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Perez v. Abbott

United States District Court, W.D. Texas

March 10, 2017

SHANNON PEREZ, ET AL.
v.
GREG ABBOTT, ET AL.

          Before Circuit Judge SMITH, Chief District Judge GARCIA, and District Judge RODRIGUEZ

          ORDER

          XAVIER RODRIGUEZ, District Judge

         This Order addresses Plaintiffs' claims against the plan for the United States House of Representatives (“congressional plan” or “Plan C185”) enacted by the Texas Legislature in 2011, following a full trial on the claims.[1] Plaintiffs mount both statewide claims[2] and regional claims, specifically in the South/West Texas area, Dallas-Fort Worth area, and Houston area, under § 2 of the Voting Rights Act (“VRA”) and the Fourteenth Amendment to the United States Constitution.[3]

         Before turning to the merits, the Court will again explain why the 2011 plan claims are not moot and a determination on the merits of those claims is required. This Court thoroughly explained its reasoning in its September 6, 2013 Order (docket no. 886). Specifically, in rejecting Defendants' argument that the 2011 plans posed no threat and any order on those plans could provide no effectual relief, the Court reasoned: (1) it was Defendants' burden to prove mootness; (2) Defendants failed to meet their burden of demonstrating that the conduct alleged to violate § 2 and the Constitution with regard to the 2011 plans could not reasonably be expected to recur; (3) the fact that a challenged law is amended does not alone moot the underlying claim unless the law has been sufficiently altered so as to present a substantially different controversy; (4) the 2013 plans are heavily derived from the 2011 plans, and Plaintiffs contend that many of the alleged violations of the VRA and the Constitution initially enacted in 2011 persist in the 2013 plans, though some perhaps to a lesser degree; (5) although the new plans may disadvantage Plaintiffs to a lesser degree, they disadvantage them in the same fundamental way such that Plaintiffs are still suffering injury from the 2011 plans, even if they are technically repealed; (6) there is no indication that the Legislature would not engage in the same conduct that Plaintiffs assert violated their rights in upcoming redistricting cycles; (7) because Texas refused to concede the illegality of any conduct, a dispute remains over the legality of the challenged practices and there is no assurance that the conduct will not recur, and Plaintiffs maintain a personal stake in the controversy; and (8) there remains the possibility of declaratory and equitable relief under § 3(c) for some claims. All three members of this Court agreed with this reasoning.

         However, after the Fifth Circuit issued its decision in Davis v. Abbott, 781 F.3d 207 (5th Cir. 2015), in which the Court stated that the 2011 Senate Plan lawsuit had become moot, Defendants again argued that the 2011 House and congressional plan claims were moot. Docket no. 1310. Defendants argued that the Fifth Circuit's mootness conclusion was necessary to its decision that Texas waived its opportunity to seek vacatur of this Court's interim-relief orders in light of Shelby County v. Holder, and that the Fifth Circuit's holding “bears directly on this Court's jurisdiction over claims against the Texas Legislature's 2011 House and congressional redistricting plans.” Docket no. 1310 at 23-24. “At the very least, ” Defendants argued, “Davis implies that the Plaintiffs' claims are moot if they challenge districts that were, like Senate District 10, modified by the Court and later adopted in modified form by the Legislature.” Id. at 25. However, Davis v. Abbott does not change the Court's conclusion that most of the 2011 plan claims are not moot.

         Davis v. Abbott was not a decision about mootness; it concerned whether the plaintiffs in the 2011 Senate Plan case were prevailing parties entitled to fees and costs. It did not announce a new rule of law or change the legal landscape concerning mootness. Thus, the only basis upon which it could change this Court's prior conclusions and bind this Court on mootness is if it is factually indistinguishable from this case. But it is not.

         As a preliminary matter, the Court notes that the case against the 2011 Senate Plan was not consolidated with the House and congressional plans, and it remained a separate case (5:11-CV-00788). It also involved a very limited set of claims, unlike the House and congressional plan cases.

         At the interim remedy stage, the proposed compromise plan[4] approved by this Court under the applicable standard set forth in Perez v. Perry resolved all of the plaintiffs' claims. See docket no. 190 (final judgment noting that Plan S172 “restored [Senate] district 10 to near benchmark configuration and remedied the constitutional infirmities being asserted”). Plaintiffs agreed that the interim Plan S172 did not violate the VRA or the Constitution. Thus, when the Legislature adopted that plan in 2013, no plaintiff was complaining that infirmities remained in the plan or alleged that they were still suffering injury from the repealed 2011 plan, and no plaintiff sought to amend their pleadings to pursue § 3(c) relief. When the Fifth Circuit decided that the 2011 plan claims were moot, it was therefore operating under substantially different facts, and it was not addressing the House or congressional plan claims when it referred to “the lawsuit” becoming moot.

         In this case, in contrast, numerous alleged infirmities from the 2011 plans remained in the interim plans that Plaintiffs contended were continuing to injure them. Unlike in the Senate plan, many asserted VRA and constitutional infirmities were not remedied in the interim plans, and thus the injuries were alleged to persist in the 2013 plans. Thus, there was not only a possibility that Defendants would continue to engage in conduct that Plaintiffs claimed violated the VRA or the Constitution, Defendants were continuing to engage in exactly such conduct when they adopted the interim plans in 2013. The fact that this Court finds that mapdrawers acted with an impermissible intent to dilute minority voting strength or otherwise violated the Fourteenth Amendment and that Plaintiffs are still being harmed by the lines drawn as the direct product of these violations demonstrates that many of Plaintiffs' claims against the 2011 plans are not moot. Specifically, Plaintiffs contended, and this Court finds, that Plaintiffs continue to be harmed by violations of the VRA and Fourteenth Amendment in CD23, CD27, and CD35.

         While Defendants undoubtedly would prefer that we address those infirmities only in the context of the 2013 legislative session and the plans adopted therein, doing so would potentially deprive Plaintiffs of a remedy tied to that 2011 injury-the § 3(c) remedy. Confining the analysis to the 2013 plan claims would significantly impact the intent analysis for Plaintiffs' intentional vote dilution claims given the involvement of a different Legislature and Defendants' assertion that they could have no such discriminatory intent by simply adopting the Court's interim plans. Plaintiffs should not have to jump through additional hoops to prove that the 2011 mapdrawers' intent carried forward to the 2013 Legislature when Plaintiffs' fundamental claims are that the 2011 mapdrawers acted with discriminatory intent, Plaintiffs are still being harmed by the districts drawn with that intent, and Plaintiffs have potential relief available under § 3(c) for that harm. Nothing in Davis v. Abbott requires a contrary conclusion.

         While it is possible that Davis implies “at the very least, ” that the remedied claims are moot, the Court still finds Davis distinguishable based on the possibility of § 3(c) relief for certain claims.[5]Because Plaintiffs are still seeking relief under § 3(c) for certain claims, the Court holds they are not moot even where the districts were altered. As discussed below, however, the Court does agree that the remedied § 2 results claims are moot.

         I. South/West Texas claims

         Plaintiffs contend that § 2 requires that there be seven (and some Plaintiffs argue eight) Latino opportunity districts in the combined areas referred to as South/West Texas. Plaintiffs also contend that Nueces County Hispanics have a § 2 right and should be included in one of those minority opportunity districts, and most Plaintiffs contend that Travis County should not be included. Plaintiffs (other than the Task Force Plaintiffs) contend that CD35, the new HCVAP-majority district that connects portions of Austin and San Antonio, is not a valid § 2 district because it is not compact and because it includes Austin/Travis County, where the Gingles preconditions are not satisfied because there is no racially polarized voting. And Plaintiffs contend that CD23 is no longer a Latino opportunity district despite its HCVAP-majority status.

         Defendants contend that Plan C185 has the number of HCVAP-majority districts in South/West Texas that could be required by § 2 (seven districts), and that the State has discretion in deciding their location based on political and other factors, and thus there is no § 2 violation. Although Plaintiffs acknowledge that Plan C185 contains seven HCVAP-majority districts in South/West Texas, they assert that it does not contain seven Latino opportunity districts, and they assert that Plan C185 does not sufficiently remedy the § 2 violation. A. Whether there should be eight Latino opportunity districts in South/West Texas?

         Some Plaintiffs offered demonstration maps with eight HCVAP-majority districts in South/West Texas. The Supreme Court has recognized that a redistricting scheme may violate § 2 by impermissibly diluting the minority's potential to elect, and has established three threshold requirements for such a vote dilution claim (in the absence of intentional discrimination). The first factor requires that the relevant minority is “sufficiently large and geographically compact to constitute a majority in a single-member district.” Thornburg v. Gingles, 478 U.S. 30, 50 (1986). As this Court noted in its March 2012 order, Plans C188 and C211 include a proposed district that stretches from south Hidalgo County all the way to north Travis County, and the Supreme Court ruled that a nearly identical district in the same location was “noncompact for § 2 purposes.” LULAC v. Perry, 548 U.S. 399, 435 (2006). In LULAC, the Supreme Court emphasized that it was the combination of the “enormous geographical distance” between the Austin/Travis County and Mexican-border communities in McAllen/Hidalgo County, coupled with “the disparate needs and interests of these populations, ” that rendered the district non-compact for § 2 purposes. Id. The Court noted that 77% of the population of the district resided in Hidalgo and Travis Counties, on either end of the district. Id. at 424. Although this number is reduced to 69% in CD10 in Plan C188 and to 73% in CD33 in Plan C211, the basic problem with the proposed districts remains the same. Thus, these plans are foreclosed by LULAC v. Perry and fail to demonstrate that an additional compact opportunity district could be drawn in South/West Texas.

         LULAC demonstration plan C262 proposes a district (CD28) that connects rural southwest Texas counties (Webb, Dimmit, and Maverick Counties) with parts of Bexar County and northeastern Travis County. Plan C261 includes a similar district (also CD28) that extends farther south and connects parts of Starr County with parts of Bexar and Travis Counties. Although these districts are unlike the district found noncompact in LULAC v. Perry insofar as the population is more evenly dispersed among the various counties in the districts, [6] the districts still span a very large distance and connect Hispanic populations in Travis/Hays and Bexar Counties with border communities that seem to have little in common with those populations. Although the Court could perhaps find them to be compact if sufficient evidence were presented, Plaintiffs have not proffered any basis for joining these various populations aside from race to show that this is a compact minority population, taking into account traditional districting principles and communities of interest.[7]

         In addition, Plans C261 and C262 create a long, thin district CD27 that spans from Hidalgo County to Wharton County near Houston, and another long district CD15 running alongside CD27 that joins part of Hidalgo County with Jackson County. Although the Court is aware that sparser population in some south and southwest Texas counties results in larger districts spanning longer distances, Plaintiffs have offered no justification for the creation of such long and narrow districts joining these various populations, other than race. Further, Plan C262 (Korbel's preferred map) creates a CD16 joining El Paso with ten other West Texas counties in a significant deviation from its prior compact configuration in El Paso County, and again there is no evidence in the record demonstrating that joinder of these communities has any basis besides achieving a 50% HCVAP population.[8] Without any additional information, the Court is unable to determine whether the minority populations contained in such districts are compact for § 2 purposes. The fact that the Legislature's enacted map contains three such “fajita strip” districts does not relieve Plaintiffs of their obligation to produce evidence showing that their proposed Gingles demonstration districts are compact for § 2 purposes.[9] Thus, these plans fail to demonstrate that an additional compact Latino opportunity district could be drawn in South/West Texas.

         B. Plaintiffs' claims and proposed maps with seven HCVAP-majority districts in South/West Texas

         Given the Court's conclusion that Plaintiffs have failed to demonstrate that § 2 requires more than seven HCVAP-majority districts in South/West Texas, the Court must initially determine whether Plaintiffs may bring a § 2 claim against a map such as Plan C185 that has seven HCVAP-majority districts in South/West Texas. If so, the Court must relatedly determine whether CD23 and CD35 in Plan C185 are Latino opportunity districts required or permitted by § 2 and whether Nueces County Hispanics have established a § 2 claim.

         Defendants contend that Plaintiffs must show that more HCVAP-majority districts could have been drawn than were included in Plan C185, and because they fail to do so, they cannot bring a § 2 claim. Defendants point to Johnson v. De Grandy, 512 U.S. 997 (1994), in which the Supreme Court stated that, “[w]hen applied to a claim that single-member districts dilute minority votes, the first Gingles condition 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.” Id. at 1008. However, the dispute in De Grandy centered on “whether Hispanics are sufficiently numerous and geographically compact to be a majority in additional single-member districts” and “whether, even with all three Gingles conditions satisfied, the circumstances in totality support a finding of vote dilution when Hispanics can be expected to elect their chosen representatives in substantial proportion to their percentage of the area's population.” Id. at 1007-08.

         This case does involve claims that Plaintiffs are entitled to an additional HCVAP-majority district in South/West Texas, as discussed above in relation to certain Plaintiffs' claim that there should be eight HCVAP-majority districts in South/West Texas. But Plaintiffs also claim that § 2 requires seven Latino opportunity districts in South/West Texas, and Plaintiffs challenge whether the HCVAP-majority districts in Plan C185 are appropriate Latino opportunity districts and whether they sufficiently comply with § 2. The Supreme Court has repeatedly emphasized that “the Gingles factors cannot be applied mechanically and without regard to the nature of the claim.” Id. at 1007 (citing Voinovich v. Quilter, 507 U.S. 146, 158 (1993)). The Supreme Court has never held that a State's creation of a certain number of HCVAP-majority districts forecloses all relief, and nothing in the Supreme Court's precedents indicates that Plaintiffs may not still challenge whether the enacted districts comply with § 2 and are Latino opportunity districts, whether they appropriately and adequately address Plaintiffs' § 2 rights, and/or whether they comply with the Equal Protection Clause. In fact, Shaw v. Hunt, 517 U.S. 899, 916 n.8 (1996), indicates that Plaintiffs may challenge whether the minority districts drawn in the State's plan were lawfully drawn, and that the rule of Johnson v. De Grandy applies only when the State's districts are lawfully drawn (or presumed to be).[10] Thus, while Plaintiffs may not have submitted sufficient proof that they are entitled to eight HCVAP-majority districts in South/West Texas, they have shown that they are entitled to seven such districts, and they may assert claims under Shaw and § 2 against the districts in Plan C185. The Court thus turns to those claims.

         1. CD23 § 2 claims

         Plaintiffs claim that CD23 in Plan C185 is not a Latino opportunity district. Defendants assert that it is, noting that both Spanish Surname Voter Registration (“SSVR”) and HCVAP increased from the benchmark and both are over 50% (54.1%/54.8% and 58.5% respectively). Thus, Defendants argue, the district provides an opportunity for a politically cohesive Hispanic voting population to overcome any equally cohesive Anglo voting bloc. Docket no. 1250-1 at 14. Defendants also take the position that a 50.1% majority-HCVAP district is by definition an opportunity district regardless of its projected election performance or other factors because, if minority voters will “pull, haul, and trade, ” they can control the district. Therefore, Defendants reason, because CD23 is majority HCVAP, it is an opportunity district.

         Plaintiffs and their experts contend that election performance and other factors (as opposed to mere population statistics) determine whether a district is an opportunity district, and most of the experts contend that a district is not a Latino opportunity district unless Latinos can win 50% of the time or more on an exogenous statewide election index. As discussed below, the Court does not agree with either side's position, but finds that proposed CD23 in Plan C185 was not intended to be and is in fact not a Latino opportunity district despite its majority-HCVAP status.

         First, the Court rejects Defendants' bright-line rule that any HCVAP-majority district is by definition a Latino opportunity district. Although some courts have applied such a rule and held that § 2 challenges may not be raised to a majority-minority district, [11] that appears to be a minority view. In fact, Justice Kennedy recognized that a majority-HCVAP district may still lack “real electoral opportunity.” LULAC, 548 U.S. at 428 (Kennedy, J.); see also Bartlett v. Strickland, 556 U.S. 1, 39-40 (2009) (Souter, J., dissenting) (“[E]ven when the 50% threshold is satisfied, a court will still have to engage in factually messy enquiries about the ‘potential' such a district may afford, the degree of minority cohesion and majority-bloc voting, and the existence of vote-dilution under a totality of the circumstances.”).

