29 August 2012 at 9:40:38 AM
Court ruling. Are you surprised, in a state where Sid Miller said that the his district, CD 25 was drawn with a tip in Stephenville as a favor to him and where Michael Williams was kicked out of his OWN DISTRICT because Roger Williams (white) wanted to run there? that the court said Texas Republicans intentionally discriminated against minorities? I'm not.
In some cases, black congressional members in Texas had economic drivers such as sporting arenas freshly carved out of their districts, though "no such surgery" was performed on any belonging to white incumbents, according to the U.S. District Court for the District of Columbia.
"Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent's grandchildren," said U.S. Circuit Judge Thomas Griffith, writing the 154-page opinion for the three-judge panel.
Let's look at this-from the court ruling
As we have already noted, CDs 9, 18, and 30 are the only Black ability districts in the benchmark and enacted plans. CD 9 is located south of Houston and incorporates parts of Harris and Fort Bend Counties, CD 18 is located within Houston, and CD 30 is within Dallas. The Texas legislature proposed substantial changes to these districts even though the 2010 Census data shows the population in each was already close to the ideal size.30 We have already determined that these changes are not retrogressive, but they raise serious concerns about what motivated the Congressional Plan.
Congressman Al Green, who represents CD 9, testified that “substantial surgery” was done to his district that could not have happened by accident. The Medical Center, Astrodome, rail line, and Houston Baptist University — the “economic engines” of the district — were all removed in the enacted plan. Trial Tr. 124:6-20, Jan. 20, 2012 AM; see also Defs.’ Ex. 721, Pre-Filed Test. of Congressman Alexander Green 3-4. The enacted plan also removed from CD 9 the area where Representative Green had established his district office. Trial Tr. 124:16, Jan. 20, 2012 AM. Likewise, Congresswoman Sheila Jackson Lee, who represents CD 18, testified that the plan removed from her district key economic generators as well as her district office. Id. at 13:13-14:5, Jan. 23, 2012 PM. Congresswoman Eddie Bernice Johnson of CD 30 also testified that the plan removed the American Center (home of the Dallas Mavericks), the arts district, her district office, and her home from CD 30. Id. at 79:20-81:16, Jan. 18, 2012 PM. The mapdrawers also removed the district office, the Alamo, and the Convention Center (named after the incumbent’s father), from CD 20, a Hispanic ability district. Mem. Opp. Summ. J. Ex. 16, Decl. of Charles A. Gonzalez ¶¶ 3-9, 11, ECF No. 77.
No such surgery was performed on the districts of Anglo incumbents. In fact, every Anglo member of Congress retained his or her district office. Trial Tr. 14:12-15, Jan. 23, 2012 PM. Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren. See Mem. Opp. Summ. J. Exs. 11, 18-19, ECF No. 77. And Texas never challenged evidence that only minority districts lost their economic centers by showing, for example, that the same types of changes had been made in Anglo districts.
United States and the Intervenors convincingly argue — and Texas does not dispute — that removing district offices from minority ability districts but not from Anglo districts has a disparate impact on the minority districts. See U.S. Post-Trial Br. 26. District offices help “provide a meaningful connection between a member and the people represented.” Defs.’ Ex. 721, Pre-Filed Test. of Congressman Alexander Green 4. Their locations are often well known to constituents, often placed to be easily accessible by freeway and public transportation, and serve as a way for members of Congress to communicate with and provide services to their constituents. See id. We are likewise troubled by the unchallenged evidence that the legislature removed the economic guts from the Black ability districts. Texas does not dispute that part of a member of Congress’s job is to “bring economic generators that will benefit that community,” id. Removing those economic generators harms the district. Id. at 3-4; U.S. Post-Trial Br. 26.
The only explanation Texas offers for this pattern is “coincidence.”31 Trial Tr. 95:5-19, Jan. 25, 2012 PM. But if this was coincidence, it was a striking one indeed. It is difficult to believe that pure chance would lead to such results. The State also argues that it “attempted to accommodate unsolicited requests from a bipartisan group of lawmakers,” and that “[w]ithout hearing from the members, the mapdrawers did not know where district offices were located.” Tex. Post-Trial Br. 29. But we find this hard to believe as well. We are confident that the mapdrawers can not only draw maps but read them, and the locations of these district offices were not secret. The improbability of these events alone could well qualify as a “clear pattern, unexplainable on grounds other than race,” Arlington Heights, 429 U.S. at 266, and lead us to infer a discriminatory purpose behind the Congressional Plan.
