districts. See Growe v.

Emison, 507 U.S. 25, 41 (1993) (noting that proving political cohesion across an “agglomerated

political bloc” — i.e, a coalition — “is all the more essential” than the need to prove cohesion

within a single minority group).16 If minority groups split their vote between opposing candidates

in the general election, there is by definition no candidate of choice, and the district is not

protected under section 5.

16

Texas suggests that the test for proving cohesion across a coalition requires proof that the coalition votes

together in primaries, not just general elections. The TLRTF joins Texas’s position in its post-trial submissions. See

TLRTF Response to the Ct.’s Order of Mar. 6, 2012, at 9, ECF No. 219 (relying on Democratic primary results in

Congressional District 25 as support for a conclusion that the district is not protected under section 5). As explained

in our discussions of Congressional District 25 and House District 149 below, we reject this argument.

22

While the first inquiry considers whether minority voters have a candidate of choice, the

next inquiry is grounded in a different part of section 5: do minority voters have the “ability to

elect” their preferred candidate? See 42 U.S.C. § 1973c. In other words, are the groups large

enough, motivated enough, or influential enough to elect their candidate of choice — and have

they in fact done so? This question is in many respects similar to that for majority-minority

ability districts. There is no single, clearly defined metric to determine when a minority group

has an ability to elect, so we use a multi-factored approach to determine when a coalition or

crossover district achieves that ability. See Growe, 507 U.S. at 41 (pointing to anecdotal

evidence, statistical evidence of minority political cohesion, and racial bloc voting as some of the

factors relevant to prove the existence of a coalition district under section 2); Texas, 831 F. Supp.

2d at 268 (“[T]here must be discrete data, by way of election returns, to confirm the existence of

a voting coalition’s electoral power.”).

A coalition district is protected under section 5 if there is sufficient evidence to find that

minorities vote cohesively and have the ability to elect their preferred candidates. The same two

inquiries apply to a crossover district, but the ability-to-elect analysis is more complicated.

Although election returns are necessary to show that minority voters in a crossover district have

a track record of success — results are the coin of the realm — it is not enough that they simply

go along with the electoral decisions of some of the district’s Anglo voters.17 We must also be

satisfied that it is the minority voters themselves who have the ability to elect their preferred

candidate.

17

The same concern exists in majority-minority ability districts. A minority group that has low election day

turnout despite comprising a little over half of the district’s voting age population may find itself consistently on the

winning side in the district while providing relatively few votes and little influence. Nevertheless, courts have

generally presumed that success electing the minority-preferred candidate in a majority-minority district is sufficient

to find ability status. That such a presumption is rebuttable illustrates that we are not requiring a different kind of

proof for coalition and crossover districts, only more exacting evidence.

23

The test to establish this ability must be rigorous enough to avoid the scenario Texas

describes: that section 5 will be interpreted to protect any district that elects a Democrat, no

matter how small its minority population. In other words, that minority voters are needed to win

an election does not in itself prove that they have an ability to elect. As an extreme example of

this concern, consider a district with a 90% Anglo and 10% minority population. If the Anglo

vote splits evenly between Democrats and Republicans and minorities vote overwhelmingly

Democratic, then the Democratic candidate will win with approximately 55% of the vote, and the

minority vote will properly be viewed as essential to victory every time. Yet this would not be a

district in which the minority group has an ability to elect; the Anglos do. Such a district would

merely be a Democratic district that happens to contain a minority group. If we were to hold

otherwise, then every district that consistently elects a Democrat with the minority vote

providing the margin of victory, no matter how small, would qualify for protection under section

5. This would stretch the scope of section 5 too far. A protected crossover district is not created

each time Anglos and minorities vote together to elect a candidate.

With respect to both coalition and crossover districts, we require “more exacting

evidence” to prove that minority voters have an ability to elect than we do for majority-minority

ability districts. Texas, 831 F. Supp. 2d at 268. Doing so ensures that we stay within the

boundaries of section 5 and protect only those districts in which minority voters have

demonstrated their effectiveness. Yet where that standard is met — where minority voters

themselves “pull, haul, and trade” to elect their preferred candidates, De Grandy, 512 U.S. at

1020 — then the district is one in which minority voters have an ability to elect, and section 5’s

24

safeguards apply.18

B. Discriminatory Intent

In Reno v. Bossier Parish School Board (Bossier II), 528 U.S. 320 (2000), the Supreme

Court considered whether section 5 barred a plan that “would have no retrogressive effect” but

“nonetheless . . . was enacted for a discriminatory ‘purpose.’” Id. at 325. The Court held that it

did not, concluding that the purpose prong extended only to intent to retrogress, not to all

intentional discrimination. Thus, section 5, the Court wrote, would catch only an “incompetent

retrogressor,” but offered no recourse against a mapdrawer who intended to discriminate against

minority voters using methods that did not create retrogression. Id. at 332. In direct response, the

2006 amendments to section 5 clarified that the term “purpose” must be read more broadly and

includes “any discriminatory purpose.” 42 U.S.C. § 1973c(c); see also H.R. REP. NO. 109-478, at

93 (stating that Congress “rejects the Supreme Court’s holding in Reno v. Bossier Parish”). As a

result, we may not preclear any redistricting plan enacted with discriminatory intent.

Texas argues that it should not be required to prove that it lacked any discriminatory

purpose. Saddling a state with that burden, so the argument goes, adds too much to the serious

federalism costs already imposed by preclearance and could “exceed Congress’ enforcement

authority under the Fifteenth Amendment and violate the Tenth Amendment.” Tex. Post-Trial

Br. 17-18. The only way to avoid this problem, Texas claims, is to shift the burden of proof for

discriminatory intent from Texas onto the United States and the Intervenors. Id. at 18. We

acknowledge the substantial federalism costs of section 5, see Nw. Austin Mun. Util. Dist. No.

One v. Holder, 557 U.S. 193, 203-04 (2009) (stating that the preclearance remedy implicates

18

As described further in our discussions of Congressional District 25 below, although the Court agrees on the

general standard outlined above, we disagree on the appropriate test to determine when minority voters possess

sufficient voting power to have established their ability to elect.

25

serious federalism concerns), and recognize the difficulty of proving a negative. Yet it is settled

law that Texas bears the burden of proving lack of discriminatory intent. See, e.g., Pleasant

Grove, 479 U.S. at 469 (“The burden of proving absence of discriminatory purpose and effect is

on [the covered jurisdiction].”); City of Rome v. United States, 446 U.S. 156, 183 n.18 (1980)

(“Under § 5, the city bears the burden of proving lack of discriminatory purpose and effect.”);

Beer, 425 U.S. at 140-41; Georgia v. United States, 411 U.S. 526, 538 (1973); South Carolina v.

Katzenbach, 383 U.S. 301, 335 (1966). Texas has pointed to no evidence that Congress intended

to modify this established understanding.

Moreover, Texas’s burden is not insurmountable.19 There is no question, as the

Supreme Court has previously stated, that “assessing a jurisdiction’s motivation in enacting

voting changes is a complex task requiring a ‘sensitive inquiry into such circumstantial and

direct evidence as may be available.’” Reno v. Bossier Parish Sch. Bd. (Bossier I), 520 U.S. 471,

488 (1997) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266

(1977)). And as Texas rightly argues, this task is all the more difficult because disparate impact

alone is insufficient to establish discriminatory purpose, see Bush v. Vera, 517 U.S. 952, 968

(1996) (plurality opinion) (“If district lines merely correlate with race because they are drawn on

the basis of political affiliation, which correlates with race, there is no racial classification to

justify . . . .”). But we have clear direction how to conduct this “complex task” from Village of

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). See

Bossier I, 520 U.S. at 488 (“In conducting [a section 5 purpose] inquiry, courts should look

19

While Texas ultimately bears the burden of proving nondiscrimination, it may shift that burden to the

defendants by making out a prima facie case for nondiscrimination. See Bossier Parish Sch. Bd. v. Reno, 907 F.

Supp. 434, 446 (D.D.C. 1995), vacated on other grounds, 520 U.S. 471 (1997) (noting that in section 5 cases

“something like a burden shifting must occur in this, as in every other, civil case,” and that once “[a jurisdiction]

makes out its prima facie case, it is entitled to preclearance unless its prima facie case is rebutted”). After the

defendants respond to the prima facie case, the issue becomes whether Texas’s “evidence is more persuasive than

the evidence proffered against it.” Id.

26

to . . . Arlington Heights for guidance.”); see also H.R. REP. NO. 109-478, at 68 (“[T]he factors

set out in [Arlington Heights] provide an adequate framework for determining whether voting

changes submitted for preclearance were motivated by a discriminatory purpose . . . .”). There,

the Court set forth a framework for analyzing “whether invidious discriminatory purpose was a

motivating factor” in a government body’s decisionmaking. Arlington Heights, 429 U.S. at 266;

see also Bossier I, 520 U.S. at 488-89 (collecting cases in which courts have applied Arlington

Heights in the section 5 context). We follow this well-worn path and base our inquiry upon the

five Arlington Heights factors: (1) discriminatory impact, (2) historical background, (3) sequence

of events leading up to the decision, (4) procedural or substantive deviations from the normal

decisionmaking process, and (5) contemporaneous viewpoints expressed by the decisionmakers.

Arlington Heights, 429 U.S. at 266-68. Texas can carry its burden by showing that these

factors — the longstanding yardstick for determining discriminatory intent — do not, taken

together, show discriminatory purpose.

III. Congressional Plan

We now turn to the merits of the three plans before us, considering in turn whether

Texas has carried its burden to prove the absence of discriminatory purpose and effect in the

Congressional, Senate, and House Plans.

A. Retrogression in the Congressional Plan

There are thirty-six districts in the enacted Congressional Plan. Certain Intervenors argue

that the enacted plan has one fewer ability district than the benchmark because three ability

districts — Congressional Districts (CDs) 23, 25, and 27 — are lost and only two ability

districts — CDs 34 and 35 — are added. There is no dispute that these two new districts are

Hispanic ability districts. Texas agrees that CD 27 is a lost ability district, but disputes that

27

benchmark CDs 23 and 25 are ability districts. Under Texas’s theory, the Congressional Plan

results in a net increase of one Hispanic ability district.

The United States and certain Intervenors argue that the enacted Congressional Plan

retrogresses by failing to draw an additional Hispanic ability district. They assert that CDs 23

and 27, but not CD 25, were Hispanic ability districts in the benchmark whose loss in the enacted

plan is offset by the gain of CDs 34 and 35. Nevertheless, in light of the growth in the State’s

Hispanic population, they argue that failing to draw one of the four new congressional districts as

a Hispanic ability district increases the degree of Hispanic disenfranchisement from the

benchmark level and thus violates section 5.

In addition to these arguments about Hispanic ability districts, some of the Intervenors

argue that the Congressional Plan is retrogressive with respect to Black voters as well. All parties

agree that CDs 9, 18, and 30 are ability districts for Black voters in both the benchmark and

enacted congressional maps. Some of the Intervenors allege that the enacted plan “packed” these

districts with Black voters from neighboring jurisdictions that were not performing for minority

voters. But because section 5’s effect prong does not prohibit reductions in minority voting

power in nonability districts, we find no retrogression in Black ability districts in the

Congressional Plan.