         Although no Supreme Court decision explains when a majority-HCVAP district lacks “real electoral opportunity, ” some lower courts have considered this issue and, consistent with Justice Kennedy's observation, have recognized that the majority-minority status of a district does not preclude a § 2 claim. For example, in considering a plan in which all five districts were majority-African American (though in terms of registered voters “blacks would have exceedingly slim majorities in some of these districts and minorities in others”), the Fifth Circuit noted that “[t]he mere existence of a black population majority does not preclude a finding of dilution.” Moore v. Leflore Cty. Bd. of Election Comm'rs, 502 F.2d 621, 624 (5th Cir. 1974) (citing Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc) (rejecting claim that “an at-large scheme cannot work a dilution of black voting strength where blacks, though constituting a minority of registered voters, comprise a majority of the total population of the parish” because although population is the proper measure of equality in apportionment, access to the political process and not population is the barometer of dilution of minority voting strength)). The Court recognized that the history of fear and civil rights repression resulted in minimal political activity for African Americans such that drawing a district that retained “the barest of black population majorities . . . enhanced the possibility of continued black political impotence.” Id. The Fifth Circuit therefore affirmed the district court's rejection of such a plan in favor of a plan with four districts with greater black majorities such that “[b]lack voters [were] therefore far more likely to be able to exercise their franchise in a full and meaningful way.” Id. at 625.

         Later, in Salas v. Southwest Texas Junior College District, 964 F.2d 1542, 1547 (5th Cir. 1992), the Fifth Circuit held that even when a protected group is the registered voter majority, it may seek relief in a vote dilution case; the question would be one of proof. The Court recognized that “access to the political process, aside from population statistics, is the criteria by which a court determines illegal or unconstitutional vote dilution.” Id. at 1549. Thus, whether dilution exists is determined as part of the totality of circumstances, peculiarly dependent on the facts of each case. Id. at 1551.

         As Dr. Lichtman noted, demographics alone do not demonstrate opportunity; the degree of racially polarized voting and turnout will affect whether an HCVAP-majority district provides opportunity, such that a searching, practical inquiry is required. Tr1226-27, Tr1258. Gingles established that the majority-HCVAP requirement is the minimum threshold a § 2 plaintiff must demonstrate because otherwise that plaintiff cannot show potential to elect as a matter of law, [12] but the existence of a majority HCVAP in a district does not, standing alone, establish that the district provides Latinos an opportunity to elect, nor does it prove non-dilution. In other words, it is a necessary but not always sufficient requirement for opportunity under Gingles.

         As part of the “totality of circumstances” analysis, courts consider two factors that focus on the effect of past discrimination on minority groups' ability to participate in the political process: (1) the history of voting-related discrimination in the State or political subdivision; and (2) the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process. Clark v. Calhoun Cty., Miss., 88 F.3d 1393, 1399 (5th Cir. 1996) (citing Gingles, 478 U.S. at 44-45). In Salas, the Fifth Circuit also directed courts to consider whether voting is polarized along racial lines and whether the inability of the protected class to elect was caused primarily by racial bloc voting or instead by other circumstances that the VRA does not redress. Salas, 964 F.2d at 1554-55. Looking to the totality of circumstances, it held that a protected group may attempt to prove that its registered voter majority is “illusory” because of errors or shortcomings with the registered voter data, because of practical impediments to voting, or because low turnout at elections was the result of prior official discrimination. Id. at 1555. However, a protected class is not entitled to § 2 relief merely because it turns out to vote in a lower percentage than non-protected voters. Id. at 1556.

         The Second Circuit considered this issue in Pope v. Albany County, 687 F.3d 565 (2d Cir. 2012). The court recognized that a majority-minority CVAP population means that, by definition, if the majority voters are cohesive, they have the opportunity to control the outcomes of elections. Id. at 575-76. However, low voter registration and turnout rates may mean that this opportunity cannot be realized, and “low voter registration and turnout rates raise questions that go beyond the merely statistical because, as the Supreme Court has recognized, such circumstances may sometimes be ‘traceable, at least in part, to [a] historical pattern of . . . official discrimination.'” Id. at 575 n.8. As a result, “the law allows plaintiffs to challenge legislatively created bare majority-minority districts on the ground that they do not present the ‘real electoral opportunity' protected by Section 2.” Id.[13]

         The Seventh Circuit embraced this same principle in Ketchum v. Byrne, 740 F.2d 1398, 1413 (7th Cir. 1984), a case that predates Gingles. In Ketchum, the district court had determined that in fashioning a remedial district, a bare majority constituted an effective majority for minority groups because “there is no statistical or objective evidence in the record that a minority is entitled to or should have more than a majority of the voting age population in order to have a reasonably fair opportunity to vote for candidates of their choice or even to elect candidates of their choice.” Id. at 1411 (citing the trial record of the lower court). But the court of appeals disagreed, explaining that the district court failed to consider “voter registration and turn-out patterns in the Hispanic and black communities” in determining whether there was a reasonable opportunity to elect. Id. at 1413.

         Thus, while an HCVAP-majority always provides a theoretical opportunity, courts and experts in the field have phrased the § 2 requirement (for both liability and remedy in many instances) as providing “realistic opportunity, ” “reasonable opportunity, ” “practical opportunity, ” “effective opportunity, ” and like terms. E.g., Bone Shirt v. Hazeltine, 461 F.3d 1011, 1023 (8th Cir. 2006) (“[A]ll that is required is that the remedy afford Native-Americans a realistic opportunity to elect representatives of their choice.”); Kirksey v. Bd. of Superiors of Hinds Cty., Miss., 554 F.2d 139, 150 (5th Cir. 1977) (“These figures, adjusted upward to a skin-of-the-teeth ‘maybe so' 50% of voting age population, were coupled with inconsistencies in predicting bloc voting patterns to support the inference of ‘realistic opportunity.'”); see also Bartlett, 556 U.S. at 29 n.2 (Souter, J., dissenting) (“§ 2 simply provides that, subject to qualifications based on a totality of circumstances, minority voters are entitled to a practical chance to compete in a roughly proportionate number of districts.”) (emphasis added).[14]

         A “real opportunity” is not a guarantee of success, as the Court is mindful that § 2 does not guarantee electoral success for minority-preferred candidates. LULAC, 548 U.S. at 428 (“We have said that the ultimate right of § 2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race.”) (citation omitted).[15] Along those lines, the Court rejects Plaintiffs' position that a district provides opportunity only if the district would allow minority voters to elect their candidate of choice more than 50% of the time in an exogenous election index. Section 2 does not require that minority-preferred candidates would win some number of exogenous statewide elections in a proposed district. Such a requirement is not compatible with the Supreme Court's directives that § 2 requires a searching, practical inquiry specific to the facts of each case.[16]

         Performance of 50% or lower on a statewide exogenous election index does not automatically rule out minority opportunity. Based on the evidence, we know that CD23 may still perform relatively well for minority-preferred candidates even when its performance on statewide indices is equal to or less than 50%.[17] The OAG 10 indicated that benchmark CD23 performed for minority candidates in only 3 of 10 statewide elections, and Dr. Handley's 2011 and 2014 analyses indicated a 40% and 50% minority success rate. TrA617 (Handley). The Task Force indices revealed a 7/14 (50%) and a 3/7 (43%) success rate.[18] Nevertheless, despite the 50% or less success rate in those exogenous election indices, preferred-minority candidate success in the actual endogenous elections of the district demonstrates that benchmark CD23 did in fact provide “real electoral opportunity.” See TrA592-93, TrA617-18 (Handley) (the endogenous election is most important to consider because it shows whether a district is actually performing for minorities, and she would not rely on the exogenous election index in an existing district); see also Engstrom Corr. Rebuttal Report (docket no. 307-1) at 26-27; Tr512-15 (Engstrom) (to determine whether a district is an opportunity district, he would look to endogenous elections if there were any, and benchmark CD23's endogenous performance demonstrates that it was a Latino opportunity district despite its lack of performance in 2010). Of course a proposed district such as CD23 in Plan C185 will not have endogenous election indices to guide the determination, and performance on an exogenous election index (or various indices, preferably) will be important evidence in determining whether a district provides real opportunity to elect. The Court simply declines to adopt any bright-line rule that sets a specific success percentage on such indices for defining opportunity.

         With these principles in mind, the Court turns to an examination of whether proposed CD23 provides “real electoral opportunity.” The Court begins with the Supreme Court's decision in LULAC v. Perry, 548 U.S. 399 (2006), which concerned CD23 after the 2003 redistricting. In 2003, the Legislature, trying to protect Republican incumbent Henry Bonilla, reduced the HCVAP of CD23 from 57.5% to 46% and “the projected results in new District 23 show[ed] that the Anglo citizen voting-age majority [would] often, if not always, prevent Latinos from electing the candidate of their choice in the district.” Id. at 427. Although the benchmark district “had not been an effective opportunity district, ” the district court found it was “moving in that direction, ” and the Latino candidate of choice won 13 of 15 statewide elections in the district in 2002. Id. at 428. The fact that Latinos had not yet won elections in CD23 itself did not resolve the issue of vote dilution, because the Latino majority was becoming more active and was increasingly voting against Bonilla, such that CD23's “Latino voters were poised to elect their candidate of choice.” Id. at 438. Thus, the Court found that Latino voters had a real opportunity to elect that was taken from them by the redistricting. Id. at 428-29.

         On remand, the U.S. District Court for the Eastern District of Texas redrew CD23 to be an “effective Latino opportunity district” based on its HCVAP numbers (57.4%) and its election performance. LULAC v. Perry, 457 F.Supp.2d 716, 721 (E.D. Tex. 2006) (“In addition to the HCVAP numbers, the underlying data from the statewide elections supports the conclusion that new District 23 will perform as an effective Latino opportunity district.”). Even when drawn to be “effective” and with a 57.4% HCVAP, however, CD23 did not consistently perform for minority candidates of choice, and the elections were close. CD23 elected the minority-preferred candidate in the first two of three endogenous elections, with the loss in which Canseco was elected occurring during the Republican/Tea Party sweep in 2010. According to Dr. Engstrom, the 2010 election was highly racially polarized, and Latino turnout was low. Engstrom Corr. Rebuttal Report (docket no. 307-1) at 25-26; Tr509 (Latino support for Rodriguez was 84.7% while non-Latino support was only 18.1%) (Latinos were 40.77% of actual voters turning out); Tr514 (turnout was low compared to registration percentages); see also Tr1865 (Alford) (agreeing with Engstrom's turnout data).

         In 2011, Republican leaders in the House and Senate were concerned that Canseco would lose the 2012 election unless the district was changed to protect him. TrA224-25 (Seliger) (agreeing that he thought it was possible that Canseco would lose in 2012 if the district were not reconfigured). Mapdrawer Ryan Downton knew that Canseco was not the Latino candidate of choice. Tr966 (Downton) (“I was told that he was not.”); Downton 8-12-11 depo. (Joint Ex. J-62) at 90 (“I don't believe he was.”). As it did in 2003, the Legislature therefore reconfigured the district to protect a Republican candidate who was not the Latino candidate of choice from the Latino voting majority in the district. And as it did in 2003, the Legislature intentionally split a largely Hispanic county (Maverick County, which is 95.7% Hispanic) and city (Eagle Pass) to exclude from CD23 politically active Hispanics who would not support Canseco, while adding in all or parts of more Anglo counties. TrA1666 (Downton) (admitting that some Maverick County Hispanics were excluded from CD23 because they would not support Canseco); Downton 8-12-11 depo. (Joint Ex. J-62) at 87 (portions of Maverick County were excluded because “Maverick County does not have a particularly good record of voting in high numbers for Republicans”). However, this time Downton and the Republican leadership took care to maintain SSVR and HCVAP levels above 50% (and in fact above benchmark), thus maintaining theoretical opportunity, while simultaneously manipulating the population of the district to decrease its potential effectiveness for Latinos. This was not an easy task, given that the Senate-side mapdrawers had been unable to maintain CD23 as an opportunity district and still protect Canseco, TrA222-24 (Seliger), and it did not happen by accident. TrA524 (Flores) (the changes are systematic and precise, not accidental).

         In addition to the Maverick County split to exclude politically active Hispanics who would not support Canseco, mapdrawers (specifically Downton) took steps to increase the turnout gap between Latinos and Anglos and to decrease Latino cohesion in the district. Although Downton did not propose the “nudge factor” idea, Downton understood that manipulating Latino cohesion and turnout would affect a district's performance for minority voters. Downton 8-31-11 depo. (Joint Ex. J-62) at 26-27. Downton admitted to increasing the district's SSVR while simultaneously intentionally manipulating (decreasing) Hispanic voter cohesion in the district by including Republican Hispanics and excluding non-Republican (Democrat) Hispanics. He stated that he did this by looking for precincts with high SSVR and including those with high voting percentages for Republicans and excluding those with lower voting percentages for Republicans.[19] The intentional use of race to maintain or increase the HCVAP and SSVR levels was not done to provide or protect Latino voter opportunity but rather “to create the facade of a Latino district.” See LULAC, 548 U.S. at 441 (noting that the use of race to create the facade of a Latino district weighed in favor of a § 2 claim); TrA525 (Flores).

         Although Downton denied intentionally manipulating turnout, the Court does not find this denial to be credible. More than 600, 000 individuals were moved around to achieve the final configuration of CD23, and 39 voter tabulation districts (“VTDs”) were split. PL-1633. Downton split two precincts in Maverick County, nineteen precincts in Bexar County, nine precincts in El Paso County, one precinct in La Salle County, and eight precincts in Atascosa County, and he did not provide any convincing explanations for the splits, indicating that race was being used as the basis for allocating population into and out of CD23.[20] He moved in lower-turnout Hispanics and moved out higher-turnout Hispanics in some areas. In other areas, he moved in Hispanics but simultaneously moved in Anglos with comparatively higher turnout rates. The net effect across the district was to widen the participation gap by 4.1% (decreasing SSVR turnout and increasing non-SSVR turnout). TrA519-20, TrA523-24 (Flores) (noting that non-Latinos in the district turn out at almost a two-to-one rate compared to Latinos).[21]

         Plaintiffs established by a preponderance of the evidence that turnout was manipulated in addition to cohesion, and the increases in SSVR and HCVAP were not intended to and did not maintain or improve Latino voting strength. TrA518-19 (Flores).[22] Instead, Downton used race to increase the SSVR and HCVAP of CD23 to create the facade of a Latino opportunity district, while he intentionally manipulated Hispanic voter cohesion and turnout to reduce the performance of the district for Hispanic candidates of choice. Downton knew and intended that the changes would decrease performance for Latino-preferred candidates in the district, and he knew from the OAG 10 that he had achieved this intended goal.

         Further, Solomons' statements on the House floor (which were likely prepared by Downton) actively misled other legislators about why changes were made and about the district's performance. He stated that mapdrawers maintained the performing nature of all the Hispanic-majority districts and that increases to SSVR in CD23 were necessary to “maintain the performing nature” of CD23 in particular. D-603.2 at ¶ 367. The evidence indicates that mapdrawers did not maintain the performing nature of the district, that it in fact performed worse, and that mapdrawers were not only aware of this fact but intended it. Yet they claimed their use of race was to help Latino performance in order to maintain the facade of a Latino opportunity district.

         Thus, to protect an incumbent who was not the choice of the Latino majority in the district and who they knew would likely be ousted in the next election by those Latino voters, mapdrawers intended to decrease and successfully decreased the performance of CD23 for minority-preferred candidates. There was both discriminatory motive and improper use of race to achieve the desired goal.[23] While § 2 does not require relief merely due to lower Latino voter turnout, intentionally targeting Hispanic voter turnout and cohesion while advantaging Anglo cohesion and turnout is qualitatively different.[24] And when done to minimize Hispanic electoral opportunity, it bears the mark of intentional discrimination.

         The Court also finds that the reconfiguration of CD23 had the intended effect insofar as it decreased minority performance. This decrease in performance is undisputed, but the parties do dispute whether CD23 still provided an opportunity for minority voters to elect. As noted above, although a district may provide theoretical opportunity given its majority-HCVAP status, whether a proposed district provides “real electoral opportunity” must be determined through an examination of the totality of the circumstances, including its performance on exogenous election indices.

         All of the Plaintiffs' experts opined that CD23 in Plan C185 does not provide electoral opportunity. Dr. Flores concluded that proposed CD23 was not an opportunity district and that a Hispanic candidate would find it very difficult to get elected. Tr454-55. Dr. Arrington also testified that the exogenous election index indicates that CD23 offers no opportunity for Hispanics to elect a candidate of their choice. TrA405. Dr. Engstrom concluded that CD23 was not a Latino opportunity district. Tr515-16. Dr. Lichtman stated that CD23 does not provide a reasonable opportunity to elect minority candidates of choice. Tr1235-36 (also noting that the candidate of choice of Latino voters lost five general elections in 2008 and 2010, and in some cases by wide margins); Joint Expert Ex. E-3 at 15-17, Table 8. Dr. Handley performed a functional election-based analysis of CD23, using its demographics as a starting point, and then considering election performance, racial bloc voting analyses, crossover, cohesion, and participation rates, and concluded that CD23 in Plan C185 would not have given minority voters an opportunity to elect candidates of choice. TrA590-92 (Handley). Her 2014 exogenous election index using six statewide, top-of-the-ticket elections from 2002 to 2012 that included a minority-preferred minority candidate showed 0/6 wins for the minority-preferred candidates. TrA596 (Handley).