When taken with the remaining Arlington Heights factors, Texas’s explanation becomes weaker still. First, the historical background gives us grounds for concern. In the last four decades, Texas has found itself in court every redistricting cycle, and each time it has lost. See, e.g., LULAC, 548 U.S. 399; Vera, 517 U.S. 952; Upham v. Seamon, 456 U.S. 37 (1982); White v. Weiser, 412 U.S. 783 (1973); White v. Regester, 412 U.S. 755 (1973); Terrazas v. Slagle, 789 F. Supp. 828 (W.D. Tex. 1992), aff’d sub nom., Richards v. Terrazas, 505 U.S. 1214 (mem.). While a losing streak alone does not control our decision, Texas’s history of failures to comply with the VRA is one of the circumstantial factors that Arlington Heights instructs us to consider.
Next, the sequence of events leading to the passage of the Congressional Plan also supports an inference of discriminatory purpose. Black and Hispanic members of Congress testified at trial that they were excluded completely from the process of drafting new maps, while the preferences of Anglo members were frequently solicited and honored. See, e.g., Mem. Opp.Summ. J. Exs. 18-19; Defs.’ Ex. 370, at 1, ECF No. 77. The Texas House and Senate redistricting committees released a joint congressional redistricting proposal for the public to view only after the start of a special legislative session, and each provided only seventy-two hours’ notice before the sole public hearing on the proposed plan in each committee. See, e.g., Defs.’ Ex. 320, Decl. of Theodore S. Arrington 57-59; Defs.’ Ex. 366. Minority members of the Texas legislature also raised concerns regarding their exclusion from the drafting process and their inability to influence the plan via amendments. See, e.g., Defs.’ Ex. 370, at 1.
Lastly, procedural and substantive departures from the normal decisionmaking process raise flags. Citing failure to release a redistricting proposal during the regular session, the limited time for review, and the failure to provide counsel with the necessary election data to evaluate VRA compliance, the Senate redistricting committee’s outside counsel described the proceedings as “quite different from what we’ve seen in the past.” Id. at 2.
Texas argues that, “[a]t worst, the evidence shows that [it] was guilty of blithe indifference to the wants to certain [minority] Congressmen.” Tex. Post-Trial Br. 29. But we do not find this explanation credible. Although we have already concluded that the Congressional Plan cannot be precleared under section 5’s effect prong, we are also persuaded by the totality of the evidence that the plan was enacted with discriminatory intent. Texas did not adequately engage with the evidence raised by the other parties on this point, and under Arlington Heights we find sufficient evidence to conclude that the Congressional Plan was motivated, at least in part, by discriminatory intent.32 Therefore, we deny Texas declaratory judgment with respect to the Congressional Plan on this ground as well.
Here's about Wendy Davis's district, which is in Tarrant County.
The Senate’s principal mapdrawer and staff director of the Senate Redistricting Committee, Doug Davis (no relation to Senator Davis), began discussing draft maps of new Senate districts prior to the February 2011 release of official Census data by using projected population increases. Defs.’ Ex. 127, at 38-39. Once the 2011 general legislative session started in January, these maps were kept in an anteroom off the Senate floor, where many Republican members were taken individually by Chairman Seliger and Doug Davis to review the draft plans and provide input. See, e.g., Trial Tr. 39:15-25, Jan. 20, 2012 AM; Defs.’ Ex. 809, Dep. of Senator Judith Zaffirini 29:22-25, 30:1-19, Jan. 6, 2012. Senator Davis was consistently rebuffed when she asked to see the plans for SD 10, even as another senator told her that the proposed plan was “shredding” her district. Trial Tr. 38:2-8, 40:11-14, Jan. 20, 2012 AM. Senator Judith Zaffirini’s uncontroverted testimony shows that this scenario was not unique to Senator Davis, but reflected a larger pattern: every senator who represented an ability district was excluded from this informal map-drawing process and was not allowed into the anteroom to preview the maps. See Defs.’ Ex. 809, Dep. of Senator Judith Zaffirini 30:1-3. Indeed, none of the senators representing ability districts were shown their districts until forty-eight hours before the map was introduced in the Senate. See Defs.’ Ex. 129.