We do, however, conclude that the enacted Congressional Plan is retrogressive and thus

cannot be precleared under section 5. Although we differ among ourselves whether benchmark

CD 25 was an ability district, this disagreement does not affect our overall conclusion. At the

outset, we discuss the two disputed ability districts upon which we agree, then explain the

majority’s conclusion that Texas was required to draw a new ability district under section 5. We

set out our separate views on CD 25 at the end of the opinion.

28

1. Congressional District 27

Benchmark CD 27 includes the cities of Corpus Christi and Brownsville in southeastern

Texas. With a Hispanic Citizen Voting Age Population (HCVAP) of 63.8%, Pl.’s Ex. 11, at 9,

and, until 2010, a twenty-seven year history of representation by a Hispanic Democrat,

benchmark CD 27 is a clear Hispanic ability district. Although an Anglo Republican won the

seat with a 775 vote margin in 2010, Pl.’s Ex. 32, at 13, no party argues that this anomalous

result is reason to doubt the district’s status as an ability district. Indeed, Texas’s own expert

conceded that the district had “performed” from the time of its creation for close to thirty years

until the 2010 election, Defs.’ Ex. 581, Trial Tr. 1870:16-1871:4, Sept. 14, 2011, Perez, No.

11-cv-360, and Kel Seliger, chairman of the Texas Senate Select Committee on Redistricting,

testified that benchmark CD 27 is clearly protected by the VRA and that he felt the legislature

needed to draw another district to compensate for its loss, Seliger San Antonio Dep. 25:22-26:13;

see also Trial Tr. 17:19-18:11, Jan. 24, 2012 AM.

The enacted plan pivots CD 27 roughly 180 degrees such that the old northern boundary

of the district is now the new southern boundary, with new CD 34 filling in much of CD 27’s old

geography. The result is that enacted CD 27 is a majority-Anglo district: HCVAP drops to only

41.1%. Pl.’s Ex.12, at 9. All parties agree that these significant geographic and demographic

shifts mean that CD 27 will no longer perform for minority voters. We agree.

2. Congressional District 23

West Texas’s CD 23 has a complicated history under the VRA. In 2006, the Supreme

Court held that CD 23, as then constituted, violated section 2. See LULAC v. Perry, 548 U.S.

399, 425-42 (2006). In response, the U.S. District Court for the Eastern District of Texas redrew

its boundaries in 2006 to be an “opportunity district,” or one in which Hispanic voters would

29

have an opportunity to elect their preferred candidates, as required by section 2. See Defs.’ Ex.

575, Trial Tr. 300:13-18, Sept. 7, 2011, Perez, No. 11-cv-360. We now find that the Hispanic

voters in CD 23 turned that opportunity into a demonstrated ability to elect, but that the 2010

redistricting took that ability away.

Benchmark CD 23 has an HCVAP of 58.4%. Pl.’s Ex. 11, at 9. During the most recent

redistricting, the mapdrawers in the Texas legislature acknowledged that CD 23 was a protected

district under the VRA. See, e.g., Seliger San Antonio Dep. 13:19-15:11, 30:6-15, 31:6-16

(testimony of Chairman Seliger describing his belief during the redistricting process that CD 23

was a protected Hispanic district); Defs.’ Ex. 978 (email from congressional mapdrawer Doug

Davis to National Republican Congressional Committee staffer noting VRA concerns when

drawing CD 23). CD 23 elected the minority-preferred candidate in two out of the three

endogenous elections since its boundaries were redrawn in 2006. Defs.’ Ex. 327, Dr. Lisa

Handley, A Section 5 Voting Rights Analysis of the Proposed Texas Congressional Plan 5

[hereinafter Handley Cong. Rep.]. The one narrow loss was in 2010, a year that Chairman

Seliger described as “a bit of an aberration because of things like the Tea Party influence,”

further noting that he “didn’t know if [that election] was reliable.” Seliger San Antonio Dep.

15:5-7; see also Trial Tr. 11:15-21, Jan. 24, 2012 AM.20

Texas counters that none of the experts found that benchmark CD 23 clearly performs as

an ability district and points to the weak showing of minority voters in exogenous elections: only

three out of ten victories in the OAG 10 and two out of five victories in Dr. Handley’s election

20

Texas argues that one of the two endogenous victories, the 2006 election, should be discounted because it

did not occur on general election day. See Tex. Post-Trial Br. 16. VRA litigation left no time for a primary that year,

and instead all eight candidates competed in a special election held the same day as Texas’s general election. See

Trial Tr. 66:21-68:9, Jan. 26, 2012 AM. Texas is correct that the Republican candidate won the plurality of votes in

the special election, but we find this result unremarkable because six of the eight special election candidates were

Democrats. When the runoff election was held five weeks later, Hispanic-preferred candidate Ciro Rodriguez won a

decisive victory. Pl.’s Ex. 17, at 368. We see no reason to discount Rep. Rodriguez’s victory.

30

set. Alford Rep. 23 tbl.4b; Handley Cong. Rep. 5. But these numbers do not tell the full story.

Every expert save Dr. Alford concluded that benchmark CD 23 is an ability district despite

marginal exogenous performance. Dr. Handley concluded that endogenous results are more

probative than exogenous for this district, see Handley Cong. Rep. 5-6, and, as we have already

discussed, we agree that this assessment is generally accurate. Dr. Ansolabehere’s analysis

shows that minority-preferred candidates won the district “more often than not.” Defs.’ Ex. 724,

Expert Witness Report of Dr. Stephen Ansolabehere 36-37 [hereinafter Ansolabehere Rep.]. And

the TLRTF argues that a larger election sample set is necessary to make an informed judgment.

When four additional racially contested contests are added to the OAG 10, the district’s

exogenous success rises to seven out of fourteen. See Trial Tr. 111:14-113:4, Jan. 18, 2012 AM;

Defs.’ Exs. 390, 647. These election results, combined with the endogenous elections discussed

above, the fact that CD 23 was drawn to be an opportunity district, and the contemporary views

of redistricting officials, are enough for us to find that benchmark CD 23 lived up to its potential

as drawn in 2006 and became an ability district.

But enacted CD 23 is not. Even though the district’s demographics remain relatively

unchanged — HCVAP actually increased 0.1% from the benchmark to the enacted plan, Pl.’s

Ex. 12, at 9 — this fact is inconclusive. Instead, we must look to other factors, including

exogenous elections, testimony, and other evidence about changes made in the district.

Enacted CD 23’s exogenous election results are significantly worse than those in

benchmark CD 23. In the OAG 10, the number of victories decreases from three of ten to one. In

Dr. Handley’s sample the number decreases from two of five to none. Alford Rep. 23 tbl.4b;

Handley Cong. Rep. 7; see also Ansolabehere Rep. 37 (concluding that the enacted plan “lowers

the electoral performance of minority-preferred candidates in the District to the point that it is

31

likely no longer a minority opportunity seat”). Minority voter turnout in enacted CD 23 declines.

While Hispanic voters accounted for an average of 39% of total votes cast in benchmark CD 23

over the past decade, they made up only 36.5% in enacted CD 23.21 Defs.’ Ex. 365, at 5-12; see

also, e.g., Defs.’ Ex. 575, Trial Tr. 450:19-454:11, Sept. 7, 2011, Perez, No. 11-cv-360

(testimony of Dr. Henry Flores, noting that Hispanic voter turnout was higher in areas moved out

of the district than in areas that were moved in; turnout in some excluded areas was consistently

over 30%, while turnout in areas that replaced them was only 25-30%). The changes were

enough to “nudge” a district that was an ability district, but barely so, to a nonperforming

district. See Ansolabehere Rep. 37 (noting that “in a competitive district such as this one,”

seemingly small changes “made a huge difference”). Even Texas’s expert testified that CD 23 “is

probably less likely to perform than it was, and so I certainly wouldn’t count and don’t [and]

haven’t counted the 23rd as an effective minority district in the newly adopted plan.” Defs.’ Ex.

581, Trial Tr. 1839:2-7, Sept. 14, 2011, Perez, No. 11-cv-360. Thus, CD 23 is an ability district

in the benchmark, but would be no longer in the enacted plan.

Texas claims that the enacted district has remained functionally identical to the

benchmark, but these claims are undermined by the mapdrawers’ own admissions that they tried

to make the district more Republican — and consequently, less dependable for minority-

preferred candidates — without changing the district’s Hispanic population levels. The

mapdrawers consciously replaced many of the district’s active Hispanic voters with low-turnout

Hispanic voters in an effort to strengthen the voting power of CD 23’s Anglo citizens. In other

words, they sought to reduce Hispanic voters’ ability to elect without making it look like

anything in CD 23 had changed. See, e.g., Defs.’ Ex. 304 (email from Eric Opiela, counsel to

21

Judges Collyer and Howell do not depend on voter turnout data to conclude that CD 23 is a lost ability

district.

32

Texas House Speaker Joe Strauss, to mapdrawer Gerardo Interiano in November 2010 urging

Interiano to find a metric to “help pull the district’s Total Hispanic Pop[ulation] and Hispanic

CVAPs up to majority status, but leave the Spanish Surname [Registered Voter] and [turnout

numbers] the lowest,” which would be “especially valuable in shoring up [CD 23 incumbent]

Canseco”); id. (email from Interiano responding that he would “gladly help with this”); Defs.’

Ex. 739, at 40 (email indicating that Opiela provided sample maps to Interiano as late as June 11,

2011, that would “improve CD 23’s [H]ispanic performance while maintaining it as a

Republican district”). We also received an abundance of evidence that Texas, in fact, followed

this course by using various techniques to maintain the semblance of Hispanic voting power in

the district while decreasing its effectiveness. See, e.g., Defs.’ Ex. 436 (evidence showing that

over 600,000 persons were moved into and out of the district to redress overpopulation of only

149,000); Defs.’ Ex. 903, at 1 (email noting that a draft map of CD 23 was “over 59% HCVAP,

but still at 1/10 [exogenous election performance],” and commenting that there must be an

HCVAP level high enough that low election results would not raise trouble under section 5);

Defs.’ Ex. 978 (email commenting that a draft map of CD 23 “looks nice politically,” but still

raises “concern[s] about the Voting Rights Act”); Trial Tr. 106:18-108:3, Jan. 18, 2012 AM

(testimony of Ryan Downton that he drew the district’s lines precinct-by-precinct based on

election results to keep Hispanic population numbers high while maximizing Republican

performance); Id. at 12:2-16, Jan. 24, 2012 AM (testimony of Kel Seliger that CD 23 was drawn

by considering “voting patterns and ethnicity” to see what could be done “to change the

district”). Texas’s protestations that the district has remained functionally identical are weakened

first by the mapdrawers’ admissions that they tried to reduce the effectiveness of the Hispanic

33

vote and then, more powerfully, by evidence that they did. We conclude that CD 23 is a lost

ability district.

