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

6

numbers of people necessary to satisfy equipopulosity.” J.S.

App. at 125. The court noted that “(a] map drawer must

travel east almost 800 miles to reach another county that

approaches, much less exceeds, 100,000 souls: Webb County,

at the western edge of the southern tip of Texas.” 7d.

Correlated to District 23’s immense size is tremendous

economic and demographic diversity, even within traditional

racial and ethnic communities. A survey of some of the

District’s discrete communities only begins to hint at its

overall diversity. The population center of the District, for

example, is suburban San Antonio, with nearly one-third of

the District’s population. A visitor to this part of the

District will see an affluent and growing population that is

about 30% Latino—a suburban community not unlike ones

that can be found in almost any metropolitan area in the

United States.‘

“Hard by the Mexican border is a different kind of

place”: Laredo. Located 150 miles south of San Antonio,

Laredo is an urban commercial center with an economy tied

to the importation and exportation of $160 billion worth of

goods annually. With 12,000 railcars and 9,000 trucks

traversing the city’s three cross-border bridges every day,

the inland port city is the main freight crossing point on the

border.® The city’s residential areas are divided between

lower-income neighborhoods in South Laredo and higher-

income neighborhoods in North Laredo.

Two-hundred miles east of E] Paso is Reeves County.

With a Latino population of around 75%, the county is

anchored around Pecos, its largest community. It is an

3 Barone at 1646.

4 Latino population data in this section is based on the 2000 census as

set forth in the Texas Legislative Council’s report, Population Analysis

with County Subtotals: Congressional Districts - Plan 01374C (Oct. 9,

2003), available at http:/Avww.tlc.state.tx.us/redist/pdf/c1374/red 100. pdf

(last visited Jan. 31, 2006).

5 Barone at 1659.

6 Barone at 1645, 1659.

7

economically depressed area, with a shrinking population,

where the county detention center is one of a very small

number of significant employers.

Del Rio is the primary population center in Val Verde

County, located near the center of the District’s Mexican

border. While it is overwhelmingly Latino—with an 81%

Latino population—Del Rio is politically conservative. The

town’s chief economic engine is Laughlin Air Force Base

rather than cross-border trade, but both military and border

issues are important to many Del Rio voters.

North of Del Rio, in the heart of ranching country, is

sparsely populated Edwards County, with a 45% Latino

population. Fewer than 1,000 voters in this county cast

ballots in the 2004 presidential election.” Wool and mohair

are the chief local products, but the end of subsidies under

the 1954 National Wool Act has hurt the ranching industry

and the overall economy.

Finally, south of Val Verde County is Eagle Pass in

Maverick County. Although most border communities are

centered around cities located in the United States, a

Mexican city—Piedras Negras across the river—exerts

strong influence on Eagle Pass. In recent years, trade has

fueled Eagle Pass’s substantial economic growth, helping

the city overcome high unemployment and other problems.

Also located in Maverick County is a federal Indian tribe,

the Kickapoo, which runs a casino on its reservation. The

county is 95% Latino.

These examples paint the true portrait of District 23: an

economically, demographically, and geographically diverse

district that defies simple descriptions. It includes Latino

professionals in the suburbs of San Antonio, customs

brokers in downtown Laredo, ranchers far west of the Texas

foothills, and unemployed workers in some of the nation’s

poorest counties. The District’s geography ranges from

1 Office of the Secretary of State, 1992 - 2006 Election History, at

http~/elections.sos.state.tx.us/elchrist.exe (last visited Jan. 28, 2006)

(“Election History”).

8

urban streets to rolling foothills to barren ranchland. The

economic bases include oil and gas, ranching and farming,

border trade, health care, and defense. There are six

military bases in and around the District. The population

density varies considerably by county. The Latino

population is spread throughout the District, but it is not

evenly distributed. Latinos represent a majority in 60% of

the counties (or portions thereof) included in the District.

B. Congressman Bonilla Is The Congressional

Candidate Of Choice For Many Latinos

Despite the economic, cultural, and political realities of

District 23, Appellants posit the existence of a monolithic

bloc of Latinos who oppose Congressman Bonilla; that

adoption of the Texas legislative plan halted the political

momentum of Latinos “on the brink of electing their

candidate of choice,” as shown by the results of the 2002

congressional elections; and that there is today only an

“impression” of Latino support in District 23 for

Congressman Bonilla. Brief for Appellants GI Forum, et al.

(“App. Br.”) at 3, 10. Appellants’ description of such a

“Latino bloc” simply does not tell the whole story.

First, Appellants’ assertion that Congressman Bonilla

was “never the candidate of choice of Latino voters” (App.

Br. at 7) confuses the theoretical inquiry into whether a

minority group is sufficiently large, cohesive, and

geographically compact to elect their “candidate of choice”

under this Court’s decision in Thornburg v. Gingles, 478

U.S. 30 (1986), with the historical reality that Congressman

Bonilla has been the candidate of choice for a great number

of Latinos across District 23 since 1992. Applying the

Gingles factors to a claim that a particular redistricting plan

unlawfully dilutes minority votes requires the challenger to

identify, for analytical purposes, the putative “candidate of

choice” of the minority group. A minority group in turn can

satisfy the Gingles requirements by showing that it is

sufficiently cohesive and geographically compact to function

9

as an effective voting majority supporting that candidate.

1S, App. at 101-03 (summarizing the Gingles factors).

To designate an individual as that candidate (or, here, as

the opponent of that candidate) is far different, however,

from demonstrating as a matter of historical fact that the

candidate was or was not the candidate of choice for

minority voters. It is in this latter regard that the district

court in this case concluded that District 23 “had not

performed consistently as a Hispanic opportunity district.”

J.S. App. at 127. Simply put, District 23 had not

consistently performed for Gingles purposes because the

designated “candidates of choice” (Congressman Bonilla’s

opponents) were not in fact chosen by a sufficient number of

Latinos; instead, a significant number of Latinos chose

Congressman Bonilla. They chose him for a variety of

highly personal reasons: Many chose Congressman Bonilla

because of his work on Latino issues; others chose

Congressman Bonilla because his life story is the story of

countless Latinos throughout the District; and still others

chose him because they too are Republicans. As Appellants

themselves concede, “the willingness of Latino voters to

vote for Mr. Bonilla allowed him to remain in office as his

district grew into one with a majority of Spanish-surnamed

registered voters.” App. Br. at 7.

The reality obscured by Appellants’ confusion is that

Congressman Bonilla has achieved consistent electoral

success over the years only by working to win the votes of

all of the District’s citizens, whether Democratic or

Republican, Anglo or Latino. As a political rookie in 1992,

he overcame long odds against a well-financed, four-term

Democratic incumbent to become the first Latino

Republican Representative from Texas, garnering 59% of

votes in the heavily Latino district.2 In the four succeeding

elections, he garnered 63%, 62%, 64%, and 59% of votes,

8 Barone at 1645.

10

respectively.’ In those elections, conducted under a

“Democratic Party gerrymander” that the district court

noted has been “cited in the political science literature as an

extreme example of wha’ one party can do in drawing a

redistricting map to the detriment of the other” (J.S. App. at

21), Congressman Bonilla was the candidate of choice for a

great number of Latinos across District 23.!° He was able

to gain the support of those voters only through diligent

constituent service and the effective representation of those

voters’ interests in Congress, and that scenario is perfectly

consistent with the goals of the Voting Rights Act.

Second, Appellants’ assertion that the results of the 2002

congressional elections demonstrated an inexorable “shift”

of Latino voters away from Congressman Bonilla (App. Br.

at 9) reads too much into raw election results and fails to

account for a unique confluence of factors bearing little

relation to racial preferences.

9 Barone at 1645.

10 Congressman Bonilla’s work on behalf of the Latino community

has earned him widespread recognition from leaders and organizations

representing that community. In addition to the numerous awards and

recognition he has received from Latino organizations, Congressman

Bonilla also has earned the support of individual leaders in the Latino

community. In the 2002 election, the nonprofit, nonpartisan Latino

Coalition endorsed Congressman Bonilla, as did three former national

presidents of the League of United Latin American Citizens (LULAC)—

an appellant in these consolidated cases. See Javier Barosso, Attorney

Brothers Endorse Bonilla, Laredo Morning Times, Aug. 24, 2902, at 3A.

