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Perez v. Abbott

United States District Court, W.D. Texas

April 20, 2017


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

          ORDER ON PLAN H283


         This Order addresses Plaintiffs' claims concerning Plan H283, enacted by the 82nd Legislature in 2011. Plaintiffs assert “results” claims under § 2 of the Voting Rights Act (“VRA”), intentional vote dilution claims under § 2 of the VRA and the Fourteenth Amendment, and Shaw-type racial gerrymandering claims under the Equal Protection Clause of the Fourteenth Amendment. The Perez, LULAC, and MALC Plaintiffs also assert one person, one vote claims under the Equal Protection Clause of the Fourteenth Amendment based on population deviations among the districts. This opinion is intended to be read in conjunction with the Court's fact findings, which are issued separately, as well as the Court's opinion on Plan C185 (docket no. 1339).

         I. VRA § 2 results claims generally

         The Task Force, NAACP Plaintiffs, and MALC[1] assert § 2 results claims on the basis that Texas could have enacted a plan with more minority opportunity districts (both single-minority and coalition) than were contained in Plan H283 and that enacting a plan with such additional districts was required by the § 2 results test. In their Fourth Amended Complaint, the Task Force Plaintiffs allege that “Plan H283 fails to create at least three additional Latino-majority House districts that afford Latinos the opportunity to elect their preferred candidate.” Docket no. 891 ¶ 37; see also Id. ¶ 68 (“The Latino population of Texas is sufficiently geographically compact to comprise the majority of citizen voting age persons in at least 33 Texas House districts.”). They also assert so-called “nudge factor” claims against two HCVAP-majority districts in Plan H283, HD117 in Bexar County and HD78 in El Paso. Docket no. 1282 at 4-5.

         The Task Force Plaintiffs contend that “Latinos are sufficiently numerous and compact to comprise the citizen voting age majority in more districts than contained in Plan H283, including in Harris County, Nueces County, and the Rio Grande Valley.” Docket no. 1282 at 4. However, somewhat inconsistently, they offer Plan H292 as a demonstration plan, asserting that it has 34 Latino opportunity districts, created by restoring HD33 in Nueces County, “balancing” the Latino population in Bexar County to restore HD117, “balancing” the Latino population in El Paso to add HD78, and adding a Latino opportunity district in the Rio Grande Valley by combining population overages from Cameron and Hidalgo Counties to capture the “organic” district that grew in the Valley. Docket no. 1282 at 6; docket no. 444 at 20.[2] Defendants correctly note that “only 32 districts exceed 50% HCVAP or SSVR” in Plan H292. Docket no. 468 at 19.

         The NAACP's Third Amended Complaint alleges that the Texas Legislative Black Caucus introduced a plan with four additional African-American opportunity districts (Plan H202), and alleges a § 2 results claim. Docket no. 900 ¶¶ 22, 58; see also docket no. 406 at 30 (arguing that four additional minority opportunity districts could have been drawn compared to the enacted plan).[3]

         MALC also asserts § 2 results claims and contends that up to six additional minority opportunity districts were required. Docket no. 897 ¶¶ 74-75; docket no. 412 at 16-18. MALC has offered numerous demonstration maps, including statewide Plans H201, H205, H295, and H329, and various limited plans for certain geographic areas.

         “When 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.” Johnson v. De Grandy, 512 U.S. 997, 1008 (1994). Generally, to evaluate this claim, it must be determined how many “reasonably compact districts with a sufficiently large minority population to elect candidates of its choice” exist in Plan H283, and whether Plaintiffs have demonstrated that more were required, which is usually done through presentation of demonstration plans. LULAC v. Perry, 548 U.S. 399, 430 (2006) (“De Grandy requires a comparison between a challenger's proposal and the ‘existing number of reasonably compact districts.'”). Because Plaintiffs are alleging § 2 claims based on the number of opportunity districts statewide, analysis of the claims should involve a comparison between the number of opportunity districts in the enacted plan (Plan H283) and a Gingles demonstration plan proposed by Plaintiffs. While normally this would be a straightforward task, it is not in this case.

         This task is made complicated by numerous factors, including that: (1) it remains unclear whether the Perez Plaintiffs are asserting § 2 results claims despite offering statewide demonstration Plan H232 and several limited-area demonstration plans[4]; (2) the parties (including the Plaintiffs among themselves) disagree concerning which districts in the enacted plan are opportunity districts; (3) even single Plaintiffs present conflicting assertions concerning which districts they are alleging to be additional opportunity districts; (4) some Plaintiffs fail to clearly set out specifically all the districts they contend are opportunity districts either in the enacted plan or their demonstration plan (or both), asserting only that more could have been drawn; (5) Plaintiffs and Defendants disagree on how to determine whether a district is a minority opportunity district and both incorrectly assert that districts with less than 50% minority CVAP are opportunity districts in some instances; (6) many of Plaintiffs' experts reports and analyses focus on VAP instead of CVAP; and (7) certain demonstration plans contain 25 districts in Harris County, compared to 24 in Plan H283, making comparisons outside of drop-in counties more difficult.[5]

         The Court finds that certain of the § 2 results claims are moot, given the Legislature's adoption of the interim plan, with slight modifications, in 2013. Plan H309 and Plan H358 resolved some of the § 2 results claims, and no § 3(c) relief would be available based on any proven violations of the § 2 results claims. Given these facts, as well as the complicating factors listed above, the Court concludes that it would be a waste of the Court's resources to delve into significant detail into all of the § 2 results claims with regard to Plan H283. Instead, because the Legislature adopted a new plan in 2013, the parties will be permitted to bring their § 2 results claims concerning the 2013 plan based on more recent ACS data. However, the Court will offer some analysis of the 2011 plan § 2 results claims to give preliminary guidance to the parties for the 2013 plan trial and as necessary where the claims relate to the Plaintiffs' intentional vote dilution claims.

         A. How to measure opportunity districts

         For both the enacted plan and Plaintiffs' demonstration districts, Defendants contend that opportunity districts are measured solely on demographics. For the enacted plan, Plaintiffs contend that they are determined by demographics coupled with a functional analysis including election analysis. Some Plaintiffs (such as the Task Force Plaintiffs) also apply a functional analysis to their proposed demonstration districts, though some Plaintiffs (MALC and the NAACP) appear to rely more on meeting the demographic threshold for demonstration districts.[6]

         Some Plaintiffs challenge specific majority-HCVAP districts as not providing real electoral opportunity and not being Latino opportunity districts—specifically, the Task Force Plaintiffs challenge HD78 in El Paso and HD117 in Bexar County under § 2 for both results and intent, and the United States contends that HD35 and HD41 are not opportunity districts as part of its intentional vote dilution claims.[7] As this Court held in its congressional plan opinion, Plaintiffs may bring results claims against a particular district despite its majority-HCVAP status; the fact that a district is majority-HCVAP does not, standing alone, qualify it as a Latino opportunity district, and Plaintiffs may attempt to prove that it lacks “real electoral opportunity.” Similarly, as discussed in the congressional plan opinion, the Court views exogenous election indices in enacted districts as probative evidence of whether a district is an opportunity district, but declines to measure whether a district is an opportunity district based solely on a 50% win standard on such indices. Rather, the Court conducts a practical, searching inquiry based on the totality of circumstances and the particular facts of the case to determine whether any particular district is an opportunity district for § 2 purposes.

         In their 2011 proposed Fact Findings and Conclusions of Law, Defendants assert that Plan H283 contains 30 Latino opportunity districts and 12 African-American opportunity districts. Docket no. 413 FF93, 94. Defendants' count of Latino opportunity districts is based solely on the number of districts with 50% or more HCVAP from the Red-106 Report. Docket no. 413 FF93.[8]As discussed, a 50% HCVAP district is theoretically an opportunity district, but it may still be challenged by Plaintiffs as not providing real electoral opportunity.

         Although Defendants' fact findings also cite the Red-106 report (the ACS Special Tabulation of CVAP) as support for the number of African-American opportunity districts, the Appendix to the post-trial brief states that Defendants' criterion for African-American opportunity districts is 40% BVAP. Docket no. 411 Appendix at Table 5 n.1.[9] Using the 40% BVAP criteria, Defendants list the following as “African-American districts”: HD22, HD27, HD95, HD100, HD109, HD110, HD111, HD131, HD139, HD141, HD142, and HD146.[10] Docket no. 411 Appendix. Defendants claim that no proposed map creates more African-American districts using the 40% BVAP criterion. Defendants' use of 40% BVAP appears to be based on the position taken by mapdrawers and redistricters, despite the fact that Defendants agree that Supreme Court case law has established a majority (over 50%) requirement for minority opportunity districts under § 2. The Court thus finds Defendants' reliance on a 40% BVAP threshold for African-American opportunity districts to be erroneous.[11] Rather, for single-minority opportunity districts, the standard for a minority opportunity district is majority CVAP for the particular minority group.

         B. Whether § 2 can require coalition districts

         Defendants further contend that minority coalition districts are never required or protected by § 2, and thus they do not count them in any of their analyses. However, Plaintiffs assert that coalition districts can be required and propose certain coalition districts in their Gingles demonstration plans. The Court agrees with Plaintiffs that § 2 can require the creation of minority coalition districts.

         The Court in Gingles “ha[d] no occasion to consider whether § 2 permits, and if it does, what standards should pertain to, a claim brought by a minority group, that is not sufficiently large and compact to constitute a majority in a single-member district.” Thornburg v. Gingles, 478 U.S. 30, 46 n.12 (1986). Several cases presented this issue after Gingles, but the Supreme Court declined to address the issue and resolved the cases on other grounds.

         In Growe v. Emison, 507 U.S. 25 (1993), the district in question was composed of minority voters from three different minority groups, including Native Americans. The Supreme Court noted that “Gingles expressly declined to resolve whether, when a plaintiff alleges that a voting practice or procedure impairs a minority's ability to influence, rather than alter, election results, a showing of geographical compactness of a minority group not sufficiently large to constitute a majority will suffice. We do not reach that question in the present case either.” Id. at 41 n.5 (citations omittted). Again, in Johnson v. De Grandy, 512 U.S. 997, 1009 (1994), the Supreme Court stated, “As in the past, we will assume without deciding that even if Hispanics are not an absolute majority of the relevant population in the additional districts, the first Gingles condition has been satisfied in these cases.”

         In LULAC v. Perry, 548 U.S. 399, 443 (2006), the Court, as it had “done several times before, ” assumed without deciding “that it is possible to state a § 2 claim for a racial group that makes up less than 50% of the population.” Id. at 443 (Kennedy, J., writing for a plurality). However, Justice Souter opined that it was time to recognize that “the integrity of the minority voting population in a coalition district should be protected much as a majority-minority bloc would be.” Id. at 485 (Souter, J., concurring in part and dissenting in part).

         The Supreme Court did address the issue of crossover districts in Bartlett v. Strickland, 556 U.S. 1 (2009) (plurality opinion). In Strickland, state house district 18 had been majority minority, but the African American voting age population had fallen below 50%, and it was no longer possible to draw a geographically compact majority-minority district. Id. at 8. The North Carolina legislature split a county in an effort to give “African-American voters the potential to join with majority voters to elect the minority group's candidate of choice.” Id. Thus, the following question was posed to the Court: “In a district that is not a majority-minority district, if a racial minority could elect its candidate of choice with support from crossover majority voters, can § 2 require the district to be drawn to accommodate this potential?” Id. at 6. Justice Kennedy acknowledged that it had “declined to decide the minimum size minority group necessary to satisfy the first [Gingles] requirement . . . [but] [w]e must consider the minimum-size question in this case.” Id. at 12 (Kennedy, J.). The plurality made clear at the outset that it was only addressing the issue as it pertains to crossover districts; it was not addressing coalition districts. As Justice Kennedy explained:

In majority-minority districts, a minority group composes a numerical, working majority of the voting-age population. Under present doctrine, § 2 can require the creation of these districts. At the other end of the spectrum are influence districts, in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected. This Court has held that § 2 does not require the creation of influence districts.
The present case involves an intermediate type of district—a so-called crossover district. Like an influence district, a crossover district is one in which minority voters make up less than a majority of the voting-age population. But in a crossover district, the minority population, at least potentially, is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority's preferred candidate. This Court has referred sometimes to crossover districts as “coalitional” districts, in recognition of the necessary coalition between minority and crossover majority voters. But that term risks confusion with coalition-district claims in which two minority groups form a coalition to elect the candidate of the coalition's choice. We do not address that type of coalition district here.