         Even Dr. Alford stated that he would not count CD23 as “effective” or “performing” for Latinos (though of course that is not the measure of opportunity). Tr1839, Tr1878; Alford depo. (Joint Ex. J-43) at 139; D-430 (also finding 0/6 wins for Democrats in his reconstituted exogenous election analysis). In his 2014 testimony, however, Dr. Alford opined that CD23 is capable of electing a Democrat (which he equates with Latino candidate of choice) even though it “tilts Republican” in the exogenous election index, and he performed a “reconstituted mosaic” analysis to determine whether this might be true in Plan C185. He concluded that in Plan C100 and Plan C235, there is the potential for the CD23 endogenous election to be more favorable to minority candidates than the exogenous pattern would suggest, and his analysis suggested that it was at least possible that the same would be true for the Plan C185 configuration. TrA1857 (Alford). However, the Court finds that Alford's unique methodology and conclusions are too speculative to be afforded much weight, and his conclusions are outweighed by the numerous expert opinions offered by Plaintiffs that CD23 as configured in Plan C185 does not provide real electoral opportunity.

         In addition to the expert analyses and exogenous election indices indicating that CD23 as enacted in Plan C185 does not provide real electoral opportunity, all of the experts agreed that there is racially polarized voting in Texas, and the State conceded this point with regard to all areas included in CD23. As noted, Dr. Engstrom found significant racially polarized voting in the 2010 general election for CD23. Engstrom Corr. Rebuttal Report (docket no. 307-1) at 25; Tr509 (incumbent Rodriguez received an estimated 84.7% of the votes cast by Latinos and just 18.1% of those cast by non-Latinos).

         The Court further considers the mapdrawers' fracturing of Maverick County and politically active communities in South San Antonio. Disruption of politically active and cohesive Latino voting areas has the foreseeable effect of depressing Latino turnout, magnifying the increase in the turnout gap identified by Dr. Flores. See LULAC, 548 U.S. at 440 (noting that the State acted against those Latinos who were becoming most politically active, dividing them with a district line through the middle of Laredo).

         Plaintiffs also provided evidence concerning the lingering effects of past discrimination on Latino voter turnout and electoral opportunity. Several courts have recognized the “long history of discrimination against Latinos” in Texas and its role in the electoral process. LULAC, 548 U.S. at439-40 (citing cases); LULAC v. Clements, 999 F.2d 831, 866 (5th Cir. 1993) (“Texas' long history of discrimination against its black and Hispanic citizens in all areas of public life is not the subject of dispute among the parties. Nor has anyone questioned plaintiffs' assertion that disparities between white and minority residents in several socioeconomic categories are the tragic legacies of the State's discriminatory practices.”). The Supreme Court has further recognized that “the ‘political, social, and economic legacy of past discrimination' for Latinos in Texas may well ‘hinder their ability to participate effectively in the political process.'” LULAC, 548 U.S. at 440 (citations omitted).

         Dr. Andres Tijerina's expert report was admitted without objection. Joint Expert Ex. E-10. He opined on the history of the violation of civil rights of Latinos in Texas and the use of devices related to voting to limit the Mexican-American vote. Id.; Tr592-96 (discussing use of the white man's primary, the poll tax, the literacy clause, intimidation, corralling, slating). He testified that those devices “left a legacy that hinders and has prevented Mexican-Americans from feeling comfortable and feeling any trust in the electoral system.” Tr595. He states that “[t]he legacy of 150 years of multi-faceted government-condoned discrimination against Mexican Americans in Texas is a state educational system that maintains a high drop out rate and is still characterized by widespread segregation.” Joint Expert Ex. E-10 at 30. He further concludes that, “[a]s a result of the historical discrimination against Mexican Americans in Texas, they still bear the effects of this discrimination which hinders their ability to participate effectively in the political process” and “[i]t is clear that the lower rates of voter registration, voting, and running for elective office are directly related to this discrimination.” Id. at 32; Tr596 (Tijerina) (legacies of past discrimination affect voter registration, voter turnout, campaign organization, running for office, and voting itself).

         Dr. Susan Gonzalez-Baker's report was admitted without objection. Joint Expert Ex. E-9. She concluded that it is clear “that Latino educational achievement lags far behind that of Non-Latino Whites in the same age bracket.” Id. at 7. Further, “absolute median incomes are substantially lower for both [Latino] men and women than they are for Non-Latino Whites.” Id. at 9. Dr. Baker noted that the ACS data “speak to a continuing pattern of disadvantage with respect to social and economic well-being, one that is likely to persist for some time into the future.” Id. “[O]n indicators spanning a range of topics from educational attainment to childhood poverty, to female-household-headship poverty, to income, to unemployment, Latinos display a continuing legacy of disadvantage relative to their Non-Latino counterparts.” Id. at 10.

         Dr. Jorge Chapa's report was admitted without objection. Joint Expert Ex. E-1. Dr. Chapa surveyed certain counties with large Hispanic populations and established that Texas Hispanics have lower levels of both education and income and higher poverty rates when compared to non-Hispanics, and these disparities have persisted throughout the 20th Century. Id. at 4-5. Dr. Chapa noted that the lingering effects of past discrimination such as lower economic and educational attainment are strongly associated with lower rates of registration, voting, and participation in the political system. Id. at 5 (“[D]iscrimination still has a strong present day impact on the education, income and earning of Hispanic Texans.”); id. at 16 (noting effect on voter registration and turnout); Tr179-80, Tr203 (lower economic and educational attainment are strongly associated with lower rates of registration, voting, and participation in the political system); Tr189 (there are lower levels of income, education, and earnings that continue to the present day and they have the lingering effect of lowering the Latino participation rates in vote and registration and politics in general); Tr200 (there are a plethora of studies that show that people with lower levels of education and lower incomes participate less in our electoral system); Tr201 (there are lower registration rates and lower participation rates among registered voters).

         Dr. Lichtman analyzed turnout rates (as a percentage of voting age population) for Hispanics, African-Americans, and Anglos in five elections (2008 President, 2008 U.S. Senate, 2008 Supreme Court Chief Justice, 2010 Governor, and 2010 Lt. Governor) and found a statewide mean turnout rate of 14%, 39%, and 52%, respectively. Joint Expert Ex. E-3 at 10, Table 3. The Fifth Circuit also recently noted in the voter ID case that “the record contains evidence that minority voters generally turn out in lower numbers than non-minority voters and that State-sponsored discrimination created socioeconomic disparities, which hinder minority voters' general participation in the political process.” Veasey v. Abbott, 830 F.3d 216, 261 (5th Cir. 2016). It is undisputed that Latino voter turnout in CD23 in 2010 was low. Tr509, Tr514 (Engstrom); Engstrom Corr. Rebuttal Report (docket no. 307-1) at 25-26; Tr1865 (Alford).

         Considering all the evidence, including the mapdrawers' intent to protect an incumbent who was not the Latino candidate of choice and to lower the Latino performance of CD23, the expert testimony, the high level of racial polarization, the low Latino voter turnout, the manipulation of voter turnout and cohesion, the increase in the turnout gap, the splitting of cohesive, politically active areas (Maverick County, San Antonio), and the lingering effects of past discrimination on turnout and electoral participation, the Court finds that CD23 does not provide real electoral opportunity.

         In sum, the VRA does not require that minority opportunity districts be drawn to give minorities a sure chance or even the best chance at electing their candidates of choice. Minorities are not immune from the obligation to “pull, haul, and trade to find common political ground.” De Grandy, 512 U.S. at 1020. Section 2 does not require those who draw election districts to draw majority-minority districts with the most potential or to maximize minority voting strength, nor does it always require mapdrawers to account for low voter turnout. However, it does require equality of opportunity, and that equality is lacking where the mapdrawers take steps to intentionally disadvantage Hispanic voters in the district, even if done to further political goals. Including lower-turnout Hispanics and excluding higher-turnout Hispanics (and fracturing politically cohesive and active Hispanic communities), while simultaneously including higher-turnout Anglos in the district ensures that Hispanics have less practical opportunity to elect. Although the State contends that it has no obligation to account for low Hispanic voter turnout, it certainly has an obligation to avoid treating Hispanic voters less favorably than Anglo voters in determining the population of the district. Similarly, mapdrawers cannot intentionally target Hispanics by including less cohesive Hispanic precincts and those with higher Anglo cohesion in an attempt to depress Hispanic opportunity to elect. Because mapdrawers had the intent to provide Hispanic voters less opportunity to participate in the political process and elect their candidates of choice, and they effectuated that intent in CD23, CD23 violates § 2 in both intent and in effect.

         2. CD23 Shaw-type racial gerrymandering claims

         The Task Force Plaintiffs also mount a Shaw-type racial gerrymandering claim against CD23. See docket no. 416 at 36; docket no. 1313; docket no. 1308; Fourth Am. Complaint (docket no. 891) ¶ 56. Defendants do not contest standing on this claim. See docket no. 1310. Plaintiffs Gilberto Torres and Socorro Ramos live and vote in CD23 in Plan C185, and thus they have standing to assert this claim. Docket no. 277 at 17 (stipulated); Shaw v. Hunt, 517 U.S. 899 (1996); Bush v. Vera, 517 U.S. 952 (1996).[25]

         The Supreme Court recently reaffirmed that a Shaw-type racial gerrymandering claim is “that race was improperly used in the drawing of the boundaries of one or more specific electoral districts.” Alabama Legislative Black Caucus v. Alabama, 135 S.Ct. 1257, 1265 (2015). The plaintiff's evidentiary burden is “to show, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motiving the legislature's decision to place a significant number of voters within or without a particular district.” Id. at 1267. In Alabama Legislative Black Caucus (“Alabama LBC”), the Court recognized such a claim in plaintiffs' evidence “that the legislature had deliberately moved black voters into [certain] majority-minority districts . . . in order to prevent the percentage of minority voters in each district from declining.” Id. at 1266-67.[26]

         In this case, there is clear evidence that Downton moved certain populations of Hispanics into CD23 to increase its SSVR and HCVAP numbers. In doing so, traditional redistricting principles such as respecting city and county boundaries were subordinated to this racial goal when Downton placed half of Maverick County into CD23 solely to maintain Hispanic numbers, splitting both Maverick County and the City of Eagle Pass. Downton 8-12-11 depo. (Joint Ex. J-62) at 35 (stating that half of Maverick County was placed into CD23 to make sure they were not reducing Hispanic population percentages); id. at 86 (“And so 23 in order to stay at benchmark level needed to be more Hispanic in other areas. I think that's why Maverick County is included.”); id. at 88 (Maverick County population was included solely to maintain Hispanic numbers “to comply with the Voting Rights Act” and not for political reasons); TrA1642 (“we had to maintain the existing majority Hispanic status” of CD23); TrA1754-56 (Downton) (he was not paying attention to the City of Eagle Pass boundaries when adding in Hispanic portions of Maverick County even though the City is a community of interest). Downton and Interiano stated that maintaining or increasing Hispanic percentages needed to be done to comply with the VRA. Downton 8-12-11 depo. (Joint Ex. J-62) at 88, 73-74 (stating that they tried to comply with the VRA “to make sure that [CD23] wasn't subject to court challenge” by maintaining or increasing all Hispanic population percentages, including total population, HVAP, SSVR, and HCVAP). Downton also stated that he deliberately looked for and included certain precincts with high SSVR. The Court finds that race was the predominant motive in the decision to include significant numbers of Latino voters into CD23, triggering strict scrutiny.

         To survive strict scrutiny, the challenged districting plan must be narrowly tailored to serve a compelling governmental interest. Bush, 517 U.S. at 976. Downton indicated that he was trying to increase HCVAP enough to be safe from a VRA challenge even though the district's minority electoral performance remained low.[27] US-630 (May 28 email). Downton testified that he was the one who “made the call” regarding inclusion of part of Maverick County. TrA1668. However, increasing Hispanic numbers simply to avoid a VRA challenge and without attempting to ensure or maintain opportunity to elect (to comply with § 2) or ability to elect (to comply with § 5) (and in fact working to decrease such opportunity and/or ability) cannot survive strict scrutiny because such use of race was not to comply with the VRA. See Alabama LBC, 135 S.Ct. at 1274-75 (use of race to preserve minority percentages without preserving minority ability to elect would not be narrowly tailored to comply with § 5); Bush v. Vera, 517 U.S. 952, 959, 976 (1996) (explaining that to survive strict scrutiny, the district must be narrowly tailored to further a compelling governmental interest).

         The Court thus finds that Plaintiffs have established a Shaw-type equal protection violation in the drawing of CD23 because the use of race predominated in the decision to include substantial population within and without the district, subordinating traditional redistricting principles, and the use of race was not narrowly tailored to comply with a compelling state interest.[28]

         3. CD35 Shaw-type racial gerrymandering claim

         Although Defendants contend that the Rodriguez Plaintiffs have not asserted any Shaw-type claims, see docket no. 1310 at 4-5, these Plaintiffs have plainly asserted such a claim related to CD35 throughout this litigation as part of their Fourteenth Amendment equal protection claim.[29] The Court recognized this in its March 19, 2012 order, in which it noted that “[c]ertain Plaintiffs, but primarily the Rodriguez Plaintiffs, contend that CD 35 is an impermissible racial gerrymander.” Docket no. 691 at 41-42. The Court concluded that, “[w]hether CD 35 crosses the line from a permissible § 2 district to an impermissible racial gerrymander is a close call” and then analyzed the district under the Shaw line of cases. Id. at 42-49.

         The Rodriguez Plaintiffs contend that the new CD35 was drawn predominantly on the basis of race but is not a reasonably compact district and does not comply with § 2. See docket no. 424 at 26; docket no. 1277 at 40-41. In support, they note that Defendants' expert Todd Giberson ranked it as the least compact district in Plan C185 by each of the three technical compactness measures, [30]that Dr. Alford also stated it was not a compact district, and that Downton stated it was “borderline” and that he had his doubts that the district was required by § 2. Docket no. 1277 at 40-41; Joint Expert Ex. E-18 (Giberson report); Alford depo (Joint Ex. J-43) at 42-44 (noting that CD35 caught his eye and was “definitely not a compact district”); Tr987-88 (Downton). The Rodriguez Plaintiffs further argue that CD35 is “tenuous . . . in terms of the way it links different communities of interest, as well as the way it disregards traditional districting criteria.” Docket no. 424 at 28; docket no. 1277 at 42. They note that in Travis County, mapdrawers “went to extreme lengths to gather in Hispanic population” and that minority communities in San Antonio and Austin were linked in a questionable manner into the non-compact new CD35. Docket no. 424 at 28-29; docket no. 1277 at 43. Their claim therefore addresses the elements of a Shaw-type racial gerrymandering claim-that race was improperly used in the drawing of the district boundaries, that race was the predominant factor motivating the decision to place a significant number of voters within the district (such that traditional districting criteria were disregarded or subordinated to racial criteria), and that such use of race was impermissible (would not survive strict scrutiny) because the district is not compelled by or drawn in compliance with the requirements of § 2 of the VRA.

         Although the Rodriguez Plaintiffs assert an interrelated claim under Bartlett v. Strickland that Defendants intentionally destroyed a viable crossover district in Travis County (benchmark CD25) and an intentional vote dilution claim, that does not mean they are only asserting an intentional discrimination claim. As they noted in their Advisory in response to the Court's request for briefing after the Alabama LBC decision, “Crossover CD25's dismantlement contains elements of both intentional minority vote dilution and a racial gerrymander. The intentional vote dilution suffices to invalidate it, but the predominance of race in the way it was accomplished also would invalidate it, in light of Alabama LBC, as a racial gerrymander.” Docket no. 1302 at 3 n.1. Thus, the Rodriguez Plaintiffs have stated a Shaw-type claim against CD35, and Plaintiffs Eddie Rodriguez and Betty Lopez have standing to assert this claim because they live in CD35 in Plan C185. Docket no. 277 at 17 (stipulated).[31]

         In its interim map order concerning the CD35 Shaw-type claim, this Court concluded that this was a “mixed motive” case as described by a plurality of the Court in Bush v. Vera, 517 U.S. 952, 959 (1996), and noted that in such cases “determining when traditional districting criteria have become subordinated to race is highly fact specific and difficult.” Docket no. 691 at 44. The Court did not find Plaintiffs likely to prevail on this claim because Plaintiffs had “not convinced the Court at [that] stage that district lines in CD 35 were manipulated to such an extreme degree” that race predominated. Docket no. 691 at 46. The Court now finds that its preliminary finding-made without the benefit of a full examination of the evidence-was in error. A careful review of the evidence shows that CD35 was drawn in such a manner that race predominated. Further, the Court finds that CD35 does not survive strict scrutiny.