Even the American GI Forum, the national parent of Appellant GI

Forum of Texas, has previously noted its appreciation for Congressman

Bonilla’s support for Latino veterans. In a 2002 letter to Congressman

Bonilla, then-National Commander Juan R. Mireles cited Congressman

Bonilla’s “pivotal role” in securing GI Forum’s federal charter, his “great

sensitivity to the special issues” affecting Hispanic veterans, and the

“excellent working relationship” between Congressman Bonilla’s office

and GI Forum. Letter from Juan R. Mireles, National Commander,

American GI Forum of the United States, to the Hon. Henry Bonilla,

Member, United States House of Representatives (Sept. 24, 2002).

Commander Mireles also thanked Congressman Bonilla for “being a voice

and effective advocate” for Hispanic veterans. Id.

11

There is no dispute that the 2002 election resulted in the

closest margin of victory for Congressman Bonilla.'! Rather

than a demonstration of hardened Latino opposition to him,

however, the results reflect the unusual circumstances of

that election. Chief among these was the presence of two

strong, well-funded candidates from Webb County (where

Laredo is located) on the Democratic ticket—former State

Representative Henry Cuellar for U.S. Congress and

businessman Tony Sanchez, whose ancestors founded

Laredo, for Texas Governor."* As The Almanac of

American Politics reports, “[wJhen local businessman Tony

Sanchez was the Democratic candidate for governor in 2002,

turnout in Webb County surged ... and the outpouring of

Democratic votes almost enabled an upset of 23d District

Republican Henry Bonilla.”!* Helped by this strong local

enthusiasm for Sanchez, Cuellar overwhelmingly carried

Webb County, where 38,644 voters cast ballots in the

congressional race—an extraordinary 145% jump from the

15,788 who had voted in the 1998 race, when there was

neither a presidential race nor a popular local figure running

for governor.'4 Cuellar’s margin in Webb County was 84%

to 15%—over 26,000 votes.!®

11 Appellants err in reporting Congressman Bonilla’s 2002 margin of

victory as “less than 2 percentage points.” App. Br. at 9. Although

Congressman Bonilla received under 52% of the vote, his opponent,

Henry Cuellar, received approximately 47%. Election History, at

http://elections.sos.state.tx.us/elchrist.exe. Congressman Bonilla’s

margin of victory accordingly was over 4%~—close but nut quite the sliver

Appellants report.

12 See Amy Smith, Looking for Tony, The Austin Chronicle, Dec. 8,

2000, available at http/Avww.austinchronicle.com/issues/dispatch/2000-

12-08/pols_feature.htmi (last visited Jan. 28, 2006).

13 Barone at 1659.

14 Plection History, at http//elections.sos.state.tx.us/elchrist.exe.

18 Barone at 1647. In addition to this dynamic, Cuellar may have had

crossover appeal to Republicans because he had served in the Republican

administration of Governor Rick Perry.

12

A close examination of the circumstances in District 23

in 2002 accordingly shows nothing more than the affinity of

a great number of Latino voters in the District for certain

popular local candidates. Indeed, Congressman Bonilla’s

victory by over 4% in those circumstances indicates the

durable support from Latinos he enjoys throughout the

District. That Congressman Bonilla substantially

outperformed other Republican candidates in Webb County

demonstrates his crossover support.!®

Third, Appellants’ suggestion that District 23 under the

Texas legislative plan only “create[s] the impression of

Latino support” for Congressman Bonilla (App. Br. at 10-

12) ignores recent election results demonstrating strong

support for Congressman Bonilla among Latinos. In 2004,

Congressman Bonilla won reelection with 69% of the vote.

While that result was consistent with the Legislature’s

expressed desire to shore up Congressman Bonilla’s

Republican base and the intended effect of Plan 1374C, it

was Congressman Bonilla’s strength among Latinos

throughout the District that refutes Appellants’ claim.

There are 25 counties in District 23. Congressman Bonilla

lost only two of those counties in 2004: Zavala County and

the portion of E] Paso County that falls within the District.

The Congressman “carried al] the other counties, some of

them 85% to 95% Hispanic.”'7 Importantly, in what The

Almanac of American Politics deemed a “huge

turnaround,” Congressman Bonilla carried the half of Webb

County that remained in the District—mostly so-called

16 Even on his opponent’s home turf of Webb County, Congressman

Bonilla drew 21% more votes than senatorial candidate John Cornyn, 7%

more than Attorney General candidate Greg Abbott, and 50% more than

gubernatorial candidate Rick Perry—all of whom won election. See

Election History, at _ http://elections.sos.state.tx.us/elchrist.exe.

Appellants selectively refer to Republican Comptroller candidate Carol

Keaton Rylander’s impressive electoral performance but fail to disclose

that she won in a landslide against a weak opponent, thus minimizing the

probative value of comparing their vote totals. See id.

17 Barone at 1647.

13

“stranded” Latinos—by a margin of 58% to 41%.'®

Similarly, he won nearly 60% of the vote in Maverick

County, a county that is over 95% Latino and in which

Congressman Bonilla had won only 30% in 2002.'° These

results further show that the 2002 election was an

aberration and that Congressman Bonilla enjoys widespread

support within the Latino community and across both the

old (1151C) and new (1374C) District 23.

C. Latinos Continue To Exert Great

Influence In Congressional District 23

Despite Appellants’ suggestions to the contrary, District

23 has in no way been “dismantled” as a district in which

Latino voters play a substantial, if not dispositive, role in

the electoral process. Indeed, it would strain credulity to

accept Appellants’ claim that 359,000 Latinos are “stranded”

in District 23 under the Texas legislative plan, when that

number accounts for more than half the voting age

population and an estimated 46% of the citizen voting age

population (“CVAP”) of the District. Under the Texas

legislative plan, the District remains an influence district

““where minority voters may not be able to elect a candidate

of choice but can play a substantial, if not decisive, role in

the electoral process.” J.S. App. at 107 (quoting Georgia v.

Ashcroft, 539 U.S. 461, 482 (2003)); see also id. at 130 (noting

that the State legislative plan created six “effective

Hispanic opportunity districts and one that is a Hispanic

influence district”). It is one in which “candidates elected

without decisive minority support [must be) willing to take

the minority’s interests into account,” for they are “not

immune from the obligation to pull, haul, and trade to find

common political ground.” Ashcroft, 539 U.S. at 482-83

(2003) (citations omitted). There is simply no reason to

presume that a Latino incumbent, raised in the barrios of

south San Antonio, Texas will be hostile to this community.

18 Barone at 1647.

19 Plection History, at http//elections.sos.state.tx.us/elchrist.exe.

14

See 42 U.S.C. § 1973(b) (“The extent_to which members of a

protected class have been elected to office in the State or

political subdivision is one circumstance which may be

considered ....”); Gingles, 478 U.S. at 45 (noting that, in

assessing the impact of the contested electoral practice,

“evidence demonstrating that elected officials are

unresponsive to the particularized needs of the members of

the minority group ... may have probative value”) (citing S.

Rep. No. 97-417, at 29 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 207 (“Senate Report”)).

II. THE DISTRICT COURT DID NOT ERR IN

FINDING THAT THERE WAS NO

UNLAWFUL DILUTION OF LATINO VOTES

UNDER SECTION 2 OF THE VOTING RIGHTS

ACT 1

Consistent with the reality that Latinos continue to

participate meaningfully in the political process in District

23, the district court in this case held, based on the totality

of the circumstances, that the Texas legislative plan did not

unlawfully dilute Latino votes under Section 2 of the Voting

Rights Act. J.S. App. at 159, 161. Appellants challenge that

ruling on, among other grounds, the assertion that Section 2

and this Court’s decision in Gingles, 478 U.S. 30, required

the preservation of District 23 as a seventh Latino

opportunity district in South and West Texas. This Court

should reject Appellants’ claim and affirm the district

court’s decision.

A. Appellants’ Allegation That The State

“Dismantled” District 223 Does Not

Establish Dilution Under Section 2

Appellants first claim that the district court erred in

finding no violation of Section 2 of the Voting Rights Act

because District 23 has been unlawfully “dismantled” as a

Latino opportunity district. They further contend that the

district court “erroneously accepted” the State’s assertion

that it “could remedy, under section 2 as well as section 5,

15

the loss of District 23 as a majority-minority district by

creating District 25.” App. Br. at 36. Appellants, however,

seriously misunderstand the nature of the separate and

distinct inquiries under Section 2 and Section 5 of the

Voting Rights Act and the district court’s ruling in this

regard.

