Amicus Curiae Brief — League of United Latin American Citizens v. Perry

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Supreme Court of the Un

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.

TRAVIS COUNTY, TEXAS, et al.

& o

JACKSON, EDDIE, et al.

GI FORUM OF TEXAS, et al.

Petitioners,

Vv.

PERRY, GOV. OF TEXAS, et al.

Defendant,

On Appeal from the United States District Court

for the Eastern District of Texas

MOTION FOR t- $6

BRIEF FOR EDWARD BLUM, VISITING FELLOW AT

THE AMERICAN ENTERPRISE INSTITUTE, AND

ROGER CLEGG, PRESIDENT OF THE CENTER FOR

EQUAL OPPORTUNITY AS AMICI CURIAE

IN OPPOSITION TO APPELLANTS

FRANK M. REILLY *

MARC A. LEVIN

PoTTs & REILLY, L.L.P.

401 West 15th Street, Suite 850

Austin, Texas 78701

(512) 469-7474

* Counsel of Record Counsel for Amicus Curiae

ee ATT

WILSON-EPES PRINTING Co., INC. ~ (202) 789-0096 — WasHinGTON, D.C. 20001

IN THE

Supreme Court of the Anited States

Nos. 05-204, 05-254, 05-276, 05-439

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.

TRAVIS COUNTY, TEXAS, et al.

JACKSON, EDDIE, et al.

GI FORUM OF TEXAS, et al.

Petitioners,

Vv.

PERRY, GOV. OF TEXAS, et ai.

Defendant,

On Appeal from the United States District Court

for the Eastern District of Texas

MOTION FOR LEAVE TO FILE

AMICI CURIAE BRIEF

Amici Curiae, Edward Blum, Visiting Fellow at the Amer-

ican Enterprise Institute, and Roger Clegg, President of,

and on behalf of, the Center for Equal Opportunity, by and

through their counsel for this matter, Frank M. Reilly and

Marc A. Levin, Potts & Reilly, L.L.P., hereby move this

Honorable Court for an order permitting these parties to file a

Brief Amici Curiae in opposition to the Appellants.

In 2005, the Project on Fair Representation at the American

Enterprise Institute commissioned two social scientists to

gather data on the state of minority participation in the

election process. The Center for Equal Opportunity is the

only think tank devoted exclusively to the promotion of

colorblind equal opportunity and racial harmony. Blum and

Clegg have worked to advance race-neutral principles in the

areas of education, public contracting, public employment,

and voting. They have a substantial interest in limiting or

eliminating the use of race as a factor in redistricting and

respectfully submit this brief Amici Curiae in opposition to

Appellants in these cases

Therefore, these Amici hereby respectfully move this Court

for leave to file their Amici Brief as friends of the Court in

opposition to Appellants.

Respectfully submitted,

FRANK M. REILLY *

MARC A, LEVIN

POTTS & REILLY, L.L.P.

401 West 15th Street, Suite 850

Austin, Texas 78701

(512) 469-7474

* Counsel of Record Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............:ccsccsssesesceseeeersesees

INTEREST OF AMICI CURIAE ........:ccscsseesseseeseeesseees

appl Ie cccrctamncnssctenccestensinninccaeensincsemaniennnetes

FEIT U cisenistcossinccsisnisssadiisciinigpiliniensdebininnininseitenaiien

A. No Constitutional Violation Due to Excessive

Partisanship or Timing of Plam..................0000+ a

B. Section 2 of the VRA Should be Interpreted to

Avoid Constitutional Questions...............0000000+

C. Court Should Reduce, Not Expand, the Use of

SERED 15s PRRGIUIOUIID, ccnicecarcnsetcocecsnccsesonsonesecesnes

D. Factors Enumerated by Congress and the

Court Weigh Against Finding Violation of

Section 2 Of the VRA.......ccccsssssssssessesesessesseeeeees

E. Section 2 of the Voting Rights Act Provides

No Entitlement to the Creation or Maintenance

of Minority-Influence Districts...............::c000000+

F. Section 2 Did Not Require Creation of Sev-

enth Hispanic-Majority District..............00000

G. Redrawing of District 23 Did Not Constitute

Retrogression in Violation of Section 2 ............

H. Facts Do Not Support Shaw v. Reno Race-

based Gerrymandering Claim............sssssseseeeees

SETUP -cciinistsscnczeanoncdidneshibiipnnndinicneietninideniteentianads

(i)

TABLE OF AUTHORITIES

CASES Page

Adarand Constructors v. Pena, 515 U.S. 200

(1995)........ lillie tn ihadiaieiiiinbaeibnitcbdiledadiibibie 1}

Arlington Heights v. Metropolitan Housing

Corp., 429 U.S. 252 (1977) wccccccocccerecscsccessccoseose 27

City of Boerne v. Flores, 521 U.S. 507 (1997)...... 9

City of Mobile v. Bolden, 446 U.S. 55 (1980)

CED cccosisrepriniiticiemenigprcceninscinapsingiee 11

City of Richmond v. J.A. Croson Co., 488 U.S.

GP CI i cccipinitaniiiiercrsacisinsnciennicntiniinnsianasiipoiicioes 11

City of Rome v. U.S., 446 U.S. 156 (1980)......00+.. ae

Colleton County Council v. McConnell, 201 F.

Supp. 2d 618 (D.S.C. 2002)......ccssessesseeesereeeeees 24

DeBartolo Corp. v. Fla. Gulf Coast Bldg. &

Constr. Trades Council, 485 U.S. 568 (1988)... 7

Del Rio v. Perry, No. GN-003665 (353rd Dist.

Ct., Travis County, Tex.) (2001) ......ccssecseereeeees 22

Georgia v. Ashcroft, 539 U.S. 461 (2003)... 12, 26, 21, 30

Gratz v. Bollinger, 539 U.S. 244 (2003) .........0000 11

Grutter v. Bollinger, 539 U.S. 306 (2003).........++. 11

Hall v. Virginia, 385 F.3d 421, 430 (4th Cir. Va.

DU icccvitcrcthinsiilaiiidiiiisanasiisiiuiiihaitiaiipiiitasaiiiiaiaibis 24

Henderson v. Perry, 399 F.Supp.2d 756, 758

EE alice dee emncsencccinaieceitanendiaiupiimiaiaiiipinnien 4,5

Hopwood v. Texas, 78 F.3d 932(Sth Cir. 1996) .... 19

Johnson v. DeGrandy, 512 U.S. 997 (1994) ......... 11,12

Larios v. Cox, 542 U.S. 947 (2004) ....ccccccccccescereees 5

League of United Latin Am. Citizens, Council

No. 4434 v. Clements, 999 F.2d 831, 850(Sth

Cae, Fre GI Be icctentictnnciacintesnenansgnesiaasiiiannin 10

Lopez v. Monterey County, 525 U.S. 266 (1999).. 9, 10

Miller v. Johnson. 515 U.S. 900, 916 (1995) ........ 8

Nipper v. Smith, 39 F.3d 1494, 1515 (11th Cir.

iil

TABLE OF AUTHORITIES—Continued

Page

Oregon v. Mitchell, 400 U.S. 112 (1970) .........0000 9

Personnel Administrator of Mass. v. Feeney, 442

es A EOE cntsinnenetsntennpiscsnsineqernseneseeen 27, 28

Podberesky v. Kirwan, 956 F.2d 52, 57 (4th

Cir. 1992), cert. denied, 115 S.Ct. 2001 (1995)... 28

Rogers v. Lodge, 458 U.S. 613 (1982) ........c.cc0eee 10

Session v. Perry, 298 F.Supp.2d 451 (E.D.Tex.

ee iccianeanertseenmiensgrenmemeenpunpunesmese 23, 24, 25, 26, 29

Shaw v. Reno, 509 U.S. 630 (1993).........00006 8, 27, 29, 30

Thornburg v. Gingles, 478 U.S. 30 (1986)............ passim

Vieth v. Jubelirer, 541 U.S. 267 (2004).............00 3

Voinovich v. Quilter, 507 U.S. 146 (1993)............ 23

Washington v. Davis, 426 U.S. 229 (1976)........... 27

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

Sarita hteiiiacinhiebensiaeesennisnarapsanncesnntanenensnenaveccenne 11

STATUTES, RULES, ETC.