Id. at 13-14 (citations omitted).

         After considering the parties' arguments, the Court held that crossover districts are not protected under § 2. Id. at 14-15. However, the scope of the ruling was clarified in several ways. First, the ruling did not apply to coalition districts, as the Court was not addressing that issue. Id. at 13-14. The Court also made clear that “[o]ur holding does not apply to cases in which there is intentional discrimination against a racial minority, ” and “if there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments.” Id. at 20, 24. The Court stated, “Our holding that § 2 does not require crossover districts does not consider the permissibility of such districts as a matter of legislative choice or discretion.” Id. at 23. While legislatures have a choice to draw such districts, § 2 “does not mandate creating or preserving crossover districts.” Id.

         Although the Strickland decision may provide some guidance on crossover districts, the Supreme Court has not yet addressed coalition districts—those electoral districts in which two or more minority groups form a coalition to elect the candidate of their choice. While each minority group individually may not be able to meet the first Gingles precondition, they may be able to meet the criteria when combined as a coalition. Coalition districts are different from crossover districts, in which minorities require the help of white crossover voters to elect their candidate of choice. Minority voters in coalition districts do not rely on white crossover votes in order to elect the minorities' candidate of choice.

         Again, the Court in Strickland clearly stated that it was not addressing coalition districts. Id. at 13-14. The Court very carefully distinguished crossover and coalition districts and cautioned against confusing the two. Id. at 13. However, the Court's later decision in Perry v. Perez, 565 U.S. 388 (2012) (per curiam) may have created some of the confusion that the Court cautioned against in Strickland. In referring to a new congressional district in this Court's interim redistricting plan, the Court in Perez stated, “If the District Court did set out to create a minority coalition district, rather than drawing a district that simply reflected population growth, it had no basis for doing so. Cf. Bartlett v. Strickland, 556 U.S. 1, 13-15, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009)(plurality opinion).” 565 U.S. at 399. The meaning of this statement, the use of the “Cf.” signal, and the reliance on Strickland is unclear, given that Strickland did not address coalition districts. If the Court meant that there was no factual basis for drawing the district, there would be no need for a citation in support. If the Court meant that there was no legal basis for drawing the district, Strickland provides no support because the opinion expressly states that it does not apply to coalition districts. In any event, the Court's statement in Perez provides no guidance on the issue of whether the majority-minority requirement under the first Gingles precondition mandates that a single racial or ethnic group (e.g., Hispanic or African American, but not a combination of both) constitute a majority of the citizen voting age population or whether the first Gingles precondition may be satisfied when minorities from more than one racial or ethnic group, when joined together, constitute a majority of the citizen voting age population.

         The Fifth Circuit addressed this issue more than twenty-five years ago and recognized that minority groups may be aggregated to meet the first Gingles precondition. In LULAC v. Midland ISD, 812 F.2d 1494, 1500 (5th Cir.), vacated on state law grounds, 829 F.2d 546 (5th Cir. 1987), the Fifth Circuit approved of the manner in which African Americans and Hispanics were joined together as a compact minority group “capable of carrying a district.” The Fifth Circuit reached the same result one year later in Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988)). In Campos, the district court found that a minority group composed of both African Americans and Hispanics was sufficiently large and geographically insular to form a majority in a single-member district. The district court also found that “Blacks were cohesive, Hispanics were cohesive, together the minority group was cohesive, and that Anglos voted sufficiently as a bloc to usually defeat the minority's preferred candidate.” Id. at 1242. The district court reviewed the totality of the circumstances, considering the relevant factors, and concluded that vote dilution had occurred and a violation of § 2 had been established. Id. On appeal, the Fifth Circuit found that the district court's finding that the first Gingles requirement was satisfied was not clearly erroneous, and explained:

There is nothing in the law that prevents the plaintiffs from identifying the protected aggrieved minority to include both Blacks and Hispanics. Section 1973(a) protects the right to vote of both racial and language minorities. . . . If, together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters.

Id. at 1244 (citations omitted). The Court in Campos also explained, however, that the plaintiffs must prove that the minorities “actually vote together” in a cohesive manner; otherwise, their claim will fail. “The key is the minority group as a whole. . . . If the evidence were to show that the Blacks vote against a Hispanic candidate, or vice versa, then the minority group could not be said to be cohesive. But if the statistical evidence is that Blacks and Hispanics together vote for the Black or Hispanic candidate, then cohesion is shown.” Id. at 1245. Because the Campos plaintiffs showed that African Americans and Hispanics, as a minority group, were politically cohesive, the district court's findings on the second Gingles factor was not clearly erroneous. Id. at 1248.

         The Eleventh Circuit agreed with the Fifth Circuit's view on coalition districts in Concerned Citizens of Hardee County v. Hardee County Board of Commissioners, 906 F.2d 524, 526 (11th Cir. 1990), stating that “[t]wo minority groups (in this case blacks and hispanics) may be a single section 2 minority if they can establish that they behave in a politically cohesive manner.” The plaintiffs failed to prove, however, that Black and Hispanic voters in Hardee County were politically cohesive. Id. at 526-27.

         In Badillo v. City of Stockton, 956 F.2d 884, 886 (9th Cir. 1992), the Ninth Circuit assumed that a combined group of Black and Hispanic voters met the first Gingles precondition, but held that the minority plaintiffs failed to show political cohesion as required under the second Gingles requirement. In Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271 (2nd Cir.), vacated on other grounds, 512 U.S. 1283 (1994), the Second Circuit also assumed that coalition districts are covered under § 2. The district court found that “[c]ombining minority groups to form [majority-minority] districts is a valid means of complying with § 2 if the combination is shown to be politically cohesive.” 26 F.3d at 275. The circuit court agreed that the first Gingles precondition had been met, and found “both testimonial and statistical evidence that African Americans and Hispanics in Bridgeport [were] politically cohesive and that voting in the City [was] remarkably racially polarized.” Id. at 275-76.

         In Nixon v. Kent County, 76 F.3d 1381 (6th Cir. 1996) (en banc), the Sixth Circuit expressly disagreed with the Fifth Circuit on the issue of coalition districts, thus creating a clear split among the circuit courts. The redistricting plan in Nixon included a district with both African-American and Hispanic voters in order to establish sufficient numbers and satisfactory geographical compactness. Id. at 1384. The district court granted the defendants' motion to certify the question of whether two protected minority groups may aggregate to pursue a § 2 vote dilution cause of action. Id. at 1383. The circuit court decided that if Congress had wanted to protect a minority group that was composed of more than one race or ethnicity, it would have used more words in the plural form, such as “protected classes” rather than “protected class.” Id. at 1386-87. Thus, it refused to extend § 2 coverage to a minority group that includes more than one race or ethnicity.

         In 2012, the Second Circuit noted that “[t]he circuits are split as to whether different minority groups may be aggregated to establish a Section 2 claim.” Pope v. Cty. of Albany, 687 F.3d 565, 572 n.5 (2d Cir. 2012). The court ultimately resolved the case on the failure to show racially polarized voting but discussed the first Gingles precondition at length and noted that while plaintiffs may choose a more expansive minority group to satisfy the first Gingles requirement, it may also add to their burden in demonstrating political cohesion required for the second precondition. Id. at 574-77 & n.11.

         To summarize, the Supreme Court has not addressed coalition districts, the Fifth Circuit has expressly permitted them, and the Second, Ninth, and Eleventh Circuits have tacitly recognized them. Only the Sixth Circuit has expressly denied § 2 protection to a combined group of minorities under the first Gingles requirement. As the Fifth Circuit has stated, “We are a strict stare decisis court.” Ballew v. Continental Airlines, Inc., 668 F.3d 777, 782 (5th Cir. 2012). Just as one panel of the circuit court “may not overrule the decision, right or wrong, of a prior panel in the absence of any intervening contrary or superseding decision by the court en banc or the Supreme Court, ” a district court is bound by a circuit decision unless or until it is overturned by an en banc decision of the circuit court or a decision of the Supreme Court. See Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991). In the Fifth Circuit, Campos is binding precedent, and this Court must follow it in the absence of any authority to the contrary. Thus, if Plaintiffs can meet their burden of proof in all other respects, their § 2 claim will not fail simply because the minority group in question is composed of more than one race or ethnicity.

         This is consistent with the manner in which the Supreme Court has dealt with earlier cases, in which it assumed (without deciding) that it was permissible for the district court to combine distinct ethnic and language minority groups for purposes of assessing compliance with § 2. See, e.g., Growe, 507 U.S. at 41 (unanimous opinion). Rather than impose a strict prohibition, the Supreme Court simply cautioned that “when dilution of the power of such an agglomerated political bloc is the basis for an alleged violation, proof of minority political cohesion is all the more essential.” Id. (citing Badillo v. Stockton, 956 F.2d 884, 891 (9th Cir. 1992); Concerned Citizens of Hardee County v. Hardee County Bd. of Comm'rs, 906 F.2d 524 (11th Cir. 1990); Campos, 840 F.2d at 1244).

         This is also consistent with the intent of Congress when it amended the Act in 1982. In amending § 2, Congress emphasized the need for courts to undertake a searching practical evaluation of the “past and present reality.” S. Rep. 97-417 at *30 (citing White v. Regester, 412 U.S. 755, 760-77 (1973)). Coalitions of minority voters are a present reality, and affording them protection under § 2 is consistent with the Congressional goal of keeping political processes “equally open to minority voters.” S. Rep. 97-417 at *2. Minorities must still “pull, haul, and trade to find common political ground, ” De Grandy, 512 U.S. at 1020, and they will not meet the second Gingles precondition if they do not. But once that has been achieved and the minority voters, when combined, constitute a majority, the first Gingles precondition is also satisfied. The bottom line is that every case is different, and “the Gingles factors cannot be applied mechanically and without regard to the nature of the claim.” Voinovich v. Quilter, 507 U.S. 156, 158 (1993). Thus, this Court follows the Fifth Circuit and holds that § 2 can require the creation of coalition districts, provided that the Gingles criteria (and totality of the circumstances) are satisfied as to the coalition.

         C. Whether the VRA can require the State to violate the County Line Rule[12]

         It is undisputed that mapdrawers did not create certain opportunity districts even though the proposed districts met their population thresholds because they felt that doing so would have required a County Line Rule violation. In their briefing, Defendants argue that requiring the Legislature to violate the County Line Rule to comply with § 2 would violate the Equal Protection Clause and the Shaw v. Reno line of cases because they would be subordinating traditional redistricting principles to race. Docket no. 1295 at 54-55; docket no. 996 (Motion for Summary Judgment) at 28-31. The Court disagrees.

         The Supremacy Clause generally requires that state laws that are inconsistent with federal laws must yield to the federal law. As a result, it is well established that state constitutional principles such as the County Line Rule must yield to the Equal Protection Clause's one-person, one-vote requirement. Bartlett v. Strickland, 556 U.S. 1, 6 (2009) (“It is common ground that state election-law requirements like the Whole County Provision may be superseded by federal law—for instance, the one-person, one-vote principle of the Equal Protection Clause of the United States Constitution.”). Mapdrawers recognized this requirement by splitting one county in the map to maintain an overall deviation below 10%, but they asserted that this was the only county cut permitted by law. And although the TLC had advised that the County Line Rule would also have to yield to the VRA and Texas had itself taken this position in prior redistricting litigation, [13]redistricting leadership flatly rejected that position.

         In Strickland, the Supreme Court considered the question “whether § 2 of the Voting Rights Act requires district lines to be drawn that otherwise would violate the Whole County Provision” in North Carolina's Constitution. 556 U.S. at 7. The Court then stated, “That, in turn, depends on how the statute is interpreted.” Id. The Court noted that § 2 “can require the creation of [majority-minority] districts” but concluded that the VRA did not require the particular district at issue to be drawn because the plaintiffs had failed to establish the first Gingles precondition under the Court's newly established majority standard. Id. at 13-15. Thus, because the district was not required by § 2 in that case, the Supreme Court did not directly decide the initial issue of whether § 2, when satisfied, could have required the state to draw a district in violation of the Whole County Provision. Nevertheless, such a conclusion is implied, given that the Court could simply have held that § 2 could not require any district to be drawn in contravention of the Whole County Provision, regardless of how the statute is interpreted and regardless of whether § 2 requirements were satisfied, rather than determining whether § 2 required the district in the first instance.