Our skepticism about the legislative process that created enacted SD 10 is further fueled by an email sent between staff members on the eve of the Senate Redistricting Committee’s markup of the proposed map. The ostensible purpose of the markup was to consider amendments to the proposed plan, but the email suggests a very different dynamic at work. David Hanna, a lawyer for the Texas Legislative Council, a nonpartisan agency that provides bill drafting and legislative research to the Texas legislature, sent an email to Doug Davis and Senate Parliamentarian Katrina Davis (Doug Davis’s wife). Hanna’s email responded to an earlier message Texas did not produce, but which concerned “precook[ing]” the committee report, i.e., writing the report before the hearing had been held. Trial Tr. 71:23-25, 72:1-7, Jan. 24, 2012 AM. With a subject line titled, “pre-doing committee report,” Hanna’s email read:
No bueno. RedAppl [the redistricting software Texas used] time stamps everything when it assigns a plan. Doing [the Committee Report on] Thursday [May 12] would create [a] paper trail that some amendments were not going to be considered at all. Don’t think this is a good idea for preclearance. Best approach is to do it afterwards and we’ll go as fast as possible.
Defs.’ Ex. 359. Although the chairman of the redistricting committee, Kel Seliger, denied knowing of any advance decision to refuse to consider amendments, he acknowledged what is apparent from the email: the boundaries of the new Senate districts would be a fait accompli by the time of the markup and the committee did not intend to consider any amendments to the plan. Trial Tr. 71:3-25, 72:1-16, Jan. 24, 2012 AM. We agree with Chairman Seliger that, at a minimum, this email shows that a plan was in place, at least at the staff level, such that no new proposals or amendments to the district map would be entertained at the markup
We conclude that Texas has not shown that the Senate Plan was enacted without discriminatory intent. Senator Davis and other Intervenors provided credible circumstantial evidence of the type called for by the Supreme Court in Arlington Heights, which, as a whole, indicates that an improper motive may have played a role in the map-drawing process. Rather than directly rebut this evidence, Texas asserts only that the legislature’s motivations were wholly partisan, untainted by considerations of race. We agree that a plan that impacts minority citizens more harshly than majority citizens is not necessarily at odds with section 5. But under the VRA and Arlington Heights, it is not enough for Texas to offer a plausible, nonracial explanation that is not grounded in the record. It must, at a minimum, respond to evidence that shows racial and ethnic motivation, which it has failed to do. See Arlington Heights, 429 U.S. at 266 (“Absent a [clear pattern of discrimination] . . . the Court must look to other [circumstantial] evidence.”). Here, Texas has made no real attempt to engage with the Arlington Heights factors, even though it concedes that the Senate Plan has a disparate impact on minority voters in SD 10. We find it telling that the legislature deviated from typical redistricting procedures and excluded minority voices from the process even as minority senators protested that section 5 was being run roughshod. One would expect a state that is as experienced with VRA litigation as Texas to have ensured that its redistricting process was beyond reproach. That Texas did not, and now fails to respond sufficiently to the parties’ evidence of discriminatory intent, compels us to conclude that the Senate Plan was enacted with discriminatory purpose as to SD 10....
At the June 3, 2011 hearing, the Senate Redistricting Committee Outside Experts cautioned Members about the care required for compliance with the VRA, testifying that they “furnished the committee an advisement to take [the DOJ 2011 Guidelines] and read them all very carefully.” Defs.’ Ex. 370. Indeed, Chairman Seliger testified that the sole responsibility of these outside counsel was “to vet the maps as we drew them and to inform me or anyone else on the committee whether they were legal or not.” Trial Tr. 81, Jan. 24, 2012 AM (Chairman Seliger). In his pre-filed written direct testimony, Chairman Seliger claimed that he relied on these experts to “inform me if the demographics, performance, or any other attribute of a proposed district would raise concerns under the Voting Rights Act.” Pl.’s Ex. 162, ¶ 4 (Seliger Pre-filed Direct Testimony). To the contrary, these experts testified before the Senate Redistricting Committee that they did not “provide verbal or written guidance or opinion to the committee regarding whether [the proposed Congressional plans were] in compliance with Section 5” because they were not asked to do so. Defs.’ Ex. 370, at 3.