First, Appellants’ argument that the Voting Rights Act

prohibited the State from “dismantling” District 23 as a

Latino opportunity district (App. Br. at 27) is based upon

the language of a Section 5 “retrogression” challenge. But

Section 5 provides no support for Appellants’ claim that the

Legislature was required to leave the District 23 created by

the Balderas plan undisturbed.

Section 5 of the Voting Rights Act requires covered

jurisdictions to obtain either administrative preclearance

from the Attorney General or a judgment from the United

States District Court for the District of Columbia that a

proposed change “does not have the purpose and will not

have the effect of denying or abridging the right to vote on

account of race or color.” 42 U.S.C. § 1973c; see Georgia v.

Ashcroft, 539 U.S. 461, 465-66 (2003). “Retrogression,”

however, “is not the inquiry in § 2 dilution cases.” Holder v.

Hall, 512 U.S. 874, 884 (1994) (plurality opinion). Under

Section 5, “the proposed voting practice is measured against

the existing voting practice to determine whether

retrogression would result from the proposed change,” but

“a benchmark does not exist by definition in § 2 dilution

cases.” Jd. at 883-84; see also Reno v. Bossier Parish Sch.

Bd., 520 U.S. 471 (1997) (“Retrogression, by definition,

requires a comparison of a jurisdiction’s new voting plan

with its existing plan. It also necessarily implies that the

jurisdiction’s existing plan is the benchmark against which

the ‘effect’ of voting changes is measured.”) (citation

omitted). Appellants accordingly cannot succeed on a

Section 2 claim “merely by showing that a challenged

reapportionment or annexation, for example, involved a

retrogressive effect on the political strength of a minority

group.” Holder, 512 U.S. at 884 (plurality opinion) (quoting

16

Senate Report at 68 n.224). Instead, they must satisfy the

requirements of Gingles, demonstrate vote dilution under

the totality of the circumstances, and present “a reasonable

alternative practice as a benchmark against which to

measure the existing voting practice.” Id. at 880; see also id.

at 887 (“In order for an electoral system to dilute a minority

group’s voting power, there must be an alternative system

that would provide greater electoral opportunity to minority

voters.”) (O’Connor, J., concurring in part and concurring in

the judgment). As discussed in Section. II.B, infra,

Appellants have failed to do so.

Even under the standards applicable to Section 5,

however, the alteration of District 23’s border clearly was

not retrogressive in the context of the overall plan. As this

Court has held, “while the diminution of a minority group’s

effective exercise of the electoral franchise in one or two

districts may be sufficient to show a violation of § 5, it is only

sufficient if the covered jurisdiction cannot show that the

gains in the plan as a whole offset the loss in a particular

district.” Ashcroft, 539 U.S. at 479 (emphasis added). In

this regard, “in examining whether the new plan is

retrogressive, the inquiry must encompass the entire

statewide plan as a whole.” Jd. (emphasis added). Here,

there is no dispute that the Legislature’s adoption of Plan

1374C caused no statewide decrease in the number of

effective Latino opportunity districts when compared to the

Balderas plan. J.S. App. at 130. That fact conclusively

disposes of any retrogression challenge to the State’s

legislative redistricting plan.

Second, Appellants further confuse the State’s

obligation to ensure non-retrogression under Section 5 with

its Section 2 duty not to dilute minority votes by arguing

that the State cannot “remedy” its supposed Section 2

violation by creating new Congressional District 25. See

App. Br. at 36-38 (citing Shaw v. Hunt, 517 U.S. 899, 917

(1996) (“Shaw IT’); Johnson v. De Grandy, 512 U.S. 997,

1019 (1994)). The Legislature, however, did not draw the

district lines of Plan 1374C for the purpose of remedying

17

some imagined or implicitly conceded violation of Section 2.

The plan was drawn as an incident of its exercise of the

constitutional prerogative to apportion congressional seats

in Texas in accordance with the data from the most recent

census. See Perry v. Del Rio, 67 S.W.3d 85, 91 (Tex. 2001)

(recognizing that under Texas Law, the State legislature

has the obligation to draw congressional districts). While it

is of course true that in drawing lines the State was

obligated to conform its districting plan to the requirements

of Section 2 of the Voting Rights Act, this obligation does

not translate into a requirement that the State retain any

pre-existing district boundaries. As the district court

correctly noted, “[t}he Gingles districts in South and West

Texas could be drawn in different ways, within the

constraints of geography and population distribution,” and

the State “retain[ed] broad remedial power to choose where

and how to draw remedial districts.” J.S. App. at 148-49.

Accordingly, Appellants’ insistence that this Court’s

precedents preclude the State from “trading off’ the rights

of Latino voters in the “dismantled” District 23 for the

rights of Latino voters in newly created District 25 widely

misses the mark. Simply put, if the Legislature’s chosen

plan, viewed on its own merits and not in relation to any

previously existing districts, complies with the strictures of

Section 2, Appellants’ complaint that the Plan separates

certain Latino voters who had previously voted in the same

district “say[s] only that the lines could have been drawn

elsewhere, nothing more.” Johnson v. De Grandy, 512 U.S.

997, 1015 (1994). Neither Section 2 nor this Court’s

precedents accord a voter the right to be a part of a specific

district. See Shaw II, 517 U.S. at 917 n.9 (noting that an

individual plaintiff does not have the right to be placed in a

majority-minority district even where a Section 2 violation

has been shown); J.S. App. at 149 (“(T]o say that the State

could have retained the lines of Congressional District 23

drawn under Plan 1151C and not created a third district

based in the Rio Grande Valley with a majority of Hispanic

18

citizen voting age population is different from saying that

the State was obligated to make that choice.”).

Appellants pay lip service to this inescapable reality,

“recogniz(ing] that any time redistricting occurs, it is likely

that some voters who were originally assigned to a district

in which they were able to elect a candidate of their choice

will find themselves assigned to a district in which that is no

longer true.” App. Br. at 37. They suggest, however, that

because it is often true that this occurs “when the voter is a

member of a group whose share of the population is growing

and thus lives in a district that will be overpopulated, thus

requiring the removal of some voters,” a state may

permissibly effect such a change only when “required by the

Constitution’s mandate of equal protection.” Jd. at 37-38.

Such a rule would cripple the redistricting process—“a most

difficult subject for legislatures”—and would be contrary to

the decisions of this Court respecting a state’s “discretion to

exercise the political judgment necessary to balance

competing interests.” Miller v. Johnson, 515 U.S. 900, 915

(1995); Voinovich v. Quilter, 507 U.S. 146, 156 (1993) (“[TJhe

federal courts are bound to respect the States’

apportionment choices unless those choices contravene

federal requirements.”). So long as the lines drawn by the

State did not violate federal law, federal courts must respect

the choices made by the Texas Legislature.

Appellants’ reliance on this Court’s decisions in Shaw I]

and De Grandy is misplaced, because both decisions

involved acknowledged or assumed Section 2 violations. In

Shaw II, this Court rejected the proposition that “once a

legislature has a strong basis in evidence for concluding that

.a §2 violation exists in the State, it may draw a majority-

minority district anywhere, even if the district is in no way

coincident with the compact Gingles district, as long as

racially polarized voting exists where the district is

ultimately drawn.” Shaw II, 517 U.S. at 916-17 (emphasis

added). This Court held that a Section 2 violation in a

particular area satisfying Gingles’s requirements could not

be remedied by creating a majority-minority district

19

somewhere else. Jd. at 917. Similarly, in De Grandy, this

Court rejected the State’s argument that regardless

whether the Gingles preconditions were satisfied, a Plan in

which a minority group controlled a percentage of districts

equal to its percentage in the relevant population was valid

under Section 2 as a matter of law. De Grandy, 512 U.S. at

1017-18. This Court explained that allowing a State to “fix”

voter dilution in a district that violated Section 2 by adding

votes in a district that had no connection to the Section 2

problem was no remedy at all. Jd. at 1019.