         Nevertheless, Defendants argue that the “Legislature's adherence to the Texas Constitution was not only a rational exercise of race-neutral policy; it was essential to avoid a violation of the Equal Protection Clause” and that Plaintiffs' “suggesting that the [VRA] compels subordination of traditional redistricting principles to race, would simply redirect the strict scrutiny analysis to section 2 itself.” Docket no. 411 at 38-39. Defendants contend that Supreme Court jurisprudence holds “beyond question that traditional redistricting principles cannot be subordinated to race without running afoul of the Fourteenth Amendment.” Id. at 39-40. However, the Supreme Court's Equal Protection cases debunk this argument.

         Justice O'Connor, writing for a plurality, held that, assuming compliance with § 2's results test is a compelling state interest (this Court holds that it is), the “narrow tailoring” requirement of strict scrutiny allows states a limited degree of leeway in furthering such interests—“[i]f the State has a ‘strong basis in evidence' for concluding that creation of a majority-minority district is reasonably necessary to comply with § 2, and the districting that is based on race ‘substantially addresses the § 2 violation, ' it satisfies strict scrutiny, ” meaning that it operates as a defense to a charge of racial gerrymandering. Bush v. Vera, 517 U.S. 952, 977 (1996) (plurality opinion). Further, the plurality noted, the “district drawn in order to satisfy § 2 must not subordinate traditional districting principles to race substantially more than is ‘reasonably necessary' to avoid § 2 liability.” Id. at 979. On its face, this language makes clear that traditional districting principles may be subordinated to race when necessary to avoid § 2 liability (but no more than necessary).

         Similarly, the Fifth Circuit has held that a majority-minority district “is constitutional if the State has a ‘strong basis in evidence' for concluding that the three Gingles preconditions are present and if the district drawn in order to satisfy § 2 does not ‘subordinate traditional districting principles to race substantially more than is “reasonably necessary” to avoid § 2 liability.'” Clark v. Calhoun Cty., Miss., 88 F.3d 1393, 1407 (5th Cir. 1996); see also Id. at 1406 (“a tailored response to a found [§ 2] violation must use race at the expense of traditional political concerns no more than is reasonably necessary to remedy the wrong”). Thus, traditional districting principles such as the County Line Rule may be subordinated to race to remedy a § 2 violation, so long as it is no more than reasonably necessary to comply with § 2.[14] Cf. Bethune-Hill v. Va. State Bd. of Elections, 137 S.Ct. 788 (2017) (affirming district court's finding that although race predominated in the drawing of District 75, the district survived strict scrutiny because the legislature's use of race was narrowly tailored to complying with § 5 of the VRA).

         Defendants' position conflates the two steps of a Shaw-type Equal Protection analysis. When a party asserts a claim under Shaw that a districter has racially gerrymandered a district, the first inquiry is whether traditional redistricting principles are subordinated to race such that racial criteria predominated; if so, strict scrutiny is triggered. In Defendants' view, the first step would be the end of the inquiry. However, as discussed above, strict scrutiny allows the use of race when narrowly tailored to further a compelling state interest, such as complying with the VRA. Accordingly, strict scrutiny permits the subordination of traditional redistricting principles to race insofar as reasonably necessary to avoid § 2 liability and/or remedy the wrong. While states choosing to draw districts may avoid strict scrutiny under the Equal Protection Clause by respecting their own traditional districting principles and the states retain “‘discretion to apply traditional districting principles, ' in majority-minority, as in other, districts, ” Bush, 517 U.S. at 978, this does not mean that they may claim that a single traditional districting principle such as the County Line Rule allows them to avoid drawing districts required by § 2 under the totality of circumstances.[15] Thus, the Court rejects Defendants' argument that the VRA cannot require the Legislature to violate the County Line Rule.

         The Court will thus consider Plaintiffs' § 2 results claims and Gingles maps, including those that create purported coalition districts and that violate the County Line Rule. However, the Court emphasizes that the VRA requires the County Line Rule to be subordinated only to the extent reasonably necessary to remedy a § 2 violation. Accordingly, Plaintiffs' demonstration maps should attempt to honor the County Line Rule to the extent doing so is consistent with the VRA.

         II. Intentional Vote Dilution and Select § 2 Results Claims by Geographic Area

         The Court applies the analytical framework for intentional vote dilution claims under § 2 of the VRA and the Fourteenth Amendment as discussed in the congressional plan opinion. For § 2 results claims, the Court applies the Gingles framework, including as discussed above.

         The United States asserts intentional vote dilution claims with regard to the entire plan, but points to specific districts as proof of intent, including districts in the Rio Grande Valley (including specifically HD41), HD35, Nueces County, El Paso (HD77 and HD78), Dallas County (HD103, HD104, and HD105), Bexar County (HD117 and HD118), and Harris County (HD137 and HD149). Docket no. 1304 at 2 n.1. The United States relies on circumstantial evidence as well as direct evidence, including: (1) the nudge factor emails and evidence that the nudge factor was implemented in certain Latino opportunity districts that elected an Anglo-preferred candidate in 2010; (2) racially focused statements by legislators and districting insiders showing they thought and spoke in terms of race; and (3) precinct splits, including the high number of splits in general (412 in Plan H283) and the indication that many splits were racial and indicate the use of race as a proxy for partisanship given that accurate political information is not available below the precinct level, while racial data is. Docket no. 1279 at 11-14.

         The Perez Plaintiffs also complain that Plan H283 “intentionally discriminated against minority voters.” Docket no. 960 ¶ 28. They (joined by the NAACP Plaintiffs) specifically allege such discrimination in Dallas County, Tarrant County, Harris County, Bell County, McLennan County, Fort Bend County, Nueces County, Bexar County, and HD41. Id.;; docket no. 1303; docket no. 601. The NAACP alleges that Plan H283 was developed with the intent to disadvantage African-American and other minority voters. Docket no. 900 ¶ 62.

         MALC challenges Plan H283 as a whole as intentionally diluting Latino voting strength by failing to draw new opportunity districts despite the population growth, using the County Line Rule to avoid drawing minority opportunity districts required by § 2 and diminishing Latino voting strength, packing and cracking politically cohesive Latino and minority communities, manipulating population, and racial gerrymandering. Docket no. 897 ¶¶ 2-10. MALC also specifically alleges that mapdrawers: pretextually used the County Line Rule to avoid drawing a new Latino opportunity district in the Midland/Odessa area of West Texas (¶ 38); eliminated a Latino opportunity district in Nueces County (¶ 42); failed to draw an additional Latino opportunity in Harris County (¶¶ 47-48); failed to provide minority opportunity in Fort Bend County and unnecessarily fragmented the minority population there to minimize its political strength (¶ 51); failed to draw an additional minority opportunity district in Bell County and intentionally fragmented the minority community in Killeen to minimize its political impact (¶¶ 54, 56); intentionally fragmented minority population while at the same time overpopulating Latino majority districts in Dallas County, leading to the failure to create at least one and possibly two additional minority opportunity house districts in Dallas County (¶ 57); impermissibly focused on race and targeted low-turnout Hispanic voters for inclusion in HD117 in Bexar County to protect incumbent Republican John Garza (¶ 58); and drew the border between HD77 and HD78 in El Paso with racially discriminatory intent (¶ 59).

         Defendants assert that the mapdrawers' application of the County Line Rule is not evidence of intentional vote dilution because it was a consistently applied neutral, traditional districting principle. Docket no. 457 at 68. Defendants further generally deny any improper use of race, arguing that any consideration or use of race was only as needed to comply with the VRA.

         A. El Paso County

         Plaintiffs assert that the El Paso County configuration, particularly HD77 and HD78, is evidence of intentional vote dilution. Plaintiffs assert “nudge factor” claims against HD78 and contend that it intentionally does not provide Latinos equal opportunity in an effort to protect the Republican incumbent Dee Margo. Plaintiffs also assert that five compact Latino opportunity districts should have been drawn in El Paso County compared to only four opportunity districts in Plan H283. Although the HCVAP of HD78 is over 50% (55.2%), Defendants admit that “Plan H283 did not create an additional majority-Latino district in El Paso, ” docket no. 413 FF71, presumably because it did not meet their 50% SSVR threshold even though it was (and all four other districts in El Paso County were) over 50% HCVAP.

         The United States asserts that mapdrawers' intentional refusal to create a fifth Latino opportunity district in El Paso, even though it could be done without violating the County Line Rule or other traditional districting principles, and instead making a “policy choice” to protect the Anglo incumbent was intentional vote dilution. Docket no. 1279 at 36, 39-40. To do this, the United States argues, Downton manipulated the SSVR in HD78 and analyzed election data to ensure that the Hispanic candidate of choice was unlikely to be elected. Docket no. 1279 at 40.

         The Task Force Plaintiffs argue that the Latino population “could be more evenly spread among all five districts in El Paso County, ” giving Latinos the opportunity to elect their candidate of choice in all five districts, and that Plan H283 packs Latino voters in El Paso County into the other districts to prevent Latino voters in HD78 from electing their candidates of choice. Docket no. 634 FF458, 459; docket no. 1282 at 2. The Task Force Plaintiffs contend that HD78 in Plan H283 is not a Latino opportunity district but that it could be drawn as an additional Latino opportunity district as in their demonstration Plan H292. Docket no. 1282 at 6.

         MALC's Third Amended Complaint notes that the border between HD77 and HD78 has a bizarre shape with deer antler protrusions that split multiple precincts between these two districts. Docket no. 897 ¶ 59. MALC notes that its Plan H205 creates five reasonably compact majority-SSVR and majority-HCVAP districts in El Paso. Docket no. 412 at 18.[16]

         Defendants assert that the “possibility of creating an additional Latino-majority Democratic district does not obligate the State to create it” and that Plaintiffs have failed to show that the totality of circumstances required such a district, especially given that “Democratic voters are consistently successful in electing their candidates of choice in El Paso County” and “the alleged number of Latino candidates of choice elected to the House from El Paso County—four out of five—is proportional to the Latino percentage of citizen voting age population.” Docket no. 457 at 33.

         Defendants further assert that the El Paso map was developed and agreed to by the five-member delegation, four of whom were Democrats and members of MALC, and all of whom were elected from HCVAP-majority districts. Docket no. 1249-1 at 10. Defendants point out that under both Plan H100 and Plan H283, all five districts were over 50% HCVAP and all but HD78 were over 50% SSVR, and assert that the levels of both were “substantially similar across both plans.” Docket no. 1249-1 at 13. Defendants argue that “there is no evidence that the configuration of HD78 deprives any Latino voter in El Paso County of an ‘equal opportunity' to participate in the political process or to elect candidates of their choice” and that, even if Plaintiffs could satisfy all three Gingles preconditions, they fail to “prove that the totality of circumstances requires the State to restructure HD78 to unseat the incumbent” because “Latinos are more than proportionally represented in El Paso County's House delegation, ”[17] “[t]he only possible basis for Plaintiffs' claim is the Legislature's failure to maximize Latino representation, ” and “[t]he Legislature's decision to maintain existing Latino population levels in the district, presumably offering some protection to the incumbent, does not support a finding of vote dilution.” Docket no. 411 at 42; see also docket no. 457 at 31-32.

         The Court finds that Downton reconfigured the border between HD77 and HD78 to intentionally dilute the Latino vote in HD78. Although Pickett, the County delegation dean, submitted two County proposals to Solomons, Downton chose the one that was not preferred by Pickett, [18] and he then made further changes to the border between HD77 and HD78 without input from the delegation. See TrJ2103 (Downton did not incorporate input from Margo or Marquez). The evidence appears undisputed that, after choosing to go forward with the Marquez map from the El Paso County delegation, Downton made further unilateral, race-based changes to the border of HD77 and HD78, ostensibly to address concerns raised by David Hanna about the fact that the SSVR of HD78 had dropped below benchmark levels. Hanna's memo stated that this “risk of retrogression . . . could easily be remedied by swapping some precincts with an adjoining district, ” especially in light of the disparity in SSVR between HD78 and the other El Paso districts. D-122. However, rather than follow Hannah's advice to increase the SSVR of HD78 by swapping a few precincts, Plaintiffs contend that Downton surgically split precincts and moved individual census blocks between HD77 and HD78, while monitoring election data to ensure that he did not create a Latino opportunity district. Docket no. 1279 (United States Brief) at 39-40. The Court agrees with this assessment.