17. On June 6, 2011, the Monday immediately following the Friday hearing, the full Senate considered the proposed congressional redistricting plan, C185 (the “Congressional Plan”). On the floor of the Senate, Senator Zaffirini asked Chairman Seliger if “any minority Members [were] involved in developing” the redistricting maps under consideration. Chairman Seliger bluntly responded, “[n]ot that I recall.” Devaney Decl., ECF No. 77, Ex. 9 (Texas State Senate Journal, June 6, 2011, at A-12). Chairman Seliger also admitted during the floor debate that the Senate Redistricting Committee Outside Experts he hired had not seen the Congressional Plan until it was released in committee and that these outside experts had not evaluated the plan for compliance with the VRA. Defs.’ Ex. 568 at 1. Nevertheless, the Senate passed the proposed Congressional Plan in Senate Bill 4 (“SB4”) on June 6, 2011 by a party-line vote of 18-12. Joint Stipulation, ¶¶ 16-17, 19.
29. Messrs. Downton and Interiano both testified that they did not look at reconstituted election analyses or performance prior to completing the Congressional Plan, even though they both received legal advice that, for VRA compliance, reliance solely on demographic data is insufficient to measure the number of protected districts in the benchmark or the enacted plan. Trial Tr. 1451-52, Perez v. Perry, Sept. 12, 2011 (Interiano); Trial Tr. 57, Jan. 18, 2012 AM (Downton).
30. While the mapdrawers’ reliance solely on demographic data to assess VRA compliance was erroneous, their superiors were negligent of their responsibilities under the VRA. The Chairmen of the Redistricting Committees testified that they relied on the mapdrawers to ensure that the map was “legal,” but made little independent effort to ensure that minority districts were protected. Chairman Solomons did not utilize the Senate Redistricting Committee Outside Experts hired to evaluate whether the Congressional Plan complied with the VRA. Neither he nor Chairman Seliger ever asked for the specific number of minority ability districts required, at a minimum, to ensure that the congressional map complied with the VRA. Trial Tr. 11, Jan. 24, 2012 AM (Chairman Seliger); Trial Tr. 65-67, Jan. 20, 2012 PM (Chairman Solomons testifying that he did not know or identify the number of protected districts in the Benchmark Plan because that determination was made by his staff).
In fact, the court rules that Texas ignored VRA (Voting Rights Act) in order to disenfranchise hispanic voters.
B. Discriminatory Intent in the State House Plan
Because of the retrogressive effect of the State House Plan on minority voters, we do not reach whether the Plan was drawn with discriminatory purpose. But we note record evidence that causes concern. First, the process for drawing the House Plan showed little attention to, training on, or concern for the VRA. See, e.g., Trial Tr. 61:1-66:23, Jan. 20, 2012 PM. And despite the dramatic population growth in the State’s Hispanic population that was concentrated primarily in three geographic areas, Texas failed to create any new minority ability districts among 150 relatively small House districts.
These concerns are exacerbated by the evidence we received about the process that led to enacted HD 117. As detailed above, the mapdrawers modified HD 117 so that it would elect the Anglo-preferred candidate yet would look like a Hispanic ability district on paper. They accomplished this by switching high-turnout for low-turnout Hispanic voters, hoping to keep the SSVR level just high enough to pass muster under the VRA while changing the district into one that performed for Anglo voters. This testimony is concerning because it shows a deliberate race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.