Shaw II and De Grandy stand for the unremarkable

proposition that dilution of minority votes within a given

area cannot be remedied by creating majority-minority

districts outside of the relevant area. In this case, for

instance, if application of Section 2 standards demonstrated

that six Latino majority districts should be drawn in South

and West Texas, the State could not draw five districts in

that area and one in North Texas. But this Court’s

precedents certainly do not stand for the proposition that

shifting district lines within the relevant area while still

maintaining the number of majority-minority districts

mandated by Section 2 is itself a violation of Section 2. As

the district court correctly noted, “Shaw II does not

preclude the State from choosing where and how to draw

majority-minority districts in areas where Gingles is

satisfied.” J.S. App. at 149. States retain great flexibility to

draw the appropriate number of Gingles districts so long as

they do not subordinate traditional districting

considerations to racial ones.” Bush v. Vera, 517 U.S. 952,

20 Appellants appear to suggest that because the State was

compelled to reach farther north in order to draw the necessary Gingles

districts, the Plan is invalid. But this would be true only if Appellants

were able to show that in drawing these districts, the State subordinated

traditional redistricting criteria of compactness and respect for

communities of interest and political divisions to racial considerations.

See Shaw II, 517 U.S. at 935-37. The District Court, however, made

comprehensive findings, supported by the extensive factual record,

demonstrating just the opposite. See J.S. App. at 162-179.

20

978 (1996) (“(TJhe States retain a flexibility that federal

courts enforcing §2 lack, both insofar as they may avoid

strict scrutiny altogether by respecting their own

traditional districting principles, and insofar as deference is

due to their reasonable fears of, and to their reasonable

efforts to avoid, § 2 liability.”). Appellants’ argument that

the shift in District 23’s boundaries violated Section 2 by

“trading off’ Latino voters in District 23 against Latino

voters in District 25 simply attacks a “remedy” as

insufficient without first demonstrating that there was a

wrong. And, as discussed below, the district court correctly

determined that Appellants failed to prove dilution under

Section 2.

B. Appellants Failed To Demonstrate

Unlawful Dilution Of Latino Votes Under

The Totality Of The Circumstanges

In evaluating Appellants’ Section 2 dilution challenge,

the district court was required to determine “based ‘upon a

searching practical evaluation of the “past and present

reality,” [Senate Report] at 30 (footnote omitted), whether

the political process is equally open to minority voters.”

Gingles, 478 US. at 79 (citation omitted). This

determination “requires ‘an intensely local appraisal of the

design and impact’ of the contested electoral mechanisms,”

and is “peculiarly dependent upon the facts of each case.”

Id. (quoting Rogers v. Lodge, 458 U.S. 613, 621-22 (1982)).

Accordingly, the district court’s findings are not to be set

aside unless clearly erroneous. See, ¢.g., id.; City of Rome v.

United States, 446 U.S. 156, 183 (1980).24 The district

court’s rejection of Appellants’ demonstration plan, and its

finding that Appellants failed to demonstrate unlawful

21 «Rule 52(a) broadly requires that findings of fact not be set aside

unless clearly erroneous. It does not make exceptions or purport to

exclude certain categories of factual findings from the obligation of a

court of appeals to accept a district court's findings unless clearly

erroneous.” Pullman-Standard, Div. of Pullman, Inc. v. Swint, 456 U.S.

273, 287 (1982).

21

dilution of Latino votes under the totality of the

circumstances, were consistent with this Court’s

precedents, find ample support in the record, and should not

be disturbed.

First, in order to prevail on their Section 2 claim,

Appellants were required to offer “a reasonable alternative

practice as a benchmark against which to measure the

existing voting practice” that satisfies the so-called Gingles

requirements and demonstrates, under the totality of the

circumstances, that the challenged electoral regime

unlawfully dilutes minority voting strength. Holder, 512

U.S. at 880 (plurality opinion); see Reno v. Bossier Parish

Sch. Bd., 520 U.S. 471, 480 (1997)* Appellants were

required to “postulate a reasonable alternative voting

practice to serve as the benchmark ‘undiluted’ voting

practice” because “the very concept of vote dilution

implies—an4, indeed, necessitates—-the existence of an

‘undiluted’ practice against which the fact of dilution may be

measured.” Bossier Parish Sch. Bd., 520 U.S. at 480. As

Justice O’Connor explained in Gingles, “in order to decide

whether an electoral system has made it harder for minority

voters to elect the candidates they prefer, a court must have

an idea in mind of how hard it ‘should’ be for minority voters

to elect their preferred candidates under an acceptable

system.” 478 U.S. at 88 (O’Connor, J., concurring in

judgment). Appellants submit that the “norm with respect

to which the fact of dilution may be ascertained,” id.

(O’Connor, J., concurring in judgment) (citation omitted),

reasonably should be a demonstration plan in which Latinos

constituting 58% of the citizen voting age population of

South and West Texas are able to elect their preferred

22 This Court in Gingles held that a plaintiff raising a Section 2

dilution claim must establish, at a minimum: (1) that the minority group

“is sufficiently large and geographically compact to constitute a majority

in a single-member district”; (2) that the group “is politically cohesive”;

and (3) that “the white majority votes sufficiently as a bloc to enable it ...

usually to defeat the minority’s preferred candidate.” 478 U.S. at 50-51.

22

candidates in seven of the seven congressional districts in

that area.

The district court correctly rejected this claim as

grounded in a proposition this Court flatly rejected in De

Grandy: that a “failure to maximize” the number of

majority-minority districts is the proper measure of vote

dilution under Section 2 of the Voting Rights Act. 512 U.S.

at 1016-17; see also id. at 1026 (“{TJhe District Court’s

maximization theory was an erroneous application of § 2.”)

(Kennedy, J., concurring in part and in the judgment). In De

Grandy, this Court reversed a district court’s finding that

the state’s redistricting plan unlawfully diluted minority

votes by not creating the maximum number of majority-

minority districts meeting the three Gingles factors, despite

uncontroverted proof that the number of majority-minority

districts created by the State’s plan was roughly

proportional to the minority voters’ respective shares of the

voting age population. Jd. at 1022. This Court explained

that the three Gingles factors, while clearly necessary to

proving dilution under Voting Rights Act Section 2, are not

“sufficient in combination, either in the sense that a court’s

examination of relevant circumstances was complete once

the three factors were found to exist, or in the sense that

the three in combination necessarily and in all circumstances

demonstrated dilution.” Jd. at 1011. Instead, the correct

inquiry is “whether the totality of facts, including those

~ pointing to proportionality,” which “links the number of

majority-minority voting districts to the minority members’

share of the relevant population,” show that the challenged

redistricting plan “would deny minority voters equal

political opportunity.” Jd. at 1013-14 & n.11 (emphasis

added). In this regard, this Court observed that, “[t)reating

equal political opportunity as the focus of the enquiry, we do

not see how these district lines, apparently providing

political effectiveness in proportion to voting-age numbers,

deny equal political opportunity.” Jd. at 1014.

Appellants point to no facts that could serve to justify

this type of race-maximizing “benchmark” or “norm” in the

23

districts at issue here. As in De Grandy, it would be

“absurd” to suggest that a minority group constituting 58%

of the population in South and West Texas is denied equal

participation in the political process unless, consistent with

the designs of Appellants’ demonstration plan, it is able to

control 100% of the political process. Jd.2% Such a

maximization theory, this Court has admonished, “causes its

own dangers, and they are not to be courted.” /d. at 1016.

It “tends to obscure the very object of the statute and to run

counter to its textually stated purpose.” Jd. at 1016~17.

Appellants’ demonstration plan, seeking to guarantee

Latino hegemony in South and West Texas, manifestly was

not a “reasonable alternative” against which to measure the

Texas legislative plan. Holder, 512 U.S. at 880. While “[o}Jne

may suspect vote dilution from political famine,” Appellants

“{are] not entitled to suspect (much less infer) dilution from

mere failure to guarantee a political feast.” De Grandy, 512

USS. at 1017.

Implicitly recognizing that De Grandy forecloses the use

of their plan as the measure for dilution unless the district

court used the wrong standard for assessing proportionality,

23 Indeed, the facts of this case closely parallel those of De Grandy.

In both cases, plaintiffs claimed a Section 2 violation based on alleged

voter dilution in a specific region of the state—Dade County in De

Grandy and South and West Texas in this case. See 512 U.S. at 1006; J.S.