         Although Downton claimed to make these race-based splits with the goal of complying with § 5 by raising the SSVR of HD78 (TrJ2002, TrJ2102), his so-called “compliance” with § 5 was intentionally superficial because he wanted to protect the Republican incumbent elected in 2010, who was not the Latino candidate of choice. Downton's changes were designed to appear to comply with § 5 by increasing the SSVR of HD78, but without increasing or ensuring Latino ability to elect, which is the basis upon which § 5 permits such race-based districting actions. Downton's precinct splits were deliberate and based on more than simply increasing SSVR; his purpose was to increase the SSVR while simultaneously ensuring that election success rates remained minimally improved for Latinos.

         Downton achieved his purpose by increasing the total SSVR by 1% (and non-suspense SSVR by .9%), while increasing election performance for Latinos by only .3 or .4%. PL-503; D-109. Further, Downton and mapdrawers knew from the OAG 10 that although HD78 remained at 2/10 wins for Latino-preferred candidates, the margin of victory for the two prevailing Latino-preferred candidates had been reduced from the benchmark. US-190; US-190A. This is not compliance with § 5, which looks to numerous factors, including Latino election success, in determining whether a district has “ability to elect, ” and does not just focus on a single demographic such as SSVR. In fact, increasing the SSVR while at the same time monitoring Latino ability to elect to ensure that it is not correspondingly increased is antithetical to the purpose of § 5 and the VRA and is intentionally racially discriminatory. The changes cannot be excused as mere partisan gerrymandering because of their racially discriminatory nature. Given the existence of racially polarized voting in El Paso County and the totality of circumstances, this manipulation constitutes intentional vote dilution in violation of § 2 of the VRA and the Fourteenth Amendment.

         In sum, the § 2 results claims in El Paso County are moot, but the Court finds that mapdrawers intentionally diluted the Latino vote in violation of § 2 of the VRA and the Fourteenth Amendment with regard to HD78.

         B. Bexar County

         Benchmark HD117 was a Latino opportunity district, electing the Hispanic candidate of choice in three out of the five last endogenous elections. In 2010, it elected Republican John Garza, who was not the Latino candidate of choice. Numerous Plaintiffs contend that the Legislature intentionally diluted Latino voting strength in the district to protect Garza. Plaintiffs[19] argue that HD117 was no longer a Latino opportunity district in Plan H283 despite its majority-HCVAP and majority-SSVR status. The D.C. Court found that HD117 was an ability-to-elect district in the benchmark, but was no longer an ability district in Plan H283. Texas v. United States, 887 F.Supp.2d 133, 170-71 (D.D.C. 2012), vacated on other grounds, 133 S.Ct. 2885 (2013). Based on a preliminary finding that mapdrawers were impermissibly focused on race in trying to make HD117 more Republican, this Court remedied the “not insubstantial” § 5 claim in the interim plan, reconfiguring HD117 to return it to benchmark performance levels. Docket no. 690 at 6.

         The Task Force Plaintiffs bring a “nudge factor” claim against HD117 in Bexar County. The United States also asserts a nudge factor claim, arguing that mapdrawers replaced high-turnout Hispanic voters with poor, low-turnout Hispanic precincts to increase Hispanic population levels but decrease SSVR, Hispanic turnout, and Hispanic electoral performance. Docket no. 1279 at 41. MALC also alleges that “[i]n creating a district to safely re-elect Rep. Garza the state impermissibly focused on race by targeting low-turnout Latino precincts.” Docket no. 897 ¶ 58.

         Defendants argue that the Bexar County map was developed by the ten-member delegation, led by Democrats Villarreal and Ruth Jones McClendon. Docket no. 1249-1 at 15. Defendants contend that Garza wanted rural areas because he viewed them as more conservative and more likely to vote Republican, and that he wanted to create a rural, conservative district outside the City of San Antonio[20] to bolster his re-election prospects while maintaining SSVR over 50%, and that this is not evidence of racial animus. Docket no. 1249-1 at 17, 1249-2 at 23 (citing TrJ399 (Garza), TrJ1518, TrJ1523 (Interiano)). Defendants point to Farias's testimony that it was a partisan decision. Docket no. 1272 at 56 (citing Tr353-54).

         Defendants argue that Speaker Straus and his staff determined that in order to achieve these goals, HD117 needed to include rural areas of southern Bexar County that were previously represented by Farias under the benchmark. Docket no. 1249-2 at 23 (citing TrJ1559 (Interiano)). Defendants assert that ultimately HD117 was agreed to by Rep. Villarreal and 9 of 10 members of the Bexar County delegation, that even if Garza had an improper motive, there is no evidence other members of the delegation were aware of that motive, and that Plaintiffs have not shown that Garza's individual motivations were a substantial or motivating factor behind the Legislature's adoption of the plan. Docket no. 1249-2 at 23-24; docket no. 1272 at 54.

         It is undisputed that Garza's initial ideal district was rejected by redistricting leadership because it fell below 50% SSVR and that mapdrawers and redistricting leadership felt that HD117 had to be maintained above 50% SSVR to avoid retrogression. Defendants' argument that this was an agreed delegation map is demonstrably false with regard to the configuration of HD117. Rather, the evidence is clear that Garza's and Larson's staff worked with Interiano to draw the configuration of HD117 that was placed into Plan H283, and that Farias vigorously objected to the configuration of his district. The delegation members (except Garza and Straus) also voted against the motion to table Farias's proposed amendment. D-190 at 2294-95.

         Interiano worked to draw a district with exactly 50.1% SSVR to maintain its appearance as a Latino opportunity district and avoid retrogression under the mapdrawers' majority-SSVR criterion, while minimizing Hispanic turnout. He added in areas such as Somerset and Whispering Winds with higher Hispanic population but low Hispanic voter turnout and removed areas inside San Antonio, such as areas of South San Antonio ISD, that had highly mobilized Hispanic voters. Hispanic population was manipulated to maintain exactly 50.1% SSVR while minimizing Hispanic turnout and electoral performance.

         Although Interiano testified that they were simply trying to balance increasing SSVR with “keeping political numbers up, ” his explanations for the district were not credible, as discussed in the fact findings. His testimony that Garza wanted to stay outside the City was not credible, as noted. His testimony that Garza was concerned with water issues also was not credible, given that Garza himself testified that the political issues surrounding Bexar Met were independent from redistricting, and he did not have any goals in redistricting relating to taking more or less of Bexar Met territory. TrJ405-08. Interiano's denial of using turnout to shape the district is not credible.

         Rather, the Court finds that Interiano drew the district to increase SSVR while intentionally minimizing any gains in Latino electoral performance. This is consistent with Garza's own testimony. Garza testified at his deposition that his ideal district went farther north because the area was “more Anglo and more conservative, ” and he preferred more Anglo and more conservative areas because “[t]hey would tend to vote Republican.” PL-454 (Garza 10-19-11 depo.) at 30-31; TrJ367-69 (Garza). He also testified that he and his staff had looked at turnout, including the turnout between Anglos and Hispanics. TrJ373. He testified that rural Hispanic turnout tended to be low, and he thought Somerset Hispanic turnout would be low. TrJ374, TrJ403-04. Further, Interiano and Garza's staff knew that Garza did not tend to win SSVR-majority precincts. PL-1664. The wishes of senior member Farias to maintain his relationship with Whispering Winds and Somerset were ignored and were not permitted to interfere with the goal of protecting Garza by suppressing Latino electoral performance. And Solomons' objection to Farias's proposed amendment, which would have kept the district at 50.1% SSVR—that it contained more split precincts—was obviously pretextual given the number of split precincts in the plan created by his own mapdrawers.

         The final configuration of HD117 includes a very large gap between HCVAP and SSVR of 13.7 points, well beyond any gap in any other House district.[21] By minimizing Hispanic voter registration and turnout, Interiano successfully decreased the performance of HD117. According to Handley, HD117's performance on the exogenous election index went from 60% to 20%. Considering all the evidence, that Court finds that mapdrawers intentionally drew HD117 with 50.1% SSVR but with lower performance for Latinos by manipulating Latino population and turnout. Interiano was given authority to draw the maps by redistricting leadership, and his knowledge and motives must be imputed to the Legislature as a whole, regardless of whether individual members of the Legislature were aware of the information when they voted for the map. The configuration of HD117 is evidence of intentional vote dilution under § 2 of the VRA and the Fourteenth Amendment.

         In sum, any § 2 results claims in Bexar County are moot, but the Court finds that mapdrawers intentionally diluted the Latino vote in HD117 in violation of § 2 and the Fourteenth Amendment.

         C. Nueces County

         It is undisputed that Nueces County had two benchmark Latino opportunity districts, though they both elected Republicans in 2010. It also contained part of a third district represented by Anglo Republican Todd Hunter. When faced with slower population growth in Nueces County such that it would only be entitled to two districts under the County Line Rule, Hanna advised mapdrawers that they had three options: (1) draw one “performing” Hispanic district and one not; (2) draw two equally Hispanic districts, which may not perform reliably; or (3) see if both Latino opportunity districts could be preserved by splitting county lines. D-122. Hanna advised that the County Line Rule would have to yield to the VRA if retrogression could be avoided by splitting the county and it would clearly contribute to total Hispanic voting strength statewide. As noted in the fact findings, mapdrawers chose the first option because they felt it allowed them to maintain more Republican seats and protect Republican Anglo incumbent Hunter. Mapdrawers did not look into whether two Hispanic districts could be maintained in Nueces County, either wholly within Nueces County or by breaking the County Line Rule.[22]

         Defendants contend that the reduction in population combined with the County Line Rule eliminated the minority district in Nueces County, and the delegation proposed the new districts. They contend that the configuration reflects only partisan and neutral districting principles and does not violate the VRA. The configuration of Nueces County remains unchanged in the current plan.

         The § 2 results claim in Nueces County presents two questions: (1) assuming only two districts are required within Nueces County, did plaintiffs prove a § 2 violation by the Legislature's failure to draw both as Latino opportunity districts? and (2) have Plaintiffs proven that the VRA requires more than two districts to be drawn in Nueces County (i.e., a County Line rule violation)?

         Defendants argue that Plaintiffs fail to prove a § 2 violation because Nueces County was only entitled to two districts and, “[a]ccording to the only population data available at the time the Texas House map was drawn, Nueces County's total SSVR percentage was 49.5%” such that creating two SSVR-majority districts within Nueces County was impossible. Docket no. 411 at 42-43. It is true that, at the time the first drafts of the map were created, the only current data mapdrawers had available was SSVR. Because Nueces County was less than 50% SSVR, it was mathematically impossible to draw two SSVR-majority districts within the County. However, mapdrawers knew that SSVR was typically lower than HCVAP, that Nueces County had been over 50% HCVAP in 2000, and that Hispanic population had increased while Anglo population had declined, meaning they had every reason to believe that the HCVAP of Nueces County was over 50% even without more recent HCVAP data.

         Moreover, Defendants' assertion that HCVAP data was not available is simply untrue. The HCVAP data was available to mapdrawers by April 21, 2011, before the map went to the floor, and would have shown that Nueces County HCVAP was over 50%. Interiano stated at trial that he knew that the HCVAP of Nueces County exceeded 50%, Tr1463, and he also would have been aware that HCVAP was the appropriate measure for determining whether § 2 required a Latino opportunity district. E.g., US-76 (Opiela November 20, 2010 email, with Interiano copied, discussing that they needed to evaluate districts in terms of VAP and CVAP and stating that Fifth Circuit law clearly established CVAP as the standard). Downton testified repeatedly that he used a 50% HCVAP standard for measuring Latino opportunity districts. Nevertheless, Interiano as primary mapdrawer and other redistricting leaders continued to focus solely on SSVR for Latino districts in the Texas House plan, and never explored whether two HCVAP-majority districts could have been drawn wholly within Nueces County. TrA64-65 (Interiano).

         In their briefing, the Task Force Plaintiffs assert that because Nueces County was over 50% HCVAP, two HCVAP-majority Latino opportunity districts could have been drawn wholly within the County.[23] However, while it is certainly theoretically and mathematically possible to draw two HCVAP-majority districts wholly within Nueces County, no plaintiff has provided such a proposed map or shown that the Latino populations in such districts would be compact, taking into account traditional redistricting principles. Thus, Plaintiffs fail to satisfy their burden under Gingles of showing that two Latino opportunity districts could be drawn wholly within Nueces County (i.e., without violating the County Line Rule).