         The Court's fact findings based on the entire record provide ample support for the conclusion that race was the predominant factor motivating the decision to place a significant number of voters within or without CD35. It is undisputed that the Legislature, and its mapdrawer Ryan Downton, intended to create CD35 as a new Latino opportunity district, meaning it had to have over 50% HCVAP. Tr915-16 (Downton) (stating that he was “directed to” create “a new citizen voting age population majority district for Hispanics in Texas”); Tr918 (Downton) (“When we drew the map originally, we were focused on getting District 35 above 50 percent of HCVAP.”); TrA1642 (Downton) (“When we were creating District 35, we were creating a Section 2 majority Hispanic CVAP district, so it had to be over 50 percent.”). That criteria (a majority HCVAP) was the number one criteria for drawing the district, and could not be compromised for any other purpose or traditional districting criteria. Downton 8-12-11 depo. (Joint Ex. J-62) at 86 (“We had to keep or we wanted to keep 35 above 50 percent.”).

         Defendants admit that Downton set out to draw a majority-HCVAP district when he drew CD35 and that he considered racial data to reach the 50% threshold. Docket 1272 at 126. However, Defendants argue that non-racial factors, including placing the district where the population growth occurred and partisan politics (including targeting Congressman Lloyd Doggett), as well as other considerations such as requests from Texas House Representatives to keep Guadalupe County whole or to weight the district more heavily toward Bexar County played a role in shaping the district. The Court finds that while other factors did play some role in shaping the district, racial criteria had a qualitatively greater influence on the drawing of district lines and selection of district population, such that race predominated over other districting criteria and those other criteria were subordinated to race.[32]

         Previously, the Court found significant that although Downton admitted to trying to include Hispanics in the Travis County portion of CD35, Downton had not maximized the Hispanic population in CD35 because some Travis County Hispanics were left outside CD35. See docket no. 691 at 46-47. Because of this, the Court noted that “Plaintiffs' assertion that the Legislature ‘went to extreme lengths to gather in Hispanic population' [was] not fully supported by the evidence.” Docket no. 691 at 47. Upon a full review of the record, the evidence has shown that Downton was trying to weight the district more toward Bexar County at the request of certain Representatives, and thus he did not maximize the number of Hispanics in the Travis County portion of CD35. It is clear, however, that whatever population Downton chose to include in the Travis County portion of CD35, he included because that population was Hispanic and not for other reasons. See, e.g., TrA1673-1674 (Downton stating that he included “the Hispanic areas of Travis County” in CD35), Tr989 (with regard to an area in north central Austin included in CD35, he said, “If that is a Hispanic area, and I think it is likely that it is, then, yes, it would have been included in District 35 as we were trying to create a Hispanic majority district.”).

         Downton admitted to drawing the Travis County portion of the district using racial shading in order to find concentrated Hispanic populations to include in CD35. TrA1674-75 (“At some point in trying to get District 35 over the 50 percent threshold, I also turned on racial shading for Travis County to find the concentrated Hispanic populations to draw them in to get over the 50 percent benchmark.”). This led to some precinct splits, including the Precinct 433 split to divide St. Edward's University to place the dorms (with large Hispanic student population) into CD35, while placing the administration building in CD21, and the Precinct 440 split to include an arrowhead shape containing the Riverside apartments (a more Hispanic population) within CD35. Tr1198-99 (Butts); TrA1631 (Downton) (stating that sometimes splitting precincts was required by the VRA).[33]Downton admitted that the “squiggle” at the northern part of CD35 was included to increase Hispanic population, and racial shading confirmed that this area was 90-100% Hispanic. Tr989 (Downton). He also noted that he split the African-American community in East Austin because he had to include some of that population in CD35 “to create a conduit to pick up the rest of the Hispanic population in the northwest part of 35.” TrA1779 (Downton).[34] When asked why he wanted “to go up to the northwest part of 35 to join Hispanic population to south San Antonio, ” he responded, “Because we were trying to create a Hispanic opportunity district that was over 50 percent HCVAP.” Id. Downton admitted that he paid no attention to the City of Austin boundaries. TrA1782 (stating he did not pay attention to City of Austin boundaries when drawing CD35). The CD35 district lines in Travis County do not match up with any city boundaries, with House districts, or with any recognizable communities of interest other than race. TrA1780-81 (Downton) (agreeing that the various House districts were divided among several congressional districts); TrA1776 (Downton) (“I think I kept the Hispanic community of interest in east Austin together in District

         35.”).[35]

         In the Bexar County portion of CD35, Downton included areas with high percentages of Hispanic residents and voters and excluded less Hispanic areas. Downton 8-12-11 depo. (Joint Ex. J-62) at 116 (noting that they tried to raise Hispanic percentages in CD35 by including Hispanics from Bexar County); id. at 120 (noting that the fact that CD35 is narrow in northern Bexar County is a “Voting Rights Act issue” because “[t]hat northeastern part of Bexar County has a very low concentration of Hispanics, so if we had widened that out up there, it would cause a problem in keeping another majority Hispanic district”); TrA1642-43 (“So in creating District 35, originally, we took a lot of Hispanics out of District 20 to put them into District 35”; and after moving some Hispanic population to increase Hispanic numbers in CD20, “we had to get additional Hispanic population into District 35 to replace what we were giving back to 20, and then we took that from 23”); TrA1752-53 (stating that he did not know about or attempt to consider actual communities of interest in San Antonio, and that he was trying to create districts under the VRA and was “required to consider race to create those”); Davis depo. (Agreed Ex. J-58) at 99-100 (noting that the downtown San Antonio area moved from its historic location in CD20 to the new CD35 was a “Latino community that . . . the policymakers chose to use as a base for the new 35th district”). Further, as discussed more fully in the fact findings, although Rep. Kuempel wanted Guadalupe County kept whole in CD15 and mapdrawers wanted to keep small cities whole, these goals were compromised to keep the HCVAP of CD35 above 50%. TrA1655, TrA1663 (Downton).

         The evidence is clear that racial considerations predominated in the determination of what population to include in CD35.[36] That Downton and the Legislature also had the purpose of using CD35 to try to unseat Lloyd Doggett (who lives in Austin/Travis County) does not negate the finding that they used race to do so. See Shaw, 517 U.S. at 907 (noting that the fact that the legislature addressed other interests, including creating one rural and one urban district and partisan politicking, “does not in any way refute the fact that race was the legislature's predominant consideration”); Bush, 517 U.S. at 959, 962 (finding that race was the predominant factor even when the redistricting process was not “purely race-based”); Clark v. Putnam Cty., 293 F.3d 1261, 1270 (11th Cir. 2002) (“[The] fact that other considerations may have played a role in . . . redistricting does not mean that race did not predominate.”); Harris v. McCrory, 159 F.Supp.3d 600, 615 (M.D. N.C. 2016) (even in a “mixed-motive suit”-in which a state's conceded goal of “produc[ing] majority-minority districts” is accompanied by “other goals, particularly incumbency protection”-race can be the predominant factor in the drawing of a district without the districting revisions being “purely race-based”), probable jurisdiction noted, 136 S.Ct. 2512 (2016) (No. 15-1262).

         The Legislature could have simply divided Travis County and Austin Democrats among five Republican districts to unseat Doggett. They did not do so, as the evidence demonstrates (including the supplemental report of Dr. Ansolabahere, showing that the district lines correspond more strongly with race than with party affiliation). Downton chose which population to include in CD35 on the basis of race, not political affiliation.[37] He created a Hispanic-majority district so that he could use the creation of exactly such a district (which appeared to be friendly to Hispanic voters and in compliance with the VRA) to fulfill a political motive of unseating Doggett in part by putting Doggett's Hispanic constituents in a Bexar-County weighted district.[38] And placement of a new VRA district in part in Travis County allowed the Republican-dominated Legislature to create a new majority-minority district while simultaneously destroying an existing Democrat district, in accord with the objective to create a “3-1 map” that increased the number of Republican seats by three and Democrat seats by only one. The fact that creation of an HCVAP-majority district also fulfilled a political goal does not mean that the district was not created with race as the predominant consideration. The Court thus finds that race predominated in the drawing of CD35 and that strict scrutiny applies.[39]

         As noted, to survive strict scrutiny, the challenged districting plan must be narrowly tailored to serve a compelling governmental interest. Bush, 517 U.S. at 976. Compliance with § 2 of the VRA constitutes a compelling governmental interest. Id. at 994 (O'Connor, J., concurring); Clark v. Calhoun Cty., 88 F.3d at 1405. However, Defendants must do more than simply assert that they were attempting to comply with the VRA to survive strict scrutiny. “[T]he State must have a strong basis in evidence for concluding that the three Gingles preconditions exist in order to claim that its redistricting plan is reasonably necessary to comply with § 2.” Clark v. Calhoun Cty., 88 F.3d at 1405-06; see also Shaw, 517 U.S. at 915; Bush, 517 U.S. at 978 (“The State must have a ‘strong basis in evidence' for finding that the threshold conditions for § 2 liability [i.e., the Gingles preconditions] are present.”).

         Here, the Task Force Plaintiffs (who proposed a new Travis County/Bexar County Latino opportunity district during the legislative session) contend that CD35 is an appropriate § 2 district because it satisfies all Gingles criteria. See docket no. 460 at 16-18; docket no. 638 at 36.[40] The Task Force Plaintiffs offered some evidence in support of their position that the Hispanic populations of Travis and Bexar Counties are a community of interest that form a compact minority community for purposes of § 2. Defendants also argue that Southeast Austin and the Southside and Westside of San Antonio “are major urban areas sharing common interests” and “[i]t is not unusual for Austin and San Antonio to be combined in the same congressional district.”[41] Docket no. 1272 at 125. Other Plaintiffs refute these assertions and contend that CD35 is not compact. The Rodriguez Plaintiffs further argue that CD35 is not properly drawn in Travis County because voting there is not racially polarized.

         Although the Court is inclined to find that CD35 is not compact for § 2 purposes, it need not decide this issue because CD35 is invalid for another reason-there is no racially polarized voting in Travis County, such that the third Gingles precondition is not present in a significant portion of the district. See Bush, 517 U.S. at 979 (finding that challenged districts could not be considered narrowly tailored to avoid § 2 liability when one Gingles precondition was not fulfilled, even if the Court assumed the other two preconditions were met). Evidence from county-level elections shows substantial Anglo crossover voting and shows that the Anglo majority does not usually defeat the minority-preferred candidate. More importantly, as the history of benchmark CD25 demonstrates, Travis County Hispanic (and African-American) voters could be included in a non-racially gerrymandered district with an Anglo majority and still elect minority-preferred candidates because the Anglo majority did not vote to defeat the minority-preferred candidate. Therefore, there was no strong basis in evidence to include Travis County Hispanic voters in a racially gerrymandered district because they had no § 2 right to remedy; inclusion of Travis County Hispanic voters based on their race was not narrowly tailored to serve a compelling state interest.[42]

         Mapdrawers and the Legislature may have had a strong basis in evidence for believing that § 2 required seven Latino opportunity districts in South/West Texas, but they had no basis in evidence to believe that the Gingles preconditions were satisfied in Travis County such that a race-based majority-Hispanic district should be drawn there.[43] There is no § 2 violation in Travis County, and where there is no § 2 wrong there cannot be a § 2 remedy. Shaw, 517 U.S. at 916 (quoting Growe v. Emison, 507 U.S. 25, 40-41 (1993)). Just as a state may be in violation of § 2 if it draws a noncompact majority-minority district and the plaintiffs' proposed alternative districts would be compact, see LULAC, 548 U.S. at 429-31, a state may be in violation of § 2 if it draws a district that does not substantially address the § 2 violations or is otherwise not narrowly tailored to the State's professed interest in avoiding § 2 liability when compliant districts could be drawn. Shaw, 517 U.S. at 911, 915. Cf. Miller v. Johnson, 515 U.S. 900, 921 (1995) (compliance with the VRA cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws).

         To be a compelling interest, the state must show that the alleged objective was the Legislature's actual purpose for the discriminatory classification and the Legislature must have a strong basis in evidence to support that justification before it implements the classification. If avoidance of § 2 liability is asserted to be the State's compelling state interest, “the racial classification would have to realize that goal; the legislative action must, at a minimum, remedy the anticipated violation or achieve compliance to be narrowly tailored.” Shaw, 517 U.S. at 916. In other words, the legislative action should substantially address, if not achieve, the avowed purpose. Id. at 915.[44]

         If a § 2 violation is proved for a particular area, it flows from the fact that individuals in that area have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Shaw, 517 U.S. at 917. There is no indication that mapdrawers or the Legislature drew CD35 in Travis County because they felt that Hispanic voters there had a § 2 right that needed a remedy. Rather, they drew CD35 as an HCVAP-majority district that extended into Travis County for the purpose of eliminating the existing district in which minorities and Anglos together elected a Democratic candidate (and to unseat that candidate). In this way, they were able to create the facade of complying with § 2 while actually minimizing the number of districts in which minorities could elect their candidates of choice despite the massive minority population growth that had occurred throughout the state.[45] Plaintiffs have shown, and mapdrawers were aware, that seven Latino opportunity districts could be drawn in South/West Texas without including Travis County. The Legislature's objective in drawing CD35 in Travis County was not to remedy a § 2 violation but to eliminate a Democratic district to offset the required creation of a new § 2 district, and the use of race for political advantage rather than compliance with the VRA cannot survive strict scrutiny. CD35 therefore violates the Equal Protection Clause and, as will be discussed, Plan C185 does not “substantially address” the § 2 violation in South/West Texas.

         4. CD27/Nueces County § 2 claims

         The Legislature's decision to place CD35 in Travis County ties into Plaintiffs' other claims that there is an unremedied § 2 violation for Hispanic voters in Nueces County, which was placed into Anglo-majority CD27. In LULAC v. Perry, the Supreme Court reemphasized[46] that creation of a district not required by § 2 (because it was not compact for § 2 purposes) could not remedy a § 2 violation elsewhere in the state. Though a § 2 plaintiff does not always have a right to be placed into a minority opportunity district as a remedy, and the State retains broad discretion in drawing districts to comply with the mandate of § 2, these principles have limits. LULAC, 548 U.S. at 429. The State may “use one majority-minority district to compensate for the absence of another only when the racial group in each area had a § 2 right and both could not be accommodated.” Id. “Simply put, the State's creation of an opportunity district for those without a § 2 right offers no excuse for its failure to provide an opportunity district for those with a § 2 right.” Id. at 430.

         In this case, the State intentionally created a § 2 majority-Latino district that included substantial population (215, 626 persons in Travis County, 21% of the district's population) that did not have a § 2 right because the third Gingles precondition (Anglo bloc voting) does not exist in Travis County. Travis County minority voters could be included in an Anglo-majority district (such as benchmark CD25) and still elect their preferred candidate. At the same time, Plaintiffs demonstrated that approximately 200, 000 Hispanic voters in Nueces County (a majority-HCVAP county) had a § 2 right that could be remedied but was not.

         Numerous maps showed that seven compact Latino opportunity districts could be drawn in South/West Texas and that Nueces County Hispanics could be included in one of those districts for § 2 purposes.[47] Instead, they were placed in an Anglo-majority district where they have no opportunity to elect their preferred candidates. Thus, by including Hispanic voters in Travis County (who did not have a § 2 right) in CD35 but excluding Nueces County Hispanics (who did have a § 2 right) from a Latino opportunity district, Plan C185 does not “substantially address” the § 2 liability in South/West Texas. Shaw, 517 U.S. at 915 (“the legislative action must, at a minimum, remedy the anticipated violation or achieve compliance to be narrowly tailored”); Dillard v. City of Greensboro, 946 F.Supp. 946, 956 (M.D. Ala. 1996) (“Because the State has a compelling interest only in remedying the § 2 violation, a plan would be narrowly tailored and thus survive strict scrutiny only if it substantially addresses the [§ 2] liability . . . .”) (internal quotation marks omitted); see also Wilson v. Jones, 130 F.Supp.2d 1315, 1322 (S.D. Ala. 2000), aff'd sub nom. Wilson v. Minor, 220 F.3d 1297 (11th Cir. 2000) (discussing Shaw's requirement that the district restore rights to the specific persons affected by the potential violation).