Ss MI, Tia icintrcnttreistnesisesenttocstenesdenesetnarnese 5

U.S. Const. art. 1, § 2, cl. 3; id. amend. XTV, § 2... 6

42 U.S.C. § 1973(a) (1982) .........ccccccsccocrescersceesees l

OTHER AUTHORITIES

Axtman, Kris, Dué es esto: {A Texas debate in

Spanish?, CHRISTIAN SCIENCE MONITOR,

Barone, Michael, Republican jujitsu against

liberals, U.S. NEWS & WORLD REPORT, April

a een 3

Barone, Michael, The Almanac of American

Politics 2004, (Nat’| Journal Group 2003)........ 4

Bishop, Bill, The Great Divide, AUSTIN AMER-

ICAN-STATESMAN, December 4, 2006 ............... 4

TABLE OF AUTHORITIES—Continued

Blum, Edward & Abigail Thernstrom, Executive

Summary of the Bullock-Gaddie Assessment of

Voting Rights Progress in Texas, The Project

on Fair Representation, American Enterprise

Institute, January 6, 2006, available at

http://www.aei.org/doclib/20060106_VRATex

Bullock, Charles S. and Ronald Keith Gaddie,

Assessment of Voting Rights Progress in

Texas, The Project on Fair’ Representation,

American Enterprise Institute, January 6,

2006, available at http://www.aei.org/doclib/

20060 106_VRATexas. pdf...........00000 15, 16, 19,

Bybee, Keith J., Mistaken Identity: The Supreme

Court and the Politics of Minority Rep-

I Te eitiitciniancnntiinciiaiiinnasiiniaiits

Chavez, Linda, OUT OF THE BARRIO ch. 2 (1991) ..

Congressman Al Green’s website, http://www.

house.gov/algreen/district.shtml ...............0.000++ .

Elmendorf, Christopher S., Representation Rein-

forcement Through Advisory Commissions:

The Case of Election Law, 80 N.Y.U. L. REV.

1366, November 2005 ........ccccscsccsssssecsscossossseces

Hamilton, Kendra, A tale of three cities, BLACK

ISSUES HIGHER Epuc., Vol. 19, Issue 6,

DORREEIGT GD, BNO censeeeenennenne

Handbook of Texas Online, s.v. “Mexican

Texas”, available at http://www.tsha.utexas.

edu/ (visited January 15, 2006).................ccc.0008

THE HOTLINE, August 21, 1991 ..........ccccccccessseeenees

House vote on redistricting plan, AUSTIN

AMERICAN-STATESMAN, October 10, 2003........

Page

20, 22

TABLE OF AUTHORITIES—Continued

H.R. 3112,-97th Cong., Ist Sess., 127 CONG.

Rec. H1383 (daily ed. Apr. 7, 1981) ..............+

Jalonick, Mary Clare, Accentuate the positive,

CAMPAIGNS & ELECTIONS, May 1, 2002...........

Kasindorf, Martin, Parties target Hispanics in 4

battleground states, USA TODAY, October 26,

Katz, Jonathan N., Report on Texas Congres-

sional Redistricting: Minority Opportunities

and Partisan Fairness, submitted in Del Rio v.

FOR Se Pictceecerrstttennenstiiinitiniaianinn

Kennedy, John F., Radio and Television Report

to the American People on Civil Rights,

PIRI Tig Wie sensercsomnrectnorscssmmesteenpetmmnmnninaes

Kiker, Douglas, Just the Ticket in Texas?, CBS

Se ee

Mfume, Kweisi, 2002 NAACP Convention

Address in Houston, July 8, 2002 .............c0000000

Moscoso, Eunice, Bush Makes Gains With

Hispanic Men; Hispanic Southerners, Cox

News Service, December 22, 2004...............0000

National Annenberg Election Survey of 2000,

available at http://www.annenbergpublicpolicy

center.org/naes/pdf/Hispanicspressrélease_09_

Nissimov, Ron, Ron Wilson: a man of

contradictions, controversy, HOUSTON CHRON-

Perspective, ALBANY TIMES-UNION, September

Bo CS crrcersnsteesunemmassinnetiennenmnenen

Preston, Bryan, Red River Run, NATIONAL

Page

vi ‘

TABLE OF AUTHORITIES—Continued

Ratcliffe, R.G., Texas Poll continues to predict

major victory for Bush, LAREDO MORNING

News, November 1, 1996......cccccccsoccccsscesseessesees

Reeves, Stuart, Wentworth Proposes Special

Commission, THE DAILY TEXAN, June 26,

Rodriguez, Lori, Group hopes to mobilize

Houston's Hispanics to vote, HOUSTON

CHRONICLE, September 23, 2001 ..........c.cccseeeee

Rodriguez, Lori, Shift Seen in Houston's

Hispanic Growth, HOUSTON CHRONICLE,

REE CF, BaD cccsernipentarensscccssscsecantenesienensin

Shepard, Scott, Disharmony in Diversity:

Political Alliances Between Hispanics and

African-Americans are Rare In _ Dalias,

ATLANTA JOURNAL-CONSTITUTION, August

Bh, TRB ccenneseninttmmnnmnnmmenptotminas

Texas Becomes Nation’s Newest “Majority-

Minority” State, Census Bureau Announces,

U.S. Census Bureau News Release, August 11,

EEO cctsncesececsnieineinnesasibiomseermeenmemitnnen iat

Texas Secretary of State, 2004 Election Results,

available at http://elections.sos.state.tx.us.........

Tilove, Jonathan, Census estimates forecast rise

of the Sun Belt Population, BALTIMORE SUN,

Wilkie, Curtis, Texas Plays High-Stakes

Redistricting Game, THE BOSTON GLOBE, May

Bi TOE cccnncressssusemantintenncmtnmatennemincmbeneeanassens

Page

vii

TABLE OF AUTHORITIES—Continued

Williams, John, Poll: White widening gap over

Sanchez, HOUSTON CHRONICLE, December 5,

Wolf, Richard, House Remapping Benefits

Minorities, Women and GOP, USA TODAY,

POG, pC crcensccccastnjesetensipimnimnsianeaens

Zibel, Daniel A., Turning the Page on Section 5:

The Implications of Multiracial Coalition

Districts on Section 5 of the VRA, 103 MICH.

Ss GEC. BIRD cxassesscenssneninevepeneqpaimeenenepesmamentsnesieenans

Page

Amici Curiae Edward Blum, Visiting Fellow at the

American Enterprise Institute, and Roger Clegg, President of,

and on behalf of, the Center for Equal Opportunity re-

spectfully submit this brief in opposition to the Appellants in

these cases.’

INTEREST OF AMICI CURIAE

In 2005, the Project on Fair Representation at the American

Enterprise Institute commissioned two social scientists to

gather data on the state of minority participation in the

election process (cited at pp. 14-21 of this brief). The Center

for Equal Opportunity is the only think tank devoted

exclusively to the promotion of colorblind equal opportunity

and racial harmony. Blum and Clegg have worked to

advance race-neutral principles in the areas of education,

public contracting, public employment, and voting. They

have a substantial interest in limiting or eliminating the use of

race as a factor in redistricting and respectfully submit this

brief Amici Curiae in opposition to Appellants in these cases.

INTRODUCTION

John F. Kennedy stated “Race has no place in American

life or law.” Kennedy, John F., Radio and Television Report

to the American People on Civil Rights, June 11, 1963. It is

this goal that animated the Voting Rights Act (“VRA” or

“Act’”) enacted two years later in 1965. Aiming to fulfill John

F. Kennedy’s clarion call for race neutrality in law and

Martin Luther King’s dream of a colorblind society, the Act

mandated, “No voting qualification or prerequisite to voting

or standard, practice, or procedure shall be imposed or

applied by any State or political subdivision” that denies or

abridges “the right of any citizen of the United States to vote

on account of race or color...” 42 U.S.C. § 1973(a) (1982).

' No counsel for a party authored this brief in whole or in part, and no

person or entity, other than the amici curiae, has made a monetary

contribution to the preparation or submission of this brief.

The VRA sought to ensure race-neutral election proce-

dures, thereby undoing the vestiges of segregation and Jim

Crow. The VRA’s goal of promoting minority voter partici-

pation has been fulfilled in Texas, as minorities are voting in

high numbers and the state has elected numerous minority

officials. Yet, the Appellants ask this Court to make Texas the

vehicle for an unprecedented judicially-imposed expansion of

the use of race in redistricting. They contend, without support

in statute, case law, or legislative history, that Section 2 of the

VRA not only precludes retrogression in the number of

majority-minority districts, but also requires that any district

where minorities make the difference in electing a white

Democrat be etched in stone as a so-called minority-influence

district. This claim is strikingly inconsistent with Appellants’

attack on the Texas plan as excessively partisan. Appellants’

proposed requirement for devising and preserving minority-

influence districts employs race a tool for guaranteeing certain

partisan outcomes, conferring an entitlement on Anglo

Democrat incumbents elected with a decisive minority vote by .

freezing their districts over time. To accede to this demand

would inject further partisanship into the redistricting process,

exceed the clear language and intent of the VRA, and violate

the Equal Protection clause by favoring the preferred outcomes

of some voters and politicians over others on the basis of race.