3. Retrogression with New Congressional Seats22

Texas’s population grew by approximately 4.3 million in the past decade, an increase of

20.6%. Approximately 89% of this growth was from non-Anglo minorities: Hispanics comprise

65% of the increase, Blacks 13.4%, and Asian-Americans 10.1%. See U.S. Req. for Judicial

Notice ¶¶ 8, 20, 22, 24 (citing 2000 and 2010 Census data).23 As a result of this increase, the

Texas delegation in the U.S. House of Representatives grew from 32 to 36 members, the largest

growth ever in a jurisdiction fully covered by section 5. See Texas, 831 F. Supp. 2d at 257. The

United States and various Intervenors argue that Texas was required to draw at least one of these

new districts as an ability district. See, e.g., U.S. Post-Trial Br. 14-15. We agree.

As already discussed, section 5’s prohibition on retrogression means that “the entire

[enacted] statewide plan as a whole,” Ashcroft, 539 U.S. at 470, cannot “increase the degree of

discrimination against [minority voters],”24 City of Lockhart v. United States, 460 U.S. 125, 134

(1983). Abrams v. Johnson, 521 U.S. 74 (1997), tells us how to measure the degree of

discrimination when the number of districts remains the same or increases by one: there is no

retrogression as long as the number of ability districts remains the same. Id. at 97-98. At

summary judgment we concluded that our case was similar to Abrams because “Texas’

22

Having found retrogression in the Congressional Plan because CD 25 was an ability district that was

eliminated and not replaced, Judge Collyer does not reach the further question of retrogression based on proportional

representation arising from multiple new congressional seats and a sizeable growth in minority population.

23

Likewise, minorities comprise 80.4% of the increase in Texas’s voting age population between 2000 and

2010. U.S. Req. for Judicial Notice ¶ 19 (citing 2000 and 2010 Census data). We agree with the United States that

U.S. Census data is an appropriate subject of judicial notice. See id. at 2 (citing Hollinger v. Home State Mut. Ins.

Co., 654 F.3d 564, 572-73 (5th Cir. 2011); City of Port Arthur v. United States, 517 F. Supp. 987, 993 n.5 (D.D.C.

1981)).

24

The Supreme Court has also described our task as determining that the enacted plan “is no more dilutive than

what it replaces.” Bossier II, 528 U.S. at 335.

34

percentage gain in congressional seats (12.5%) is similar to Georgia’s percentage gain in Abrams

(10%).” Texas, 831 F. Supp. 2d at 269. Yet we also noted that “Abrams does not control.

Although Abrams is clear that the VRA does not require there to be a new minority ability

district for every new congressional seat, it does not hold that a state’s failure to draw new

minority districts can never be retrogressive.” Id. Upon further examination and after weighing

the arguments presented at trial, we have concluded that Texas’s failure to draw a new minority

district does in fact make the enacted plan retrogressive under the specific facts of this case.

Abrams spoke only to the case of a state that gained a single seat, 521 U.S. at 97-98, not to the

case of a state that gains multiple seats.25

Neither section 5’s text nor existing case law tells us how to measure the “degree of

discrimination” in these circumstances. But guidance is available in the Supreme Court’s section

2 cases. Even though section 5 is not ameliorative and has different purposes than section 2,

some tools used in section 2 analysis reveal insights into the underlying principles of the VRA,

see, e.g., Texas, 831 F. Supp. 2d at 261-62 & 262 n.21, which are especially helpful as we find

ourselves in a setting no section 5 cases have yet considered.

In the section 2 context, the Court has looked to the relationship between a minority

group’s share of the CVAP statewide and the number of opportunity districts to help determine

whether new opportunity districts must be created. See LULAC, 548 U.S. at 438 (“Looking

statewide, there are 32 congressional districts. The five reasonably compact Latino opportunity

districts amount to roughly 16% of the total [number of districts], while Latinos make up 22% of

25

We agree with the United States that the holding of Abrams cannot be read to govern all cases in which a

state gains seats in a district map. At the extreme, consider a state with a 100-member legislature and 30 ability

districts in the benchmark map. If the state redrew its legislature to double the number of districts to 200, but created

no new ability districts, it would be difficult to conclude that the new plan was not dilutive and had not increased the

degree of discrimination against minority voters merely because it contained the same number of ability districts.

35

Texas’ citizen voting-age population. . . . Latinos are, therefore, two districts shy of proportional

representation.”); De Grandy, 512 U.S. at 1014 n.11 (examining “the number of majority-

minority voting districts [compared] to minority members’ share of the relevant population”).

We agree with the United States that this “representation gap” between the number of districts

proportional representation would yield and the number of districts the legislature has actually

created is a strong indicator of the “degree of discrimination.” U.S. Post-Trial Br. 15. When the

representation gap grows, the degree of discrimination increases.

This analysis squares with the outcomes of previous section 5 cases. Where the number

of districts remains the same, the representation gap does not increase. Likewise, the

representation gap in Abrams was unchanged between plans. There, Blacks constituted 27% of

Georgia’s voting age population and had the ability to elect in only one of ten districts in the

benchmark plan. See 521 U.S. at 103 (Breyer, J., dissenting). That put the representation gap at

two districts (27% of 10 is 2.7, which, when rounded up, is two more than one).26 In the enacted

plan the representation gap remained the same (27% of 11 is 3.0, which is also two more than

one). There was no increase in the degree of discrimination, and the plan did not retrogress.

By contrast, the representation gap in Texas has increased. The Black and Hispanic

communities currently make up 39.3% of Texas’s CVAP. Joint Stipulations of Fact ¶ 38. Thus, if

districts were allocated proportionally, there would be 13 minority districts out of the 32 in the

benchmark (39.3% of 32 is 12.6). Yet minorities have only 10 seats in the benchmark, so the

representation gap is three districts. In the enacted plan, proportional representation would yield

26

We note that we are rounding 2.7 up to 3. We do so following the Court’s example in LULAC, in which it

noted that “‘rough proportionality’ must allow for some deviations.” 548 U.S. at 438 (quoting De Grandy, 512 U.S.

at 1023).

36

14 ability districts (39.3% of 36 is 14.1), but there are still only 10 ability districts.27 Thus, the

representation gap in the enacted plan is four districts. Because this gap increases by one district,

we cannot preclear the enacted plan.28

We emphasize what our analysis does not do. It does not entitle minorities to proportional

representation. It does not require a state to create new ability districts in proportion to increases

in a minority group’s population.29 We require only that a state not “undo[] or defeat[] the rights

recently won” by minorities, Beer, 425 U.S. at 140 (quoting H.R. REP. NO. 91-397, at 8 (1969))

(internal quotation marks omitted), by increasing the “degree of discrimination,” Lockhart, 460

U.S. at 134, which requires assessing the “number of majority-minority voting districts to

minority members’ share of the relevant population,” De Grandy, 512 U.S. at 1014 n.11.

27

Our calculations use the combined Black and Hispanic share of the CVAP (39.3%), the metric advanced by

the United States and various Intervenors. See also De Grandy, 512 U.S. at 1014 n.11 (“‘Proportionality’ as the term

is used here links the number of majority-minority voting districts to minority members’ share of the relevant

population.”). Nevertheless, we note that our method also yields one additional congressional seat if the Black and

Hispanic representation gaps are calculated separately. Hispanics comprise 26.4% of Texas’s CVAP, Joint

Stipulations of Fact ¶ 38, and the “Hispanic” representation gap increases by one in the enacted plan (Hispanics have

seven ability districts in both plans, but 26.4% of 32 is 8.4 and 26.4% of 36 is 9.5). By contrast, Blacks comprise

12.9% of Texas’s CVAP, id., and the “Black” representation gap does not change between plans. Blacks have three

ability districts in both plans; 12.9% of 32 is 4.1, and 12.9% of 36 is 4.6. Following the “rough proportionality”

principle, this increase of 0.5 in the representation gap does not require the State to draw a new district, just as we

require the State to draw only one additional ability district above, even though there is a 1.5 increase in the

representation gap.

Similarly, this representation gap would exist even if CD 25 were counted as an ability district in the

benchmark. In that case, the benchmark representation gap would be two districts (the difference between 13 and 11

districts) and the enacted representation gap would be three districts (the difference between 14 and 11 districts).

28

We note that this requirement would likely be subject to the caveat that a state is only required to draw a new

district if possible, i.e., if it can draw a new ability district without violating other principles such as one-person,

one-vote or the demands of section 2. Yet the facts that minority population growth was largely concentrated in

three areas in Texas and that the parties submitted several alternate plans drawing a new Hispanic ability district

suggest that this will not be an issue here. In any event, the infeasibility of drawing a new district was not argued or

briefed in any depth during this litigation.

29

Under our logic, if Texas had experienced the same population growth but had not gained additional

congressional seats (because, for example, other states experienced equivalent or greater growth), it would have

been required to draw only 10 ability districts. It is the growth in the number of districts that triggers our analysis,

not growth in the population.

37

Because the Texas legislature purposes to increase this representation gap, we cannot preclear its

Congressional Plan.

B. Discriminatory Intent in the Congressional Plan

Although we need not reach the issue of discriminatory intent because we conclude that

the Congressional Plan will have a retrogressive effect, we do so here because, as we have just

discussed, we do not all agree on the appropriate rationale for finding retrogression. But because

we agree that the plan was enacted with discriminatory purpose, we reach this issue as an

alternative, unanimous basis to deny preclearance for the Congressional Plan. If true, the

allegations of the United States and the Intervenors that Texas drew the Congressional Plan with

discriminatory purpose provide grounds to deny preclearance. Texas argues that intent to

discriminate against minority voters played no role in the plan and that its decisions were

motivated solely by partisan politics. See, e.g., Tex. Post-Trial Br. 26 (“Texas adopted the

Congressional Plan with the lawful aim of protecting incumbents.”).

There is no direct evidence that the enacted plan was motivated by discriminatory

purpose; no emails, letters, or testimony about conversations between those members involved in

congressional redistricting disclose such an intent. Cf. Diaz v. Kraft Foods Global, Inc., 653 F.3d

582, 587 (7th Cir. 2011) (“Direct evidence is something close to an explicit admission . . . that a

particular decision was motivated by discrimination; this type of evidence is rare, but it ‘uniquely

reveals’ the . . . intent to discriminate.” (quoting Rudin v. Lincoln Land Cmty. Coll., 420 F.3d

712, 720 (7th Cir. 2005))). Thus, we must assess the circumstances surrounding the drawing of

the new maps. Our analysis follows the Supreme Court’s decision in Arlington Heights, which,

as discussed in more detail above, identifies five “subjects of proper inquiry in determining

whether racially discriminatory intent existed”: (1) discriminatory impact, (2) historical

38

background, (3) sequence of events leading up to the decision, (4) procedural or substantive

deviations from the normal decisionmaking process, and (5) contemporaneous viewpoints

expressed by the decisionmakers. Arlington Heights, 429 U.S. at 266-68.

As we have already noted, CDs 9, 18, and 30 are the only Black ability districts in the

benchmark and enacted plans. CD 9 is located south of Houston and incorporates parts of Harris

and Fort Bend Counties, CD 18 is located within Houston, and CD 30 is within Dallas. The

Texas legislature proposed substantial changes to these districts even though the 2010 Census

data shows the population in each was already close to the ideal size.30 We have already

determined that these changes are not retrogressive, but they raise serious concerns about what

motivated the Congressional Plan.