         Defendants argue that the reconfiguration of CD27 and the creation of CD34 preserves the core of former CD27 and makes it more likely to perform. Docket no. 411 at 32. However, that argument ignores the § 2 rights of Nueces County Hispanic voters and Supreme Court precedent. Defendants' expert Dr. Alford noted that what happened to the Hispanic voters in Nueces County was similar to what happened to Hispanic voters in CD23 during the 2006 redistricting-a majority-Hispanic district that would likely have elected the Hispanic-preferred candidate was flipped into an Anglo-majority district to protect a candidate that was not preferred by the Hispanic voters.

         Tr1829, Tr1832, Tr1837 (Alford). The Supreme Court found that to be a violation of § 2 for the Hispanic voters who no longer had an opportunity to elect because they were no longer part of a Hispanic voting majority. Increasing electoral ability or performance for some voters in former CD27 cannot offset the loss of opportunity suffered by Nueces County Hispanic voters when all the voters' § 2 rights can be accommodated.

         Although Defendants contend that there is no racially polarized voting in Nueces County, that claim is disproved by the evidence. Assuming that looking at Nueces County in isolation (as opposed to in a congressional district[48]) is the proper focus, all of the expert testimony on the issue showed the existence of racially polarized voting in Nueces County. Dr. Ansolabahere found very high Anglo voter cohesion in Nueces County, and Anglo support for minority-preferred candidates is very low; only about 10 to 15% of Anglo voters support minority-preferred candidates. TrA943 (Ansolabahere). Dr. Engstrom testified that the bivariate analysis of statewide elections from 2006 to 2010 revealed racially polarized voting in both general and primary elections in Nueces County. Tr503 (Engstrom); Engstrom Rebuttal Report (docket no. 307-1) at 7 & Table 2. In his original report (Joint Expert Ex. E-7), Dr. Engstrom found that Latinos are highly cohesive in support of Latino candidates with the Democratic party nomination in general elections-all five got strong support (all point estimates were >90% on the bivariate analysis). The only Latino Republican, Guzman, was not supported. Further, all Latino candidates in Democratic primaries received strong Latino support (78.4% (Noriega), 90.5% (Cruz), 95% (Yanez), 83.9% (Chavez-Thompson), and 91.5% (Uribe)). Latinos voting in Republican primaries did support the Latino candidate running for Railroad Commissioner (Carrillo, 84.2%), but not for Governor (Medina, 28.2%). Id. at 12-13.

         Non-Latino voters provided little support to any of the five Latino candidates favored by Latino voters in general elections, according to the bivariate analysis (support ranged between 11.2% and 17.6%). They did support the only Republican candidate that was a Latino (Guzman) with an estimated 78%. They did not provide majority support to any of the Latinos seeking nominations in the Democratic primaries and did not favor either Latino candidate in the Republican primaries (10.3% for Medina and 21.8% for Carrillo). Dr. Engstrom concluded that Latinos in Nueces County are very cohesive in their candidate preferences for Latino candidates, in both general elections and Democratic primaries, but their preferences were not shared by non-Latino voters in any elections analyzed. Id. at 13.

         Engstrom's rebuttal report has similar findings: Latino voters in Nueces County “have been strongly cohesive in their support of Latino candidates with the Democratic Party nomination in general elections.” Docket no. 307-1 at 5. All seven such Latino candidates received “strong support” from Latino voters-each candidate received over 90% of the Latino vote, with the range being from 90.1% to 97.8%. Id. at 6. In none of the elections analyzed did non-Latino voters share that preference, and their support ranged from 7.5% to 17.6%. Id. All of the Latino candidates in the Democratic primaries “also received strong support from the Latino voters in Nueces County.” Id. Their estimated support range was 78.4% to 96%, with four of the six exceeding 90%. Id. Non-Latinos did not provide majority support in any of these primaries, with their support estimates ranging from 29.7% to 46.6%. Id. In the 2010 Republican primary for Railroad Commissioner, Latinos supported the Latino incumbent with 84.3% support, while non-Latinos did not support him

         (21.8%). Id.[49]

         To the extent Defendants have argued that racially polarized voting is not legally significant when Latino cohesion falls below 80% or Anglo crossover voting is significant, see, e.g., docket no. 411 at 49-50; docket no. 1276 at 92 (proposed FF 860: “Plaintiffs have failed to demonstrate that racially polarized voting in any Texas county is legally significant.”), the level of racial bloc voting in Nueces County is legally significant even under Defendants' standards.[50] In addition, to the extent Defendants assert that the cause of polarized voting is partisanship and not race, Plaintiffs have sufficiently rebutted that evidence by showing that voting is sufficiently racially polarized in the primaries, where partisanship plays no role. Specifically, Latinos were highly cohesive (84.3%) in support of the Latino candidate Victor Carrillo (the incumbent) in the 2010 Republican Primary for Railroad Commissioner, while non-Latinos provided only 21.8% support, and Carrillo was defeated.[51] In addition, although voting is not as racially polarized in the Democratic primaries, Latino cohesion remains high (ranging from 78.4% to 95% in regular primaries and reaching 96% in the 2006 runoff for Lt. Governor) and although non-Latino/Anglo crossover voting is higher (ranging from 29.7 to 46.6%), non-Latinos did not provide majority support to the Latino-preferred Latino candidate in any of the primaries Engstrom evaluated.

         Dr. Engstrom also found high Latino cohesion in the HD33 election in 2010, with Solomon Ortiz, Jr. receiving an estimated 92.3% of the Latino vote, while non-Latinos provided only 11% support. Docket no. 307-1 at 25; Tr510 (Engstrom). Dr. Kousser also found that contests in HD33 between 2002 and 2010 were “starkly racially polarized, ” with Latino voters overwhelmingly supporting the Democratic candidates. Joint Expert Ex. E-2 (Kousser report) at 87 n.55, Tables 12-14.[52]

         Dr. Brischetto similarly found racially polarized voting in the 2012 HD34 election in Nueces County[53] as well “a high degree of racially polarized voting between Latinos and non-Latinos” in the other elections analyzed. TrJ937-38 (Brischetto). Dr. Brischetto analyzed ten general elections in Nueces County in 2012 and characterized the racially polarized voting between Latinos and non-Latinos as “extreme.” TrJ992; Brischetto Report (MALC-161) at ¶ 48. Dr. Brischetto found that Latinos had a high level of cohesiveness, with their support for the minority/Latino candidate above 90% in nine of ten general elections. TrJ969 (Brischetto); Brischetto Report Table 4. He also found that Anglo bloc voting was sufficient to usually defeat the Latino-preferred candidate. Id.; MALC-164.

         Although Dr. Brischetto did not find extreme differences and did not think voting was racially polarized in the Democratic primary for CD27, he did find racially polarized voting in the race for Democratic Party Chair, where Latinos supported the Latino candidate with 90% of their votes and non-Latinos supported the non-Latino candidate with 60% of their votes. TrJ944; Brischetto Report ¶ 50, Table 4. He also found racially polarized voting in three of five Republican primary elections. TrJ942-43; Report ¶ 49, Table 4. Those three elections involved head-to-head contests between a Latino and non-Latino candidate, while the other two involved three or more candidates. TrJ943 (Brischetto); Brischetto Report Table 4.[54]

         Defendants fail to cast doubt on any of these findings and conclusions. Instead, Defendants contend that there is no racially polarized voting because minority-preferred candidates have won a number of elections in Nueces County. Accordingly, Defendants contend that the third Gingles factor-that the Anglo majority votes sufficiently as a bloc to enable it usually to defeat the minority-preferred candidate-is absent. However, in those elections, minorities had a sufficiently large majority to overcome the Anglo bloc voting. Dr. Brischetto explained that the minority candidate does win when the district is over 66% minority. TrJ996 (Brischetto). In districts that were less than 50% minority, however, Anglo bloc voting defeated the minority-preferred candidate all but one time. Id.. The fact that minority candidates can win when they have a super-majority does not disprove the existence of racially polarized voting.

         Moreover, looking instead at a district level[55] (as opposed to the county in isolation), placement of Nueces County Hispanics in an Anglo-majority district ensures that the Anglo majority usually will defeat the minority-preferred candidate, given the racially polarized voting in the area, and thus those Hispanic voters lack opportunity. CD27 in Plan C185 is a district in which Latino voters have no opportunity to elect their preferred candidates. In contrast, past performance of benchmark CD27 (as well Plaintiffs' proposed plans) demonstrates that Nueces County can be placed in a majority-HCVAP district that provides Latino opportunity.

         Plaintiffs have thus shown that a district could be drawn in which Hispanics, including Nueces County Hispanics, are sufficiently numerous and geographically compact to constitute a majority HCVAP. They have also shown that racially polarized voting exists such that an Anglo-majority would usually defeat their preferred candidate. They satisfy the Gingles preconditions, and a consideration of the totality of circumstances leads the Court to conclude that they have a § 2 right. A searching practical evaluation of “past and present reality” and a functional view of the political processes indicates that the political processes are not equally open to Hispanics. Texas's history of official discrimination touching on the right of Hispanics to register, vote, and otherwise to participate in the democratic process is well documented and has been discussed above. Similarly, as discussed, the evidence indicates that Latinos bear the effects of past discrimination in areas such as education and employment/income, which hinder their ability to participate effectively in the political process.[56]

         The challenged district CD27 has the effect of diluting Nueces County Hispanic voters' electoral opportunity-that is in fact why the State chose to put those voters in an Anglo-majority district, to protect an incumbent who was not the candidate of choice of those Latino voters. Although Defendants assert that some people wanted Nueces County to anchor its own district, see docket no. 1272 at 127, the Court finds that the primary and dominant motive was to place the incumbent Farenthold, who lived in Nueces County and would likely be ousted by the existing Latino majority, into an Anglo-majority district (and thus to take away the opportunity to elect that Nueces County Latinos had enjoyed). See, e.g., Downton 8-31-11 depo. (Joint Ex. J-62) at 49 (“Q. What was the purpose of including Nueces County in Congressional District 27 in the enacted plan? A. Congressman Farenthold lives in Nueces County. We were trying to draw him into a Republican district.”); Seliger depo. (Joint Ex. J-59) at 25-26 (noting that joining Nueces County with counties to the north was to try to help Farenthold hold the district). As discussed previously, incumbency protection does not permit the dominant party to ignore § 2 or to dilute Latino voting power because the Latino voters would not favor the incumbent candidate.

         Even if incumbency protection must be considered or weighted equally with § 2 obligations to avoid Equal Protection Clause issues (which the Court does not decide), Defendants failed to show that both considerations could not be accommodated in the plan. They never explored this option; they made the decision to place all of Nueces County in an Anglo district going to the north from the beginning of the process. TrA1772-73 (Downton) (directive to put Nueces County in a northern-oriented district was given “[f]rom the beginning of the process”). Several plans (e.g., Plans C126, C164, C187, C225) demonstrate that the political goal of protecting Farenthold could be accommodated along with the § 2 rights of most Nueces County Hispanics, and the neighboring district(s) would not extend so far north. Numerous maps also demonstrated that accommodating the § 2 rights of all or most Nueces County Hispanic voters would not compromise the § 2 rights of any other voters, and in fact including it substantially accommodates the § 2 rights of Hispanic voters in South/West Texas.

         Where the rights of voters who have demonstrated § 2 violations can be accommodated through the use of compact districts that do not subordinate traditional redistricting principles more than necessary to address the § 2 liability, those voters' § 2 rights must be accommodated. This is not a case in which Plaintiffs are asserting that their districts are simply preferable, that the State did not get things “just right, ” or in which Nueces County Hispanics' § 2 rights could not be accommodated along with other voters with § 2 rights. See Bush v. Vera, 517 U.S. 952, 977-78 (1996) (noting that a § 2 district that is reasonably compact and regular, taking into account traditional districting principles, may pass strict scrutiny without having to defeat rival compact districts designed by plaintiffs' experts in endless “beauty contests”); LULAC, 548 U.S. at 429 (the state may use one majority-minority district to compensate for the absence of another only when the racial group in each district has a § 2 right but they could not both be accommodated; if the inclusion of the plaintiffs would necessitate the exclusion of others, then the State cannot be faulted for its choice).

         To the extent the desire for Nueces County to anchor a district did play a small role, that desire must yield to the requirements of the VRA, especially where, as here, Hispanic voters compose more than 50% of the County's CVAP (and that percentage is increasing) and the decision to remove Nueces County from its existing configuration led to other questionable race-based decisions, such as CD34 stretching from Cameron County all the way to Gonzales County and CD15 stretching from Hidalgo County to Guadalupe County in an effort to “pick up Anglo voters.”[57]Accordingly, Plaintiffs have amply demonstrated that Nueces County Hispanics have a § 2 right that has not been remedied in Plan C185, but could be remedied without the loss of a § 2 remedy for others (and without the Equal Protection Clause violation that exists in CD35 and potentially the South Texas districts in Plan C185).[58]

         5. Summary

         In sum, Plaintiffs have established a § 2 violation, both in terms of intent and effect, in South/West Texas. Plaintiffs have shown that seven compact majority-HCVAP districts could and should be drawn there that would substantially address the § 2 rights of Hispanic voters in South/West Texas, including Nueces County. Defendants' decision to place Nueces County Hispanic voters in an Anglo district had the effect and was intended to dilute their opportunity to elect their candidate of choice. Meanwhile, race predominated in the drawing of CD35, and Defendants' decision to place majority-HCVAP CD35 in Travis County was not to comply with the VRA but to minimize the number of Democrat districts in the plan overall. Plaintiffs have established an equal protection violation with regard to CD35. Defendants' manipulation of Latino voter turnout and cohesion in CD23 denied Latino voters equal opportunity and had the intent and effect of diluting Latino voter opportunity. Nueces County Hispanics and Hispanic voters in CD23 have proved their § 2 results and intentional vote dilution claims. The configurations of CD23, CD27, and CD35 in Plan C185 are therefore invalid.

         II. Dallas-Fort Worth area

         In the DFW area, Plaintiffs assert § 2 intentional vote dilution and results claims, Fourteenth Amendment racial discrimination claims, and Fourteenth Amendment Shaw-type racial gerrymandering claims. In support of their claims, Plaintiffs contend that the one existing African-American opportunity district (CD30) was unnecessarily and intentionally packed with minority voters and that the rest of the minority populations in Dallas and Tarrant Counties were intentionally fragmented (“cracked”). Plaintiffs assert that, had the Legislature not intentionally fragmented the minority population to avoid creating what it viewed as a district that would elect Democrats, there would “naturally” be additional minority opportunity districts in the area. Thus, a primary complaint is the Legislature's failure to create one or two new minority opportunity districts (either single- minority or coalition) in DFW, and its intentional avoidance of such districts. The Task Force plaintiffs also contend that, regardless of intent to help or hurt minorities, race predominated in the decision to include populations in districts throughout DFW, but primarily in CD26 in Tarrant County and in CD6 in Dallas County, in violation of the Shaw line of cases on racial gerrymandering.

         Defendants contend that politics, not race, was the metric used to draw lines in DFW, and although they concede that race was used to some degree in districts CD12 and CD26, Defendants contend that this use of race was not discriminatory and did not violate the Equal Protection Clause under a Shaw-type inquiry. With regard to the § 2 results claim, Defendants argue that the Hispanic population in DFW is not sufficiently geographically compact to create a § 2 Latino opportunity district because the HCVAP population is too small and too dispersed, and that it was not required to draw a coalition or other minority district, which would elect a Democrat.[59] And because no majority-minority district was required, Defendants contend, mapdrawers were free to engage in political gerrymandering that had the unsurprising and foreseeable (but not intended) effect of dividing minority communities.

         The Court will begin its analysis with Plaintiffs' traditional § 2 results claims under Gingles. Because the Court finds that Plaintiffs' results claims regarding the failure to draw one additional minority coalition district are moot and that Plaintiffs have failed to provide sufficient evidence to support their other § 2 results claims at this time, it must consider the constitutional claims.[60]

         A. Whether Plaintiffs can satisfy Gingles for an additional Latino opportunity district?

         To satisfy the Gingles preconditions for a new Latino opportunity district in a traditional vote dilution results case, Plaintiffs must show that Latinos are “sufficiently large and geographically compact to constitute a majority in a single-member district, ” and all parties agree that a majority is greater than 50% HCVAP for a Latino opportunity district. Bartlett v. Strickland, 556 U.S. 1, 11 (2009) (plurality); Thornburg v. Gingles; 478 U.S. 30, 50 (1986); Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 853 (5th Cir. 1999). Numerous maps were submitted to Downton and the Legislature for consideration during the session and as demonstration maps at trial, but Plaintiffs have failed to demonstrate that any contained a compact district that was majority-HCVAP.