The only constitutional and justiciable standards for

redistricting require plans that: 1) satisfy the one person, one

vote guarantee through equipopulous districts; 2) do not

advantage or disadvantage voters on the basis of race. Be-

cause the 2003 Texas redistricting map at issue (Plan 1374C)

meets these criteria, it should be upheld. :

ARGUMENT

A. NO CONSTITUTIONAL VIOLATION DUE TO EXCES-

SIVE PARTISANSHIP OR TIMING OF PLAN

A majority of this Court has determined that either there

can be no standard for determining how much partisanship is

too much, or at the least, that no judicially manageable stan-

dard has yet been identified. Vieth v. Jubelirer, 541 U.S. 267

(2004). Even if some such standard could be divined, Plan

1374C would more easily satisfy the standard than its imme-

diate predecessors, including the 1991 congressional gerry-

mander.’ Prior to the 2004 election, Democrats held a 17-15

advantage in the Texas congressional delegation. Yet in 2000,

56 percent of Texans voted for a Republican candidate to the

U.S. House and all Texas statewide officials since then have

been Republicans.’ Preston, Bryan, Red River Run, NATIONAL

REVIEW, May 27, 2003. The panel noted that the “emergence

of Texas as a two-party-state” combined with Plan 1374C has

? The 1991 gerrymander was based on the 1981 scheme, both of which

were heavily influenced by partisan considerations and Congressman

Martin Frost. The Boston Globe characterized the process as “partisan

gerrymandering, with lines drawn to strengthen friends and oust enemies”

and noted: “There have been outbreaks of hostility between blacks and

browns as well as whites, and a black legislator from Dallas cut his finger

severely last week when he broke a cocktail glass during an argument.”

Wilkie, Curtis, Texas Plays High-Stakes Redistricting Game, THE BOSTON

GLOBE, May 27, 1981. Frost was cofounder of IMPAC 2000, a Democ-

ratic national organization that in 1991 pushed for gerrymanders in Texas

and other states with the express purpose of locking in large Democrat

congressional majorities. Barone, Michael, Republican jujitsu against lib-

erals, U.S. NEWS & WORLD REPORT, April 22, 1991. Frost’s 1991 map

approved by the Democrat-controlled Texas House rejected the proposal

by minority leaders and the few Republican legislators at the time to

create a majority-minority district in Tarrant County. See, THE HOTLINE,

August 21, 1991, noting Frost’s plan was approved “despite the objections

of some ethnic minorities that the plan favors protection of incumbents

over the creation of solidly minority districts.” Frost spoke candidly about

the Democrats’ success in accomplishing their partisan goals through the

1991 legislative redistricting: “To the extent that they [Republicans] made

any gains, it was due to the federal judiciary.” Wolf, Richard, House

Remapping Benefits Minorities, Women and GOP, USA ToDaAy, June 8,

1992.

* The 56 percent figure likely underestimates the true statewide Re-

publican voting strength for Congress in 2000, because of Democrats’

incumbency advantage.

“caused the Texas delegation now to approximate the relative

Statewide voting strength of the two parties.” Henderson v.

Perry, 399 F.Supp.2d 756, 758 (E.D. Tex. 2005). If the best

indicator of excessive partisanship is yielding outcomes that

are unrepresentative of the electorate, it is the 1991 scheme

engineered by former Congressman Martin Frost that fits the

bill. Now, the Appellants are asking this Court to saddle

Texas with that undemocratic gerrymander for a full two

decades.”

While the current Texas congressional delegation is some-

what more Republican than the state as a whole, this is a

natural result of compact districting because the Democratic

voters in Texas are highly concentrated in the urban centers

and along the Mexican border. See, Bishop, Bill, The Great

Divide, AUSTIN AMERICAN-STATESMAN, December 4, 2004.

Although rural Texas was once home to many conservative

Anglo Democrats, a well documented political realignment in

Texas and other southern states occurred over the past several

decades. /d. Thus, rather than causing a partisan shift, Plan

1374C is more properly viewed as accurately reflecting a

shift that had already occurred.

Plan 1374C was motivated by compactness, keeping coun-

ties, cities, and school districts together where possible,

avoiding the splitting of precincts, and adhering to nearly

exact population parity among districts. J.S. App., at 30a.

Far from grafting partisanship on to an objective existing

map, the Legislature had a strong and legitimate remedial

motivation—removing the partisan bias of the 1991 plan.

The panei acknowledged that “the plan produced by this court

* “The [Texas 1991 congressional redistricting] plan carefully con-

structs Democratic districts with incredibly convoluted lines and packs

heavily Republican suburban areas into just a few districts.” Barone,

Michael, The Almanac of American Politics 2004, at 1448 (Nat'l Journal

Group 2003).

> The 2000 and 2001 judicial modifications of the 1991 plan largely

kep’ the same lines intact, resulting in the re-election of all incumbents.