         Plaintiffs have proffered demonstration maps that would maintain two Latino-majority districts in Nueces County by breaking the County Line Rule. Because Solomons decided never to break the County Line Rule to comply with the VRA, mapdrawers did not explore whether to include more than two districts in Nueces County or whether doing so would have been required by § 2 or § 5 of the VRA, despite Hanna's advice to investigate this issue. This Court has found, and Defendants do not dispute, that both Nueces County-based benchmark districts HD33 and HD34 were majority-Hispanic, majority-HCVAP, and majority-SSVR Latino opportunity districts, even though they did not elect the Latino candidates of choice in 2010. Although Defendants have argued that this was an agreed-upon delegation map, see e.g., docket no. 1249-1 at 30, the evidence is clear that mapdrawers and redistricting leadership made the decision to eliminate HD33 and to create only one Latino opportunity district within Nueces County.

         Plaintiffs' demonstration maps would purportedly maintain two Latino opportunity districts, but they subordinate the County Line Rule in order to do so. Defendants' objections to the maps include the violation of the County Line Rule and racial gerrymandering. The Court finds that consideration of this issue is premature—the Court cannot hold that the Legislature was required to break the County Line Rule to maintain two Latino opportunity districts in Nueces County without Plaintiffs first showing that it was reasonably necessary to comply with § 2 (i.e., that two Latino opportunity districts could not be maintained consistent with the County Line Rule). Because, as explained above, Plaintiffs have failed to make that showing, this issue is not ripe for consideration.[24]Thus, with regard to Nueces County, Plaintiffs have failed to demonstrate a violation of § 2's results test at this time. However, they may continue to pursue this claim with regard to Plan H358 in the 2013 plan trial because the Nueces County configuration remains unchanged from Plan H283.

         In addition to the § 2 results claims based on the failure to maintain two Latino opportunity districts in Nueces County, Plaintiffs contend that the decision to eliminate an existing Latino opportunity district in Nueces County was intentional vote dilution. Plaintiffs also argue that the district lines for those districts that remained in Nueces County are evidence of racial gerrymandering and intentional vote dilution. See, e.g., docket no. 1279 at 49-50. The United States notes that Plan H283 includes “a convoluted line that ensures Anglo control over HD32, ” that HD34 “was packed with a greater share of Spanish surnamed registered voters than any Nueces County district prior to the 2011 redistricting, leaving HD32 with a substantial majority of the Anglo voters in Nueces County, ” and HD34 was overpopulated compared to HD32. Docket no. 1279 at 50-51. The United States also contends that the “protuberance from HD34 . . . ensured that no potential Hispanic candidate with recent legislative experience—including the Republican incumbent of HD33, the former representative of HD33, and the former representative of HD34—would reside in the new HD32 to challenge the Anglo incumbent, ” and the State's witnesses provided no plausible alternative explanation for the convoluted boundary. Docket no. 1279 at 51. The Task Force also contends that the bizarre extensions along the border of HD32 and HD34 are evidence of racial gerrymandering. Docket no. 1282 at 64.

         The Court agrees that the facts and evidence concerning the decision to eliminate HD33 in Nueces County demonstrate intentional vote dilution. Specifically, the Court relies on (1) the fact that redistricting leadership eliminated an existing Latino opportunity district without considering whether two Latino opportunity districts were required by § 2 of the VRA under the appropriate standard (HCVAP), (2) the fact that they decided to eliminate ability district HD33 without replacing it elsewhere but instead raised the SSVR of two existing ability districts to claim an “offset” under § 5 of the VRA and attempt to ward off § 2 challenges in bad faith, [25] and (3) the ultimate configuration of the remaining Nueces County districts as demonstrating racial gerrymandering.

         Mapdrawers intentionally did not consider whether § 2 required two districts in Nueces County, and used a false reliance on SSVR and the County Line Rule to justify their refusal to maintain two Latino opportunity districts in Nueces County. Further, they knew that HCVAP was the proper measure for a Latino opportunity district and had HCVAP data available before the map went to the floor, but insisted on using SSVR as the measure because SSVR was lower (and lower than 50%), and it allowed them to argue that mathematically, two SSVR-majority districts could not be drawn. Although Nueces County was majority HCVAP and had been since at least 2000, they refused to consider whether two HCVAP-majority districts could be drawn wholly within the County. In addition, mapdrawers and redistricting leadership steadfastly refused to consider whether the County Line Rule might have to yield to maintain two Latino opportunity districts in the area, despite Hanna's advice to the contrary. The Court finds that their refusal to consider the proper requirements of § 2 and to attempt to comply with it was in bad faith and intended to limit Latino opportunity.

         Rather than attempting to comply with § 2 by maintaining two Latino opportunity districts, mapdrawers and redistricting leadership attempted to use § 5 as a shield for their failure to attempt compliance with § 2 and for eliminating an existing Latino opportunity district. Mapdrawers and redistricting leadership asserted that, under § 5, they could “offset” the loss of HD33 as an ability district by creating a new 50% SSVR district elsewhere in the State. Mapdrawers chose two districts that were already performing reliably for Latino voters despite being under 50% SSVR (HD90 and HD148) and raised their SSVR over 50%, claiming that these “new” Latino districts could offset the loss of HD33 and avoid statewide retrogression for preclearance purposes. However, as the D.C. Court found (and as redistricters knew), these were already ability districts, and thus increasing their SSVR did not create any “new” ability district to offset the loss of HD33. Mapdrawers and redistricting leadership relied in bad faith on a 50% SSVR standard as the definition of “ability district” despite clear DOJ guidance to the contrary so that they could claim compliance with § 5 while simultaneously ensuring that no new Latino districts were created to offset the loss of HD33.

         At the same time, increasing the SSVR in HD90 and HD148 increased the number of HCVAP-majority districts in the plan by at least one (HD148) and arguably two (using 2005-2009 ACS data, the HCVAP was of HD90 was 49.7 2%). Because § 2 results claims require plaintiffs to show that more HCVAP-majority districts could have been drawn, mapdrawers acted in bad faith to try to thwart such claims by artificially inflating the number of HCVAP-majority districts—creating them where there was no § 2 right because the districts were already performing for Latinos.

         Redistricting leadership ignored warnings from Nina Perales in her April 27 letter that the HD33 loss was not offset by artificially increasing the SSVR in HD90 and HD148 and that additional Latino opportunity districts were required. They chose to increase the SSVR in districts that were already performing for Latinos so that they could claim VRA compliance and minimize the number of Latino opportunity districts without losing or jeopardizing any Republican incumbent seats—that is why they did not raise the SSVR in El Paso County's HD78, which elected a Republican in 2010. Mapdrawers' use of race to increase the SSVR in HD90 and HD148 in the name of VRA compliance turned the VRA on its head—instead of using race to provide equal electoral opportunity, they intentionally used it to undermine Latino voting opportunity.

         Further, there is evidence that the mapdrawers (including specifically Rep. Hunter) racially gerrymandered the districts that remained in Nueces County to further undermine Latino voting strength. There are ten precinct splits along the HD32/HD34 border, see US-387, indicating that mapdrawers were likely using race to assign population since accurate political data is not available below the precinct level. Although mapdrawers claimed that they needed to make HD32 “performing, ” there is no evidence that they needed to put as many Hispanic voters in HD32 as they did, either to comply with § 2 or § 5. Thus, mapdrawers intentionally packed Hispanic voters into HD32 to minimize their number and influence in HD34 and protect Hunter. As discussed in the fact findings, there is also evidence that they targeted low turnout minority areas for inclusion in HD34 and intentionally drew out potential Hispanic rivals (both Republican and Democrat), again to protect the Anglo incumbent. And, as discussed below, there is evidence that Hunter intentionally overpopulated HD32 (and underpopulated his own HD34), without a legitimate justification for doing so.

         In sum, Plaintiffs' § 2 results claims are not moot, but Plaintiffs failed to prove them with regard to Plan H283. Because this configuration remains unchanged in the current plan, Plaintiffs may bring their results claims with regard to the 2013 plan. However, the Court finds that redistricters intentionally diluted Latino voting strength by eliminating HD33 in Nueces County. Mapdrawers' use of race in HD90 and HD148 to “offset” this loss was not to comply with the VRA but to intentionally dilute Latino voting strength by (1) allowing redistricting leadership to claim that they were complying with the VRAdespite eliminating HD33 and creating no new opportunity or ability districts; (2) thwarting arguments that § 2 might require additional opportunity districts by artificially inflating the number of Latino-majority districts in the plan; and (3) racially gerrymandering and utilizing population deviations to further dilute the Latino vote in the remaining two Nueces County districts. As discussed in the congressional plan opinion, there is legally significant racially polarized voting in Nueces County. Given the existence of racially polarized voting and the history of discrimination and its legacy in Nueces County, and considering the totality of circumstances, the elimination of an existing Latino opportunity district and ensuing racial gerrymandering in Nueces County is intentional vote dilution in violation of § 2 of the VRA and the Fourteenth Amendment.

         D. HD35

         HD35 was and remains a district composed of whole counties, though the county configuration was altered in Plan H283 and all Hispanic population metrics were decreased from the benchmark configuration. The United States contends that HD35 was a Latino opportunity district in Plan H100 and is no longer in Plan H283, and this is the result of intentional vote dilution.

         Docket no. 1279 at 44-45.

         The Court agrees that benchmark HD35 was a Latino opportunity district, though it elected a Hispanic Republican in 2010, who was not the Hispanic candidate of choice. As drawn pursuant to a court remedy in 2001, it had 51.5% SSVR. Over the decade, it elected the Hispanic-preferred candidate four out of five times, for an endogenous election index score of 80%. Its exogenous election index score was 40%. By the time of redistricting, the SSVR of the district had risen to 55.4%, yet Plan H283 reduced it to 52.7% through its new configuration of whole counties. Its exogenous election score dropped to 20%. Because of the SSVR reduction, Hanna advised mapdrawers to perform election analysis to measure its performance, and Interiano and mapdrawers knew from the OAG election analysis that the performance for the Hispanic candidate of choice decreased. Dr. Arrington testified that benchmark HD35 was an effective Latino opportunity district, but that it was no longer effective in Plan H283. TrJ119, TrJ134-35.[26]

         During the session, MALDEF offered Plan H115 that increased the SSVR of HD35 to 58.2%, but it broke the County Line Rule. In addition, Rep. King (an Anglo Democrat) proposed an amendment (Plan H161) that would have changed the county configuration, but the incumbent Aliseda objected. He stated that the amendment increased his SSVR “a little bit more” (he stated it was less than .02%), but asserted that was not the reason he objected; rather, he asserted, it was because it made his district “into a more democrat district.” D-13 at ¶ 183-84. Rep. Coleman offered Plan H232, which he stated “strengthened existing Latino opportunity district HD35” and made it more likely to perform. Martin opined that Plan H232 strengthened HD35 while preserving other Latino districts in the region and complying with the County Line Rule. Joint Expert Ex. E-5 (Martin Report) at 13-14.

         According to the D.C. Court's opinion in the § 5 preclearance litigation, the parties agreed that HD35 in Plan H283 was not an ability district, but they disagreed on whether it was an ability district in the benchmark and thus whether there was retrogression. Texas v. United States, 887 F.Supp.2d 133, 167 (D.D.C. 2012) (vacated on other grounds). The D.C. Court found that it had been an ability district because it had a high endogenous success rate (80%) despite lower exogenous index scores. The D.C. Court concluded that it no longer was an ability district in Plan H283 based on the “low exogenous election results for the enacted district combined with HCVAP changes that push the district even closer to the majority line.” Id. at 168. It noted that this particular district presented “a close and very difficult case” and that it might have reached a different conclusion if presented “with more or different evidence, ” but that the State had not met its burden of proof. Id. at 168 n.37.

         This Court finds that HD35 remains an opportunity district in Plan H283. The evidence shows that benchmark HD35 performed well for Latinos despite weak exogenous election scores. Some changes to the district were required by the fact that it was underpopulated by 9.4%. Although Handley's index and the OAG 10 showed a one election decrease in Latino performance on the exogenous index between the benchmark and enacted districts, Dr. Engstrom's analysis actually showed an increase in Latino performance from 2-5 to 3-4. Plaintiffs have failed to meet their burden of proof of demonstrating that HD35 is no longer an opportunity district. In addition, as discussed in the fact findings, there is no evidence to support the United States' contention that mapdrawers manipulated turnout in this district. Accordingly, the Court finds that this district does not support a claim of intentional vote dilution or racial gerrymandering.

