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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0223%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1074

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0223%3A13. Public record. Not legal advice.