         1. Task Force Plan C190

         The Latino Task Force has submitted Plan C190 (Joint Map Ex. J-11), which includes CD6, the only proposed HCVAP-majority district using 2005-2009 ACS data. Using that data, CD6 is 50.4% HCVAP (and 66.8% HVAP and 41.6% total SSVR). It joins Latino neighborhoods in the Fort Worth area with “several heavily Latino neighborhoods in the Dallas area, such as Oak Cliff and Grand Prairie, and the Latino populated areas of Irving and Farmers Branch.” Docket no. 482 at 55 (Task Force proposed fact finding 304); see also docket no. 1274 at 152 (Task Force proposed fact finding 1003: “Congressional District 6 in plan C190 unites Latino communities in Dallas and Tarrant Counties.”). The Task Force asserts that this district takes in “similar neighborhoods” and would elect the Latino-preferred candidate in seven of seven racially contested general elections. Docket no. 1282 at 10.

         The Task Force proffered some exhibits that show that CD6 encompasses many areas with 10% or higher population age 18 years and over who speak Spanish and speak English “not well” or “not at all” (PL-360), high percentages of population age 25 and over with less than a high school diploma (PL-361), and mostly areas with low (below $38, 000) median household income (PL-362). Task Force exhibit PL-363 also shows that the contours of the district closely track areas with high Hispanic population, including virtually all areas in Tarrant County with 80% or higher Hispanic population and most such areas in Dallas County. Thus, the Task Force Plaintiffs assert, CD6 unites Latino communities, communities with low educational attainment, and low-income communities in Dallas and Tarrant Counties. Docket no. 482 at 54 (proposed FF 300-302).

         Alex Jimenez, a Task Force individual plaintiff from Tarrant County, testified that proposed CD6 joins people, businesses, and consumer bases in Fort Worth and Dallas that are fairly similar. Tr574-75. He testified that people in Fort Worth and Jefferson/Oak Cliff in Dallas are very similar. Tr575. He thinks voters in the district communities would support the same candidate based on what the candidate represents, not on whether the candidate is Republican or Democrat. Tr576.

         The Task Force also offers the Declaration of Hector Flores, a Dallas County resident, who notes that CD6 “reflects several predominantly Latino neighborhoods in the Fort Worth area, ” “several heavily Latino neighborhoods in the Dallas areas, such as Oak Cliff and Grand Prairie, ” and “Latino populated areas of Irving and Farmers Branch.” PL-415 at ¶ 20. He stated that the schools in those areas are largely Latino and have large ESL populations, that the streets and transportation infrastructure are uniformly poor, the housing is typically low-to-middle-class-income housing with substantial multifamily housing, the Latinos in the areas largely work in construction or run small businesses, and the Latinos who reside in the areas reflected in this proposed district have much in common culturally, linguistically, and economically. PL-415 at ¶¶ 21-24.

         Defendants argue that the district is not reasonably compact as required by Gingles because of its low compactness scores, its convoluted shape, and its many fingers and extensions. Tr56; Docket no. 411 at 28; Docket no. 457 at 22. Defendants' compactness expert Todd Giberson noted that CD6 had the worst compactness scores of all proposed demonstration districts he analyzed. Joint Expert Ex. E-18 at 6. It has an area rubber band score of .303 and a perimeter-to-area score of .018, both of which reflect very low compactness.[61] Joint Map Ex. J-11. It is the only proposed district that is less compact using the area rubber band measurement than CD35 in the enacted plan, which is the least compact district in Plan C185. Giberson 2011 depo. (Joint Ex. J-42) at 40-41. However, using the area-to-smallest-circle measurement, CD6 is more compact than CD35 in Plan C185. Id.

         To satisfy the first Gingles precondition, Plaintiffs must prove that their demonstration district contains a majority HCVAP and that the minority population in the district is “geographically compact.” Gingles, 478 U.S. at 50. The § 2 compactness inquiry considers the compactness of the minority population, not the compactness of the contested district or necessarily the precise shape of its boundaries, though as discussed below the shape of the district is relevant. LULAC v. Perry, 548 U.S. 399, 433 (2006). In other words, the Court should focus on the size and concentration of the minority population. Houston v. Lafayette Cty., Miss., 56 F.3d 606, 611 (5th Cir. 1995).

         If, because of the dispersion of the minority population, a reasonably compact majority-minority district cannot be created, § 2 does not require a majority-minority district, and a district that reaches out to grab small and apparently isolated minority communities is not reasonably compact. Bush, 517 U.S. at 979; LULAC, 548 U.S. at 432. However, members of a racial group in different areas could share similar interests and therefore form a compact district “if the areas are in reasonably close proximity.” LULAC, 548 U.S. at 435. “A district would not be sufficiently compact if it was so convoluted that there was no sense of community, that is, if its members and its representative could not easily tell who actually lived in the district.” Rodriguez v. Harris Cty., Tex., 964 F.Supp.2d 686, 737-38 (S.D. Tex. 2013) (citing Clark v. Calhoun Cty., Miss., 21 F.3d 92, 96 (5th Cir.1994) (noting that “[a] number of courts have concluded that the first Gingles precondition is not satisfied if the proposed district does not retain a natural sense of community such that it can be effectively represented”)).

         Further, the § 2 compactness inquiry must take into account traditional districting principles such as maintaining communities of interest and traditional boundaries. Abrams v. Johnson, 521 U.S. 74, 92 (1997) (citing Bush v. Vera, 517 U.S. 952, 977 (1996)); Montes v. City of Yakima, 40 F.Supp.3d 1377, 1391-92 (E.D. Wa. 2014) (“The compactness inquiry under § 2 . . . focuses more generally on whether the proposed minority district reasonably comports with ‘traditional districting principles' such as contiguousness, population equality, maintaining communities of interest, respecting traditional boundaries, and providing protection to incumbents.”). “The recognition of nonracial communities of interest reflects the principle that a State may not ‘assum[e] from a group of voters' race that they ‘think alike, share the same political interests, and will prefer the same candidates at the polls.'” LULAC, 548 U.S. at 433. Thus, to evaluate geographical compactness, the Court considers the dispersion of the relevant minority population, the shape of the proposed district (as measured by a visual evaluation and by statistical measures of compactness), and the district's compliance with traditional redistricting principles (such as respect for communities of interest and traditional boundaries). See Rodriguez, 964 F.Supp.2d at 737-54; see also Vera v. Richards, 861 F.Supp. 1304, 1341 (S.D. Tex. 1994) (noting that a district's compactness must be a relative measure based on location and population density and that “[i]n a major urban county, compactness makes little sense if considered in terms of geographic sprawl alone, but it seems far more probative when viewed in terms of a city's or county's neighborhoods, geopolitical subdivisions, and business location”), aff'd sub nom. Bush v. Vera, 517 U.S. 952 (1996).

         The Court agrees with Defendants that the proposed district indicates that the HCVAP population is not sufficiently geographically compact to satisfy the first Gingles precondition. The evidence shows that, although the Hispanic population in Dallas and Tarrant Counties has grown, neither county was above 25% HCVAP at the time of redistricting, and neither county contained sufficient HCVAP population to form the majority of a district solely within that county. See, e.g., TrA1237-38 (Korbel); D-231. As a result, the proposed CD6 joins, by a long narrow strip, a significant portion of Fort Worth to various areas of Dallas and Dallas County. Although the western portion of the district is mostly populated by Fort Worth residents, it includes small portions of Haltom City, Sansom Park, Lake Worth, and River Oaks, and has several large tentacles rather than a compact shape. One who drove in a circle within Fort Worth could exit and enter the district ten or more times. This portion of the district does not appear to have a natural sense of community.

         As noted, CD6 then connects this Fort Worth-area population to other Latino population in Dallas County via a long, narrow strip no wider than a block or a highway at points. Once within Dallas County it takes only select portions of Grand Prairie, reaches north and juts into portions of Irving via highly irregular lines that do not appear to respect any traditional boundaries, then narrows and again employs bizarre shapes to take additional Irving population, Dallas population, as well as parts of Farmers Branch and Carrollton. Elsewhere, it narrows through central Dallas and then extends a long, jagged protrusion east throughout parts of Dallas and picks up part of Balch Springs. The district has very little integrity in terms of traditional boundaries or districting principles within Dallas County and does not appear to retain a natural sense of community.

         Overall, the district shows no regard for traditional districting principles such as compactness or respecting county lines, towns, cities, or voting precincts. See docket no. 461-1 at 2 (Engstrom report) (noting that CD6 was drawn without regard to precinct boundaries). The Task Force asserts that the shape of CD6 “is not dictated solely by race at the expense of all other redistricting factors” and that DFW districts “are notoriously challenging to draw because of the existing African American opportunity district, CD30, and because of the demands of incumbents to protect their homes and district office locations.” Docket no. 460 at 15. The Task Force argues that, for this reason, the State's plan “has very poor compactness scores in the Dallas-Fort Worth area” and “in light of the State's tolerance for less compact districts in this region, and the lack of any evidence that Plaintiffs' CD6 follows boundaries other than communities of interest, ” the State cannot successfully challenge CD6 as noncompact. Id. However, it is Plaintiffs' burden to demonstrate compactness, especially in light of the district's visual non-compactness.[62] Fairley v. Hattiesburg, Miss., 584 F.3d 660, 669 (5th Cir. 2009) (“plaintiffs bear the burden of proof in a VRA case, and any lack of record evidence on VRA violations is attributed to them”). Plaintiffs fail to demonstrate specifically how the cited factors play a role in the demonstration district's strange shape or that the district in general respects communities of interest and traditional boundaries.[63] The fact that the districts in Plan C185 may be noncompact due to various gerrymandering and incumbency factors does not demonstrate that CD6 is compact.

         To be sure, the first Gingles precondition does not require some aesthetic ideal of compactness, but simply that the population be sufficiently compact to constitute a majority in a single-member district. Houston v. Lafayette Cty., Miss., 56 F.3d 606, 611 (5th Cir. 1995) (quoting Clark v. Calhoun Cty., Miss., 21 F.3d 92, 95 (5th Cir. 1994)). But despite this directive and although Supreme Court precedent indicates that courts are to focus on the compactness of the minority community and not necessarily district borders when determining § 2 compactness, Justice O'Connor's plurality opinion in Bush v. Vera makes clear that “[d]istrict shape is not irrelevant.” 517 U.S. 952, 980 (1996). Although her inquiry was whether the district at issue satisfied strict scrutiny, Justice O'Connor's plurality relied primarily on bizarre shape and noncompactness of district lines to conclude that the district was not compact and therefore not required by § 2.[64]

         Justice O'Connor agreed with the district court's finding that the district had “no integrity in terms of traditional, neutral redistricting criteria.” Id. at 960. She described the Dallas district at issue as having 50% of its population in a compact, albeit irregularly shaped, core in south Dallas, but “the remainder of the district consists of narrow and bizarrely shaped tentacles.” Id. at 965 She wrote, “Over 98% of the district's population is within Dallas County, . . . but it crosses two county lines at its western and northern extremities. Its western excursion into Tarrant County grabs a small community that is 61.9% African-American; its northern excursion into Collin County occupies a hook-like shape mapping exactly on the only area in the southern half of that county with a combined African-American and Hispanic percentage population in excess of 50%.” Id. The district court wrote,

The district sprawls throughout Dallas County, deliberately excludes the wealthy white neighborhoods of Highland Park and University Park and extends fingers into Collin County, which include the outermost suburbs of Dallas. In Collin County, the district picks up a small African-American neighborhood. The district extends into Tarrant County only to pick up a small border area with a high African-American concentration. It also reaches out to claim Hamilton Park, an affluent African-American neighborhood surrounded by whites. Part of the district runs along Trinity River bottom, using it to connect dispersed minority population. Numerous [voter tabulation districts] were split in order to achieve the population mix required for the district. . . . It is at least 25 miles wide and 30 miles long.

Id. at 965-66 Although she used these facts to determine that race predominated over traditional districting principles in drawing CD30, Justice O'Connor also relied on them to determine that the district was noncompact. It is difficult to distinguish the Task Force's proposed CD6 from CD30 in the Bush case, which Justice O'Connor's plurality concluded was not compact and not required Nevertheless, Clark re-iterates that Gingles “insists upon a compact district” to establish § 2 liability. Clark, 88 F.3d at 1407. Further, Shaw-type cases that discuss whether a district that has been drawn by a legislature satisfies strict scrutiny in terms of complying with § 2 of the VRA-specifically, whether the state had a strong basis in evidence for believing that the Gingles preconditions were satisfied-are relevant. By § 2.

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         Although the Task Force proffered some evidence showing that the population included in the proposed district shares a community of interest other than race, some such evidence was also introduced in Bush (citing evidence that the district “has a consistently urban character and has common media sources throughout, and that its tentacles include several major transportation lines into the city of Dallas”), but that evidence was insufficient. Id. at 967.[65] While the population included in CD6 may have interests and characteristics in common other than race and one could generally say that urban Hispanics in Fort Worth and Dallas share similarities, that does not make them geographically compact, and Plaintiffs offer no explanation of why certain bizarrely shaped appendages are included, while nearby areas that could presumably form communities of interest are carefully excised. There is no evidence that specific lines, such as where the district reaches out and grabs a strangely shaped portion of the City of Irving and extends upward to take portions of Farmers Branch and Carrollton yet excises portions of Dallas, respect specific communities of interest such as neighborhoods (they certainly do not respect cities). Similarly, within Tarrant County and Fort Worth, there is no evidence to explain specifically what communities of interest are contained within the various appendages, other than that they are poor, relatively uneducated, and Latino. Nor is there evidence that the areas included in CD6 from various parts of Dallas County have more of a “community of interest” with those areas of Tarrant County to which they are joined than the areas immediately surrounding them but excluded from the district.

         Thus, because of a lack of such evidence, the shape of the proposed district, and the other factors discussed above, the inescapable inference remains that the Hispanic citizen voting age population is not sufficiently compact and it is necessary to draw bizarre and convoluted lines to obtain enough population to reach the majority threshold. See Fairley, 584 F.3d at 669 (“Without sufficiently detailed evidence, a court is flatly unable to evaluate whether a possible redistricting scheme would establish legally adequate districts consistent with traditional districting principles such as compactness, contiguity, maintaining communities of interest, and respect for incumbency.”); see also Vera, 861 F.Supp. at 1341 (rejecting argument that districts were sufficiently compact for Shaw purposes because they “include residents of similar socioeconomic background and lie fully within [one] county” because the districts were formed “in utter disregard for traditional redistricting criteria” and were “ultimately unexplainable on grounds other than the racial quotas established for those districts”).

         Further, CD6 is similar to the district rejected as noncompact in Sensley v. Albritton, 385 F.3d 591 (5th Cir. 2004). There, the district court rejected the plaintiffs' proposed 50.1% and 50.5% African-American voting age population districts because they failed to satisfy the geographical compactness requirement. Plaintiffs appealed, complaining that the court focused too much on district shape and “should have inquired more generally into whether the reconfigured district had ‘take[n] into account traditional districting principles such as maintaining communities of interest and traditional boundaries.” Id. at 596.