Congressman Al Green, who represents CD 9, testified that “substantial surgery” was

done to his district that could not have happened by accident. The Medical Center, Astrodome,

rail line, and Houston Baptist University — the “economic engines” of the district — were all

removed in the enacted plan. Trial Tr. 124:6-20, Jan. 20, 2012 AM; see also Defs.’ Ex. 721, Pre-

Filed Test. of Congressman Alexander Green 3-4. The enacted plan also removed from CD 9 the

area where Representative Green had established his district office. Trial Tr. 124:16, Jan. 20,

2012 AM. Likewise, Congresswoman Sheila Jackson Lee, who represents CD 18, testified that

the plan removed from her district key economic generators as well as her district office. Id. at

13:13-14:5, Jan. 23, 2012 PM. Congresswoman Eddie Bernice Johnson of CD 30 also testified

that the plan removed the American Center (home of the Dallas Mavericks), the arts district, her

district office, and her home from CD 30. Id. at 79:20-81:16, Jan. 18, 2012 PM. The mapdrawers

30

According to the 2010 Census, Texas’s population was 25,145,561. If this population were divided equally

between the State’s thirty-six congressional districts, each district would have 698,488 individuals. Pl.’s Ex. 12, at 2.

Benchmark CD 9 has a surplus of 35,508 people, or 5.05% of the district’s population. CD 18’s surplus is 22,503

(3.22%), and CD 30’s is 7,891 (1.14%). Defs.’ Ex. 347, at 28-29.

39

also removed the district office, the Alamo, and the Convention Center (named after the

incumbent’s father), from CD 20, a Hispanic ability district. Mem. Opp. Summ. J. Ex. 16, Decl.

of Charles A. Gonzalez ¶¶ 3-9, 11, ECF No. 77.

No such surgery was performed on the districts of Anglo incumbents. In fact, every

Anglo member of Congress retained his or her district office. Trial Tr. 14:12-15, Jan. 23, 2012

PM. Anglo district boundaries were redrawn to include particular country clubs and, in one case,

the school belonging to the incumbent’s grandchildren. See Mem. Opp. Summ. J. Exs. 11, 18-19,

ECF No. 77. And Texas never challenged evidence that only minority districts lost their

economic centers by showing, for example, that the same types of changes had been made in

Anglo districts.

The United States and the Intervenors convincingly argue — and Texas does not

dispute — that removing district offices from minority ability districts but not from Anglo

districts has a disparate impact on the minority districts. See U.S. Post-Trial Br. 26. District

offices help “provide[] a meaningful connection between a member and the people represented.”

Defs.’ Ex. 721, Pre-Filed Test. of Congressman Alexander Green 4. Their locations are often

well known to constituents, often placed to be easily accessible by freeway and public

transportation, and serve as a way for members of Congress to communicate with and provide

services to their constituents. See id. We are likewise troubled by the unchallenged evidence that

the legislature removed the economic guts from the Black ability districts. Texas does not

dispute that part of a member of Congress’s job is to “bring economic generators that will benefit

that community,” id. Removing those economic generators harms the district. Id. at 3-4; U.S.

Post-Trial Br. 26.

40

The only explanation Texas offers for this pattern is “coincidence.”31 Trial Tr. 95:5-19,

Jan. 25, 2012 PM. But if this was coincidence, it was a striking one indeed. It is difficult to

believe that pure chance would lead to such results. The State also argues that it “attempted to

accommodate unsolicited requests from a bipartisan group of lawmakers,” and that “[w]ithout

hearing from the members, the mapdrawers did not know where district offices were located.”

Tex. Post-Trial Br. 29. But we find this hard to believe as well. We are confident that the

mapdrawers can not only draw maps but read them, and the locations of these district offices

were not secret. The improbability of these events alone could well qualify as a “clear pattern,

unexplainable on grounds other than race,” Arlington Heights, 429 U.S. at 266, and lead us to

infer a discriminatory purpose behind the Congressional Plan.

When taken with the remaining Arlington Heights factors, Texas’s explanation becomes

weaker still. First, the historical background gives us grounds for concern. In the last four

decades, Texas has found itself in court every redistricting cycle, and each time it has lost. See,

e.g., LULAC, 548 U.S. 399; Vera, 517 U.S. 952; Upham v. Seamon, 456 U.S. 37 (1982); White v.

Weiser, 412 U.S. 783 (1973); White v. Regester, 412 U.S. 755 (1973); Terrazas v. Slagle, 789 F.

Supp. 828 (W.D. Tex. 1992), aff’d sub nom., Richards v. Terrazas, 505 U.S. 1214 (mem.). While

a losing streak alone does not control our decision, Texas’s history of failures to comply with the

VRA is one of the circumstantial factors that Arlington Heights instructs us to consider.

Next, the sequence of events leading to the passage of the Congressional Plan also

supports an inference of discriminatory purpose. Black and Hispanic members of Congress

testified at trial that they were excluded completely from the process of drafting new maps, while

the preferences of Anglo members were frequently solicited and honored. See, e.g., Mem. Opp.

31

Unlike in its arguments about retrogression, Texas never argued that the removal of district offices and

economic generators was the product of political animus.

41

Summ. J. Exs. 18-19; Defs.’ Ex. 370, at 1, ECF No. 77. The Texas House and Senate

redistricting committees released a joint congressional redistricting proposal for the public to

view only after the start of a special legislative session, and each provided only seventy-two

hours’ notice before the sole public hearing on the proposed plan in each committee. See, e.g.,

Defs.’ Ex. 320, Decl. of Theodore S. Arrington 57-59; Defs.’ Ex. 366. Minority members of the

Texas legislature also raised concerns regarding their exclusion from the drafting process and

their inability to influence the plan via amendments. See, e.g., Defs.’ Ex. 370, at 1.

Lastly, procedural and substantive departures from the normal decisionmaking process

raise flags. Citing failure to release a redistricting proposal during the regular session, the limited

time for review, and the failure to provide counsel with the necessary election data to evaluate

VRA compliance, the Senate redistricting committee’s outside counsel described the proceedings

as “quite different from what we’ve seen in the past.” Id. at 2.

Texas argues that, “[a]t worst, the evidence shows that [it] was guilty of blithe

indifference to the wants to certain [minority] Congressmen.” Tex. Post-Trial Br. 29. But we do

not find this explanation credible. Although we have already concluded that the Congressional

Plan cannot be precleared under section 5’s effect prong, we are also persuaded by the totality of

the evidence that the plan was enacted with discriminatory intent. Texas did not adequately

engage with the evidence raised by the other parties on this point, and under Arlington Heights

we find sufficient evidence to conclude that the Congressional Plan was motivated, at least in

part, by discriminatory intent.32 Therefore, we deny Texas declaratory judgment with respect to

the Congressional Plan on this ground as well.

32

The parties have provided more evidence of discriminatory intent than we have space, or need, to address

here. Our silence on other arguments the parties raised, such as potential discriminatory intent in the selective

drawing of CD 23 and failure to include a Hispanic ability district in the Dallas-Fort Worth metroplex, reflects only

this, and not our views on the merits of these additional claims.

42

IV. State Senate Plan

Next we consider Texas’s request to preclear its State Senate Plan. The United States has

not objected to this plan, but the Davis Intervenors, the Texas State Conference of NAACP

Branches, the League of United Latin America Citizens, and the Texas Legislative Black Caucus

argue that the Senate Plan retrogresses and was enacted with discriminatory intent. Their

arguments concern a single district, Senate District (SD) 10, which they contend is a coalition

district in the benchmark plan, and which all parties agree is not an ability district in the enacted

plan. These Intervenors also argue that discriminatory purpose motivated the legislature’s

decision to break up SD 10. We conclude that benchmark SD 10 is not a coalition district, and

thus that the Senate Plan is not retrogressive. Nevertheless, we deny preclearance because Texas

failed to carry its burden to show that it acted without discriminatory purpose in the face of

largely unrebutted defense evidence and clear on-the-ground evidence of “cracking” minority

communities of interest in SD 10. Thus, we conclude that the Texas legislature redrew the

boundaries for SD 10 with discriminatory intent.

A. Retrogression in the Senate Plan

Benchmark SD 10 is located entirely within Tarrant County, which includes Fort

Worth. When the Texas legislature last drew the district in 2001, the population was 56.6%

Anglo, 16.7% Black, and 22.9% Hispanic. Defs.’ Ex. 126, 2001 State of Texas Submission for

State Senate Preclearance app. I (Aug. 15, 2001). Urging the Department of Justice to preclear

the 2001 State Senate Plan, Texas justified SD 10’s configuration by arguing that “[t]he voting

strength of these minority communities in the future will depend on the cohesion within and

between Black and Hispanic voters and the ability of such voters to form coalitions with other

43

racial or ethnic groups in support of their preferred candidates.” Id. at 18. In other words, Texas

argued that SD 10 had the potential to become a coalition district.

The Department of Justice precleared the 2001 map, and, over the past decade, the

minority population in SD 10 has continued to grow. According to the 2010 Census, 47.6% of

the population in SD 10 was Anglo, 19.2% Black, and 28.9% Hispanic. Defs.’ Ex. 151, at 5.

Minorities made up a smaller portion of the 2010 CVAP, however: 62.7% were Anglo, 18.3%

Black, and 15.1% Hispanic. Pl.’s Ex. 15, at 8. Republicans have won almost every election in SD

10 in the past ten years, including the district’s endogenous State Senate elections from 2000-

2008. No Democratic candidate running in a statewide or other exogenous election has ever won

a majority of the vote in SD 10. See Alford Rep. 30.

The only Democrat to win an election in SD 10 is the district’s current senator, Wendy

Davis, who was elected to a four-year term in 2008. Davis’s path to the State Senate began when

Democratic candidate Terri Moore lost the 2006 election for Tarrant County District Attorney,

yet received nearly half of the vote in SD 10. See Trial Tr. 30:10-25, 31:1-17, Jan. 18, 2012 PM.

In light of these results, Democratic elected officials and community leaders in Tarrant County

were of the view that if the Black and Hispanic communities “came together as a coalition to

vote . . . they could win Senate District 10.” Id. at 30:15-16. These and other leaders within the

district’s minority communities recruited Fort Worth City Council member Wendy Davis to run

for State Senate. Id. at 32:3-25, 33:1-17; see also id. at 16:1-5, Jan. 20, 2012 AM (Senator Davis,

testifying, “I was approached by leaders in our minority community in large part because of the

work I’d done as a City Council person and asked if I would consider running for the Texas State

Senate.”). Senator Davis ran unopposed in the 2008 Democratic primary, see Pl.’s Ex. 135, at 3,

44

then won the general election with 49.9% of the vote, beating the incumbent by 2.4% —

approximately 7,100 out of 288,000 votes cast.33 Pl.’s Ex. 31, at 14.

According to Texas’s expert, Davis received 99.6% of the Black vote, 85.3% of the

Hispanic vote, and 25.8% of the Anglo vote. Trial Tr. 32:24-25, 33:1-16, Jan. 25, 2012 AM.

Although this is strong evidence that the minority communities in SD 10 voted cohesively in the

2008 election, the argument that SD 10 is a coalition district runs into trouble when looking at

evidence that the district’s minority communities have been effective in electing their preferred

candidates.