App. at 123. The plaintiffs in both cases offered alternative plans that

proposed the creation of more districts in that particular region than the

state’s plan. See De Grandy, 512 U.S. at 1002-03 (proposing the creation

of eleven Hispanic opportunity districts instead of nine); J.S. App. at 133

(proposing the creation of seven Hispanic opportunity districts instead of

six). In both cases, however, the data presented pertained only to the

percentage and relative voting strength of minorities in the challenged

region and not the whole state. See De Grandy, 512 U.S. at 1022 (“The

complaint alleges no facts at all about the contours, demographics, or

voting patterns of any districts outside the Dade County or Escambia

County areas ....”); JS. App. at 138-39. Finally, in both cases, the

challenged plan contained a percentage share of legislative districts in the

relevant region at least roughly proportional to the minority groups’

percentage of the relevant population. See De Grandy, 512 U.S. at 1014;

J.S. App. at 139.

24

Appellants contend that their proposed creation of seven

majority-minority districts is in proportion to the Latino

citizen voting age population when assessed on a statewide

basis. App. Br. at 46-49. “The first Gingles precondition,”

Appellants argue, “addresses whether minority voters are

geographically concentrated in such a way that the proposed

remedy will address their vote dilution; proportionality

addresses a very different issue—whether minorities enjoy

political opportunity regardless of geographical dispersion.”

Id. at 48. Because Latinos comprise approximately 24.5% of

the entire state’s citizen voting age population, Appellants

contend that “proportionality would be met at 7.83

districts.” Jd. at 48-49.

Appellan‘s’ arguments make little sense. Although De

Grandy presented “no occasion to decide which frame of

reference should [be] used ... on the appropriate

geographical scope for analyzing the alleged § 2 violation

and devising its remedy,” 512 U.S. at 1022, this Court’s

teachings in Gingles provide the controlling principle.

Gingles, 478 U.S. at 49-51. This Court explained in Gingles

that only by demonstrating a sufficiently large and cohesive

concentration of minority voters within a geographically

compact area can minority voters in that area attribute an

inability to elect their candidates of choice to a particular

electoral practice. Jd. at 50-51. Absent such a showing,

factors such as geographic dispersion, a lack of common

interests, or low numbers—not the state’s redistricting

choices—account for the group’s lack of electoral success.

Id. at 50-51 & n.17 (“Unless minority voters possess the

potential to elect representatives in the absence of the

challenged structure or practice, they cannot claim to have

been injured by that structure or practice.”).

Contrary to Appellants’ arguments, minority group

cohesion and concentration are not issues “very different”

(App. Br. at 48) from De Grandy proportionality. The De

Grandy proportionality inquiry simply applies the Gingles

inquiry across multiple districts, asking whether the state

has drawn district lines in a way that reflects the relative

25

political strength of minority voters in the relevant area.

See De Grandy, 512 U.S. at 1011-13. It does not, however,

- allow minority groups to compensate for a lack of cohesion

or wide geographical dispersion outside the relevant area by

requiring the state to artificially bolster their electoral

potency—in this case, “to provide a minority group with

effective political power [72] percent above its numerical

strength.” Id. at 1017.24 De Grandy does not purport to

create “politically cohesive, geographically insular minority

group[s]” where they do not exist. Gingles, 478 U.S. at 49.2

These principles compel the conclusion that the district

court did not err by rejecting Appellants’ demonstration

plan and holding that “(t]he totality of facts and

circumstances, including those pointing to proportionality,

... does not show a violation of § 2 in South and West Texas

under Plan 1374C.” J.S. App. at 161. As in De Grandy, the

totality of the circumstances in this case does not support a

finding of vote dilution, where Latinos constitute 58% of the

citizen voting age population of South and West Texas; they

effectively control six of seven (86%) districts; they wield

considerable influence in the seventh district, District 23;

and Appellants have not “produced evidence otherwise

indicating that [Latino voters] have ‘less opportunity than

other members of the electorate to participate in the

political process and to elect representatives of their

A 4 minority group constituting 58% of the population can be said to

enjoy “effective political power” 72% above its numerical strength by

controlling 7 of 7 districts. De Grandy, 512 U.S. at 1017 n.13.

25 Indeed, even Appellants’ demonstration plan cannot meet

Appellants’ proposed proportionality inquiry. Appellants argue that the

district court should have concluded that eight Latino opportunity

districts were required in order to satisfy their proportionality standard.

App. Br. at 48-49. The demonstration plan, however, contemplates only

seven Latino opportunity districts. No party argues that eight such

districts can be created in South and West Texas, or that an eighth

district can be created elsewhere in the state consistent with Gingles.

Appellants clearly prove too much in trying to unmoor De Grandy

proportionality from the Gingles compactness and cohesion inquiries.

26

choice.” 512 U.S. at 1024 (quoting 42 U.S.C. § 1973(b)).

Indeed, District 23 has consistently elected a Latino

candidate, returning Congressman Bonilla to the House in

six straight elections. See Gingles, 478 U.S. at 75-77 (citing

Senate Report at 29) (finding that “sustained” electoral

success by a minority candidate is inconsistent with a § 2

violation). 76 :

Second, even if a demonstration plan pursuing a

discredited maximization goal could nevertheless serve as “a

reasonable alternative practice ... against which to measure

the existing voting practice,” Holder, 512 U.S. at 880

(plurality opinion), the district court still properly rejected a

claim of dilution on the record here. Appellants failed to

establish that the plan adopted by the State would dilute the

“political effectiveness” that Latinos would realistically

‘achieve in the districts proposed by Appellants. Bossier

Parish Sch. Bd., 520 U.S. at 479 (quoting Senate Report at

28). As the district court found, Appellants’ plan did not

create a greater number of effective Latino opportunity

districts in South and West Texas than the plan adopted by

the Legislature.

26 Appellants’ suggestion that Congressman Bonilla’s race is

irrelevant to the question whether Latinos have less opportunity than

other members of the electorate to participate in the political process

(App. Br. at 34-35) is directly contradicted by the statute and the

accompanying Senate Report (see 42 U.S.C. § 1973(b); Senate Report at

29) and is based on an incorrect reading of the section of the plurality

opinion in Gingles in which Justice Brennan discounted the relevance of

the candidate’s race to the discrete inquiry into whether the plaintiffs had

demonstrated racially polarized voting. 478 U.S. at 67-68. That issue, of

course, does not conclusively answer the question whether, under the

totality of the circumstances, Latinos are able to participate effectively in

the political process. In any event, the plurality’s resolution of that issue

did not command a majority of this Court. See Gingles, 478 U.S. at 82-83

(White, J., with O’Connor and Stevens, JJ., concurring); Baird v.

Indianapolis, 976 F.2d 357, 362 (7th Cir. 1992) (recognizing that only

three Justices agreed that the “race of the persons elected” was

irrelevant to a § 2 claim).

27

The district court in this case was not the first to reject a

claim that Section 2 requires the creation of a seventh

Latino opportunity district in South Texas. In designing

Plan 1151C—the predecessor to the Texas legislative plan—

the Balderas court. expressly rejected such a proposal,

finding that the “Latino population is not sufficiently

compact or numerous to support another, effective majority

Latino citizenship district in Texas, in Dallas County or in

South Texas.” Balderas v. Texas, No. 6:01CV158, 2001 U.S.

Dist. LEXIS 25740, at *26-27 (E.D. Tex. Nov. 14, 2001)

(emphasis added). The court accordingly found that, “under

the totality of the circumstances, the failure to create seven

such districts [would! not prevent full and equal Latino

participation in the political process.” Jd. at *27. This Court

summarily affirmed those findings. Balderas v. Texas, 536

U.S. 919 (2002).

Following Balderas’s lead, the district court concluded

that, even though Appellants’ demonstration plan would

create seven districts each containing a majority Latino

CVAP of at least 50%, the record evidence established that

Latinos would not be likely to elect candidates of their

choice in all seven districts. As the court noted, even

Appellants’ witnesses testified at trial that “a low majority

of the Hispanic citizen voting age population does not

produce an effective Latino opportunity district.” J.S. App.

at 141 & n.134 (citing testimony of Dr. Jerry Polinard, Dr.