         The Fifth Circuit noted, “As the geographical shape of any proposed district necessarily directly relates to the geographical compactness and population dispersal of the minority community in question, it is clear that shape is a significant factor that courts can and must consider in a Gingles compactness inquiry.” Id. In other words, the compactness inquiry “should not hinge on the shape of a district, ” but “the shape of a district certainly cannot be disregarded in a compactness inquiry.” Id. (emphasis in original). The Sensley district was “an irregularly-drawn District 6 whose extended and distorted shape-resulting specifically from excluding non-blacks while simultaneously adding ‘excess' blacks from other communities-constitutes strong evidence that the black minority populations contained therein are not ‘reasonably compact.'” Id. at 597. Further, in order to connect African-American populations in two towns from two distinct communities (“which are separated by considerable distance (approximately 18 miles) and share few community interests”), the plaintiffs were required to ignore traditional districting principles such as maintaining communities of interest and traditional boundaries insofar as they split a town in half and disrupted existing electoral districts. For these reasons, the Fifth Circuit found that the district court's conclusion that plaintiffs failed to prove that the African-American population of Union Parish was sufficiently compact was not clearly erroneous. Id. at 598.[66]

         Precedent thus indicates that if a proposed district is simply too bizarrely shaped because the minority population is dispersed in such a way that traditional districting criteria are barely considered, if at all, in drawing the district, it will be found to be non-compact for § 2 purposes. Like the districts in Bush v. Vera and Sensley, Plaintiffs' proposed CD6 has many tentacles and appendages. It shows no regard for traditional districting principles such as respecting counties, towns, cities, or voting precincts. It spans 60 miles and connects Hispanic populations in Dallas and Fort Worth by a long narrow corridor along the highway. Although there is evidence that the persons included do share some commonalities, it appears that the Latino citizen age voters are simply too dispersed to form the majority in a compact district, and Plaintiffs have failed to satisfy the first Gingles precondition for the creation of a new Latino opportunity district in the DFW area through proposed CD6.[67]

         2. Use of 2008-2012 ACS data for certain proposed districts

         Certain Plaintiffs contend that, given the lagging nature of the ACS data and the fact that it underestimated the Hispanic and African-American CVAP in Dallas and Tarrant Counties, [68] some proposed districts in DFW that were below 50% HCVAP using 2005-2009 ACS data actually exceeded the 50% threshold at the time of redistricting. Although the Court finds that the 2008-2012 ACS data, which the experts generally agree more accurately reflects the population in 2010 than the 2005-2009 ACS data used by the Legislature, is relevant to Plaintiffs' results claims against Plan C185, [69] Plaintiffs have failed to demonstrate with that data that any of those proposed districts would have exceeded 50% HCVAP in 2010 or 2011.

         For example, CD34 in Veasey's Fair Texas Plan C121 was 45.6% HCVAP using 2005-2009 ACS data, but increased to only 47.4% using 2008-2012 ACS data. Joint Map Ex. J-2; D-545.6. CD35 in MALDEF's Plan C122 was 45% HCVAP using 2005-2009 ACS data, but increased to only 45.9% using 2008-2012 ACS data. Joint Map Ex. J-3; D-546.6. CD35 in Plan C166 was 45.6% HCVAP using 2005-2009 ACS data, but increased to only 47.4% using 2008-2012 ACS data.[70]Joint Map Ex. J-7; D-565.5. CD35 in Plan C193 was 44.6% using 2005-2009 ACS data, and increased to only 45.8% using 2008-2012 ACS data.[71] Joint Map Ex. J-14; D-571.6. Although the Court finds that the 2005-2009 ACS data did underestimate the HCVAP population in 2010/2011, it does not appear to have done so as drastically as Plaintiffs anticipated. Thus, even using the 2008-2012 ACS data to analyze the districts, Plaintiffs do not reach the 50% HCVAP threshold.

         3. NAACP Plan C193 and use of post-enactment population projections

         The NAACP asserts that this Court should rely on post-enactment population data to determine whether the Gingles numerosity condition is satisfied. As noted, the NAACP submitted Plan C193, which included CD35 that was not HCVAP-majority based on 2005-2009 ACS data (it was 44.6%) or 2008-2012 ACS data (it was 45.8 ( .9)%), but that Dr. Fairfax testified became HCVAP-majority sometime between 2012 and 2013. TrA805-06 (Fairfax) (testifying that the projected HCVAP was 50.48% in 2013 and 51.92% in 2014).

         NAACP Plaintiffs rely on two Fifth Circuit cases to support their use of post-enactment population data. In Westwego Citizens for Better Government v. City of Westwego, 906 F.2d 1042 (5th Cir. 1990), the plaintiffs filed suit in 1985, challenging the at-large election of city aldermen and proposed two plans, both of which would create one district in which black residents would be a majority. Trial was initially postponed pending the Supreme Court's decision in Gingles, and then after a bench trial the court dismissed the case based on oral rulings. The Fifth Circuit remanded after the first appeal, directing the district court to make specific findings of fact and conclusions of law. Westwego Citizens for Better Government v. City of Westwego, 872 F.2d 1201 (5th Cir. 1989) (“Westwego I”). In a footnote, the Court noted that the record was “unclear” whether there would in fact be a black majority of voting age population in a single district under the plaintiffs' proposed plan, and the district court was directed to make this determination on remand. Id. at 1205 n.4.

         On remand, the district court issued supplemental findings, including that “there was no evidence in the record to support the conclusion that blacks would constitute a majority of the voting age population in any proposed single-member district.” Westwego II, 906 F.2d at 1043. The district court also rejected a finding of racially polarized voting and entered judgment. The plaintiffs then filed a motion asking the district court to amend its findings to take into account developments in the two years since the case was originally tried, specifically a March 1989 election that, for the first time, involved a black candidate. Id. The plaintiffs also included “black voter registration data and data from the 1989 election.” Id.

         On the second appeal, the Fifth Circuit held that “given the long term nature and extreme costs necessarily associated with voting rights cases, it is appropriate to take into account elections occurring subsequent to trial” to determine the presence of racially polarized voting. Id. at 1045 (footnote omitted). This was especially true in that case, given that no elections prior to trial involved an African-American candidate, such that the post-trial election was “highly relevant.” Id.

         Regarding the population, the Fifth Circuit faulted the district court for failing to take new evidence that the BVAP was sufficient in size, instead determining based on the old record that there was no evidence “that blacks would constitute a majority of the voting age population.” Id. at 1046. The Court noted that the proffer “would have allegedly proved that blacks constituted a majority of the voting age population in certain hypothetical districts, ” and included evidence as to the number of registered black voters in the hypothetical districts, evidence that the black candidate in the March 1989 election received 52% of the vote in those districts, and an affidavit that an agency could provide BVAP data for the districts. Id. The Fifth Circuit noted that minority voting age population data, minority voter registration data, and evidence of success by minority-preferred candidates is relevant to the first Gingles factor, specifically to establish potential to elect. Id. The Court stated, “[b]ecause of frequent difficulties of proof and in light of the fact that vote dilution cases often become ‘prohibitively expensive, ' the [Supreme] Court espoused a ‘flexible, fact intensive test.'” Id. The Court cited Citizens for a Better Gretna v. City of Gretna, La., 834 F.2d 496, 502 (5th Cir. 1987) for the proposition that “Gingles ‘suggests flexibility in the face of sparse data.'” The Fifth Circuit remanded a second time, stating that plaintiffs would “have the opportunity to adduce the evidence referred to in their motion.” Westwego, 906 F.2d at 1047.

         On remand, plaintiffs proposed one of their original plans but used 1990 census data to show it would be majority BVAP, and also proposed a variation on that plan “drawn to account for population changes between 1980 and 1990.” Westwego Citizens for Better Gov't v. City of Westwego (“Westwego III”), 946 F.2d 1109, 1113 (5th Cir. 1991). The district court found that the original plan was “acceptable.” Id. On the third appeal, the plaintiffs prevailed.

         Plaintiffs also cite Valdespino v. Alamo Heights ISD, 168 F.3d 848 (5th Cir. 1999), in which the issue was whether the defendant could present 1997 non-census data to override the plaintiffs' 1990 census data, such that the plaintiffs' hypothetical HCVAP-majority district was no longer HCVAP-majority at trial. The Court noted that Westwego “opened the door to the use of non-census data when census data are not sufficiently probative of the voting-age proportion of a population” and that its decision in Perez v. Pasadena Independent School District, 165 F.3d 368 (5th Cir. 1999) affirmed a district court's decision that the plaintiffs' population projections were too unreliable to overcome 1990 census data. Id. at 854. The Fifth Circuit held that the district court properly placed the burden on the Plaintiffs to prove a majority of Hispanics among voting-age citizens in their demonstration district at trial, and the defendant presented sufficient evidence to prove demographic changes since the census that showed there was no majority. Id. at 856. Citing other cases, the district court had noted that the court was not confined to census data, and that census data could be overcome by thoroughly documented and accurate proof of changed figures.

         These cases support NAACP's position that, when appropriate, parties may use non-census data, if shown reliable, to prove that the CVAP is sufficiently changed from prior census data or data used at redistricting to either prove or disprove § 2 liability. By analogy, plaintiffs could potentially use data such as projections, if shown reliable, to prove that the CVAP is sufficiently changed from the ACS data used at redistricting to prove § 2 liability. However, the Court finds it inappropriate to consider Fairfax's projections in the 2011 plan case given the facts of this case.

         In Westwego, the post-enactment evidence was considered to clarify an ambiguity, whereas here there is no such ambiguity-the ACS data show that the district was not majority HCVAP in 2010, and Fairfax agrees it was not HCVAP-majority at the time of redistricting. In Valdespino, the lawsuit was not filed until 1995 and trial was held in 1997, many years after the 1990 census data that plaintiffs were relying on for their case, such that it was appropriate for the court to consider whether liability was established using more current demographic data.[72] Here, in contrast, Plan C185 was enacted in 2011, but a new plan was enacted in 2013. There is no ambiguity or significant lapse of time that would warrant consideration of 2012 or later projections to evaluate the 2011 plan. Reliable demographic data concerning the population in 2012/2013 may be relevant to Plaintiffs' § 2 claims against the plan enacted in 2013, Plan C235, but not Plaintiffs' claims against the 2011 plan. Accordingly, the Court finds that the NAACP Plaintiffs failed to establish that their proposed district satisfied the numerosity requirement in 2011, though they are not precluded from raising this same argument and plan in the 2013 plan trial phase with regard to Plan C235.

         B. Whether Plaintiffs can satisfy Gingles for a coalition district in DFW?

         A number of maps were submitted to the Legislature during redistricting that would have created coalition districts in the DFW area, but the mapdrawers refused to draw such districts because they did not feel they were required by the VRA. In fact, mapdrawers were hostile to the creation or existence of minority coalition districts because they viewed them as Democrat districts. See, e.g., TrA277; TrA287 (Seliger) (minority districts were “without question” thought of as Democrat districts and Republican leaders thought maps with proposed districts “were just designed simply for Democratic seats”); TrA1600 (Downton) (stating that the map had to be 3-1 and that the Legislature would not vote for a district unless it was a Republican district).[73] As discussed in the Conclusions of Law, however, this Court finds that coalition districts may be required by § 2, so long as Plaintiffs satisfy Gingles with regard to the coalition. The Court thus turns to that inquiry.

         As noted, to satisfy the first Gingles precondition, plaintiffs generally must proffer a demonstration district with a geographically compact minority population that exceeds 50% of the CVAP of the district. Plaintiffs have proffered a number of plans with coalition districts that exceed 50% minority CVAP when Hispanic and African-American CVAP are combined. Some demonstration plans include one additional minority coalition district compared to Plan C185, but most include two additional minority coalition districts (in addition to benchmark CD30). In addition to arguing that coalition districts are never required, Defendants attack these plans as creating non-compact districts and for lacking the required minority cohesion.

         The Court finds that Plaintiffs' § 2 results claims concerning the failure to draw one additional coalition district are moot, given that Plan C235 contains such a district and no additional bail-in relief could be granted even if Plaintiffs were to prevail on this claim. With regard to the results claims based on the failure to draw two additional districts, the Court finds that Plaintiffs fail to offer sufficient evidence to satisfy the first Gingles requirement of compactness.

         1. Plan C121

         Veasey's Fair Texas Plan C121[74] includes two coalition districts spanning Dallas and Tarrant Counties, in addition to maintaining CD30 entirely within Dallas County (with a 2005-2009 ACS combined BCVAP of 45.6% and Bᰥ over 50%). Joint Map Ex. J-2. The Quesada Plaintiffs offer this plan, asserting that CD34 would be a new Hispanic district (with 45.6% HCVAP and 16.5% Black alone CVAP using 2005-2009 ACS data) and CD35 would be a new African-American opportunity district (with 35.6% Black alone CVAP and 15.2% HCVAP using 2005-2009 ACS data).[75]

         The Quesada Plaintiffs state that CD34 “would be based in the traditional and growing Hispanic neighborhoods in the North Oak Cliff, East Dallas, Pleasant Grove and Grand Prairie neighborhoods in Dallas County and extend west to include growing Hispanic neighborhoods in east Arlington as well as Fort Worth's north side and south side Hispanic neighborhoods.” Docket no. 409 at 15. Veasey testified that CD34 “keeps communities of interest together” and was more “coherent” compared to CD26 in Plan C185. Veasey depo. (Ex. J-55) at 67.

         The Quesada Plaintiffs state that CD35 “would be based in the large and growing African-American neighborhoods in southeast, southwest, and east Fort Worth” and “would extend east through growing minority neighborhoods in Arlington and into Dallas County to include African-American neighborhoods in the southwest Dallas County cities of Cedar Hill and DeSoto.” Docket no. 409 at 15-16. Meanwhile, they say, existing African-American opportunity district CD30 would “retain its core South Oak Cliff and South Dallas neighborhoods but would extend north to include the growing African-American neighborhoods along the east and north Interstate Highway 635 corridors.” Docket no. 409 at 15.

         Veasey testified that Plan C121 was drawn to comply with the VRA in terms of using race and so that African-American and Latino voters would have additional opportunities to elect. Veasey depo. (Joint Ex. J-55) at 80-81. When asked if race was considered in drawing the DFW districts, Veasey stated that he followed the Constitution and the VRA with regard to race and further stated, “I would say that the communities of interest, and those communities of interest happen to be communities that were mainly Hispanic, were taken into consideration when drawing this map.” Id. at 80-81, 83. When asked what the other considerations were, he stated “that would be the biggest one” but also whether they would be able to work together and whether people in the district would have their voices heard. Id. at 83-84.

         Ed Martin, one of the primary mapdrawers of Plan C121, testified that Congresswoman Johnson approved her district (CD30) in Plan C121 and thought it would be effective, that CD34 would be an effective Latino district, and that CD35 would be an effective African-American district similar to CD9 in Houston. Martin depo. (Joint Ex. J-48) at 120-21. He testified that CD34 was “drawn to provide electoral opportunity for 1.4 million Latino voters in the region.” Id. at 122.

         Dr. Lichtman analyzed Plan C121, and he testified that CD34 and CD35 in DFW would provide effective opportunity for the minorities in those districts (the minority-preferred candidate prevailed in all five reconstituted statewide elections studied, and usually by a wide margin). Tr1240-41; Joint Expert Ex. E-3 at 20-22, Table 12. He concluded that CD34 would be an effective voting age single race Latino district (66.2% HVAP) and CD35 an effective voting age majority-minority district (59.5% Bᵐ). Joint Expert Ex. E-3 at 20, Table 11. Dr. Lichtman testified that he believed these districts were required by the VRA. Tr1259.

         From a visual perspective, all three districts look somewhat bizarre, especially CD34. Although the Quesada Plaintiffs assert that proposed CD34 and CD35 are “reasonably compact, ” they fail to support this assertion. Docket no. 409 at 17. Defendants' compactness expert Todd Giberson noted that CD34 was similar to CD6 in Plan C190 and that it was not very compact. Joint Expert Ex. E-18 at 5-6. CD34 has an area rubber band score of .331 and a perimeter-to-area score of .043, both of which reflect low compactness. Joint Map Ex. J-2. Giberson did acknowledge that Texans view Dallas and Fort Worth as a unit-the “metroplex.” Giberson depo. (Joint Ex. J-42) at 69. Although he testified that a district could connect two separate and distinct minority populations and still be compact (such as a referenced “earmuff” district in Illinois), he thought that CD34 (like CD6 in Plan C190) went to greater lengths to connect small pockets in both Dallas and Fort Worth and that the boundary was more convoluted than other districts he believed to be compact. Id. at 68-70.

         Plaintiffs have not sufficiently proven that the proposed districts are compact for § 2 purposes insofar as they have not shown that the districts (and the minority populations therein) are compact taking into account traditional districting principles such as maintaining communities of interest and traditional boundaries. See Rodriguez v. Harris Cty., Tex., 964 F.Supp.2d 686, 738 (S.D. Tex. 2013) (noting that plaintiffs' demonstration maps satisfied the numerosity requirement but failed to present evidence explaining or permitting the court to understand to what extent the maps comported with traditional districting principles such that plaintiffs failed to establish the first Gingles precondition), aff'd sub nom Gonzalez v. Harris Cty., Tex., 601 F. App'x 255 (5th Cir. Feb. 9, 2015).[76] Even if CD35 could be considered compact, CD34 suffers from the same problems and lack of evidence as the Task Force's proposed CD6 in Plan C190. Conclusory assertions that the districts join “communities of interest” are insufficient, especially when the district is convoluted in shape and does not appear to respect traditional boundaries and communities of interest such as cities and voting precincts. Thus, Quesada Plaintiffs' proposal C121 fails to demonstrate that two additional compact minority districts could be drawn in DFW taking into account traditional redistricting principles and communities of interest.