         E. HD41

         Several Plaintiffs, including MALC, Perez Plaintiffs, [27] and the United States, challenge HD41 as the product of racial discrimination and intentional vote dilution. Defendants contend it is merely the product of partisan gerrymandering to protect newly-Republican Aaron Peña.

         The United States argues that HD41 was changed so significantly and contains so many split precincts that its continued status as an opportunity district is in question. Although its HCVAP and SSVR percentages decreased by around 5%, they remained high at 72.1% HCVAP and 63% total SSVR. The D.C. Court concluded that HD41 remained a Hispanic ability district in Plan H283 because the court applied a 65% HCVAP ability presumption that was not disproved. Texas, 887 F.Supp.2d at 169-70. Further, Hidalgo County was over 85% HCVAP. Dr. Engstrom concluded that HD41 in Plan H283 remained a Latino opportunity district. The Court finds that HD41 remains an opportunity district in Plan H283.

         Nevertheless, the Court finds that HD41 was drawn in part with racially discriminatory (dilutive) motive. The United States argues that the precinct splits in the district cannot be explained by partisan motivation and were racially discriminatory. Docket no. 1279 at 45. Dr. Arrington looked at all splits in HD41 and found that they made the district more Anglo. However, the most relevant splits are those made after Plan H113[28] that actually involved some population. As discussed in the fact findings, some of Downton's precincts splits after Plan H113 were consistent with Anglo maximization to increase the Anglo VAP of the district, and they were not consistent with Republican maximization. Although mapdrawers (including Peña) testified that the changes were made to “maximize” the district for Republican performance, election analysis results showed that the changes resulted in a decline in Republican performance, with corresponding increases in Democratic performance. See US-517 (Red-225 Report for Plan H113); D-109 (Plan H283 reports). Thus, the explanation that the numerous precinct splits were made to “maximize” the district for Republican performance is not credible. Nor was other testimony offered by mapdrawers that the numerous precinct splits were made simply “to follow roads.”

         As noted in the fact findings, the district HVAP and HCVAP population did not change despite the substantial manipulation and precinct changes that occurred on April 17. However, although the net effect of all the changes made between Plan H113 and Plan H283 was not to make the district more Anglo and less Hispanic, that does not negate the fact that some particular precinct splits were made with a racially discriminatory motive. In Plan H113, Peña's district was significantly (4.92%) below ideal population, while the neighboring districts were all overpopulated. Downton recognized this as a potential problem and worked with Peña to increase the population of the district while “maximizing” it for Peña's benefit.[29] However, because the area is heavily Hispanic and the original configuration of the district already contained the most Republican areas, Downton had to work to increase the population of the district while simultaneously maintaining the Anglo and Hispanic populations in an attempt to protect Peña.

         Downton increased the population of the district by 857 persons (he admitted to not increasing the population any more because it would make the district less favorable to Peña), but kept its racial population metrics basically the same, in part by using precinct splits in a racially discriminatory manner. Had he not utilized the precinct splits in such a manner, the effect of increasing the population would have been an increase in Hispanic population in the district, making it more likely to perform for Hispanic voters (and redistricters presumed, less likely to re-elect Peña). Thus, although all of the precinct splits together did not negatively impact the Hispanic population of the district, the racially discriminatory precinct splits were used to offset the racially favorable splits.

         In addition to manipulating total population, the SSVR of HD41 is significantly lower (63%/64.6%) than the other Hidalgo County districts, which are 85.8%/86.4% (HD40), 82.2%/83.1% (HD39), 85.1%/85.8% (HD36), and 90.8%/91.3% (HD31), and is lower than any of those benchmark district's SSVR levels, again demonstrating an intent to draw the district with fewer Hispanic voters. The SSVR of Peña's district was reduced, while the SSVR of three of the other districts was increased, and at the same time mapdrawers knew that the performance of HD41 for Latino voters decreased from 7/10 to 5/10 on the OAG 10. Although Solomons repeatedly touted the map as “member driven, ” the Hidalgo County configuration was not drawn with input from the other members of the Valley delegation and disregarded member-constituent relations in order to gerrymander the district, both politically and racially.

         The Court thus finds that mapdrawers intentionally used race to draw the district to perform less favorably for Latinos. They also intentionally manipulated the SSVR and total population to dilute the Latino vote in HD41 in order to protect an incumbent who they believed would no longer be the Latino candidate of choice given his decision to switch parties. Given the existence of racially polarized voting in the Valley (as found by Dr. Engstrom), the lingering effects of past discrimination in terms of socio-economic factors, and the totality of circumstances, the configuration of HD41 is racially discriminatory and constitutes intentional vote dilution in violation of § 2 and the Fourteenth Amendment. Although the individual members of the Legislature may not have been aware of this when they voted to pass Plan H283, Downton was given the authority to make these changes to the map and his intent must be imputed to the Legislature as a whole.

         F. Cameronḧ媖ਿ䘪 Grande Valley configuration

         The benchmark plan contained six Latino opportunity districts wholly within Hidalgo and Cameron Counties—four wholly within Hidalgo County and two wholly within Cameron County. The excess population in Cameron County was joined with counties to the north in HD43, also a Latino opportunity district. Plan H283 also creates six HCVAP-majority districts[30] wholly within Cameron and Hidalgo Counties (four within Hidalgo County and two within Cameron County); the surplus of Cameron County is joined into HD43 to the north, and the surplus of Hidalgo County is joined into HD31 to the west; both HD31 and HD43 are Latino opportunity districts.

         The Task Force and MALC assert that § 2 required the State to create an additional district in the Rio Grande Valley by combining the surplus population of Cameron and Hidalgo Counties, creating seven Valley-based districts, and that this would actually be more consistent with the County Line Rule than the State's configuration. This was done in the Court's interim map (Plan H309) such that seven districts are wholly contained within Hidalgo and Cameron Counties, with no spillover. This is also done in MALC's Plan H201 through the creation of HD144 and MALC's Plan H295 through the creation of HD35. Additional proposed plans create a seventh Valley district but also include spillover in another district, including Task Force Plan H292 (HD32) and MALC Plan H205 (HD72).[31]

         In their 2011 briefing, Defendants contended that the “undisputed evidence at trial showed . . . that creating a new district in Hidalgo and Cameron would have required the Legislature to violate the county-line rule in other parts of the State.” Docket no. 411 at 44; docket no. 457 at 29-30; see also TrA78 (Interiano) (“I tried to do it, and I told David Hanna that I had not found a way to put the population together without causing a county line split further up the road.”). This assertion has since been disproved, as shown in the Court's interim plan H309. However, it is true that all maps presented to the mapdrawers during the session that created this district also had a county line break around Nueces County.

         Downton testified that it was permissible to create the Cameronḧ媖 County district, but it was not legally required, and redistricters made a policy decision not to create it. TrJ2094-95. Defendants argue that no voter in that area suffered a § 2 injury from the State's chosen configuration because all Cameron and Hidalgo County voters are in Latino opportunity districts under either configuration. Docket no. 1272 at 102.[32] The Court agrees that if the Legislature created the required number of § 2 districts and substantially addressed the § 2 violation, they had discretion in determining the configuration of the districts. However, Plaintiffs are arguing that creation of the Cameronḧ媖 district was more consistent with the County Line Rule, recognized the Latino growth in the Valley, and allowed for the creation of an additional Latino opportunity district over the number created in Plan H283, which could establish a § 2 violation.

         Thus, for Plaintiffs to succeed on their § 2 results claim, they must demonstrate that creating this additional Hidalgo঩麮 district creates more Latino opportunity districts in South Texas (or statewide) than does Plan H283. Although Plan H201 creates an additional Valley Latino opportunity district over Plan H283 by adding HD144 and retaining HD33 by utilizing a county line split, HD35 is no longer a Latino opportunity district, whereas it is in Plan H283. Plan H283 has 13 South and West Texas Latino opportunity districts (not including El Paso but including Nueces County). Plan H201 has 14, but only because it maintains HD33 in Nueces County district. Thus, it is really the retention of HD33 as a Latino opportunity district that results in an additional HCVAP-majority district over the enacted plan. This issue therefore boils down to the Nueces County issue, and the Court will not consider proposed maps that split Nueces County to create an additional district until it is shown that two Latino opportunity districts cannot be drawn wholly within Nueces County.[33]

         The Task Force contends that Plan H292 adds HD33 in Nueces County and HD35 in the Valley compared to Plan H283. But it does not count HD35 in Plan H283 as an opportunity district. Counting HD35 in Plan H283 as a Latino opportunity district, the only additional district created is in Nueces County.[34] Again that simply boils down to a Nueces County issue. Plan H292 also has 25 districts in Harris County, which has ripple effects in all the non-drop-in county districts statewide because there is one less district outside the drop-in counties.

         MALC Plan H295 creates seven districts wholly within Hidalgo and Cameron Counties by moving HD35 to the Valley. Again, however, it does not appear to create more Latino opportunity districts other than the Nueces County district.

         Plan H205 purports to create an additional district over Plan H283. It also splits Nueces County to create a Latino opportunity district, and it includes 25 districts in Harris County. Further, Plan H205 substantially disregards the County Line Rule—Defendants argue that it violates the County Line Rule at least 25 times. Docket no. 457 at 29-30; docket no. 645 at 14-15. Plaintiffs must show that these County Line Rule violations were reasonably necessary to comply with § 2 and, given the Court's conclusion below that the proposed West Texas districts are not compelled by the VRA, resulting changes to that portion of the map will also affect non drop-in county areas of the State, making an analysis of the number of Latino opportunity districts created in South Texas unreliable. Given these issues and the fact that the current plan includes the Hidalgo঩麮 district but not HD35, the Court finds that this results claim is best resolved with regard to the 2013 plan in effect.

         However, certain Plaintiffs (including the United States and the Task Force Plaintiffs), argue that the State's “deliberate decision not to recognize explosive Hispanic growth in the Rio Grande Valley through the creation of an additional Hispanic opportunity district constitutes intentional vote dilution.” Docket no. 1279 at 39. The Court finds that Plaintiffs have failed to prove an intentional vote dilution claim based on the failure to draw the Cameronḧ媖 district. As noted, mapdrawers were not presented with a plan that clearly created an additional Latino opportunity district compared to what they had drawn, and they had discretion in choosing how to configure the Hidalgo and Cameron County districts to address § 2.

         G. Harris County

         In addition to their one person, one vote claims based on population deviations (addressed below), Plaintiffs assert §2 results and intentional vote dilution claims in Harris County. Plaintiffs primarily complain that Defendants did not create an additional minority opportunity district in Harris County despite the minority population growth, but also contend that the Legislature's decision to reduce the number of districts in Harris County to 24 and to eliminate HD149, which Plaintiffs contend was a tri-ethnic coalition district, while protecting Anglo districts with slower population growth, were racially discriminatory actions designed to dilute the minority vote.

         The Task Force Plaintiffs argue that an additional Latino opportunity district could have been drawn in Harris County. MALC offers demonstration district HD144 in Plan H205 and Plan H295 (though Plan H205 includes 25 districts in Harris County).[35] The NAACP also complains about the reduction of minority voting strength in HD144, which it argues had naturally become viable for minorities given the population growth, and argues that an additional minority coalition district could have been drawn (by maintaining both HD137 and HD149), as shown in Plan H202 (which has 24 districts in Harris County). Docket no. 625 at 5-7; docket no. 1280 at 37.

         Defendants admit that “Plan H283 did not create additional majority-Latino or majority African American districts in Harris County, ” though they assert that the SSVR and HCVAP of HD148 were increased over 50%. Docket no. 413 FF62.[36] They argue that the reduction of districts in Harris County was not discriminatory but “resulted from basic arithmetic and the combined legal requirements of the Texas and United States Constitutions.” Docket no. 457 at 69. They also assert that the Democrat members never offered a proposed map such that “Downton worked from a proposal supplied by the Republican members of the delegation” and “then accommodated Democratic changes to the extent possible.” Id. Defendants argue that the decision to apportion 24 seats in Harris County “did not prevent the creation of an additional minority-majority district” and that “Plaintiffs have not demonstrated that the addition of another district in Harris County would have resulted in an additional minority opportunity district.” Docket no. 411 at 45. Defendants also contend that neither HD137 nor HD149 was a protected minority coalition district and that the decision to eliminate them was partisan, not racial. Id. at 45-46.