Allan J. Lichtman, and Congressmen Charlie Gonzalez and

Ruben Hinojosa). Dr. Polinard testified on behalf of

Appellants, for instance, that because of voting behavior,

“you become comfortable with opportunity districts once

you break into those 60%-plus ranges.” Jd. at 141 n.134

(quoting Tr. File 8 at 50-51). The court accordingly was not

persuaded that the demonstration plan’s proposed 50.3%

Latino CVAP majority in District 28, as well as the Latino

CVAP majorities of less than 60% in five of the seven

districts, would consistently result in the election of Latino

candidates of choice. J.S. App. at 140-41. That factual

finding is fully supported by the record. See De Grandy, 512

28

U.S. at 1011 (“(Tyhe ultimate conclusions about equality or

inequality of opportunity were intended by Congress to be

judgments resting on comprehensive, not limited,

canvassing of relevant facts.”).2"

The district court correctly rejected Appellants’

complaint (see App. Br. at 43) that, having maximized the

number of districts containing majority Latino citizen voting

age populations in their demonstration plan, it should not

matter whether all of those districts would actually function

as effective Latino opportunity districts. J.S. App. at 143.

Even if Appellants’ plan would satisfy the Gingles inquiry

by including more districts with bare majorities, it would

not establish unlawful dilution on this record.8 While the

Gingles factors assist in determining whether “the minority

27 Appellants complain that, having cited the testimony and studies

of their witnesses to support its conclusion that the legislative plan

contained six effective Latino opportunity districts, the district court

should also have viewed that evidence as offering a dispositive answer to

the question whether their demonstration districts were effective Latino

opportunity districts. App. Br. at 45-46 (“Although the District Court

relied upon and reprinted in its opinion the GI Forum’s statistical table

showing six Latino opportunity districts in the State Plan the District

Court excised the portion of that same table showing seven Latino

opportunity districts in the GI Forum plan.”). The district court,

however, acted perfectly within the bounds of its discretion in declining to

adopt the conclusions of Appellants’ witnesses as to the demonstration

plan, in light of other evidence and testimony tending to show that the

plan would have spread the Latino population in South and West Texas

too thinly across seven districts. That the district court, like the Balderas

panel before it, decided to draw the discretionary line between six and

seven Latino opportunity districts after considering the totality of the

circumstances cannot be said to have been clearly erroneous.

28 There is substantial reason to believe that bare majorities are not

sufficient under Gingles. This Court has described the test as asking

whether there are “effective voting majorities” in the relevant area. De

Grandy, 512 U.S. at 1000; id. at 1017 (“districts in which minority voters

form an effective majority”); id. at 1024 (“effective majority”); see also id.

at 1008 (explaining that Gingles “requires the possibility of creating more

than the existing number of reasonably compact districts with a

sufficiently large minority population to elect candidates of its choice”)

(emphasis added).

-

29

has the potential to elect a representative of its own choice

in some single-member district,” Growe v. Emison, 507 U.S.

25, 40 (1993), this Court has squarely held that they do not

establish a Section 2 dilution claim. See De Grandy, 512 U.S.

at 1011; Voinovich v. Quilter, 507 U.S. 146, 158 (1993)

(“(TJhe Gingles factors cannot be applied mechanically and

without regard to the nature of the claim.”).

Appellants could not prove that the State has unlawfully

impaired the “political effectiveness” of Latinos by failing

to adopt a demonstration plan that created the same number

or fewer effective Latino opportunity districts than the

challenged plan. Bossier Parish Sch. Bd., 520 U.S. at 479

(quoting Senate Report at 28). As the district court found,

the Legislature’s plan and the demonstration plan included

the same number of districts in which Latinos constituted at

least 55% of the citizen voting age population, and the

Legislature’s plan included one more district with a Latino

CVAP of over 60%. JS. App. at 142-43. The court,

moreover, found that the legislative plan created “seven

congressional districts in South and West Texas, six with a

majority of Latino citizen voting age population that are ...

effective Hispanic opportunity districts, and one [District

23] that is a Hispanic influence district.” Jd. at 130; see also

id. at 107 (“{I)nfluence districts are voting districts ‘where

minority voters may not be able to elect a candidate of

choice but can play a substantial, if not decisive, role in the

electoral process.””) (quoting Ashcroft, 539 U.S. at 482).2% In

29 There is no reason to reject the district court’s conclusion that,

under the totality of the circumstances, the legislative plan contains six

effective Latino opportunity districts. The district court in this regard

undertook an exhaustive review of population data, regression analyses,

and the testimony of experts and witnesses knowledgeable about on-the-

ground politics in South and West Texas. J.S. App. at 143-62.

Appellants’ own expert, Dr. Richard Engstrom, testified at trial that each

of the six districts with a majority Latino citizen voting age population

provided Latinos with the opportunity to elect their preferred candidate

of choice. Joint Appendix (“J.A.”) at 251 (Tr., Dec. 16, 2003, 8:30 a.m., at

53-54). Appellants’ regression analysis also concluded that Latinos

30

light of the district court’s finding that “a low majority of

the Hispanic citizen voting age population does not produce

an effective Latino opportunity district” (J.S. App. at 141),

there is no basis to conclude that the Texas legislative plan

will “minimize or cancel out the voting strength and

political effectiveness of minority groups” when compared

to Appellants’ demonstration plan. Bossier Parish Sch. Bd.,

520 U.S. at 479 (quoting Senate Report at 28).

CONCLUSION

For the foregoing reasons, amicus curiae Congressman

Henry Bonilla respectfully requests this Court to affirm the

decision of the United States District Court for the Eastern

District of Texas.

Respectfully submitted,

MAUREEN E. MAHONEY

Counsel of Record

LATHAM & WATKINS LLP

555 ELEVENTH STREET, NW

SUITE 1000

WASHINGTON, DC 20004

elected their candidate of choice in eight out of eight racially contested

elections between 1994 and 2002 in every one of the Latino majority

citizen voting age population districts under the Legislative Plan. J.S.

App. at 151-52. Finally, Dr. Engstrom testified at trial that the margin of

victory for the Latino-preferred candidate in demonstration plan District

25 is lower that the margin of victory in legislative plan District 25. J.A.

at 253-54 (Tr., Dec. 16, 2003, 8:30 am., at 56-57). In light of such

overwhelming record evidence, the district court’s finding that the

legislative plan’s contained six effective Latino opportunity districts was

not clearly erroneous.

22.2%,

Nos. 05-204, 05-254, 05-276, 0

4

:

IN THE SUPREME COURT OF THE

‘

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ef al.,

Appellants,

Vv.

RICK PERRY, et ai.,

Appellees

TRAVIS COUNTY, et al.,

Appellants,

v.

RICK PERRY, e¢ al.,

Appellees.

EDDIE JACKSON, et al.,

Appellants,

Vv.

RICK PERRY, ef al.,

Appellees.

GI FoRUM OF TEXAS, et al.,

Appellants,

Vv.

RICK PERRY, ef al.,

Appellees.

On Appeal from the United States District Court

for the Eastern District of Texas

BRIEF OF BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL

OF LAW AS AMICUS CURIAE SUPPORTING APPELLANTS

Deborah Goldberg,

Counsel of Record

Michael Waldman

Jeremy Creelan

BRENNAN CENTER FOR JUSTICE

AT NYU SCHOOL OF LAW -

161 Ave. of the Americas, 12th Floor

New York NY 10013

(212) 998-6730

Counsel for Amicus Curiae

TABLE OF CONTENTS

a i cccccccctcsinnctneniciniitesinsnscccnisscepemitcciitgnsiiibeapidiie i

a NUE sccsististntesccntainenetuseinaneniabsinicicnmensteniiasisiiie ii

interests OF the GmNCUS CII! ...0..0ccrererorsecsseseserseererecsccssososers ]

CIN GE CIID cccsccnnenecsntnsenscnsenanicetnsmiicninnsinnetiininiien I

CINE, ccccsateunsccansnessnsnneurereineninannsesnipenatinenntbannaaatietiaaie 3

I. The Constitution Establishes a Representative Democracy

Incompatible with State Action Designed to

Disadvantage Citizens with Disfavored Political

SI cnccsnaicnegsemainimninescersaseieiscaseninatiinnmnianineiuies 3

A Constitutional Structure..........ccsssssssssesesessessrererees 3

B I CIO cccccsscscessvcssanesrerseresnenecennsnemipansnins 7

C. NE GIIID, vicicrsensnecctescemectonneunesneanenistin 11

D ES FOREN CIID ccccccenccccnmenettinnsrmasneniasin 16

II. The Re-redistricting Violated the First Amendment....... 20

III. There Are Judicially Manageable Standards for

Evaluating the Effect of the Re-redistricting. .......... 22

TELLS SRR TORT PRA RN 27

il

TABLE OF AUTHORITIES

Cases

Alden v. Maine, 527 U.S. 706 (1999) ........cccsccssssssssseserreereeees 4

Anderson v. Celebrezze, 460 U.S. 780 (1983).......... inapdbean 21

Baker v. Carr, 369 U.S. 186, 226 (1962)...........00+ it 3, 5, 16

Burdick v. Takushi, 504 U.S. 428 (1992)......csscsseessercseseeees 21

Bush v. Gore, 531 U.S. 98 (2000)......ssessessesessesresrererees 16, 20

Carey v. Brown, 447 U.S. 455 (1980) ........cccceceeeseseeeeeseees 1]

Cook v. Gralike,

FP ae FOP GS Peresenseccerncenennsnecerntinnceeeneiuapins 11, 12, 26

Cox v. Larios, 542 U.S. 947 (2004) .0........cccccescceceseesseceeeeee 2,6

Duckworth v. State Admin. Bd. of Election Laws, 332 F.3d

FP Ue GO, Fee ierectnctansicnncresseneninstiinemanenisieamnaninness 14

Elrod v. Burns, 427 U.S. 347 (1976) ......cccccccsorcccssscssersseecere 22

Fed. Maritime Comm'n v. §. Car. State Ports Auth., 535 U.S.