perpetuated much of the 199! Democratic Party gerry-

mander” that the court itself found unfairly allowed Democ-

rats to control the majority of congressional seats while Re-

publicans won 59 percent of the statewide vote. Henderson v.

~~~ Perry, 399 F.Supp. at 764. The panel concluded “it is not

ing to undo a perceived disadvantage imposed

previously by an opposing party is irrational in the sense that

‘it admits of no salutary or constitutionally acceptable result.”

Id. at 767 (emphasis in original).

Article I, Section [V of the Constitution delegates congres-

sional redistricting to state legislatures. This is one pillar of

the Constitution’s federalist system, which originally also

trusted state legislators to select U.S. Senators. Imposing

judge-made constraints on the extent to which partisan con-

siderations may influence legislatures and the times when

they may conduct redistricting would contravene this provi-

sion and the principles of federalism on which it is based.

Appellants’ reliance on Larios v. Cox, 542 U.S. 947 (2004)

is misplaced. Whether partisan redistricting is constitution-

ally or statutorily prohibited was not decided in Larios.® Id.

at 949-950 (Stevens, J., concurring). Rather, Larios was a

one person, one vote case where the district court found that

population deviations of up to ten percent were systematically

used to underpopulate Democratic-leaning rural and inner-

city areas and overpopulate Republican suburban areas. It is

undisputed that, under Plan 1374C, population deviations are

no more than one person. Therefore, there is no cognizable

one person, one vote constitutional issue.

This University Professors’ claim that mid-decade redis-

tricting using the last Census violates one person, one vote

cannot be squared with the Constitution’s requirement that

® While partisanship was not at issue, the Georgia plan there was sig-

nificantly more partisan than 1374C. For example, half of the Republi-

cans in the Georgia Legislature were paired while less than a third of

Texas Democrats in Congress lost their seats.

the decennial census be used for apportioning congressional

representation. U.S. CONST. art. I, § 2, cl. 3; id. amend. XIV,

§ 2. By authorizing state legislatures to redraw districts based

on the Census and giving Congress, not the courts, the power

to regulate the exercise of that authority, the Constitution

permits legislatures to engage in mid-decade redistricting.

However, the Professors contend that updated population

numbers from some source other than the last Census must be

used. Aside from raising a serious constitutional question,

some states’ use of non-Census data would result in con-

gressional districts with populations that diverge from the

current 640,000 benchmark in states with at least two con-

gressional districts, undermining the goals of equipopulousity

and uniformity among the states. :

If this Court goes beyond the one person, one vote standard

to divine some necessarily subjective evaluation as to how

much partisanship is too much, the Court will continually

referee redistricting disputes from Congress to school boards.

Suppose a city annexed an unincorporated suburb and then

redrew its city council district lines? If the annexation

benefited one party, would it be legal?

While determining after the fact whether a plan is exces-

sively partisan is vexing, it is comparatively easy to modify

the redistricting process to reduce partisan influence. Inde-

pendent bipartisan or nonpartisan commissions have been

successfully implemented as alternatives to partisan legis-

lative redistricting in 12 states, as well as England and

Australia. Elmendorf, Christopher S., Representation Rein-

forcement Through Advisory Commissions: The Case of

Election Law, 80 N.Y.U. L.REV. 1366, November 2005.

Texas State Senator Jeff Wentworth (R-San Antonio) has

introduced legislation establishing such an independent

commission that would be instructed to avoid favoring or

discriminating against any political party or group.’ That

these commissions have reined in creative line drawing to

produce artificially uncompetitive districts, a benefit that is

unlikely to accrue from judicial rulings that simply invalidate

plans as excessively partisan, resulting in another slightly less

partisan incumbent protection pian. If federal courts under-

take the role of superintending whether redistricting outcomes

are too partisan, the perceived need for reforms that create

institutions better situated than the judiciary to check partisan

redistricting could be reduced.

B. SECTION 2 OF THE VRA SHOULD BE INTERPRETED

TO AVOID CONSTITUTIONAL QUESTIONS

Statutes should insofar as possible be construed to avoid

raising constitutional issues. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988). This principle counsels against Appellants’ proposed

expansive interpretation of Section 2 to protect white Demo-

cratic incumbents in districts where minorities’ votes form the

margin of victory.

Under the Appellants’ theory, congressional districts repre-

sented by white Democrats that become more Republican

over time must be redrawn at every opportunity to offset the

change in partisan identification by increasing the number of

minorities. Ostensibly, this would be true even if one source

of the change in partisan identification was that minorities in

the district themselves became more Republican.

The Appellants’ proposed outcome-based rule that would

freeze in place so-called coalition districts creates unneeded

tension with both the plain language of Section 2 and the

Fourteenth and Fifteenth Amendments. If minorities are

granted an endlessly renewable guarantee to their desired

” Senator Wentworth presented his bill to create the commission for the

first time in 1992 when a Democratic majority in the Texas Senate voted

it down. Reeves, Stuart, Wentworth Proposes Special Commission, THE

DAILY TEXAN, June 26, 2003.

electoral outcomes, white voters are by definition necessarily

disfavored. Section 2 and the Fourteenth and Fifteenth

Amendments safeguard the rights of all voters, including

whites, by prohibiting the denial or abridgement of the right

to vote on account of race or color. In Shaw v. Reno, 509

U.S. 630 (1993), the Court applied strict scrutiny in invali-

dating a North Carolina redistricting scheme that bolstered

African-American voting power by drawing two bizarrely-

shaped majority-minority districts. The Court held race may

be used in redistricting only in a narrowly tailored fashion to

further a compelling government interest. /d. at 632. Rec-

ognizing Appellants’ coalition districts’ claim would sig-

nificantly increase the role of race in redistricting:

The creation of coalition districts arguably forces juris-

dictions to consider race more stringently than does the

creation of majority-minority districts, because creating

viable coalitions requires jurisdictions to engage in

highly detailed analyses of racial bloc voting and racial

crossover voting. As such, the use of coalition districts

to achieve section 5 compliance will likely force a court

to invoke strict scrutiny under Miller v. Johnson. 515

U.S. 900, 916 (1995) (noting that strict scrutiny must be

invoked where the plaintiff can demonstrate that the

legislature “subordinated traditional race-neutral district-

ing principles”). Zibel, Daniel A., Turning the Page on

Section 5: The Implications of Multiracial Coalition

Districts on Section-5 c the VRA, 103 Micu. L. REV.

189, 214, n. 92.

With or without the bizarrely-shaped districts that were the

manifestation of race-consciousness in Shaw, the injury to

non-minority voters is even clearer here. Appellants’ pro-

posed rule would deny non-minority voters an equal opportu-

nity to achieve their desired outcomes and force a state to

maintain congressional districts even as they become increas-

ingly unrepresentative of the state’s voters.

In fact, the adoption of Appellants’ theory that coalition

districts must always be preserved as originally drawn would

result in the violation of minorities’ voting rights who vote

contrary to the majority of minorities and live in districts

where minorities’ votes are decisive. For example, under .

Appellants’ theory, minority Republicans, other than those

who live in mostly white areas, would never be able to elect

the candidate of their choice for any office, as their districts

would be perpetually gerrymandered to keep a_ white

Democrat in power so long as 51 percent ef blacks provide a

margin of victory for the white Democrat, even if a majority

of Hispanics preferred a Hispanic Republican.

Furthermore, since there are no congressional findings that

Section 2 requires the creation or preservation of minority-

influence districts, there is no basis for invoking the enforce-

ment powers of Congress pursuant to the Fourteenth and

Fifteenth Amendments, and therefore no trump card to over-

ride the Constitution’s principles of federalism. See, Oregon

v. Mitcheli, 400 U.S. 112, 130 (1970) (Congress had ex-

ceeded its power to regulate state elections, because “no

legislative findings” that states were using the age require-

ments to discriminate based on race). While this case con-

cerns federal elections, Section 2 applies to state and local

elections, which militates against extending it and thereby

creating a constitutional question concerning the balance of

federal and state powers. The constitutional question is

particularly weighty because, unlike Section 5, Section 2 is

not confined to remedial circumstances and has no termi-

nation provision, resulting in endless federal supervision of

state and local elections. In City of Boerne v. Flores, 521

U.S. 507 (1997), this Court, in striking down the Religious

Freedom Restoration Act, elucidated the remedial parameters

that circumscribe Congress’ enforcement powers under the

Fourteenth Amendment. /d. at 519. In Lopez v. Monterey

County, 525 U.S. 266, 283-284 (1999), the Court expressly

affirmed the Flores’ holding limiting congressional enforce-

ment power under the Fourteenth and Fifteenth Amendments

to remediation. While the Lopez Court upheld the consti-

tutionality of Section 5, it emphasized that, because of its

limited scope and bailout procedures, Section 5 “burdens

state law only to the extent that that law affects voting in

jurisdictions properly designated for coverage.” /d.

Conversely, Section 2 is not congruent with remedial

congressional enforcement power under the Fourteenth and

Fifteenth Amendments, because it applies even to juris-

dictions with no history of discrimination and has no bailout

provision. Although we do not agree that the 1982 amend-