         In this Court's interim plan H309, the Court found that Plaintiffs had demonstrated a likelihood of success on the merits of the § 2 claim in eastern Harris County, specifically that Plaintiffs had presented numerous demonstration plans illustrating that an additional compact majority-HCVAP district was possible in eastern Harris County, and made a preliminary finding that creation of a new Latino opportunity district was justified by the totality of circumstances. Docket no. 690 at 8-9. The Court's interim plan thus reconfigured HD144 in the manner requested by Plaintiffs to have a majority HCVAP. Id. The Court also maintained both HD137 and HD149, finding that the § 5 claims were not insubstantial, and making no other claims determinations. Id. This configuration remains in the plan adopted by the Legislature and currently in effect (Plan H358). Given that the current plan includes a district similar to MALC's proposed HD144 and maintains both HD137 and HD149 with only 24 districts, the results claim is moot.

         However, Plaintiffs claim that the decision to reduce Harris County to 24 districts, the elimination of HD149, and the deliberate failure to draw any new opportunity districts in Harris County are evidence of intentional discrimination.[37]

         MALC contends that redistricting leadership had discretion to choose either 24 or 25 districts, yet chose 24 to avoid drawing an additional Latino opportunity district in Harris County. Docket no. 459 at 17.[38] Other Plaintiffs also complain that the decision to decrease the delegation to 24 was intentionally racially discriminatory because it would eliminate a minority district. The Court finds that the mapdrawers' decision to include only 24 districts in Harris County was reasonable, given the language of the Texas Constitution and simple math, and was not intentional vote dilution. The Court notes that Hanna recommended rounding down to 24 districts initially, even when he believed this would mean the loss of a Republican seat. D-192. He noted that 24 more closely tracked the constitutional language, and that the risk of choosing incorrectly was “catastrophic” in terms of affecting all districts outside of the drop-in counties. D-135. The Court is not convinced that past practice of rounding up indicates pretext in this case, given that different decisionmakers were involved in those decisions (different legislature and the LRB), and that Democratic and minority members had voted to round down in the prior legislative session when presented with similar numbers. The Court does not find any evidence to support the assertion that the decision to round down to 24 was racially discriminatory.

         The NAACP Plaintiffs argue that Texas ran afoul of the Supreme Court's warning in Bartlett v. Strickland by intentionally eliminating a performing minority district (HD149)[39] in violation of the Fourteenth Amendment. Docket no. 1294 at 14. They contend that Interiano admitted dissolving HD149 despite knowing it was a district in which a diverse group of minority voters elected the candidate of their choice, Hubert Vo, because they did not think the VRA required them to maintain it. Docket no. 1280 at 37 (citing Tr1482 (Interiano)). They argue that “[t]his callous disregard for proven voting rights gains from an extant cohesive minority population is certainly evidence of an intent to discriminate . . . .” Id.

         The Court need not decide whether HD149 was a protected coalition district because the evidence does not sufficiently support Plaintiffs' claim that it was targeted for removal because it was a minority opportunity district or because its elected representative was a minority candidate of choice, rather than simply because it was electing a Democrat. Mapdrawers and redistricting leadership did not believe it to be a protected minority opportunity district and it was chosen for removal because one district was being eliminated and Republicans saw an opportunity to pair two Democrats, thereby increasing Republican seats and protecting all other incumbents.[40] The pairing of two Democrats was consistent with Solomons' decision to always pair two members of the same political party to theoretically give each incumbent a chance to be re-elected in the general election.

         Plaintiffs further contend that the enacted 24-district configuration in Harris County intentionally diluted minority voting strength. The Task Force complains that no new Latino opportunity district was created and that instead Latino voters were packed into other districts to minimize their electoral influence. The Task Force Plaintiffs note that Hanna's April 12 memo advised redistricting leadership to consider whether a fifth Hispanic-majority district could be drawn and whether it would be required by § 2, yet mapdrawers ignored this advice. Docket no. 1274 FF472, 483, 749; docket no. 1282 at 26, 33. Hanna testified that he was able to draw a fifth Latino district. TrJ1207. Downton claimed he did not attempt to draw one and does now know if anyone else did. TrJ2052-53.

         MALC asserts that mapdrawers avoided creating a new Latino opportunity district in Harris County by artificially increasing the SSVR in HD148 (incorrectly cited as HD145) even though it was already performing for Latino voters. Docket no. 1185 at 13 n.29. MALC argues that this increase of SSVR in a “district that the State itself has characterized as a performing Latino opportunity district, to avoid the development of a real new Latino opportunity district in Harris County is not evidence of compliance with Section 2, but rather evidence of intentional discrimination.” Docket no. 412 at 20.

         The Perez Plaintiffs note that Anglo population in Harris County declined such that Anglos are now only 33% of the population, yet Plan H283 gives them control of 54% of seats. Docket no. 401 at 11.[41] They argue that “creative line drawing” and population deviations were necessary tools in this accomplishment. Docket no. 401 at 13 (citing Tr341-42 (Martin)).[42] They further note that, although Interiano testified that they increased the SSVR in HD148 at MALDEF's urging, Nina Perales sent a letter to Solomons “specifically repudiating any such request.” Id. at 13-14.[43]

         The Court finds that there is persuasive evidence of intentional vote dilution in Harris County. Harris County is yet another example of where the member-driven process was at odds with § 2 compliance. Redistricting leadership assumed that county delegations would consider VRA compliance because the delegations contained minority members, yet in Harris County the minority members were essentially shut out of the initial map-drawing process.[44] Accordingly, although Hanna had recommended considering whether an additional Latino opportunity district could be drawn (as he was able to), this recommendation was ignored. Anglo Republican districts in eastern Harris County, which had grown more slowly than the more heavily minority areas, were protected, and no new minority district was considered, even though the evidence shows that a new Latino opportunity district could have been drawn that reflected the Hispanic population growth in Harris County.[45]

         Faced with a map that failed to create any new Latino opportunity districts, mapdrawers then artificially inflated the SSVR and HCVAP of existing Latino ability district HD148 to claim VRA compliance. Redistricting leadership feigned VRA compliance but used it to undermine minority voting strength instead of truly complying with the Act. They claimed that newly majority- SSVR/HCVAP HD148 could offset the loss of existing ability district HD33 in Nueces County and used it to thwart claims that an additional Latino opportunity district was required by § 2 based on the number of HCVAP-majority districts in Harris County.

         Yet the evidence is clear that mapdrawers already viewed HD148 as one of the performing Latino districts in Harris County. And as the Task Force Plaintiffs note, Downton agreed that raising the SSVR of HD148 to 50% did not enhance the ability of minority voters to elect their candidate of choice. Docket no. 1282 at 60; docket no. 1274 FF822; TrJ2050 (Downton). Thus, mapdrawers were using this superficial compliance as a tool to avoid creating any new minority opportunity districts (more specifically, to defend their failure to create any) and to mask the loss of HD33 as an existing opportunity district.[46]

         Given the existence of racially polarized voting, the lingering effects of past discrimination, and the totality of circumstances, the Court finds that the Harris County configuration is the result of intentional vote dilution in violation of §2 and the Fourteenth Amendment.

         H. Fort Bend County

         The NAACP and MALC contend that an additional minority coalition district was required in Fort Bend County. The NAACP Plaintiffs argue that this was an area experiencing substantial population growth among a diverse group of voters, mostly minority. Docket no. 1280 at 38 (citing TrJ1411 (Korbel)). They assert that, “[i]nstead of drawing compact districts that would recognize the naturally occurring minority district in Fort Bend—that is, the 150, 000 more minority voters than Anglo added over the decade—the enacted plan drew HD 26 as an incredibly non-compact district, intended to be one that could be maintained as an Anglo district over the decade.” Docket no. 1280 at 38 (citing TrJ1412-14 (Korbel) and TrJ1607 (Interiano)). MALC asserts that minority population contributed 80% of the growth for Fort Bend, Wharton, and Jackson Counties, and new HD85 was placed there to account for growth, but it is not a minority opportunity district. Docket no. 1275 FF90, 91 (citing Tr1412 (Korbel)). MALC further contends that a “heavy concentration of minority Texans in Fort Bend County is divided into 4 districts, which has the effect [of] diminishing the electoral opportunities of minorities.” Docket no. 1275 FF92 (citing Tr1416-17 (Korbel)).

         The NAACP offers Plan H202, with HD26 as a proposed tri-ethnic coalition district that would operate as an Asian-American opportunity district. Docket no. 406 at 33. The NAACP argues that African-American, Latino, and Asian-American voters in the larger Houston area are politically cohesive, that this district had become viable for minority voters in the benchmark, [47] and that the voters in this area are similar to those who act in a tri-ethnic coalition to elect Vo in HD149, just across the line in Harris County. Docket no. 625 at 7-8; docket no. 1280 at 38 (citing TrJ1422 (Korbel)).

         Proposed HD26 in Plan H202 would be 12.9% HCVAP, 14.5% Black Alone CVAP, 23.8% Asian CVAP (for a combined minority CVAP of 51.2%), and 47.7% Anglo CVAP using 2005-2009 ACS data. Joint Ex. J-25. The NAACP tenders Fairfax's opinion that the district had become 57% minority CVAP by 2014 and that it complies with traditional redistricting criteria including compactness, contiguity, and respecting political subdivisions. Tr841-42, TrJ902. Rep. Senfronia Thompson testified about the coalition here and concluded HD26 would elect an Asian American and the candidate of choice of minority voters. TrJ1245-46. The NAACP Plaintiffs also assert that the evidence applicable to Harris County is “equally applicable to the creation of a new minority State House District in this area” because voting in the “larger Houston metro area is racially polarized, and the area has historically demonstrated high levels of political cohesion amongst minority voters.” Docket no. 406 at 33.

         Visually, HD26 is relatively compact looking, and where its shape is somewhat odd it appears to follow a river. Existing HD27 also appears visually compact and is virtually the same configuration as in Plan H283. However, the districts do split the cities of Sugar Land, Missouri City, and Arcola. Further, even when a district is visually or geographically compact, Plaintiffs must still proffer evidence that the minority communities within the proposed district are compact, taking into account traditional redistricting principles. See Gonzales v. Harris Cty., Tex., 601 F. App'x 255, *257 (5th Cir. Feb. 9, 2015) (affirming district court's conclusion that although plaintiffs presented a “geographically compact hypothetical district” that satisfied the numerosity requirement, plaintiffs nevertheless failed to satisfy the compactness precondition because their plans did not respect traditional districting principles). Other than compactness scores, Plaintiffs have not proffered any specific evidence concerning the compactness of the minority community in light of traditional districting principles such as respecting cities.

         Further, even if the NAACP Plaintiffs satisfied the first Gingles precondition, they did not proffer sufficient evidence supporting the second and third Gingles factors. The NAACP Plaintiffs offered only lay testimony concerning minority cohesion in Fort Bend County. While lay testimony is relevant, statistical data is essential when asserting cohesion among three different minority groups. The Court will not infer cohesion in Fort Bend County based on cohesion in nearby HD149 in Harris County.[48]

         MALC offers Plan H329 that would create coalition districts HD26 and HD27. MALC-128. MALC also offers demonstration Plan H366 with “plug-in districts” for Fort Bend County. MALC introduced the expert opinion of Dr. Brischetto concerning racially polarized voting, though he only examined 2012 elections. The Court finds these plans should be addressed in the 2013 plan case, but notes that MALC must offer evidence demonstrating that the minority communities contained within these proposed districts are compact, taking into account traditional districting principles.

         Several Plaintiffs point to Fort Bend County as evidence of intentional vote dilution. The Perez and NAACP Plaintiffs contend that mapdrawers racially gerrymandered by splitting the minority community among HDs 26, 28, and 85. Docket no. 1303 at 5 (citing Martin report at 12). MALC notes that there are “several” precinct splits “between HD26 and other districts in Fort Bend County” and “[a]ll of the evidence points to the fact that the State used race-based mapping splitting precincts along racial lines to lessen minority voting strength.” Docket no. 1185 at 8. Plaintiffs note that Fort Bend County is only 38% Anglo, but Anglos control 71% of the 3.5 seats anchored there in Plan H283. Joint Expert Ex. E-5 (Martin report) at 12.