Pee aT cncsccstecncccnteinatdupesiiniiinenetiatianbinaitneimaimsiibiitbietaimbinntits 4

Gray v. Sanders,

DE es Be Cre iiccctscsanntnentastninittidencinainmnnmanis 19

Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)

ssateticennipeiadantetnememceatiningaseniasiamcetmmnnniguuetendieinimnnnaeants 16

lll. State Bd. of Elections v. Socialist Workers Party, 440

ER 0 a 4,19

it

In re Legislative Districting of the State, 805 A.2d 292 (Md.

FETED -cacentpestenensenentdininemimncnnantninianttpennenieanibitiniaiaaienenetnian 14

INS v. Chadha, 462 U.S. 919 (1983) .....cccccscssseerseresseneseesenes 3

Kramer v. Union Free School District, 395 U.S. 621 (1969)

sprensneninsinaapeqneniecnennnisthecseioonebeestionnsabenibesseasintpahemeaneicinies 5, 16

Lyng v. Int’l Union, United Auto., Aerospace & Agric.

Implement Workers of Amer.,

AD EF. Bee Cie vcecscescscesninsevsncevsssenemnansnnevimneniestinn 17

Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,

GB UB FD C0 ctraceccecnsscecesncsecseneqneonsesvinstavtenseemsinemnnes 4

O’ Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712

CRD senetnscivsetosncepnsesnacssucvenconibsceeneenecempuegsiitainqninanevtsdequstate 22

People ex rel. Salazar v. Davidson,

FP OSG TEB8. CBB Pesettrcccensccesnscesnsesncsssnnvnsttinnsasneenss 1,7, 10

Plyler v. Doe,

GFT WB, Bie (UF e Pecccccesscescxcetansesnscevecneesociniibatnvesneenenensete 19

Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972) 11, 21

Reynolds v. Sims, 377 U.S. 533 (1964).....c.cccsccersesesees 16, 20

~ Romer v. Evans, 517 U.S. 620, 633 (1996) .ssccssssssssee 18, 20

Rosenberger v. Rector & Visitors of the Univ. of Virginia,

FE Cs BOP CO eR ctacccnssesiacequsaretintinnmnigapetmemeenneseninesien 19

Session v. Perry, 298 F. Supp. 2d 451, 473 (E.D. Tex.),

vacated in five separate orders, 125 Sup. Ct. 351-52

iv

Tarrant County v. Ashmore,

GSS B.W.S6 SIT CEO. Peep rcncsccevsisenesdvceenecsssenessvesemanvisies 7

Tashjian v. Republican Party, 479 U.S. 208 (1986)............ 12

U.S. Term Limits, Inc. v. Thornton,

SHS WZ. FFD (EFI aPevccnpsrevsccsvcenseccmntangiebecancititantie 9,11, 13

Vieth v. Jubelirer, 541 U.S. 267 +. SE aee nr passim

Washington v. Davis, 426 U.S. 229 (1976)...:sessesesessesseserees 24

Wesberry v. Sanders,

FIO UB. © (PRB Ep ccccccscvcccscsssspsecccssnanatecnsessosenssmpnennnineia 8,11

Constitutional Provisions

TOR, CTE. GOR. Ti BS cccevecsscestescscvecsncteseciansutintiniaiinininaimaiieal 7

CB, GAUGE, OF. De TH Be Whe Drennicsoccsscctntiinishestencclemmenbiaunins 4,11

U.S. Comat. ant. 1, § 2, GF. 8 .ccccrecicccossssnssesesossonscssentessbesctenees 4,8

i$ Re FF RY Pk | eee 4

U.S. Comat. 088. BV, § 4 ..cocococcssxssesscesetssnsnapesensnescassssanmnesnstnns 4,7

Other Authorities

Chris Cillizza, Democrats Eye Remap Payback; Leaders

Target Illinois, N.M., Roll Call, Feb. 22, 2005.......... 15, 17

Clay Robison, Undecided Texas Lawmakers Feel Pressure

over New Redistricting Map, Houston Chronicle, July 13,

FBBD cccescarsessctnincssersvisinnsivininenmiannaiainemenle 12

Daniel D. Polsby & Robert D. Popper, The Third Criterion:

Compactness as a Procedural Safeguard Against Partisan

Gerrymandering, 9 Yale L. & Pol’y Rev. 301 (1991)..... 27

Josh Kurtz, Remap Revenge in New York?, Roll Call, March

i II vill hii hatha satesintgubnariatnsneenpneanatmenepaineenneien 17

Office of Inspector General, U.S. Dep’t of Homeland

Security, Report of Investigation INO3-OI1G-0662-S, at |,

available at

http://www.dhs.gov/interweb/assetlibrary/DHS_OIG_Inve

EEE CE oe ee 27

Office of their Inspector General, U.S. Dep’t of Justice, An

Investigation of the Department of Justice's Actions in

Connection with the Search for Absent Texas Legislators,

at 4-6 (Aug. 12, 2003), available at

http://www.usdoj.gov/oig/special/03-08a/final.pdf ......... 26

Sarah Koenig, Congressional Districts Fought in Federal

Suit, Baltimore Sun, June 19, 2002..........ccecseceeceeeeeeeeese 16

Statement of Hon. Kenneth M. Mead, Inspector General,

U.S. Dep’t of Tranp., Federal Aviation Administration

Efforts to Locate Aircraft N711RD (July 15, 2003),

available at

http://www.oig.dot.gov/show_pdf.php?id=1127............. 26

The Federalist No. 52 (James Madison)

Te ee 2)

Thomas B. Edsall, Democrats Hold Edge Over GOP in

Redistricting; Gains Still Possible for Republicans,

Washington Post, Dec. 14, 2001 .............cccccesseceseeeeeeneeees 17

West Texas Opposition, Austin American-Statesman, Oct. 15,

| ee 1!

INTERESTS OF THE AMICUS CURIAE

The Brennan Center unites thinkers and advocates in

pursuit of a vision of inclusive and effective democracy. Our

mission is to develop and implement an innovative, nonparti-

san agenda of scholarship, public education, and legal action

that promotes equality and human dignity, while safeguard-

ing fundamental freedoms. Through the Voting and Repre-

sentation Project, which is part of our Democracy Program,

the Brennan Center seeks to protect the right to equal elec-

toral access and full political participation. The Brennan

Center takes an interest in this case because it implicates

voters’ ability to have a meaningful voice in their govern-

ment in light of increasingly sophisticated gerrymandering

techniques, and because it presents the specter of an escalat-

ing war of mid-decade “re-redistrictings” that will further

undermine the responsiveness of representatives to those

whom they purport to represent. The Brennan Center submit-

ted briefs on related issues in Vieth v. Jubelirer, 541 U.S. 267

(2004), and People ex rel. Salazar v. Davidson, 79 P.3d 1221

(Colo. 2003), as well as a brief supporting an application for

a Stay the first time the current cases were appealed to this

Court. '

SUMMARY OF ARGUMENT

Simply put, this case arises out of perhaps the most noto-

rious, even scandalous, partisan gerrymanders of the past half

century. This redistricting had no purpose other than partisan

gerrymandering. No one even pretends to assert that it had

any other purpose. It was pushed through the state legislature

on entirely partisan grounds just two years after the last,

constitutionally required reapportionment. This mid-decade

' No party’s counsel authored any part of this brief. No person or entity

other than amicus and counsel contributed monetarily to preparing or

submitting the brief. Letters from all parties’ counsel conseming to the

filing of this brief have been lodged herewith.

re-redistricting fails constitutional muster. If it does not fail,

it is hard to imagine what would.