At summary judgment, we noted that “evidence that a coalition had historical success in

electing its candidates of choice would demonstrate that the minority voters in that district had,

and would continue to have, an ability to elect their preferred candidates.” Texas, 831 F. Supp.

2d at 268. The case that SD 10 is an ability district turns on a single, razor-thin election victory,

which is not “historical success.” Indeed, SD 10’s decade-long history of electing Republicans

shows just the opposite. There is no doubt that the minority community came together to elect a

preferred candidate in 2008, but a single victory is not the more exacting evidence needed for a

coalition district. If it were, any single victory built upon the support of minority voters would

create a claim for ability status.

B. Discriminatory Intent in the Senate Plan

There is no direct evidence that the Texas legislature acted with a racially discriminatory

purpose in its reconfiguration of SD 10, and so we must look to circumstantial evidence. Once

again, we look to the Arlington Heights factors to determine whether Texas has met its burden of

disproving discriminatory intent.

33

Richard Cross, a libertarian candidate, received 2.6% of the vote (7,591 votes). Pl.’s Ex. 31, at 14.

45

Considering first the impact of the redistricting — “whether it ‘bears more heavily on one

race than another,’” Arlington Heights, 429 U.S. at 266 (quoting Washington v. Davis, 426 U.S.

229, 242 (1976)), there is little question that dismantling SD 10 had a disparate impact on racial

minority groups in the district. Even Dr. Alford agreed that the enacted plan “diminishes the

voting strengths of Blacks and Latinos in [SD 10],” Trial Tr. 39:14, Jan. 25, 2012 AM. In a letter

he sent to the Department of Justice objecting to the enacted Senate Plan, Texas State Senator

Rodney Ellis explained in detail how the new boundaries eliminate the ability of minority

citizens to elect their preferred candidates by submerging their votes within neighboring and

predominantly Anglo districts:

The demolition of District 10 was achieved by cracking the African American and

Hispanic voters into three other districts that share few, if any, common interests with the

existing District’s minority coalition. The African American community in Fort Worth is

“exported” into rural District 22 — an Anglo-controlled District that stretches over 120

miles south to Falls [County]. The Hispanic Ft. Worth North Side community is placed in

Anglo suburban District 12, based in Denton County, while the growing South side

Hispanic population remains in the reconfigured majority Anglo District 10.

Defs.’ Ex. 375, at 3. We find that Senator Ellis’s testimony is well supported by the record. See

also Defs.’ Ex. 134, Expert Witness Report of Dr. Allan J. Lichtman ¶ 12 [hereinafter Lichtman

Rep.] (“The state legislature, in dismantling benchmark SD 10 cracked the politically cohesive

and geographically concentrated Latino and African American communities and placed members

of those communities in districts in which they have no opportunity to elect candidates of their

choice or participate effectively in the political process.”).

Texas does not deny this disparate impact, but responds that its decision to “crack” SD 10

is best explained by partisan, not racial, goals. Tex. Post-Trial Br. 25. While this is a potentially

plausible rationale, Arlington Heights instructs that “[d]etermining whether invidious

discriminatory purpose was a motivating factor demands a sensitive inquiry into such

46

circumstantial and direct evidence of intent as may be available,” and so we must “look to the

other evidence.” 429 U.S. at 266.

These other factors do not support Texas’s case. The second factor is Texas’s history of

discrimination, and as we discussed in our analysis of the Congressional Plan above, history is

not on Texas’s side. The third considers the “specific sequence of events leading up to the

challenged decision.” Id. at 267. The Senate’s principal mapdrawer and staff director of the

Senate Redistricting Committee, Doug Davis (no relation to Senator Davis), began discussing

draft maps of new Senate districts prior to the February 2011 release of official Census data by

using projected population increases. Defs.’ Ex. 127, at 38-39. Once the 2011 general legislative

session started in January, these maps were kept in an anteroom off the Senate floor, where many

Republican members were taken individually by Chairman Seliger and Doug Davis to review the

draft plans and provide input. See, e.g., Trial Tr. 39:15-25, Jan. 20, 2012 AM; Defs.’ Ex. 809,

Dep. of Senator Judith Zaffirini 29:22-25, 30:1-19, Jan. 6, 2012. Senator Davis was consistently

rebuffed when she asked to see the plans for SD 10, even as another senator told her that the

proposed plan was “shredding” her district. Trial Tr. 38:2-8, 40:11-14, Jan. 20, 2012 AM.

Senator Judith Zaffirini’s uncontroverted testimony shows that this scenario was not unique to

Senator Davis, but reflected a larger pattern: every senator who represented an ability district

was excluded from this informal map-drawing process and was not allowed into the anteroom to

preview the maps. See Defs.’ Ex. 809, Dep. of Senator Judith Zaffirini 30:1-3. Indeed, none of

the senators representing ability districts were shown their districts until forty-eight hours before

the map was introduced in the Senate. See Defs.’ Ex. 129.

Texas offered conflicting testimony in response. Doug Davis testified that “we were not

printing maps and giving them to members,” Trial Tr. 172:10-11, Jan. 17, 2012 PM, suggesting

47

that at least part of this informal process that gave Republican senators opportunities to provide

input into the plans did not occur. But Chairman Seliger, Davis’s boss, testified that he provided

paper maps to at least three senators during this period, all of them Anglo. Trial Tr. 68:1-3, Jan.

24, 2012 AM. In any case, it is clear that senators who represented minority districts were left

out of the process.34

Our skepticism about the legislative process that created enacted SD 10 is further fueled

by an email sent between staff members on the eve of the Senate Redistricting Committee’s

markup of the proposed map. The ostensible purpose of the markup was to consider amendments

to the proposed plan, but the email suggests a very different dynamic at work. David Hanna, a

lawyer for the Texas Legislative Council, a nonpartisan agency that provides bill drafting and

legislative research to the Texas legislature, sent an email to Doug Davis and Senate

Parliamentarian Katrina Davis (Doug Davis’s wife). Hanna’s email responded to an earlier

message Texas did not produce, but which concerned “precook[ing]” the committee report, i.e.,

writing the report before the hearing had been held. Trial Tr. 71:23-25, 72:1-7, Jan. 24, 2012

AM. With a subject line titled, “pre-doing committee report,” Hanna’s email read:

No bueno. RedAppl [the redistricting software Texas used] time stamps everything when

it assigns a plan. Doing [the Committee Report on] Thursday [May 12] would create [a]

paper trail that some amendments were not going to be considered at all. Don’t think this

is a good idea for preclearance. Best approach is to do it afterwards and we’ll go as fast

as possible.

Defs.’ Ex. 359. Although the chairman of the redistricting committee, Kel Seliger, denied

knowing of any advance decision to refuse to consider amendments, he acknowledged what is

apparent from the email: the boundaries of the new Senate districts would be a fait accompli by

34

We also note that Texas did not refute testimony indicating that the field hearings held prior to the start of

the 2011 legislative session were “perfunctory,” Trial Tr. 94:20-21, Jan. 20, 2012 AM, and “a sham,” with low

attendance, low participation, and little invited testimony or prepared materials. Defs.’ Ex. 809, Dep. of Senator

Judith Zaffirini 7:11-21.

48

the time of the markup and the committee did not intend to consider any amendments to the plan.

Trial Tr. 71:3-25, 72:1-16, Jan. 24, 2012 AM. We agree with Chairman Seliger that, at a

minimum, this email shows that a plan was in place, at least at the staff level, such that no new

proposals or amendments to the district map would be entertained at the markup.

Arlington Heights instructs that “departures from the normal procedural sequence also

might afford evidence that improper purposes are playing a role.” 429 U.S. at 267. This factor

focuses on comparing past redistricting cycles to the present one for anomalous behavior. The

State held no field hearings after Census data was released and proposed plans were drawn,

unlike the hearings that were held after such data was available in the past. Defs.’ Ex. 134, at 13.

Additionally, Senator Zaffirini testified that she, a senator of a minority district, “had never had

less input into the drawing of any [redistricting] map” in over thirty years of redistricting

experience,” Defs.’ Ex. 370, at 1, and that the 2010 redistricting process was the “least

collaborative and most exclusive” she had ever experienced. Lichtman Rep. app. 7, Decl. of

Senator Judith Zaffirini ¶ 3. We find this unchallenged testimony sufficient to conclude that the

2010 redistricting process was markedly different from previous years.

Finally, Arlington Heights states that “the legislative or administrative history may be

highly relevant especially where there are contemporary statements by members of the

decisionmaking body.” 429 U.S. at 268. Aside from the “No Bueno” email described above, we

have no evidence of contemporary statements by the majority members or their staff “concerning

the purpose of the official action,” id. But that email indicates, at a minimum, that redistricting

committee staff feared their actions might create the appearance of impropriety under section 5.

We do, however, have a statement published in the Senate journal from the eleven senators

representing majority-minority districts and Senator Davis. They alleged that the fact they were

49

shut out from the map-drawing process until just forty-eight hours before the map was

introduced in the Senate showed that the Senate Plan had a “racially discriminatory purpose.”

Defs.’ Ex. 129, at 3. Other senators also wrote directly to Chairman Seliger to express their

“disappointment in the process used to develop the Senate redistricting plan” and the

“exclu[sion] [of] elected representatives of minority citizens” from that process. Defs.’ Ex. 132,

at 1. Although statements from the senators aggrieved by the process do not necessarily show

that it was racially discriminatory, instead of merely partisan, they do indicate that the majority

was aware during redistricting that several members were upset by the irregular process, yet

chose not to address their concerns.

We conclude that Texas has not shown that the Senate Plan was enacted without

discriminatory intent. Senator Davis and other Intervenors provided credible circumstantial

evidence of the type called for by the Supreme Court in Arlington Heights, which, as a whole,

indicates that an improper motive may have played a role in the map-drawing process. Rather

than directly rebut this evidence, Texas asserts only that the legislature’s motivations were

wholly partisan, untainted by considerations of race. We agree that a plan that impacts minority

citizens more harshly than majority citizens is not necessarily at odds with section 5. But under

the VRA and Arlington Heights, it is not enough for Texas to offer a plausible, nonracial

explanation that is not grounded in the record. It must, at a minimum, respond to evidence that

shows racial and ethnic motivation, which it has failed to do. See Arlington Heights, 429 U.S. at

266 (“Absent a [clear pattern of discrimination] . . . the Court must look to other [circumstantial]

evidence.”). Here, Texas has made no real attempt to engage with the Arlington Heights factors,

even though it concedes that the Senate Plan has a disparate impact on minority voters in SD 10.

We find it telling that the legislature deviated from typical redistricting procedures and excluded

50

minority voices from the process even as minority senators protested that section 5 was being run

roughshod. One would expect a state that is as experienced with VRA litigation as Texas to have

ensured that its redistricting process was beyond reproach. That Texas did not, and now fails to

respond sufficiently to the parties’ evidence of discriminatory intent, compels us to conclude that

the Senate Plan was enacted with discriminatory purpose as to SD 10.