         2. Plan C163 & Plan C164

         MALC offered demonstration plans C163 and C164 as creating two additional opportunity districts in DFW. Tr93-94 (Martinez-Fischer). Dr. Arrington found that Plan C163 overall “satisfied traditional redistricting principles” at least as well as the enacted plan. TrA410-11. However, this plan still split 447 precincts (Plan C185 split 518). US-352 at 54. He found that the overall compactness score (as measured by the mean Polsby-Popper score) was roughly similar to the enacted plan. TrA433; US-352 at 54. He opined that Plan C163 did “a better job . . . in respecting the integrity of Dallas and Tarrant County.” US-352 (Arrington Decl.) at 54.

         CD5 in Plan C163 and Plan C164 is a convoluted butterfly shape that is almost entirely within Dallas County except for a small protrusion into Tarrant County that picks up 148 persons who are 86.5% Hispanic and African-American. Joint Map Ex. J-5 & J-6. It splits Grand Prairie, Irving, Farmers Branch, Carrollton, Mesquite, and Balch Springs. Giberson noted that “the convoluted boundaries stand out, as does the wispy, narrowly connected protrusion to the east.” Joint Expert Ex. E-18 at 6. At his deposition, Giberson stated that CD5 was “borderline” to him. Giberson depo. (Joint Ex. J-42) at 77. He felt that the “wispiness” and “the connectivity of some of the area through such a narrow point” (specifically one large mass and two smaller masses “connected via some very small point”) were problems. Id. at 78; see also id. at 79 (“I didn't like it on compactness because of the appendages that were there.”). Again, this district does not appear to respect traditional boundaries and communities of interest, and Plaintiffs have failed to offer sufficient evidence to show that the population is sufficiently geographically compact taking into account such principles. The evidence concerning proposed CD12 in Plan 164 (which is almost identical to CD35 in Plan C163), which spans Dallas and Tarrant Counties, and CD30, which includes parts of Dallas and splits Duncanville, Balch Springs, Mesquite, and Garland, is similarly deficient.

         3. Plan C193

         The NAACP and the African-American Congressperson Plaintiffs offer Plan C193, [77] which the NAACP contends maintains “the effectiveness and integrity” of CD30 (as an African-American district) while adding a proposed new coalition African-American opportunity district (CD34) and a new coalition Latino opportunity district (CD35). Tr2077-78 (Ms. Riggs); see also docket no. 406 at 20-29; Joint Map Ex. J-14. CD30 has 49.6% BCVAP and 14.1% HCVAP using 2005-2009 ACS data. CD30 is 51.9% BCVAP using 2008-2012 ACS data. D-571.6. Proposed CD34 is majority-minority CVAP, but the Bᰥ (32.4% 15.8%) is less than 50% using 2005-2009 ACS data.[78]The HХ of CD34 is 52.9% using 2008-2012 ACS data. D-571.6. Proposed CD35 is over 50% Bᰥ using either 2005-2009 or 2008-2012 ACS data.

         Dr. Murray opined that Plan C193 “corrects the glaring failures in 2003 and 2011 to recognize the tremendous minority population growth in the area” and would create three effective minority opportunity districts there. Joint Expert Ex. E-4 at 36-37; Tr1035 (noting that CD34 and CD35 would be effective districts for minority voters). He stated that C193 creates a “more compact” CD30, does not undermine its long-term viability as an African-American district, and restores economic engines and communities of interest. Joint Expert Ex. E-4 at 37. He fails to explain how the NAACP's CD30 is more compact than the CD30 in Plan C185. Murray also opined that “[t]he heavily black and Hispanic neighborhoods in the Dallas/Fort Worth area were fairly close together in 2000. Since then, the combination of out-migration of Anglos and the rapid growth of mixed neighborhoods . . . has consolidated a broad swath of territory in over half of Dallas County and a third of Tarrant County that provides ample population for three compact minority opportunity districts” such that it is now “easier . . . to draw three minority opportunity districts in Dallas and Tarrant Counties in 2011 than was the case in [Houston] ¶ 2003 when three such districts were produced.” Murray report (Joint Expert Ex. E-4) at 32-33. However, Murray fails to offer any support for his assertions that these districts are compact, and visually, they are bizarrely shaped and non-compact.

         The NAACP's expert Anthony Fairfax prepared a 2011 report (docket no. 267[79]) evaluating these districts (in the SCSJ July 5 Plan). Fairfax concluded that “the districts included in the Congressional SCSJ July 5 plan [including districts 30, 34, and 35] met traditional redistricting criteria and could be adopted in whole or in part by the state legislature.” Docket no. 267-2 at 10; Docket no. 267-1 at 7; Tr834, Tr838-39, TrA793. The traditional redistricting criteria he evaluated were demographic information (this appears limited to the district's VAP status), equal population, contiguity, county splits, and compactness.

         Fairfax found that all districts in the plan were within the minimum and maximum compactness measurements (using Reock compactness measurements) of the enacted Plan C185. TrA794. Using the Schwartzberg and Polsby-Popper measurements, all districts were within the range except for proposed CD35. Fairfax depo. (Joint Ex. J-45) at 25-26; docket no. 267-1 at 4. Fairfax noted that it was not outside the compactness range of C185 by much, and he felt that CD35 was still within the acceptable range and would not raise Shaw problems in terms of compactness. Fairfax depo. (Joint Ex. J-45) at 38, 37; Tr795. Fairfax stated that CD35 was more compact than the district invalidated in Shaw v. Reno and was “not that much different” from other districts he had seen “around the country.” Id. at 29. However, Fairfax did not know why the district was drawn in its particular configuration. Id. at 29-30. And he also noted that there may be other factors that determine whether a district violates Shaw v. Reno besides compactness scores. Id. at 37-38. Nevertheless, Fairfax provided his expert opinion at the August trial that CD34 and CD35 in Plan C193 are “compact enough to avoid Shaw problems.” TrA795.

         Congresswoman Johnson testified that CD34 and CD35would be effective districts in terms of the voters therein voting cohesively and electing a candidate of choice. Tr1291-92. When asked about C193 in terms of “the handling of the African American and Latino growth in the Dallas and Tarrant County areas, ” Congresswoman Johnson stated, “they get representation because they're placed together. They have common desires, common economics. And the important issues to them are the same. And a map like this, they get representation so they can elect a person of their choice.” TrA691. She testified that a “major purpose” behind drawing the three districts (CD30, CD34, and CD35) was “to give an opportunity for those concentrated minorities to elect a candidate of their choice.” Tr1304. She stated that there are communities of interest beyond race that were part of the creation of CD34 and CD35 (though she stated it was primarily race). Tr1311. On follow up, she agreed that the districts contained communities of interest that have concerns about education and employment, criminal justice and “issues of that nature.” Tr1312. She also testified that there were non-racial components to the district such as public television, public radio areas, and there was a major community coalition there with people with “very like desires.” Id.

         Franklin Moss, a resident of Tarrant County, testified that proposed CD34 “pulls together most of the . . . black areas on the Fort Worth Side of it” and “also takes under consideration, we call kind of the I-20 corridor of cities that are - that are right now majority African American. And that's Cedar Hill, Duncanville, DeSoto, Lancaster. So it pulls those areas together.” TrA1185. He stated that those areas share “a lot of commonalities, ” but the only explanation of that statement was that “it sits on . . . that I-20 corridor, which even runs into Fort Worth. So it gives us an opportunity to pretty much be assured that we would elect a black candidate from that particular area.” Id. He testified that African-American and Latino voters in Tarrant County share common concerns and interests, and that they shared interests concerning economic development, housing (specifically rebuilding communities), health, and employment issues. TrA1180. Congresswoman Johnson testified that new CD34 took a large concentration of African-American population from CD30 but because of the growth in certain areas of proposed CD30, CD30 would be maintained as an African-American coalition district. Tr1293-94. She acknowledged the CD34 was minority Anglo in terms of voting age population, and stated that was significant because the African Americans and Latinos have mutual issues and live in a concentrated area together. Tr1294. She also felt the Asian voters would act in coalition with African-American and Latino voters. Id. The NAACP asserts that CD34 “is [a] naturally-occurring minority opportunity district that captures high growth communities of interest in the DFW region” and that “CD34 encompasses a community of interest-the growing African American population along the I-20 corridor.” Docket no. 1280 at 39; docket no. 1281 at 35 (proposed FF 190); docket no. 1232 at 13; TrA1980 (Riggs closing argument) (“We heard testimony from Franklin Moss about the community of interest that exists along the I-20 corridor in the southern parts of Tarrant County and Dallas County, and this is where that district [CD34] is drawn to encompass that naturally occurring population growth.”). The NAACP also asserts that “CD34 is a compact district, well within the norms of the compactness of the enacted districts.” Docket no. 1281 at 34 (proposed FF 189). It has an area rubber band score of .600 and a perimeter to area score of .089. Joint Map Ex. J-14.

         The NAACP states that “CD35 is a reasonably compact district that encompasses a compact minority population. It is only in two counties, and all within one urban region.” Docket no. 1232 at 14; docket no. 1280 at 42; docket no. 1281 at 35 (proposed FF 192). Congresswoman Johnson testified that it would be appropriate to consider African-Americans and Latinos as a group for the creation of CD35 and it would be a good coalition “because we all vote together now.” Tr1293. Defendants' expert Giberson stated that CD35 has one of the worst compactness scores of all DFW districts in the Plaintiffs' proposed interim plans. Giberson Decl. docket no. 468 at ¶ 11. Its area rubber band score is .331 and its perimeter to area score is .037, again very low. Joint Map Ex. J-14.

         The NAACP asserts that African-American and Latino voters in Dallas and Tarrant Counties face many of the same hurdles in day-to-day life, including lack of access to health care, lack of fair educational opportunities, and persistent economic disparities. Docket no. 1280 at 41 (citing TrJ1134-35 (Magdaleno)). The NAACP also asserts that schools in Dallas County are still highly segregated and that Anglo officials are not responsive to minority needs. Id. (citing TrJ572 (Wallace) and TrA1184-86 (Moss)). Dr. Murray also opined that CD34 would be an effective district for African-American voters and CD35 would be an effective opportunity district for Latino voters. Tr1035-36.

         Based on the districts' CVAP and the testimony of its experts, the NAACP asserts that it has demonstrated that proposed CD34 and CD35 comply with the first prong of Gingles and are legal and fair districts. Docket no. 406 at 21-29. However, the Court disagrees. Once again, Plaintiffs demonstrate that these districts meet the CVAP threshold and could elect minority candidates of choice, and even offer some evidence that the communities included within the districts contain some similarities, but they have failed to proffer sufficient evidence to establish that the minority populations contained therein are compact. Dr. Fairfax's analysis is superficial and fails to adequately account for the fact that the districts do not appear to respect traditional boundaries. Although he looked at counties and noted the districts each only include one or two counties, he did not address cities, voting precincts, neighborhoods, or other geographical boundaries.

         CD34 and CD35 both span Dallas and Tarrant Counties. CD35 extends a long tentacle into CD30, and CD30 reaches around with a long arm and hook at the top to grab minority population. CD35, which is the most visually bizarre, splits numerous small cities and appears to have little integrity in terms of traditional redistricting principles. The NAACP's proof suffers from the same deficiencies as CD6 in the Task Force Plan C190. Accordingly, the Court finds again that Plaintiffs have failed to demonstrate that two additional compact minority districts could have been drawn in DFW.

         4. Plan C196

         The LULAC Plaintiffs offer Plan C196, which they assert remedies the fracturing of minority communities in Dallas and Tarrant Counties and maintains CD30. Joint Map Ex. J-17. The LULAC Plaintiffs state that the minority areas that are placed in CD12, CD26, and CD33 in Plan C185 are adjacent to each other and together have sufficient population to create a congressional district, which is proposed CD34 in Tarrant County (which has a minority population of 73.8%). Docket no. 417 at 11. CD34 is 22.1% HCVAP and 29.4% Black alone CVAP. In Dallas County, the LULAC Plaintiffs propose that combining the adjoining minority populations of CD5, CD6, CD24[80], and CD32 from Plan C185 with “a slight modification of adjoining District 30 . . . results in a new minority district that is similar to that in plan C196” and is over 80% minority population, while maintaining CD30 over 80% minority population. Id. at 12. CD30 (renamed CD32) is 49.7% Black alone CVAP (and 50.1% combined BCVAP) and CD33 is 39.5% HCVAP and 20.1% Black alone CVAP.

         The districts in Plan C196 are not at ideal population. Further, while these districts are contained entirely within their respective counties, they again are not obviously compact, and no evidence has been presented showing that they respect communities of interest or otherwise take into account traditional redistricting principles. Thus, this map fails to demonstrate that two additional compact minority districts could have been drawn in DFW.

         5. Plan C202

         The Quesada Plaintiffs also offer demonstration Plan C202, which they assert draws CD34 and CD35 “more compactly” than the proposed districts in Plan C121/C192, “while maintaining them as minority opportunity districts, effective for Hispanic and African-American voters, respectively.” Docket no. 409 at 17; Quesada-70. Quesada Plaintiffs state that CD34 “is an effective Hispanic opportunity district in the Dallas Fort Worth region” and is more compact than districts 2, 5, 9, 12, 15, 18, 20, 22, 28, 29, 32, 33, and 35 in the enacted plan. Id. at 17-18. They further assert that CD35 “is an effective African-American opportunity district” and is more compact than districts 2, 5, 9, 12, 15, 18, 22, 28, 29, 32, 33, and 35 in Plan C185. Id.

         Quesada Plaintiffs contend that these districts are “very compact.” Docket no. 409 at 17. They are certainly an improvement visually over some of Plaintiffs' proposed districts, but they are still not obviously compact. And again, there is a lack of evidence in the record demonstrating how these districts comply with traditional redistricting principles or respect communities of interest. Thus, this map fails to demonstrate that two additional compact minority districts could have been drawn in DFW.

         6. Plan C206 & Plan C214

         Plan C206 is LULAC's DFW three-district proposal. The districts are similar to those in LULAC's Plan C196 and statewide Plan C214. In both maps, the districts are not at exactly equal population. More importantly, again there is a lack of record evidence concerning anything other than population statistics.

         7. Plan C261 & Plan C262

         LULAC's demonstration Plans C261 and C262 contain CD33, a coalition district located entirely within Tarrant County and CD6, a non-compact looking district in Dallas, Denton, and Tarrant Counties, in addition to CD30.[81] The compactness scores for CD33 are .600 area rubber band and .125 perimeter to area. Red-315 Report. CD33 in Plan C262 is 28.7% combined BCVAP and 20% HCVAP, resulting in a combined 48.7% Bᰥ using 2005-2009 ACS data. Using 2008-2012 ACS data, however, it is 51.7% Bᰥ (22.1% HCVAP, 29.6% Black-alone CVAP). MALC-173 (docket no. 1259). Korbel noted that Plan C185 splits up the minority population in Tarrant County, but if the minority population that had been in the Plan C100 CD26 southern extension and the minority population included in the Plan C185 CD26 “lightning bolt” was connected with areas in eastern Tarrant County, which is heavily minority, “you have almost a perfect district, and a district that's overwhelmingly black and Hispanic, primarily black.” TrA1223. He described this is a “logical district.” Id.

         Plan C262 also contains a proposed coalition district (CD6) mostly within Dallas County (though also extending into Tarrant County and partly into Denton County) that is 57.5% Bᰥ using 2005-2009 ACS data. Korbel further testified that if he were starting over drawing districts in DFW, he “would take 30, shift it over, pick up five here and draw the second district right next to it” but instead the State had divided Dallas County into five districts, packing CD30, and cracking minorities in CD5 and CD6. Tr1224. Korbel also testified that the DFW districts in Plan C262 “the minority-preferred candidate appears to win virtually all the time.” Tr1244 Once again, despite reaching the numerical threshold, the record fails to demonstrate how these districts respect traditional redistricting principles or communities of interest, and thus Plaintiffs fail to satisfy the first Gingles precondition for these districts.

         8. Summary

         Plaintiffs fail to proffer a demonstration plan accompanied by sufficient evidence to demonstrate that additional compact minority districts could be drawn taking into account traditional redistricting principles and communities of interest. Any plan not specifically discussed herein suffers from this same lack of evidence. However, Plaintiffs are not precluded from raising § 2 results claims with regard to Plan C235 during the trial on that plan.

         C. Whether Plaintiffs have established a Shaw-type racial ...


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