It fails even after the decision in Vieth. If the Vieth plu-

rality and dissenters agreed on nothing else, they agreed on

what the case was about. The author of the plurality opinion

noted that eight of the nine Justices agreed that politics is a

constitutional redistricting criterion “so long as it does not go

too far.” Cox v. Larios, 542 U.S. 947, 952 (2004) (Scalia, J.,

dissenting). The Vieth dissenters did not disagree; after all,

two of them had opined that while some intent to gain politi-

cal advantage was inevitable, “the issue is one of how much

is too much.” Vieth, 541 U.S. at 344 (Souter, J., dissenting).

How far is too far? How much is too much? Whatever

the range of possible answers is, it is plain that 110% must be

too much. That is the weight that one of the re-redistricting’s

architects assigned to political gain for Republicans when

asked about the legislature’s motives. Session v. Perry, 298

F. Supp. 2d 451, 473 (E.D. Tex.) (noting that “political gain

for Republicans was 110% of the motivation for the Plan”),

vacated in five separate orders, 125 Sup. Ct. 351-52 (2004).

The state has contended, and the District Court found, that

the re-redistricting was undertaken purely for political advan-

tage. This Court need not decide whether 51%, or 75%, or -

90% is too much; when the impermissible purpose of harm-

ing voters with disfavored viewpoints is not leavened with

any legitimate state purpose, the state has violated the Consti-

tution.

In many respects, this case is not a typical redistricting

case of the sort considered by this Court several times in

recent decades. It arises out of singular — and distinctly

distressing — circumstances. Ordinary post-census redistrict-

ing, however partisan it may be, serves the nonpartisan state

interest of replacing districts that would otherwise violate the

“one person, one vote” guarantee. The mixture of motives

that attends decennial redistricting—partisanship, incumbent

protection, eliminating mal-apportionment, and so on—may

seem to complicate the formulation of “judicially manageable

standards” for determining whether the resulting map is so

badly skewed towards one faction as to violate the Constitu-

tion. See Baker v. Carr, 369 U.S. 186, 226 (1962). This case,

accepting the District Court’s findings (and the state’s own

contentions), involves no such mixed motives. It requires

only a narrow, judicially manageable rule: state action that is

admittedly and openly taken solely for partisan advantage is

illegal.

In short, 110% is too much.

ARGUMENT

I.

The Constitution Establishes a Representative

Democracy Incompatible with State Action Designed to

Disadvantage Citizens with Disfavored Political Opinions.

Representative democracy, protected by federalism and

the separation of powers as well as by the Bill of Rights and

later amendments, is the essence of the Constitution. Our

foundational text, particularly as amended, enshrines two

principles: the right of the people to participate as equals in

the project of self-governance; and the necessity for represen-

tatives to be accountable to their electors. The Texas re-

redistricting clashes with both of these principles.

A. Constitutional Structure.

The Court has attended to the Constitution’s structure, as

well as the text of specific clauses, in adjudicating the divi-

sion of power both among the branches, see, e.g., INS v.

Chadha, 462 U.S. 919, 946 (1983) (“The very structure of

the Articles delegating and separating powers under Arts. I,

II, and III exemplifies the concept of separation of pow-

ers....”); Northern Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 64 (1982) (plurality opinion) (“[T}he

literal command of Art. III, assigning the judicial power of

the United States to courts insulated from Legislative or

Executive interference, must be interpreted in light of the . . .

structural imperatives of the Constitution as a whole.”), and

between the federal and state governments, see, e.g., Alden v.

Maine, 527 U.S. 706, 728 (1999) (“[SJovereign immunity

derives not from the Eleventh Amendment but from the

structure of the original Constitution itself.”); Fed. Maritime

Comm'n v. S. Car. State Ports Auth., 535 U.S. 743, 754

(2002) (applying “the sovereign immunity embedded in our

constitutional structure”).

' The most fundamental division of power in our demo-

cracy—between the government as a whole and the people

from whom it derives all legitimate authority—sirilarly

suffuses the Constitution. See Jil. State Bd. of Elections v.

Socialist Workers Party, 440 U.S. 173, 184 (1979) (“[V]oting

is of the most fundamental significance under our constitu-

tional structure.”). The Framers included in the text numer-

ous structural elements to give effect to the popular will. See,

e.g., U.S. Const. art. IV, § 4 (guaranteeing states a republican

form of government); art. I, § 2, cl. 1 (requiring periodic

election of House members by “the people’”’); art. I, § 2, cl. 3

(providing for decennial enumeration and establishing mini-

mum population of House districts); art. 1, § 2, cl. 4 (requir-

ing House vacancies to be filled by elections, not appoint-

ments).

Not only the original Framers, but those who have fol-

lowed, have focused their attention on preserving democratic

self-governance. Of the 17 amendments adopted after the Bill

of Rights, 12 deal with the democratic process or the gov-

ernment’s accountability to the people. The Fourteenth

Amendment establishes national citizenship, requires states

to provide equal protection of the laws (including voting

districis of equal population), and conditions states’ represen-

tation in Congress on their granting suffrage to newly freed

slaves. The Fifteenth, Seventeenth, Nineteenth, Twenty-

Third, Twenty-Fourth, and Twenty-Sixth Amendments im-

plement equal universal suffrage by banning voting discrimi-

nation on the basis of race, sex, wealth, or youth; provide for

direct popular election of Senators; and ~ermit residents of

the District of Columbia to participate in presidential elec-

tions. The Twelfth, Twentieth, Twenty-Second, and Twenty-

Fifth Amendments provide for separate elections of the

President-and Vice-President, limit a tame=duck President’s

term, impose a two-term limit on the Presidency, and provide

for orderly succession in time of Presidential disability. The

Twenty-Seventh Amendment enforces accountability by

forbidding Members of Congress from enjoying self-enacted

pay raises without first standing for re-election.

Thus, the Constitution views every American citizen as a

member of a self-governing community of political equals. In

pursuit of that vision, it guarantees to each citizen the right to

participate in democracy through voting, running for office,

and fair representation. It also guarantees that the government

will remain accountable to the people. It is this normative

vision of representative democracy that underlies Baker and

Kramer v. Union Free School District, 395 U.S. 621 (1969).

It is this vision that is desecrated when a state openly, admit-

tedly, and intentionally deprives citizens who have expressed

disfavored viewpoints from participating as political equals

in Our representative democracy.

One would think that the principle of state neutrality

among citizens of different political persuasions ought to be

uncontroversial,

If a State passed an enactment that declared ‘All fu-

ture apportionment shall be drawn so as most to

burden Party X’s rights to fair and effective repre-

sentation, though still in accord with one-person,

one-vote principles,’ we would surely conclude the

Constitution had been violated.

Vieth, 541 U.S. at 312 (Kennedy, J., concurring in the judg-

ment). The question should therefore be, not whether the

Constitution permits a state to do what the Texas legislature

set out to do, for surely it does not. The question is whether

by acting in accordance with Justice Kennedy’s hypothesized

enactment but without adopting the enactment itself, a state

can get away with its constitutional violation because courts

cannot define a judicially enforceable rule giving effect to the

Constitution’s command, For, as Justice Kennedy went on to

point out, pursuing the same outcome by different means

does not render the impermissible permissible. At most, it

makes the violation irremediable:

If that is so, we should admit the possibility remains

that a legislature might attempt to reach the same re-

sult without that express directive.

Id.’ While four Justices concluded in Vieth that no judicially

manageable standard could be crafted in the context of regu-

lar decennial redistricting (a conclusion with which we re-

spectfully disagree), that problem does not affect this case,

for reasons discussed in Point III below. Whatever the diffi-

culties in other contexts, this particular assault on our consti-

tutional structure can be averted by the judiciary.

> Justice Kennedy's description might be applied to the Democratic

gerrymander of Georgia, which was struck down because the party in

power did not quite manage to act “still in accord with one-person, one-

vote principles.” See Cox, 542 U.S. 947.