V. State House Plan

A. Retrogression in the State House Plan

The United States and the Intervenors argue that the enacted House Plan retrogresses

minority voting power by eliminating eight ability districts (House Districts (HDs) 26, 33, 35,

41, 106, 117, 144, and 149) without creating any others. Texas acknowledges retrogression in

HD 33, but argues the House Plan works no abridgement of minority voting rights in any of the

other districts. Texas maintains that the loss of HD 33 is offset by the plan’s provision for at least

one and as many as three new ability districts. We conclude that the enacted plan will have the

effect of abridging minority voting rights in four ability districts — HDs 33, 35, 117, and 149 —

and that Texas did not create any new ability districts to offset those losses. Consequently, we

conclude that the enacted plan cannot be precleared. We first analyze each of the eight alleged

ability districts before turning to the three alleged offset districts.

1. Alleged Retrogressive Districts

a. State House District 33

Nueces County in southeastern Texas includes three State House districts in the

benchmark plan. HDs 33 and 34 are entirely within the county; HD 32 partially so. Benchmark

HD 33 comprises the core of Corpus Christi. HD 34 includes the western part of the county, and

HD 32 covers much of the eastern portion and extends into other counties immediately north of

51

Nueces County. The population of Nueces County grew at a slower rate than that of the rest of

the State, so it was only entitled to 2.03 districts in the new map. Because the Texas Constitution

mandates that any reapportionment of State House districts observe county lines where

possible,35 the House mapdrawers drew only two districts in Nueces County, choosing to

eliminate Hispanic-majority HD 33. See Trial Tr. 146:21-147:10, Jan. 17, 2012 AM.

With an HCVAP of 60.4%, Pl.’s Ex. 13, at 13, and success electing the Hispanic

candidate of choice in four out of the past five endogenous elections (with only a narrow victory

by a Hispanic Republican in 2010 breaking this streak), Engstrom Suppl. Rep. 6 & n.5, there is

no question that benchmark HD 33 was a Hispanic ability district. Even Texas concedes that if

we accept, as we have, the binary analysis instead of Dr. Alford’s statewide functional approach,

benchmark HD 33 would be an ability district. Tex. Post-Trial Br. 13.

There is similarly little question that HD 33 is not an ability district in the enacted plan.

The benchmark district’s population was redistributed to neighboring districts, and the new HD

33 was transplanted to two predominantly Anglo counties near Dallas. The new HCVAP is only

8.5%, Pl.’s Ex. 14, at 13, and no expert’s reconstituted election analysis shows any electoral

victories for minority-preferred candidates. See, e.g., Alford Rep. 11 tbl.3b. At trial, Dr. Alford

conceded that enacted HD 33 is not an ability district. Trial Tr. 99:16-18, Jan. 24, 2012 PM. The

State also concedes that the binary approach supports this conclusion. Tex. Post-Trial Br. 13. We

thus conclude that HD 33 is a lost ability district.

35

Under the County Line Rule, TEX. CONST. art. III, § 26, a district must be drawn to mirror a county’s

boundary lines if that county has sufficient population for a voting district. When the population of more than one

county is needed to make up a single voting district, the Rule requires that contiguous counties be joined to form that

district. Likewise, when the population of a county requires more than one voting district, the districts must be

contained within the county lines and any excess population must be joined wholly with population from a

neighboring county to form a district.

52

b. State House District 35

The parties who address this district agree that enacted HD 35 in south Texas is not an

ability district. They disagree whether it is an ability district in the benchmark plan. The United

States argues that benchmark HD 35 is an ability district because, just as in HD 33, the minority-

preferred candidate won four out of the last five endogenous elections, and the fifth was a close

election where a Hispanic Republican won the seat from the incumbent Hispanic Democrat.36

U.S. Post-Trial Br. 5; see also Handley House Rep. 5. This track record of success is evidence

that benchmark HD 35 is an ability district. Texas counters that the exogenous analysis tells a

different story. The OAG 10 indicates that the district performs for minority voters only half the

time. See Alford Rep. 11 tbl.3b. The other experts’ analyses place its success rate even lower: the

district performed for minority voters in just two of Dr. Handley’s five elections, and two of Dr.

Engstrom’s seven. See Handley Rep. 5; Engstrom Chart.

Texas also argues that enacted HD 35 will perform much the same as benchmark HD 35.

The district’s HCVAP drops only slightly, from 54.6% in the benchmark to 52.5% in the enacted

plan, Pl.’s Exs. 13, at 13; 14, at 13, and the exogenous analyses show only minor changes

between the plans. The analyses of Dr. Handley and the OAG 10 show a one election drop in

effectiveness. Handley House Rep. 9; Alford Rep. 11 tbl.3b. Dr. Engstrom’s analysis, which

weights recent elections more heavily, shows a one election increase. See Engstrom Chart. To

Texas, all this suggests that there is no meaningful change in the district’s performance, and

because all agree that enacted HD 35 is not an ability district, benchmark HD 35 must not be an

ability district either.

36

We agree with Dr. Handley that Representative Jose Aliseda, who won in 2010 with only 22.3% of the

Hispanic vote, is not the Hispanic candidate of choice. See Handley House Rep. app. D, at 34.

53

While true that only minor changes were made between benchmark and enacted HD 35,

we think the best reading of the record is that the benchmark district is one in which minorities

usually, although not always, elect their preferred candidate. Hispanic voters constitute the

majority of the district, albeit barely, and they have been successful in electing their preferred

candidate in endogenous elections held between 2002 and 2008. We find this to be persuasive

evidence that Hispanic voters have attained an ability to elect their preferred candidates in HD

35. Texas does not argue that endogenous results are misleading in this district, but instead

repeats its general position that we should consider only exogenous election results. Tex. Post-

Trial Br. 12. We have already rejected this argument. Exogenous analysis uses statewide and

national elections to help determine political trends within a district. But by considering district-

wide election results, endogenous analysis provides a more direct answer to the question posed

by section 5: have minority voters shown an ability to elect their preferred candidates in that

district? Because the exogenous results do not cut entirely against ability status — here, Texas’s

own exogenous analysis shows a 50% benchmark success rate — and there is nothing in the

record that calls into question the probative value of this district’s endogenous track record, we

are confident that endogenous results accurately describe minority voting ability in the

benchmark.

As to enacted HD 35, Texas has not presented any evidence that HD 35 remains an

ability district or that it tried to preserve the district’s ability status, and its argument based on the

small changes in exogenous election performance is insufficient to counter the evidence we do

have supporting the conclusion of the United States’s expert that the district loses ability status.

When a district is close to the ability-to-elect line, even minor changes can be significant. The

low exogenous election results for the enacted district combined with HCVAP changes that push

54

the district even closer to the majority line (52.5%) are not enough to show that the district will

continue to perform for minority voters. We must conclude that the evidence Texas offers is not

persuasive to meet its burden to show that the changes made to HD 35 will not have a

retrogressive effect on minority voters.37

c. State House District 41

All parties agree that benchmark HD 41 in south Texas’s Hidalgo County is a minority

ability district. Texas argues that the district remains so in the enacted plan, and we agree.

The HCVAP in enacted HD 41 is 72.1%. Pl.’s Ex. 14, at 14. Although a decrease from

77.5% in the benchmark, Pl.’s Ex. 13, at 14, that percentage remains well above the 65%

threshold we laid down in our summary judgment opinion as a presumption of ability status.38

See Texas, 831 F. Supp. 2d at 263 & n22. We agree that such a high Hispanic population density

creates a strong presumption that HD 41 remains an ability district. Significantly, none of the

experts thought that HD 41 lost ability status, a conclusion that both the OAG 10 and Dr.

Engstrom’s analysis confirm. Alford Rep. 11 tbl.3b; Engstrom Chart.

The United States takes issue with the value of a bright-line test, especially in a district

like HD 41 where the uncontested record shows that voters have faced serious and pervasive

socioeconomic barriers that depress voter turnout. U.S. Post-Trial Br. 8-9. The United States also

argues that we know very little about enacted HD 41, and what we do know — its high Hispanic

37

This district presents a close and very difficult case. Presented with more or different evidence, we might

conclude that the seemingly minor changes made to the district do not alter its ability status. Nevertheless, Congress

has allocated the burden to prove lack of discriminatory effect to the State. On the record before us, we conclude

that Texas has not done so.

38

Texas argues that our summary judgment opinion set out a 60%, not 65%, bright-line test. Tex. Post-Trial

Br. 7 & n.5, 11. We find this argument puzzling given that our previous opinion stated that “a minority voting

majority of sixty-five percent (or more) essentially guarantees that . . . a cohesive minority group will be able to

elect its candidate of choice.” Texas, 831 F. Supp. 2d at 263. Texas argues that most of the authorities we cited used

a 60% voting age population bright line, but we cited these (nonbinding) cases only as examples of the ways other

courts have approached this issue.

55

population — is not enough for Texas to meet its burden to show no retrogression. The

background for Texas’s approach to redrawing HD 41 centers on the decision of Representative

Aaron Peña, the five-term incumbent in neighboring HD 40, to switch party affiliations from

Democrat to Republican following the 2010 election. One of the mapdrawers’ goals during

redistricting was to protect Rep. Peña’s chances of reelection. Trial Tr. 163:4-165:13, Jan. 17,

2012 AM. They decided that the best way to do this was to have Peña, in effect, switch districts

with HD 41’s incumbent, and then cut out of the district some strong Democratic areas “to

increase the Republican performance of [enacted HD 41].” Id. at 168:1-3. The result is an oddly

shaped district full of sharp corners that has earned the nickname “Transformer,” both here and

in the section 2 litigation. See id. at 42:4-5, Jan. 23, 2012 PM. Enacted HD 41 splits apart

seventeen of the forty-two voter tabulation districts (VTDs)39 in the district, Defs.’ Ex. 800, at

35, in an effort to bolster Republican voting strength. Trial Tr. 165:17-168:17, Jan. 17, 2012 AM.

Dr. Handley was unable to draw a conclusion whether enacted HD 41 remains an ability

district because of these splits. Handley House Rep. 1 n.1. Election performance data is only

available at the VTD level and not at the more precise level of a city block. Reconstituted

election analysis uses the political averages for an entire VTD to assess how a portion of a VTD

will perform. See, e.g., Trial Tr. 74:25-78:21, Jan. 24, 2012 PM; id. at 11:7-13, 50:19-23, 74:10-

75:13, Jan. 26, 2012 AM. The higher the number of VTD splits in a new district, the more

inconclusive these predictions become. Here, where over 31% of the district’s population lives in

split-VTD areas and where the mapdrawers’ stated goal was to peel off from the district strong

Democratic areas — suggesting that the general concerns about skewed exogenous results from

political variance within split VTDs may be especially strong in this district — Dr. Handley

39

In Texas, VTDs are roughly equivalent to precincts elsewhere.

56

concluded that the results of her exogenous analysis were not reliable forecasters of the district’s

future voting strength. See Handley House Rep. 9-10.