Finally, the incredible testimony of the lead House mapdrawer reinforces evidence suggesting mapdrawers cracked VTDs along racial lines to dilute minority voting power. Texas made Interiano’s testimony the cornerstone of its case on purpose in the House Plan. Trial Tr. 45:22-25, Jan. 17, 2012 AM (“[O]ur [discriminatory purpose] case rests largely on the credibility of one person. His name is Gerardo Interiano.”). Interiano spent close to a thousand hours — the equivalent of six months of full-time work — training on the computer program Texas used for redistricting, id. at 131:3-5, yet testified that he did not know about the program’s help function, id. at 85:18-25, Jan. 25, 2012 PM, or of its capability to display racial data at the census block level, id. at 93:13-19, Jan. 17, 2012 PM. As unequivocally demonstrated at trial, this information was readily apparent to even a casual user, let alone one as experienced as Interiano. See id. at 93:1-15; id. at 88:5-89:17, Jan. 25, 2012 PM. The implausibility of Interiano’s professed ignorance of these functions suggests that Texas had something to hide in the way it used racial data to draw district lines. The data about which Interiano claimed ignorance could have allowed him to split voting precincts along racial (but not political) lines in precisely the manner the United States and the Intervenors allege occurred.
This and other record evidence may support a finding of discriminatory purpose in enacting the State House Plan. Although we need not reach this issue, at minimum, the full record strongly suggests that the retrogressive effect we have found may not have been accidental.
What about Congressional District 25, Sid Miller's district, that includes Somervell County? Between the *benchmark* plan and the *enacted* plan, it changed.
ii. Congressional District 25 in the Congressional Plan
68. In the enacted plan, CD 25 is significantly altered. While CD 25 in the Benchmark extended southeast of Travis County, CD 25 in the enacted plan takes a smaller population from Travis County and extends north to Tarrant County. Compared to its Benchmark configuration, CD 25 in the enacted plan loses population from south Austin and five counties and gains eleven counties. CD 25 in the enacted plan no longer incorporates Bastrop, Caldwell, Colorado, Fayette, Gonzales, and Lavaca counties, and now includes Bosque, Burnet, Coryell, Hamilton, Hill, Johnson, Lampasas, and Somervell counties, as well as portions of Bell, Erath, and Tarrant counties. Compare Pl.’s Ex. 11 with Pl.’s Ex. 12.
69. State House Representative Dawnna Dukes testified that the Congressional Plan “takes the historical African-American community that was forced by segregation into central Austin and moved it into a majority Republican district that runs west . . . .” Trial Tr. 129, Jan. 19, 2012 PM (Dukes).
70. CD 25 in the Benchmark Plan was overpopulated by 115,893 voters, or by 16.59%, and needed to shed this excess population. Pl.’s Ex. 11. Compared to the Benchmark, enacted CD 25 retained only 126,507 of the District’s original voters, lost 489,434, and added 392,869 voting age persons. Defs.’ Ex. 724, tbl. C.2 (Ansolabehere Rep. Oct. 21, 2011). In sum, only 28% of the voters in enacted CD 25 are from the Benchmark district. Id. at 39.
71. In the Congressional Plan, CD 25 is 70.3% Anglo, 17.3% Hispanic, and 8.3% Black. Pl.’s Ex. 12. The CVAP is 78.2% Anglo, 10.3% Hispanic, and 8.1% Black. Id. In short, the citizen voting age population of Hispanics was cut by more than half and of Blacks was reduced by half a percentage point, while the population of Anglos was increased by over fifteen percentage points. In addition, the Anglo population in the new areas added to CD 25 “shows high levels of racial cohesion and polarization” and “85 % of Whites in this new district vote for the same candidate.” Defs.’ Ex. 724, at 35-36 (Ansolabehere Rep. Oct. 21, 2011). In contrast to the new areas added to CD 25, the small area that remains from the old district votes 60% for the minority-preferred candidates. Id. at 39. According to Dr. Ansolabehere, CD 25 in the enacted plan no longer provides minorities living in the district the ability to elect their candidates of choice. Id.
Now, I'm sure you will also not be surprised Greg Abbott is going to appeal. Because that's what he does.
If there is ever a question about the Republican party in Texas deliberately trying to water down the minority vote, this ought to settle it. They are, it ought to make minority voters good and mad enough to quit voting in the Republicans.
voting rights act
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