ments to Section 2 completely eliminated the intent require-

ment*, to the extent it has, Section 2 has become further

unmoored from Congress’ enforcement authority under the

Fourteenth and Fifteenth Amendments, since claims under the

Fourteenth amendment and the Fifteenth Amendment require

proof of discriminatory intent. See, Rogers v. Lodge, 458

* Representative Rodino, the House sponsor of the 1982 amendment,

indicated that the amendment would not change the law with regard to

proportional representation by creating an effects test. See, H.R. 3112,

97th Cong., Ist Sess., 127 CONG. REC. H1383 (daily ed. Apr. 7, 1981). In

our view, for discriminatory results to be actionable under Section 2, they

must be traced to ongoing purposeful discrimination, or at the very least,

the present effects of recent purposeful discrimination. Accordingly, even

after taking into account the 1982 changes, the Eleventh Circuit has

explained that Section 2:

explicitly retains racial bias as the gravamen of a... claim. The

existence of some form of racial discrimination therefore remains

the cornerstone of section 2 claims; to be actionable, a deprivation

of the minority group’s right to equal participation in the political

process must be on account of a classification, decision, or practice

that depends on race or color. The scope of the Voting Rights Act is

indeed quite broad, but its rigorous protections, as the text of § 2

suggests, extend only to defeats experienced by voters ‘on account

of race or color,’ not on account of some other racially neutral

cause. Nipper v. Smith, 39 F.3d 1494, 1515 (llth Cir. 1994)

(quoting League of United Latin Am. Citizens, Council No. 4434 v.

Clements, 999 F.2d 831, 850 (Sth Cir. 1993) (en banc)).

U.S. 613, 618 (1982) (discussing intent requirement for Four-

teenth Amendment and 42 U.S.C. § 1983 claim) and City of

Mobile v. Bolden, 446 U.S. 55, 65 (1980) (plurality) (discuss-

ing intent requirement for Fifteenth Amendment claim). See

also, City of Rome v. United States, 446 U.S. 156, 213 (1980)

(Rehnquist, J., dissenting) (explaining that based on the reme-

dial construction of the Fourteenth and Fifteenth Amend-

ments, Congress’ enforcement power over the states extends

only insofar as necessary to right a wrong that amounts to a

constitutional violation).

C. COURT SHOULD REDUCE, NOT EXPAND, THE USE OF

RACE IN REDISTRICTING

We disagree with this Court’s jurisprudence beginning

with Thornburg v. Gingles, 478 U.S. 30 (1986) that has found

in Section 2 a requirement for the creation and maintenance <

of majority-minority districts. The Constitution—and the

overwhelming weight of this Court’s other precedents in

areas such as public contracting and employment and higher

education—require that race be entirely excluded from

consideration in redistricting, which could now be accom-

plished by specifying race-neutral parameters for lines drawn

by a computer, ideally without reference to preserving exist-

ing majority-minority districts.’ In Johnson v. DeGrandy,

Justice Kennedy concluded:

Given our decision in Shaw, there is good reason for

state and federal officials with responsibilities related to

® See, Adarand Constructors v. Pena, 515 U.S. 200 (1995) and City of

Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) (striking down racial

preferences in public contracting). See, also, Wygant v. Jackson Bd. of

Educ., 476 U.S. 267 (1986) (invalidating use of racial preferences in pub-

lic employment). Although we disagree with the Court's holding in

Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539

U.S. 244 (2003) that diversity can, under very limited circumstances, be a

compeiling interest in higher education for the next 25 years, this rationale

has no application to redistricting since the use of race tends to result in

creating districts that look less like the general population and the alleged

educational benefits do not apply to voting.

redistricting, as well as reviewing courts, to recognize

that explicit race-based districting embarks us on a most

dangerous course. It is necessary to bear in mind that

redistricting must comply with the overriding demands

of the Equal Protection Clause. But no constitutional

claims were brought here, and the Court’s opinion

does not address any constitutional issues. Johnson v.

DeGrandy, 512 U.S. 997, 1031 (1994) (Kennedy, J.,

concurring).

While Congress intended that superficially race-neutral

measures—whether a poll tax or a hypothetical Texas re-

districting plan motivated entirely by race that used bizarre

line-drawing to create no majority-minority districts—could

violate Section 2, there is nothing in the plain language of

Section 2 suggesting that the maximum number of a majority-

minority districts must be created or preserved, particularly at

the expense of race-neutral objectives. Gingles and its prog-

eny have led to the brazen use of race to extract political

benefits by packing minorities into bizarrely-drawn districts,

an unintended consequence of mandating the use of race as a

departure from traditional districting principles such as com-

pactness. There is no evidence that minorities are better

served by being more concentrated than Angios.

A jurisprudence more consistent with the plain language of

Section 2 and the Constitution would simply require that

persons may not be classified or preferred on the basis of

race. The Court endorsed a more flexible approach to Section

5 in which majority-minority districts would simply be one

means of compliance in Georgia v. Ashcroft, 539 U.S. 461

(2003). By recognizing that minority-influence districts

could substitute for majority-minority districts in some cir-

cumstances, the Court limited its role in the redistricting

thicket and discouraged politicians from employing this

Court’s jurisprudence as a license for race-based packing.

Appellants never identify any legal basis for reconciling

the Georgia v. Ashcroft holding that majority-minority dis-

tricts can be altered while still obtaining Section 5 preclear-

ance with their claim that minority-influence districts can

never be altered under Section 2. The Appellants are asking

this Court to convert a voluntary means of compliance with

Section 5 into a mandatory requirement under Section 2. Yet,

unlike Section 5, Section 2 is not limited geographically or

temporally in its application, and a jurisdiction can never

extricate itself from federal oversight. Bybee, Keith J.,

MISTAKEN IDENTITY: THE SUPREME COURT AND THE POLITICS

OF MINORITY REPRESENTATION 26 (1998). Such an extension

of Section 2 would represent an unprecedented expansion in

both the Court’s role and the use of race in redistricting,

creating unintended consequences. For example, incumbent

protection of politicians elected in minority-influence districts

would be required in redistricting, conferring an entitlement

to hold office at the expense of drawing Competitive general

election districts.

D. FACTORS ENUMERATED BY CONGRESS AND THE

_ Court, HISTORICAL RECORD, AND RECENT ELEC-

TION DATA WEIGH AGAINST FINDING VIOLATION OF

SECTION 2

The “essence of a Section 2 claim is that a certain electoral

law, practice, or structure interacts with social and historical

conditions to cause an inequality in the opportunities enjoyed

by black and white voters to elect their preferred repre-

sentatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986).

This standard and the clear disclaimer of any right to

proportional representation in Section 2 make clear that the

proper legal touchstone is not the proportionality of results as

measured by the number of minority or minority-preferred

candidates elected, but the equality of opportunity to vote and

run for office.

The Senate Judiciary Committee’s report accompanying

the 1982 legislation suggested factors to consider when deter-

mining if, the operation of an electoral device results in a

violation of Section 2."° In Gingles, the Court announced a

three-prong test for establishing a Section 2 violation. First,

the minority group must show it is geographically compact

enough to constitute a majority in a single-member district.

Second, the minority must show it is politically cohesive.

Third, the white majority must vote sufficiently as a bloc to

enable it to defeat the minority’s preferred candidate. Prongs

two and three of the Gingles test and the Committee Report

factors combine to insert a dynamic element into a Section 2

claim that the Appellants ignore. To put it simply, racial atti-

tudes and voting behavior in Texas in 2006 are not analogous

Mississippi in 1965.

In 2004, Texas became a majority-minority state. See,

Texas Becomes Nation's Newest “Majority-Minority” State,

Census Bureau Announces, U.S. Census Bureau News

‘Release, August 11, 2005. By 2030, the Bureau estimates

that Texas will be majority Hispanic. Tilove, Jonathan,

Census estimates forecast rise of the Sun Belt Population,

BALTIMORE SUN, May 29, 2005. These demographic realities

indicate that the “social conditions” cited in Gingles wherein

a majority Anglo population wields power to disenfranchise

minorities through unfair election procedures are simply not

present in today’s Texas.

In addition to the sheer power of demographic change

recent election results are instructive. First, they are explic-

itly relevant to the Judiciary Committee factor concerning the

election of minorities. Second, recent Texas election results

are relevant to both the racial polarization factor stated by the

Judiciary Committee and the third prong in the Gingles test.

Texas has elected several] black statewide leaders who

remain in office today: Railroad Commissioner Michael

_ Williams, Supreme Court Chief Justice Wallace Jefferson,

and Supreme Court Justice Dale Wainwright. In fact,.of the

See, S.Rep. No. 97-417, 97th Cong., 2d Sess. (1982), pages 28-29.

two Hispanics and four blacks nominated to statewide offices

by Republicans since 1994, all but one prevailed in the

general election, with the winners receiving 63 to 85 percent

of the Anglo vote, figures comparable to Anglo Republicans.

Bullock, Charles S. and Ronald Keith Gaddie, Assessment of

Voting Rights Progress in Texas, The Project on Fair Repre-

sentation, American Enterprise Institute, January 6, 2006,

pg. 15, available at http://www.aei.org/doclib/20060106_

Vratexas.pdf. Moreover, their success in Republican

primaries versus white opponents shows how receptive white

Texan voters are to black candidates. In 2002, Wainwright

defeated white district judge in the 2002 Republican primary.

In the 2002 Republican primary, Jefferson prevailed over his