We are not deaf to the concerns the United States raises, and we are skeptical of the

State’s claim that high HCVAP is sufficient to prove continued ability status in light of the

uncontested testimony that HD 41 was engineered to transform a reliable Democratic district into

one that would elect a Republican instead. Nevertheless, we do not think the record calls into

question enacted HD 41’s status as an ability district. Dr. Handley’s concerns would give us

more pause were minority voting power less established, but we agree with the other experts that

the shortcomings of reconstituted election analysis for enacted HD 41 are not enough to keep us

from concluding the district does not retrogress. This is not a case in which the Hispanic

population is close to the majority line, or even close to the supermajority 65% line we set out in

our summary judgment opinion. Enacted HD 41 still has an HCVAP of 72.1%. We are hard

pressed to find that minority voters lack an ability to elect in a district in which they comprise

such a high percentage of the voting public. We need not decide whether the United States is

correct that, in a rare case, 65% HCVAP may not be enough to ensure ability to elect, because in

this case, 72.1% is.

Lastly, if Texas succeeded in its goal to create a Republican district, Rep. Peña’s success

would require support from a sizable portion of the district’s Hispanic community. This suggests

either that Rep. Peña would be the Hispanic candidate of choice, or that Hispanic voting

cohesion would have broken, perhaps to the point where there would no longer be one Hispanic-

preferred candidate. If the former, Rep. Peña’s victory would not be a mark against Hispanic

ability to elect. If the latter, finding retrogression would cause us to discount the preferences of

57

the district’s Hispanic Republican voters, which would put us at odds with section 5’s mandate.

We conclude that HD 41 remains an ability district in the enacted plan.

d. State House District 117

As it does with regards to HD 41, Texas argues that the 63.8% HCVAP of southwestern

San Antonio’s enacted HD 117, Pl.’s Ex. 14, at 16, satisfies our bright-line test for ability to

elect. Yet as we have said, Texas misreads our summary judgment opinion. A minority voting

population of 65% or higher, not 60%, is necessary to “essentially guarantee” ability to elect.

Texas, 831 F. Supp. 2d at 263. We thus use the multi-factored analysis to assess the status of this

district without starting from a presumption of ability status.40

Benchmark HD 117’s protected status has not been seriously challenged, and we have

been presented with no evidence indicating that the district does not perform for minority voters.

Dr. Handley’s endogenous data shows the minority-preferred candidate won four of the five past

elections, and only lost the fifth by a narrow margin. Handley House Rep. 9. The exogenous data

shows an ability district, too. See Alford Rep. 11 tbl.3b (five out of ten elections); Handley

House Rep. 5 (three out of five elections); Engstrom Suppl. Rep. 6 (four out of seven elections).

As for enacted HD 117, Texas points out that the district’s boundaries remain essentially

unchanged and notes that the district has been trending Republican in recent years. Considering

only the five most recent elections in the OAG 10, exogenous results are the same for benchmark

and enacted HD 117: minority-preferred candidates won only two out of five. See Tex. Post-Trial

Br. 11-12; Alford Rep. 11 tbl.3. The United States, by contrast, argues that enacted HD 117 was

40

In its post-trial brief, Texas argues for the first time that enacted HD 117 satisfies the bright-line test as a

coalition district because the Hispanic and Black communities comprise 68.4% of the district’s voting age

population. Tex. Post-Trial Br. 11. We reject this new argument, especially because Texas has presented no

evidence, such as election analysis or evidence of voting cohesiveness between the minority communities, to support

a conclusion that HD 117 is a coalition district.

58

purposely engineered to appear unchanged from the benchmark, but that the proposed

boundaries actually decrease minority voter power. U.S. Post-Trial Br. 9-10.

We conclude that enacted HD 117 is no longer an ability district. Texas may be correct

that minority voting power is beginning to weaken in the benchmark district, but it has not yet

dropped below the ability-to-elect threshold. The exogenous data shows that changes made

during redistricting, not shifting political trends, are responsible for enacted HD 117’s loss of

ability status. The exogenous election analyses of all experts, including Texas’s, show that

minority effectiveness decreases from the benchmark level, and all conclude that minority-

preferred candidates carry HD 117 less than half the time. Alford Rep. 11 tbl.3 (two out of ten

elections); Handley House Rep. 11 (one out of five elections); Engstrom Suppl. Rep. 8-9 (three

out of seven elections).

The high Hispanic population in enacted HD 117 — HCVAP increases five percentage

points from the benchmark to 63.8%, Pl.’s Exs. 13, at 16; 14, at 15 — could suggest that enacted

HD 117 remains an ability district despite its meager exogenous results. Yet HCVAP numbers

do not tell the full story. The district’s Spanish Surname Voter Registration (SSVR)41 level is

significantly lower at just 50.1%. Pl.’s Ex. 14, at 27. The record shows that the mapdrawers

purposely drew HD 117 to keep the number of active Hispanic voters low so that the district

would only appear to maintain its Hispanic voting strength, and that they succeeded.

The primary mapdrawer for the House Plan, Gerardo Interiano, testified that a “ground

rule[]” for drawing HD 117 was to keep the SSVR level just above 50%. Trial Tr. 106:25-108:1,

Jan. 25, 2012 PM. The mapdrawers accomplished this goal by placing in the new district areas

with high Hispanic populations but lower voter turnout, while excluding from the district high-

41

SSVR is a metric used to approximate the number of registered Hispanic voters in a given geographic area.

The list is compiled by comparing state voter registration records against a Census list of common Spanish

surnames.

59

Hispanic, high-turnout areas. For example, the heavily Hispanic communities of Somerset and

Whispering Winds, part of benchmark HD 118, are both very poor and have low voter turnout.

See id. at 9:7-13:7, Jan. 24, 2012 PM; Defs.’ Ex. 363, Garza Dep. 40:8-42:25, Oct. 19, 2011.

They were moved to HD 117 despite repeated requests from HD 118’s representative, Joe Farias,

to keep the communities within his district. Trial Tr. 7:11-14, 14:2-15:3, Jan. 24, 2012 PM. Rep.

Farias’s offer to “trade” an area in HD 118 with similar Hispanic population numbers in

exchange for keeping Somerset and Whispering Winds in his district was rejected, and according

to his unchallenged testimony, the only plausible reason for this refusal was that Hispanic voters

in the region he offered to trade have much higher turnout rates than the voters in Somerset and

Whispering Winds. Id. at 14:19-17:23. Similarly, Interiano testified that Somerset was moved to

HD 117 as a way to keep the district “above 50 percent [SSVR] and maintain [our] other goals in

the district” — strengthening Representative John Garza’s chances at reelection. Id. at 107:7-11,

Jan. 25, 2012 PM.

These incidents illustrate Texas’s overall approach in HD 117: Texas tried to draw a

district that would look Hispanic, but perform for Anglos. According to the experts, that was the

result achieved. We conclude that HD 117 is a lost ability district.42

e. State House District 149

HD 149 in Houston-area Harris County is an alleged coalition district composed of

Asian-American, Black, and Hispanic voters. The 2010 Census shows that Harris County was

42

Our conclusion that HD 117 is retrogressive may seem inconsistent with our conclusion regarding HD 41,

given that HD 117’s HCVAP is only 1.2 percentage points below the 65% bright line. Yet there are significant

differences between the two districts. First, HD 41’s HCVAP is eight points higher than that of HD 117, and eight

points represents a significant difference in electoral power. Second, unlike HD 41, where no expert was willing to

conclude that the district lost ability status, both Dr. Handley and Dr. Engstrom conclude HD 117 did. Handley

House Rep. 11; Engstrom Suppl. Rep. 8-9. Finally, our concerns that finding HD 41 retrogressive would discount

the choice of Hispanic Republicans is not an issue here. The evidence for HD 41 showed that the mapdrawers

excluded Republican portions of the map; here it shows they excluded high-turnout portions. Selecting among

Hispanic voters based on their political preferences may not raise a red flag under section 5, but selecting based on

minority voters’ history of turnout, regardless of political preference, does.

60

entitled to twenty-four districts, not its current twenty-five, so HD 149 was selected for

elimination. The legislature chose to draw the home of HD 149’s representative, Hubert Vo, into

HD 137 so that Rep. Vo would be forced to run against Scott Hochberg, HD 137’s

representative, in the next election. Defs.’ Ex. 352, Test. of Rogene Calvert, Trial Tr. 422:14-22,

Perez, No 11-cv-360. Representatives Vo and Hochberg are the only Democrats in the county’s

delegation. Benchmark HD 149’s population was redistributed to neighboring districts and

enacted HD 149 was transplanted to an entirely different county in a different part of the state.

The new district’s demographics shift dramatically from minority- to majority-Anglo. Pl.’s Exs.

13, at 17 (benchmark Anglo CVAP of 37.6%); 14, at 17 (enacted Anglo CVAP of 77.4%). There

is, unsurprisingly, no dispute that enacted HD 149 is not an ability district. Our only task is to

determine whether benchmark HD 149 is a coalition district protected under section 5. As

discussed above, we have concluded that section 5 protects coalition districts when there is clear

evidence both of cohesion among the coalition’s members and demonstrated electoral success.

Here, we conclude that this standard has been met.

Rep. Vo is the minority candidate of choice and has won the last four endogenous

elections in the district. Handley House Rep. 7 tbl.3. With such strong results, we would likely

conclude that HD 149 is an ability district were there a single minority group in the district. But

as we have already discussed, we must ask more when analyzing a claim that a coalition has

created an ability district. There are four reasons why we conclude this endogenous success is

persuasive evidence of the coalition’s demonstrated ability to elect.43

First, population demographics give HD 149 the potential to perform as a coalition

district. The district’s combined Asian-American, Black, and Hispanic CVAP is 61.3%. Pl.’s Ex.

43

Our conclusion is consistent with Dr. Handley’s assessment of the district. See Handley House Rep. 3, 7, 13.

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13, at 17. This fact has limited value in assessing minority voting power without information

such as voter turnout and cohesion statistics, but it does indicate that if the minority groups in the

district came together, they would likely be able to elect their preferred candidate, potentially

without any help from Anglo crossover voters.

Second, the record shows that all three minority groups in the district vote cohesively.

Texas has not contested that the district’s minority communities vote cohesively in general

elections. And although the parties did not provide racially polarized voting analysis or a

breakdown of election returns for Rep. Vo’s races, the Texas OAG’s analysis shows that

Hispanic and Black voters in HD 149 uniformly prefer the same candidates in general elections

and that their preferences consistently diverge from those of the district’s Anglo voters. See Pl.’s

Ex. 26, at 3557-60. We have no statistical evidence of Asian-American voting patterns in the

record, but the testimony at trial, discussed in more detail below, reports broad, cohesive support

for Rep. Vo among all three minority communities and especially within the Asian-American

community.

Third, uncontroverted anecdotal evidence shows that a tripartite coalition of the Asian-

American, Black, and Hispanic communities consistently elects its candidate of choice. HD

137’s Rep. Hochberg testified to the strength of the coalition, concluding that “[p]olitically all

three of [the minority] communities form a coalition, and the Asian community is the glue

holding things together.” Defs.’ Ex. 738, Pre-Filed Direct Test. of Representative Scott

Hochberg 13:12-13. Rogene Calvert, an associate of the Texas Asian American Redistricting

Initiative, testified that Rep. Vo defeated a twenty-two year incumbent in 2004 on the strength of

the district’s tri-ethnic coalition. Defs.’ Ex. 736, Pre-Filed Direct Test. of Rogene Calvert 11:3-

16. The Asian-American community “really rallied behind Mr. Vo when he announced his

62

candidacy” and “took a lot of pride in Vo’s candidacy,” to the point that many Asian-Americans

came out to support him who had “never participated in elections.” Id. at 11:8-11. Furthermore,

he “wouldn’t have had a chance of success if he hadn’t received support from the other minority

communities in District 149,” including endorsements from both Black and Hispanic political

groups, and the Asian-American, Hispanic, and Black communities “all worked together to elect

Mr. Vo.” Id. at 11:11-23; see also Defs.’ Ex. 352, Trial Tr. 420:14-17, Test. of Rogene Calvert,

Perez, No. 11-cv-360, (Calvert, testifying that she has “seen Asian-Americans elected to office

and other candidates of our choice due to the fact that we can coalesce with other groups to elect

those people”); Defs.’ Ex. 353, Trial Tr. 425:18-24, Test. of Sarah Winkler, Perez, No.