white opponent, garnering 62 percent of the vote. In the 2000

Republican primary, Williams trounced his white opponent

with a commanding 80 percent of the vote.

Texas has also elected numerous Hispanics to statewide

office. In 2004, Hispanic Railroad Commissioner Victor

Carillo won with some 63 percent of the vote over a white

opponent in the Republican primary. In 2000, Supreme Court

Justice Al Gonzales defeated a white opponent in the Repub-

lican primary with 58 percent of the vote. Tony-Garza was

elected Railroad Commissioner, defeating a white former

Congressman in the 1998 Republican Primary. In 1994, His-

panic Democrat Attorney General Dan Morales was re-

elected statewide with 53.7 percent of the vote, outperforming

numerous white Democratic incumbents. In that same

election, Hispanic Democrat Texas Supreme Court Justice

Raul Gonzalez was re-elected with an overwhelming 81.3

percent of the vote, suggesting he was the candidate of choice

for all racial groups.

Thousands of blacks and Hispanics serve in the Legislature

and local offices, including recent Mayors of the state’s four

largest cities: Houston, San Antonio, Dallas, and Austin.

Professors Charles Bullock and Ronald Gaddie note, “In

1996, Texas boasted almost 1,700 Latinos in public office

and by 2003 that number had swelled to almost 2,000, one of

whom held a statewide post.” Bullock and Gaddie at p. 9.

This is twice the number of Hispanic elected officials in

California, even though Texas has a substantially smaller

population. /d. at 9. Currently, 27 members of the 150-mem-

ber House of Representatives are Hispanic and 14 are black.

Bullock and Gaddie at p. 27, Table 7. Of the 31 members of

the State Senate, eight are either black or Hispanic. /d.

Indeed, the success of Dallas Mayor Ron Kirk shows,

along with Morales and Gonzalez, that it is not just Re-

publican minority elected officials who have performed well

among white voters. In 1999, 74 percent of Dallas voters—

ostensibly a majority of blacks and whites—voted to re-elect

Mayor Ron Kirk over a white opponent. Jalonick, Mary

Clare, Accentuate the positive, CAMPAIGNS & ELECTIONS,

May 1, 2002. However, the lack of black and Hispanic

voting cohesion was demonstrated when Kirk was first

elected in 1997 with 97 percent of the black vote, 42 percent

of the white vote, and only 14 percent of the Hispanic vote.

Shepard, Scott, Disharmony in Diversity: Political Alliances

. Between Hispanics and African-Americans Are Rare in

Dallas, ATLANTA JOURNAL-CONSTITUTION, August 31, 1997.

The lack of black and Hispanic voting cohesion was also

evident in the 1998 Democratic primary for Agriculture

Commissioner between Anglo Pete Patterson and Hispanic

Ermesto DeLeon. In Dallas County, DeLeon is estimated to

have received 80.8 percent of the Hispanic vote but only 23.4

percent of the black vote and 36.3 percent of the Anglo vote.

Bullock and Gaddie at p. 33, Table 10. Similarly, in Tarrant

County, DeLeon garnered approximately 77.8 percent of the

Hispanic vote but only 17.8 percent of the black vote and

33.3 percent of the Anglo vote. Also, in the 1998 Democratic

primary for Attorney General, black candidate Morris Over-

street, facing two Anglos, received roughly 64.1 percent of

the black vote in Dallas County, but less than 5 percent of the

Hispanic and Anglo votes. In Tarrant County, Overstreet

performed similarly, garnering 73.7 percent of the black vote,

but less than | percent of Hispanic and Anglo votes. -

The lack of cohesion among Texas blacks and Hispanics

has also been apparent in Houston. In 1997, Rob Mosbacher,

a white Republican, received 54 percent of the Hispanic vote

in his unsuccessful campaign against black Democrat Lee

Brown, who won nearly all the black vote. Rodriguez, Lori,

Group hopes to mobilize Houston's Hispanics to vote,

HOUSTON CHRONICLE, September 23, 2001. In 2001, Brown

won re-election over Republican Hispanic challenger Orlando

Sanchez by 51 to 49 percent. Sanchez won 72 percent of the

Hispanic vote and 90 percent of the Republican vote while

Brown collected 93 percent of the black vote. Hamilton,

Kendra, A tale of three cities, BLACK ISSUES HIGHER EDUC.,

Vol. 19, Issue 6, September 26, 2002; Williams, John, Poll:

White widening gap over Sanchez, HOUSTON CHRONICLE,

December 5, 2003.

These results show that blacks and Hispanics are not a

cohesive voting bloc, and that whites are often more likely

than Hispanics to join with blacks to elect a black candidate.

Also, Hispanics themselves are not a cohesive voting bloc. In

Houston, where Hispanics have supplanted Anglos as the

largest ethnic group, the proportion of non-Mexican His-

panics jumped from 20.4 percent in 1990 to nearly 28 percent

in 2000. Rodriguez, Lori, Shift Seen in Houston's Hispanic

Growth, HOUSTON CHRONICLE, August 17, 2003. In Austin,

the percentage increased from 12.7 to 23.3 while in Dallas it

grew from 12 to 17. Jd. Texas state demographer Steve

Murdock notes, “What’s significant is that Hispanics have

been in the 90 percent of Mexican origin for decades, and

now we're seeing an abrupt shift and increasing diversi-

fication. These newcomers may have much more in common

with other new immigrants than with Hispanics who have

been here for generations.” /d. One indication of the

divergent political traditions among various Latino groups is

that fourteen percent more Cubans identify themselves as

Republicans than as Democrats. National Annenberg Elec-

tion. Survey of 2000, available at http://www.annenberg

publicpolicycenter.org. Hispanics’ socioeconomic status also

has a profound effect on their voting preferences. Gallup

polls show that Hispanics with household incomes over

$50,000 are twice as likely to be Republicans as other His-

panics. Kasindorf, Martin, Parties target Hispanics in 4

battleground states, USA TODAY, October 26, 2004.

In addition to electing blacks and Hispanics, Texas minor-

ities have frequently elected their white candidates of choice

~on a local level, and on the state level prior to the Republican

dominance that began in the middle of the 1990’s. Even after

this realignment, Hispanics may still have elected a candidate

of their choice. The Texas Poll just before the November

1998 election found Governor Bush led his Democrat oppo-

nent 49 to 41 percent among Hispanics. Ratcliffe, R.G.,

Texas Poll continues to predict major victory for Bush,

LAREDO MORNING News, November 1, 1998. The percent of

Southern Hispanics who voted for President Bush increased

from 41 percent in 2000 to 55 percent in 2004. Moscoso,

Eunice, Bush Makes Gains With Hispanic Men; Hispanic

Southerners, Cox News Service, December 22, 2004.

Many of the factors cited by the Judiciary Committee are

nonexistent in today’s Texas. For example, in recent Texas

elections, the subtle racial appeals referenced by the Commit-

tee have been absent. Other factors cited by the Committee

are similarly inapplicable to today’s Texas, including un-

usually large election districts, majority-vote requirements,

prohibitions against bullet voting, and the exclusion of mem-

bers of the minority group from candidate slating processes.

While there are racial disparities in education, employment,

and health, they do not prevent minorities from participating

effectively in the political process.

Given the role of history cited Gingles and the Judiciary

Committee, the Court should take judicial notice that Hispan-

ics have never been systematically denied the right to vote in

Texas. In fact, three of the signers of the Texas Declaration

of Independence were of Mexican descent. See, HANDBOOK

OF TEXAS ONLINE, S.V. “MEXICAN TEXAS”, available at www.

tsha.utexas.edu/ (visited January 15, 2006). Texas Hispanics,

unlike blacks, have not been subject to segregation or Jim

Crow laws. Chavez, Linda, OUT OF THE BARRIO, ch. 2

(1991). “There is no history either of de jure discrimination

against Mexican Americans in education at any level in Texas

or of de facto discrimination against Mexican Americans by

the [University of Texas] law school.” Hopwood v. Texas, 78

F.3d 932, 955, n. 50 (Sth Cir. 1996). Former Attorney

General Dan Morales observed, “There is very, very close to

unanimity between the majority culture and political tradition

and the Hispanic community.” Perspective, ALBANY TIMES-

UNION, September 15, 1991.

State-sponsored discrimination against blacks in Texas has

long been consigned to the dustbin of history. Because black

voter participation was sufficiently high in Texas, the trigger

mechanism in Section 4 of the VRA of 1965 did not implicate

“the state. Blum, Edward & Abigail Thernstrom, Executive

Summary of the Bullock-Gaddie Assessment of Voting Rights

Progress in Texas, The Project on Fair Representation,

American Enterprise Institute, January 6, 2006, pg. 8, avail-

able at http://www.aei.org/doclib/20060106_Vratexas.pdf. In

fact, in the five most recent Texas elections, African-Ameri-

cans have turned out to vote at higher rates than Anglos.

Bullock and Gaddie at p. 8. Black turnout in the 2004 elec-

tion was 55.8 percent in Texas compared with 50.6 percent

for whites. /d. at 22. Similarly, from 1992 to 2004, the share

of the Texas registrants who have Spanish surnames has in-

creased by more than 40 percent so that the proportion of

registered voters with a Spanish surname is only slightly less

than the share of the state’s citizen voting age population that

is Hispanic. /d. at 19. The rise of Hispanic political par-

ticipation in Texas was illustrated when the two Democratic

gubernatorial candidates in 2002—Tony Sanchez and Dan

Morales—conducted a primary debate that was partly in

Spanish. Axtman, Kris, Qué es esto: ;A Texas debate in

Spanish?, CHRISTIAN SCIENCE MONITOR, March 1, 2002. -

Ron Kirk candidly observed in during his 2002 Senate

campaign, “Frankly, the challenge in Texas is not to get

people to vote for a black, but to get them to vote for a

Democrat.” Kiker, Douglas, Just the Ticket in Texas?, CBS

News, June 27, 2002. Statistics prove Kirk’s point:

Candidate race is not a factor in the decline of support

for Democratic candidates in the 66 statewide contests

from 1992-2004 where Democrats stood. A test of the

difference of mean vote by race of the candidate—for

the overall vote and the Anglo vote share—shows that

differences in the vote shares for Anglo, African-Amer-

ican, and Hispanic candidates are insignificant (F=.285

and .940, respectively). When one subjects the per-

centage of the Anglo vote captured by Democrats to a

multivariate test, controlling for the race and ethnicity of

the Democratic candidate and a temporal counter set to 0

in 1992 and increasing by a value of +1 for each passing

year, the decline of the Anglo vote for Democrats is not

significantly related to a candidate’s ethnicity. African-

American and Hispanic candidates fare no worse than

Anglo Democrats. Indeed, the coefficients for black and

Hispanics candidates are actually positive. Bullock and

Gaddie at p. 14.

In sum insufficient racial polarization exists in the Texas

electorat2 to implicate the third prong of the Gingles test.

Appellants do not allege a lack of responsiveness by elect-

ed officials to minorities, a factor cited by the Judiciary

Committee. It cannot be presumed that Republican elected

officials are less concerned with minority needs than Demo-

crats. NAACP Chairman Kweisi Mfume called for greater

competition by both parties for the black vote, stating: “And

yes, 34 years after the assassination of Dr. Martin Luther

King, we still have a society where some in the Democratic

party take our vote for granted and some in the Republican

party too often refuse to campaign for it.” See, Mfume,

Kweisi, 2002 NAACP Convention Address, July 8, 2002.

Finally, Texas minorities do not suffer an “inequality in the

opportunities to elect their preferred representatives.” Gin-

gles, 478 U.S. at 47. In Texas, the average minority voter lives

in a congressional district with fewer registered and actual

voters than the average Anglo voter. In part because districting

is based on raw U.S. Census population data that includes

children, illegal immigrants, and felons—all of whom are

ineligible to vote—the average minority Texan actually casts a

more heavily weighted vote than the average Anglo Texan.

This should be considered in evaluating whether a particular

redistricting plan disadvantages minorities.

In 2004, in the eight Texas majority-minority congressional

districts, an average of 153,185 people voted for Congress.

See, Texas Secretary of State, 2004 Election Results,

avaitable at http://elections.sos.state.tx.us. In the remaining

24 congressional districts, an average of some 238,838 votes

were cast for Congress. Accordingly, there were 56 percent

more votes cast in the non majority-minority districts. Thus,

voters in the majority-minority districts had their votes

weighted at 1.56 while their counterparts were weighted at

1.00. Section 2 does not confer upon a group the right to

proportional representation commensurate with the racial and

ethnic makeup of the general population, but rather a

guarantee of an equal opportunity to influence the political

process that protects individual voters from dilution of their

voting strength based on racial or ethnic background. The

greater weight of Texas minorities’ votes in congressional

elections offsets any countervailing effects on minority influ-

_ ence attributable to redistricting.

22 é

E. SECTION 2 OF THE VRA PROVIDES NO ENTITLE-

MENT TO: THE CREATION OR MAINTENANCE OF

MINORITY-INFLUENCE DISTRICTS

Under Plan 1374C, there are at least as many majority-

minority districts as under the 1991 gerrymander. Including

District 9, which has a majority-minority population and a 48

percent black voting-age population, there is one more

majority-minority district after 1374C. The redrawn District

9 elected black Democrat Al Green in place of white Democ-

rat Chris Bell. Green praised the composition of the district,

noting, “The 9th District is uniquely one of the most cultur-

ally rich and ethnically diverse districts in the country.

With its large African-American, Hispanic-American, Asian-

American, and immigrant population, the 9th Congressional

District is a microcosm of the nation.” See, http://www.

house.gov/algreen/district.shtml.

Under Plan 1374C, there are eight majority Latino districts

based on voting age population, five of which elect Hispanics

and seven of which elect the Hispanic candidate of choice in

general elections. Bullock and Gaddie at pp. 10-11. The only

majority Latino district in which the Hispanic candidate of

choice in the general election does not prevail is District 23,

‘which elects Hispanic Republican Henry Bonilla with as

much as 43.3 percent of the Hispanic vote. /d. at p. 19, citing

Katz, Jonathan N., Report on Texas Congressional Redis-

tricting: Minority Opportunities and Partisan Fairness,

submitted in Del Rio v. Perry, 2001.). Counting District 23,

some 25 percent of Texas’ congressional districts are now

majority Latino. Even if District 23 is excluded, the 21.8

percent of majority Latino districts is comparable to the 22.3

percent of the Texas voting age population that is Hispanic.

Bullock and Gaddie at p. 15. Additionally, after Plan 1374C,

Texas has three congressional districts occupied by African-

Americans. Given that Texas has majority-minority districts

for both blacks and Hispanics commensurate with their share

of the state’s voting age population, there is no retrogression

in the number of majority-minority districts.

Appellants therefore seek an unprecedented expansion in the

scope of Article 2 that would create a judicial entitlement for

white Democrats who rely on minority votes for their margin

of victory to have their districts cryogenically preserved even

as the electorate evolves through redistribution of population

and the realignment of partisan identification. The panel prop-

erly concluded: “Plaintiffs’ understandable efforts to freeze

this ‘coalition’ by locating some duty under § 2 not to redraw

the district is a transparent effort to use race as a shield from

a partisan gerrymander when the district itself was a child

of identical efforts to gerrymander.” Session v. Perry, 298

F.Supp.2d 451, 481 (E.D. Tex. 2004). In many competitive

districts around the country, minority voters constitute a suffi-

cient portion of the electorate to sway the election if they vote

entirely or predominantly for one candidate. Section 2 does

not provide minorities in all of these districts a statutory right

to always have their preferred candidate prevail, but simply

guarantees an equal opportunity to vote. The Fourth Circuit so

reasoned in rejecting such a claim:

The argument that a coalition of black and white voters

may claim that-a redistricting plan dilutes their combined

ability to elect candidates confuses the purpose of

Section 2. The objective of Section 2 is not to ensure that

a candidate supported by minority voters can be elected

in a district. Rather, it is to guarantee that a minority

group will not be denied, on account of race, color, or

language minority status, the ability ‘to elect its can-

didate of choice on an equal basis with other voters.’”

Voinovich v. Quilter, 507 U.S. 146, 153 (1993)... ..

Furthermore, any construction of Section 2 that

authorizes the vote dilution claims of multiracial

coalitions would transform the Voting Rights Act from a

law that removes disadvantages based on race, into one

that creates advantages for political coalitions that are

not so defined. Hall v. Virginia, 385 F.3d 421, 430-31

(4th Cir. 2004),

Appellants ignore important distinctions between minority-

influence districts and majority-minority districts. Unlike

majority-minority districts, in minority influence districts,

minorities’ true candidate of choice will often lose the

primary or may not even run. By their nature, coalitional

districts involve political horse-trading in the primary where

varying factions must compromise. The three-judge redis-

tricting panel in South Carolina concluded of minority-

influence districts with minority populations of 25-40%:

“With the aid of a substantial (but not majority) black popula-

tion that votes nearly exclusively for a Democratic candidate,

a white Democrat can usually defeat a black Democrat in the

primary election and then use the black vote to defeat any

Republican challenger in the general election.” Colleton

County Council v. McConnell, 201 F. Supp. 2d 618, 643, n.

22 (D.S.C. 2002). That court found drawing such districts

“is, therefore, an inherently politically based poticy” not

mandated by the VRA. /d.

Appellants focus on District 24, even though it had only a

21.4 percent black voting age population and a 23 percent

Hispanic citizen voting-age population, and no black can-

didate had ever filed against Congressman Frost in the

Democratic primary. Blacks and Hispanics in District 24

have not exhibited the voting cohesion required by Gingles

for them to be treated as a single minority group. The panel

expressly so concluded, noting “there is no serious dispute

but that Blacks and Hispanics do not vote cohesively in

primary elections, where their allegiance is free of party

affiliation.” Session v. Perry, 298 F.Supp.2d 451, 478 (E.D.

Tex. 2004). In the 1998 Democratic primary for Attorney

General, black candidate Morris Overstreet garnered 74.3

percent of the black vote in District 24, but Hispanics and

Anglos in the district voted overwhelmingly for his white

opponent Jim Mattox. See, Lichtman Report, Def. Exh. 22.

The panel correctly concluded that “if § 2 protection is

afforded to old District 24 despite the absence of the Gingles

factors, the VRA begins to protect political affiliation and not

race.” Session v. Perry, 298 F.Supp.2d at 484.

Likewise, District 25, which was redrawn by Plan 1374C

to become District 9 now represented by Congressman Al

Green, did not perform for blacks under the 1991 gerry-

mander. In the 2002 Democratic primary, 69 percent of black

voters chose former Houston City Councilman Carroll

Robinson, an African-American, but Robinson lost to Anglo

Chris Bell, as Bell received the bulk of white and Hispanic

support. See, Lichtman Report, Table 17.

The Appellants contend Plan 1374C violates Section 2 by

redrawing purported minority-influence districts in Central

and East Texas, formerly districts 1, 2, 4, 9, 10, 11, and 17.

They concede the State had no obligation to create these

districts, but argue they should now be impregnable. The

panel disagreed, noting none of them had a citizen voting age

population of more than 22 percent of a single minority group

and that, even if blacks and Hispanics were combined despite

lack of cohesion, none of these districts approached majority-

minority status. Session v. Perry, 298 F.Supp.2d at 485-86.

F. SECTION 2 Dip Not REQUIRE CREATION OF

SEVENTH HISPANIC-MAJORITY DISTRICT

The panel properly concluded that the population figures do

not require the creation of another Hispanic-majority district.

Even if disputed District 23 is excluded, the 21.8 percent of

majority Latino districts under Plan 1374C is comparable to

the 22.3 percent of the Texas voting age population that is

Hispanic. The panel determined: “The GI Forum Appellants

have shown neither that seven districts can be drawn, meeting