11-cv-360 (local school board member testifying that it is necessary to gain the support of all

three minority groups to win office within HD 149). We find this testimony credible, and Texas

has made no effort to dispute this evidence that the coalition is effective in local and district-wide

elections.44

Finally, the coalition has a track record of success, electing Rep. Vo in 2004 and in every

election since. The tri-ethnic coalition has also had sustained success electing other local

officials, such as school board and Houston City Council members. Defs.’ Ex. 736, Pre-Filed

Direct Test. of Rogene Calvert 12:11-13:7. Although Texas points out that the district only

performs in one of Dr. Handley’s five exogenous elections, Tex. Post-Trial Br. 13; see also

Handley House Rep. 7 tbl.3, we do not find this persuasive. Texas’s expert did not provide

general election exogenous analysis for this district; the only expert to do so is Dr. Handley, and

44

Although the Court agrees that this testimony is sufficient to conclude that the district is protected under

section 5, it differs in its views of the strength of the evidence. Judge Griffith concludes that the testimony of Rep.

Hochberg and Calvert shows that the Asian-American community leads the coalition and that the Black and

Hispanic communities play a consistently supportive and vital role in its success. Judges Collyer and Howell need

not reach the issue of leadership because they conclude that a tri-partite arrangement of equals is sufficient for

protection under section 5.

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she concluded that the endogenous results were more important for understanding voting patterns

in the district. See Handley House Rep. 13 & n.20. Especially when combined with evidence that

the coalition has success electing other local officials, we agree with Dr. Handley that

endogenous elections, which speak to the ability of a particular voting community to coalesce

around candidates for local office, are the best evidence of this coalition district’s success.

Unlike the facts of SD 10, here we have evidence of both concerted efforts among a coalition to

elect its preferred candidates and a pattern of success extending across multiple election cycles.

Texas’s primary objection to this approach is to argue that the minority groups in HD 149

do not vote cohesively in primaries and only come together to agree on a second- or third-best

candidate in time for the general election. In Texas’s view, this does not prove an effective

coalition district. Tex. Post-Trial Br. 9-10, 12-13; see also Alford Rep. 19-21 (explaining his

analysis showing that Asian-American, Black, and Hispanic voters in HD 149 do not vote

cohesively at the primary level). We agree that evidence of shared voting preferences at the

primary level would be powerful evidence of a working coalition, but it is not needed to prove

cohesion. In the first place, there is little support for Texas’s focus on primary elections. Texas

cites LULAC for this point, but LULAC, a section 2 case, only talks about primaries as a method

to determine one minority group’s candidate of choice; it says nothing about the need for two

groups in a putative coalition to vote cohesively in a primary. See 548 U.S. at 444. More

importantly, it does not hold that evidence of cohesion in a primary is necessary to identify a

candidate of choice. Id. (stating that without a contested primary there was “no obvious

benchmark” to determine the minority-preferred candidate, and that the district court could draw

multiple reasonable inferences from this lack of primary-level evidence). The same is true here,

where there has been no contested endogenous Democratic primary since 2004, when Rep. Vo

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first won his seat. Texas also cites two district court cases that rely on primary cohesion,

Rodriguez v. Pataki, 308 F. Supp. 2d 346, 421 (S.D.N.Y. 2004); and Session v. Perry, 298 F.

Supp. 2d 451, 478 (E.D. Tex. 2004), but these cases represent the minority view. Most courts to

address this issue have expressed no preference about the election level at which voting cohesion

must be shown. See, e.g., Lewis v. Alamance Cnty., 99 F.3d 600, 615 (4th Cir. 1996); LULAC,

Council No. 4434 v. Clements, 999 F.2d 831, 886 (5th Cir. 1993) (en banc); Bridgeport Coal. for

Fair Representation v. City of Bridgeport, 26 F.3d 271, 276 (2d Cir. 1994), vacated and

remanded on other grounds, 512 U.S. 1283.

We agree with the majority view. Courts regularly consider general election data to

demonstrate voter cohesion in traditional majority-minority districts, without any indication that

such a showing is insufficient without evidence of voter cohesion in the primary as well. See,

e.g., Thornburg v. Gingles, 478 U.S. 30, 58-59 (1986); Old Person v. Cooney, 230 F.3d 1113,

1121 (9th Cir. 2000). Additionally, requiring cohesion in the primary election distorts the role of

the primary. Although minority groups sometimes coalesce around a candidate at that point in

time, minority voters, like any other voters, use the primary to help develop their preferences.

We refuse to penalize minority voters for acting like other groups in a political party who do not

coalesce around a candidate until the race is on for the general election. See Alamance Cnty., 99

F.3d at 614-16 (“We reject the proposition that success of a minority-preferred candidate in a

general election is entitled to less weight when a candidate with far greater minority support was

defeated in the primary. . . . [S]uch a view is grounded in the belief that minority voters

essentially take their marbles and go home whenever the candidate whom they prefer most in the

primary does not prevail, a belief about minority voters that we do not share.” (citation and

internal quotation marks omitted)). “Pull, haul, and trade” describes the task of minority and

65

majority voters alike, and candidates may be minority “candidates of choice” even if they do not

“represent perfection to every minority voter.” De Grandy, 512 U.S. at 1020.

We are persuaded the record establishes that benchmark HD 149 is a coalition district

protected under section 5. The Asian-American, Black, and Hispanic voters in the district work

together to support their preferred candidates, and they have a multi-year record of success.

Benchmark HD 149 is a protected ability district, and Texas’s decision to dismantle it without

offsetting the loss elsewhere is retrogressive.

f. State House Districts 26, 106, and 144

Various Intervenors have argued that HDs 26, 106, and 144 are also lost ability districts.

We disagree. For two of the districts, HDs 26 and 106, the only evidence presented shows that

neither is a majority-minority district and both are currently represented by Anglo Republicans.

See Pl.’s Ex. 13, at 13, 16. Other than scant assertions about one endogenous election in which

the Anglo Republican candidate won by a narrow margin and reputed exogenous success since

2008, see Texas Legislative Black Caucus Post-Trial Br. 3-7, the parties have offered no election

performance data or reconstituted election analysis. We cannot make findings of minority voting

ability based on this thin record. At best, the evidence may show that the districts are beginning

to favor minority-preferred candidates, but section 5’s effect prong protects only existing, not

emerging, ability districts. See Texas, 831 F. Supp. 2d at 264-65.

Similarly, HD 144 is not a majority-minority district and is represented by an Anglo

Republican. Pl.’s Ex. 13, at 17. Both Dr. Handley’s and Dr. Engstrom’s exogenous election

analyses show no victories for minority-preferred candidates in this district. See Handley House

Rep. 5; Engstrom Chart. We find that benchmark HD 144 is not an ability district.

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2. Alleged New Ability Districts

Texas argues that the legislature created as many as three new ability districts, which

offset the loss of any that might have been eliminated in the enacted plan. But the enacted plan

does not draw any new ability districts. It only strengthens minority voting power in some

districts that have already achieved the ability to elect. As we have already discussed,

strengthening ability districts cannot salvage a retrogressive plan. A state may not offset the

elimination of an ability district by “packing” additional minority voters into a district that

already performs. What the State calls offsets are actually existing ability districts, and they do

not compensate for the loss of others.

During the course of this litigation, Texas has offered three different explanations for

how the enacted plan creates new Hispanic ability districts. At summary judgment, Texas

identified HD 148 in the Houston area as a new ability district. Mot. Summ. J. ¶ 11. At trial,

Texas’s chief witness for the House Plan testified that he believed strengthening the SSVR

percentages in HD 148 and Tarrant County’s HD 90 compensated for the loss of HD 33. Trial

Tr. 11:24-12:6, Jan. 17, 2012 PM. And at closing arguments and in post-trial briefing, Texas

appears to abandon these claims, shifting instead to the altogether new argument that enacted HD

74 in western Texas is a new ability district. Tex. Post-Trial Br. 13-14.

Texas’s decision no longer to rely on HDs 90 and 148 was sound. Although an initial

examination of the demographic data shows that both districts are more strongly Hispanic in the

enacted plan,45 all the experts’ election analyses show that both are already ability districts. Both

achieved a perfect score under Dr. Handley’s endogenous election analysis, Handley House Rep.

45

The HCVAP in proposed HD 90 increases from 47.9% to 49.7%, and SSVR from 47.2% to 50.1%. Pl.’s

Exs. 13, at 20; 14, at 20. HCVAP in proposed HD 148 increases from 42.1% to 51.4%, and SSVR from 40.0% to

50.0%. Pl.’s Exs. 13, at 21; 14, at 21.

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5 tbl.1, and no expert’s exogenous analysis shows any change between the performance of the

benchmark and enacted districts. See Alford Rep. app. B; Handley House Rep. 5 tbl.1, 11 tbl.3;

Engstrom Chart. Increasing the size of their minority populations had no impact on these districts

for purposes of section 5’s effect prong.

Whether enacted HD 74 is a new ability district is a closer call, but we conclude it is

not.46 With an HCVAP of 69.4%, Pl.’s Ex. 14, at 15, all parties agree that enacted HD 74 is an

ability district; the question is whether benchmark HD 74 is as well. Yet the rest of the evidence

shows that, as with HDs 90 and 148, the district’s demographic changes only strengthen an

already-performing minority district.

Benchmark HD 74 is majority-Hispanic, with an HCVAP of 59.7%. Pl.’s Ex. 13, at 14.

Representative Pete Gallego, the Hispanic candidate of choice, has represented the district since

1990. Although Texas now argues that benchmark HD 74 is not an ability district, key players

during redistricting believed it was. See Trial Tr. 25:5-22, Jan. 17, 2012 PM (Interiano, testifying

that he identified HD 74 as a protected district at the outset of the redistricting process); Defs.’

Exs. 214, 215, 820 (memoranda from Texas Legislative Council attorney David Hanna

identifying benchmark HD 74 as a protected district). With a majority-Hispanic population,

twenty-two years of success electing the minority-preferred candidate, and apparently little doubt

by anyone that the district was protected until late in the litigation process, it seems clear that HD

74 does not need the new boundaries of the enacted plan to perform for minority voters.

In response, Texas points to the exogenous election analyses that paint a weaker picture

of minority success. See Alford Rep. 11 tbl.3b (reporting minority victories in four of the OAG

10 elections); Handley House Rep. 5 tbl.1 (one out of five victories). But see Engstrom Chart

46

We note that even if we

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