the threshold Gingles requirements, that have a majority of

Hispanic citizen voting age population, nor that all such

districts, if they could be drawn, would function effectively as

Latino opportunity districts.” Session v. Perry, 298 F.Supp.2d

at 496. The panel found that the map submitted by the

Appellants envisaging a seventh district (1385C) required

bizarre line-drawing that contravened traditional districting

principles.

Furthermore, to squeeze in a seventh Hispanic-majority

district, the panel observed that one of the seven districts

would have had only a 50.3 percent Hispanic citizen voting

age population with another at 56.9 percent. Democratic

Congressman Rubén Hinojosa testified that “along the Texas

border region from Brownsville to McAllen to Laredo to El

Paso in order to win an election, you need to have about 57,

58% or higher Hispanic voter age population because of the

low turnout.” /d. at 495, n. 134. That Congressman Henry

Bonilla’s former District 23 did not elect Hispanics’ candi-

date of choice is indicative of this point.

G. REDRAWING OF DisTRICT 23 DiD NOT CONSTITUTE

RETROGRESSION IN VIOLATION OF SECTION 2

The Appellants’ claims concerning changes to District 23

must be rejected. First, District 23 was not electing the

minority candidate of choice, although it did elect a Hispanic

Republican. Second, the changes to District 23 were offset

by the creation of majority-Hispanic District 25. While the

Appellants ask this Court to examine District 23 in a vacuum,

Georgia v. Ashcroft held otherwise with respect to a Section

5 claim:

To determine the meaning of “a retrogression in the

position of racial minorities with respéct to their effec-

tive exercise of the electoral franchise,” the statewide

plan must first be examined as a whole: First, the

diminution of a minority group’s effective exercise of

the electoral franchise violates § 5 only if the State

cannot show that the gains in the plan as a whole offset

the loss in a particular district. Second, all of the relevant

circumstances must be examined, such as minority

voters’ ability to elect their candidate of choice, the

extent of the minority group’s opportunity to participate

in the political process, and the feasibility of creating a

nonretrogressive plan: Georgia v. Ashcroft, 539 U.S.

461 463-464 (2003). |

Accordingly, Appellants are foreclosed from claiming the

loss of a majority-minority district cannot be offset by creat-

ing one in another part of the state. :

H. Facts Do Not Support SHAW Vv. RENO RACE-

BASED GERRYMANDERING CLAIM

We agree that Shaw and the Equal Protection clause pro-

hibit drawing district lines primarily based on race.'' How-

ever, the panel correctly concluded that the facts here reveal

no such impermissible use of race.

The panel properly relied on Washington v. Davis, 426

U.S. 229 (1976) and its progeny for the critically important

principle that an adverse impact alone does not establish a

racial discrimination claim without evidence of a discrim-

inatory purpose. /d. at 642. The lower court also discussed

Arlington Heights v. Metropolitan Housing Corp., 429 U.S.

252 (1977) in which this Court held that the denial of a

zoning request was not unlawful unless it was motivated by a

discriminatory purpose, even though it adversely affected

minorities. Jd. at 469-70. Finally, the panel drew from

Personnel Administrator of Mass. v. Feeney, 442 U.S. 256

(1979) in which this Court ruled that a Massachusetts statute

preferring veterans for civil service positions did not un-

lawfully discriminate against women because few women

happened to qualify. The Feeney majority wrote:

[I]t would thus be disingenuous to say that the adverse

consequences of this legislation for women were

'' Amicus briefs urging this Court to the bizarrely-shaped, race-based

districts at issue in Shaw were filed by Appellants or groups aligned with

them: the Democratic National Committee, Lawyers’ Committee for Civil

Rights Under Law, and the NAACP Legal Defense and Educational Fund,

inc. We encourage former supporters of race-based public policies to

embrace colorblind approaches, but the excessive use of race in redistrict-

ing is no more justifiable depending on which political party benefits.

unintended, in the sense that they were not volitional or

in the sense that they were not foreseeable, nevertheless,

“discriminatory purpose” implies more than intent as

volition or intent as awareness of consequences; it

implies that the decision maker selected or reaffirmed a

particular course of action at least in part “because of,”

not merely “in spite of,” its adverse effects upon an

identifiable group. ... /d. at 257.

There is no constitutional or statutory basis for loosening

this discriminatory purpose requirement. Whether it is the

Fourteenth Amendment or the VRA, a guarantee of equal

opportunity, not proportional results, is the touchstone of the

plain language of these provisions. To be actionable, dis-

proportionate results must be traceable to ongoing purposeful

discrimination, or at the least, the present effects of past

discrimination by the entity in question. See, Podberesky v.

Kirwan, 956 F.2d 52, 57 (4th Cir.1992), cert. denied, 115

S.Ct. 2001 (1995)) (holding University of Maryland’s schol-

arship program exclusively for blacks could not be sustained

as a constitutionally permissible remedial measure absent

sufficient showing of present effects of past discrimination by

the University). Diluting the discriminatory purpose require-

ment would augur an avalanche of dubious litigation, as

hypothetical Appellants could establish as a matter of law that

the National Hockey League discriminates against blacks,

Hispanics and Asians and that nursing schools unlawfully

discriminate against men. The mere fact that all societal

outcomes do not occur in exact proportion to the percentages

of various minority groups in the population does not, taken

- alone, prove that a group was disfavored in the process.

Applying this sound body of law, the panel found the

evidence showed race played no role in the drawers’ deci-

sions. They concluded that backers of Plan 1374C sought to

advance Republican interests and any negative impact on

minorities simply flowed from the fact that most minorities

happen to be Democrats. For example, after thoroughly

reviewing the testimony of credible witnesses, the panel

rejected Appellants’ claim that minority voters were placed in

District 26 instead of District 25 on the basis of race:

[W]e find that including the large Democratic area of

southeast Tarrant County in District 26 was the sole

product of political give-and-take by legislative mem-

bers over their own state districts and the effort to not

create another Democratic district. The actions were not

taken because of race; they were taken in spite of it.

Session v. Perry, 298 F.Supp.2d at 472.

The panel also found that “ethnicity did not predominate in

the numerous decisions involved in the placement of the

district lines in Congressional Districts 28, 15, 25, and 27.”

Id. at 490. The notion that Plan 1374C embodies a dis-

criminatory purpose is belied by the fact that Vilma Luna, a

Hispanic Democrat; Ron Wilson, a black Democrat'*; and

Elvira Reyna, a Hispanic Republican, all voted for it. House

vote on redistricting plan, AUSTIN AMERICAN-STATESMAN,

October 10, 2003. Not a single minority member of Congress

was unseated as a result of Plan 1374C and not a single

performing majority-minority district was eliminated.

Appellants seek to assign a racial purpose to the redrawing

of District 23. However, the lower court found the redrawing

of this district was motivated by mapmakers’ desire to

improve Congressman Bonilla’s re-election prospects and

that this required splitting Laredo and Webb County. Session

v. Perry, 298 F.Supp.2d at 490. Given that all incumbent

Republican Congressmen were protected and none were

paired under Plan 1374C, neither Congressman Bonilla nor

his district were treated differently based on race. In any

event, the district was not performing as a minority-majority

district. Consequently, Appellants’ challenge to District 23

can neither succeed as a Gingles claim or a Shaw claim.

? Wilson successfully led the fight to make Martin Luther King Jr.

Day a state holiday. See, Nissimov, Ron, Ron Wilson: a man of contra-

dictions, controversy, HOUSTON CHRONICLE, January | 1, 2004.

While Appellants attempt to analogize District 23 to the

districts at issue in Shaw, they are easily distinguishable.

First, neither District 23 nor any other district in Plan 1374C

is shaped nearly as bizarrely as the districts at issue in Shaw.

Second, the two districts in Shaw resulted from revisions to a:

legislatively approved map that only occurred because North

Carolina’s Attorney General ordered that a second majority-

minority district be created. Finally, throughout the Shaw

litigation, the State did not dispute that the purpose of the two

snake-shaped districts that ignored traditional districting prin-

ciples was to divide voters based on race. Rather, the State

asserted that their racial purpose was benign and, because the

Appellants were white, they had no cognizable claim under

the VRA.

CONCLUSION

This Court should not give partisans battling over their

political fiefdoms more legal ammunition to -use race as a

weapon by opening another front in Section 2 litigation. Doing

so would obliterate the clear statutory language, every applica-

ble precedent, and the panel’s carefully considered factual

findings. To fill the void, Appellants ask this Court to erect a

race-based house of cards from which politicians will deal

more litigation from the bottom of the deck, using race as their

ace in the hole to trump traditional disuricting principles. With

its decisions in Shaw v. Reno and Georgia v. Ashcroft, this

Court has wisely retreated from a rigid jurisprudence that has

too often served as an enabling device for politicians to draw

districts based first and foremost on race. Rather than injecting

race further into redistricting by making so-called influence

districts inviolate, the Court should continue to move away

from formulaic race-based requirements and towards a juris-

prudence that heeds the race-neutral vision that animated

Section 2 and the Reconstruction Amendments and recognizes

the remarkable progress that Texas and the nation have made

towards achieving this noble goal.

* Counsel of Record

Respectfully submitted,

FRANK M. REILLY *

MARC A. LEVIN

POTTS & REILLY, L.L.P.

401 West 15th Street, Suite 850

Austin, Texas 78701

(512) 469-7474

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.