         Defendants argue that Fort Bend County was represented by two Republicans and one Democrat, and the incumbents signed off on the districts. Docket no. 1272 at 77; docket no. 1249-1 at 27-29 (citing April 27, 2011 House Journal Supp (D-190) at ¶ 766 wherein Rep. Howard says all three members worked together and signed off the configuration and do not want to change it). Defendants further assert that Plaintiffs fail to prove dilutive effect because it was not possible to create an additional district in which any single minority group was a majority of the citizen voting age population, and Plaintiffs failed to prove the necessary cohesion among Asian-American, African-American, and Hispanic voters for a coalition district. Docket no. 1272 at 79.

         NAACP Plaintiffs contend that Defendants' response to claims that redistricters fragmented the minority community seems to rest solely on the fact that the map for the area was approved by all delegates, including one Democrat. Docket no. 1294 at 14. However, they argue that, rather than this being a member-driven map, Interiano testified that he drew it with input from the members, and he noted that the two Republican members wanted their districts to remain Republican through the decade even though this was a diverse and rapidly growing area of the state. Id. (citing TrJ1604-05, TrJ1607, TrJ1571). They argue that Defendants ignore Interiano's role and stated purposes.

         The Court finds that Plaintiffs have failed to establish their claim of intentional vote dilution in Fort Bend County because they have failed to show that mapdrawers acted with a racial purpose as opposed to a partisan purpose. The district configuration came from the members, including minority Democrat member Reynolds. Though there are precinct splits, Plaintiffs failed to prove that they were racial, and Defendants offered race-neutral explanations for the bizarre shape of HD26. Although Interiano testified that he wanted to keep the Republican districts Republican throughout the decade, there is no indication that he used race to do so.

         I. Dallas County

         In addition to the one person, one vote claims brought by certain Plaintiffs in Dallas County, Plaintiffs argue that mapdrawers used packing and cracking to dilute minority voting strength, despite the fact that Anglo population declined and all growth in the County was minority growth.[49]Docket no. 1280 at 35-36 (“Areas in the county where the greatest minority population growth occurred were divided amongst several districts, with heavy minority populations being carved out and added to already existing minority districts.”) (citing TrJ1424 (Korbel)). Plaintiffs note that the Anglo population of Dallas County decreased by over 198, 000, while the Hispanic population grew by 243, 211, the African-American population grew by 73, 016, and the Asian population grew by 30, 302 (a total of approximately 350, 000), yet no new minority districts were created and “there is some evidence that a minority opportunity seat in the county was lost.” Docket no. 1280 at 35 (citing TrJ1423 (Korbel)); docket no. 401 at 9. The Perez Plaintiffs argue that the fact that Anglos are only 33% of the Dallas County population but will control 58% of seats required sophisticated line drawing. Docket no. 401 at 9.

         Specifically, Plaintiffs primarily argue that: (1) in western Dallas County, existing Latino districts (HD103 and HD104) were packed (and overpopulated) to waste Latino votes and prevent additional minority opportunity or influence; (2) benchmark HD105 and HD106 were becoming minority-majority districts and on track to provide minority opportunity, but Anglo population in HD105 was increased so that it could not perform for minorities and HD106 was eliminated; and (3) in northeast Dallas County, significant minority concentration is cracked among five Anglo-dominated districts (107, 112, 102, 113, and 114) to eliminate emerging minority districts and dilute the minority vote.

         Defendants acknowledge that although it was a “drop-in county, ” there was no delegation map, and Defendants state that “Downton therefore worked with several Dallas delegation members to ensure that districts with high SSVR maintained high SSVR” and “worked to protect incumbents to the extent Dallas's population decrease allowed.” Docket no. 457 at 70; docket no. 1249-1 at 18-22. Downton testified that because the Dallas County delegation was losing two Republican seats and could not agree on a County proposal, he drew the Dallas County districts, starting with HD103 and HD104, to ensure their SSVR levels remained at benchmark. Defendants contend that “race was a consideration in plan H283 only [to] the extent necessary to comply with the State's legal obligations.” Docket no. 457 at 70. Specifically, they note that changes were made to HD103 and HD104 to respond to Hanna's concerns, and that the configurations of HD104 and HD105 were attributable to partisan and neutral motives (pairing Anderson and Harper-Brown, limiting the number of districts within Grand Prairie) and VRA compliance (maintaining HD104's SSVR over 50% and maintaining HD103's SSVR near benchmark). Docket no. 1249-1 at 20. Defendants contend that no additional Latino and African-American opportunity districts could be drawn while maintaining existing opportunity districts.

         The United States asserts that mapdrawers “intentionally prevented the emergence of a Hispanic opportunity district in Dallas County.” Docket no. 1279 at 51. The United States notes that due to population changes, HD106 elected the Hispanic-preferred candidate in 2006 and 2008, and HD105 came within 20 votes of electing the minority-preferred candidate in 2008. Id.[50] It asserts that the districts showed a strong trend toward electing the Hispanic-preferred candidate, especially in Presidential election years. Id. at 51-52. The United States argues that, “[w]ith the additional minority population growth in the area, state officials realized that the minority population had a very real possibility of electing its candidate of choice in 2012, and those officials impermissibly used race to make HD105 in the 2011 Plan more Anglo.” Id. at 51.[51] The United States contends that mapdrawers reversed the demographic trend in HD105 by increasing Anglo VAP by 5%, which was accomplished by “stretching the district almost the entire length of Dallas.” Id. at 52. It notes that this demographic change had a corresponding effect in the election analysis, with HD105's election score dropping from 7/9 contests in 2008 to 0/9. Id.; docket no. 1278 FF532.[52]

         The Perez Plaintiffs assert that the “manipulation” of HD103, HD104, and HD105 was racial and intentionally frustrated the creation of an additional minority district. Docket no. 401 at 9-11. The Perez Plaintiffs acknowledge that the explanation for the shape of HD105 was the need to pair Anderson and Harper-Brown in a Republican district, but they contend that this intentionally diluted minority voting strength in HD105 and forced Hispanic population into HD104 and that fingers were sent into northwest Irving from HD103 to withdraw Latino population. Id. at 9-10 (citing Martin Tr323). They note that HD103 became the most overpopulated district in the County and that overpopulation of these west Dallas districts frustrates the creation of an additional minority district. Id. at 10-11.

         Similarly, the Perez and the NAACP Plaintiffs contend that making HD105 Anglo required “major manipulation.” Docket no. 1303 at 3. They argue that precinct splits removed heavy Hispanic blocks into HD103 and HD104 and packed them to preserve HD105 as Anglo. They thus contend that HD103, 104, and 105 “manifest racial gerrymandering and minority vote dilution.” Id.

         To the extent Plaintiffs rely on the fact that all the growth in Dallas County was minority and that Anglo population decreased, the Court notes that the CVAP growth was not nearly as high as the total minority population growth. Dallas went from 14.11% HCVAP in 2000 to 19.17% under the 2005-2009 ACS data available to the Legislature (the 2008-2012 ACS data indicates 20.39% HCVAP). D-230, D-218, D-231. Under the 2005-2009 ACS data, though Dallas had a total population of 2, 383, 125, it was estimated that approximately 423, 000 were not citizens. D-218. Further, while the total Hispanic population was estimated at approximately 900, 000, only about 550, 000 of those were citizens, and only 256, 195 were Hispanic citizens of voting age. Nevertheless, two out of fourteen districts (about 14%) remains less than proportional to the HCVAP. Though fairness would seem to indicate that Hispanics be given more districts to achieve proportionality because their population growth prevented the loss of even more districts, mapdrawers were not required to draw Latino districts simply to achieve proportionality.

         In that regard, the Court finds that Plaintiffs have failed to prove intentional vote dilution with regard to their cracking claims in northeast Dallas County. Specifically, they have failed to show that mapdrawers acted with an intent other than maintaining their Republican districts or that they used race for partisan advantage. Because of the high correlation between race and party, splitting Democrats, eliminating Democratic districts, and shoring up districts for Republican incumbents necessarily affects minorities, but that alone is not intentional vote dilution based on race.

         The Court does find, however, that Plaintiffs have proven an improper use of race in western Dallas County to dilute Latino voting strength. The configuration of HD103, HD104, and HD105 is undisputably based in large part on race. Downton admitted to using racial shading at the block level to remove Hispanics from HD105 and place them into HD103 and HD104. Downton denies that any use of race was racially discriminatory, however, arguing that the shape of HD105 is governed by the need to pair the residences of Republican incumbents Harper-Brown and Anderson within HD105 and make the district more Republican to ensure that one of them could get re-elected. He further contends that HD103 was drawn in part with Rep. Anchia and that race was used to ensure that its SSVR remained at benchmark levels to avoid retrogression. Although he did not confer with Rep. Alonzo about HD104, he asserts that it was drawn to ensure that its SSVR was above 50%. While these explanations have some superficial truth, the Court finds that the configuration uses race in part in a racially discriminatory manner to intentionally dilute minority voting strength to protect a Republican incumbent in HD105 by intentionally making the district more Anglo.

         Mapdrawers and redistricting leadership were hostile to the creation of a new Latino district in Dallas County because they felt it would be a Democrat district and result in the further loss of a Republican seat there beyond the two already required by the lack of growth in Dallas County overall. With regard to Dallas County, David Hanna expressly stated that they would already be losing two Republican seats but it may get “worse” because they might have to draw a third Latino district, which would mean the loss of a third Republican seat. D-192. Rather than exploring whether any additional minority districts could be drawn or maintained to recognize the population growth, they eliminated districts that were on track to perform for minority voters.

         Faced with existing districts 103 and 104 that mapdrawers felt had to be maintained and two Republican districts that had become majority-minority in terms of VAP and were becoming less reliable for Republicans, mapdrawers decided to eliminate HD106, the district that had actually become majority-minority CVAP (using 2008-2012 ACS data, though still Anglo-CVAP majority using 2005-2009 ACS data available to the Legislature) and had elected the minority-preferred candidate in two of five elections. Consistent with their incumbency-protection plan, they paired the Republican incumbents of HD105 and HD106 in a shored-up district. While this could be acceptable partisan gerrymandering (at least under current Supreme Court law), their use of race in doing so renders it impermissible.

         Downton shored up HD105 by making it more Anglo (and thus more Republican)—he admitted to splitting precincts to put the Hispanic population into HD104 and HD103 and the Anglo population in HD105. Though he claimed this use of race was only to preserve the SSVR of those districts, the Court finds that this was yet another example of mapdrawers using superficial compliance with the VRA to dilute minority voting strength rather than enhancing it.

         Although Hanna had suggested giving thought to raising the SSVR of HD104 above 50%, he also clearly stated that it could be argued that HD104 “will likely perform at 45.6 SSVR since this is similar to the performing level it was drawn at ¶ 2001.” D-122. Downton relied on the 50% SSVR threshold in bad faith to waste Latino votes in HD104 because there is no indication that HD104 needed to be at 50% SSVR to continue performing. Further, although HD103 was maintained at benchmark SSVR, there is no indication that mapdrawers thought this was actually necessary for VRA compliance. Downton admitted that he did not think HD103 was an opportunity district (based on his 50% SSVR requirement), and testified that they maintained the SSVR only to “try to stave off any possible legal challenge.” Downton 8-31-11 depo. (Joint Ex. J-62) at 97. Jeff Archer had stated that HD103 was not a Latino opportunity district, see D-134, and there is no indication that any election analysis was done indicating that its SSVR number needed to be maintained to comply with the VRA or to keep the district performing. Thus, Downton's testimony is not credible.

         The Court finds that Downton did not believe that raising the SSVR of HD103 was necessary but he saw it as an opportunity to make HD105 more Anglo and safer for the Republican by placing that Latino population into HD103. Thus, although the use of race was claimed to comply with the VRA, the Court finds that the true motive was to dilute Latino voting strength in west Dallas County by unnecessarily placing Latinos in HD103 and HD104 while simultaneously making HD105 more Anglo to protect the Anglo Republican incumbent who would emerge from the Republican primary.

         The Court finds that the § 2 results claims are best addressed in the 2013 plan case. However, the Court finds that mapdrawers improperly used race with an intent to dilute Latino voting strength by wasting Latino votes in HD103 and HD104 and creating a more Anglo HD105 to protect the Anglo Republican incumbent in the general election. This intentional vote dilution in Dallas County violates § 2 and the Fourteenth Amendment.

         J. Tarrant County

         The Perez and NAACP Plaintiffs cite Tarrant County as an example of intentional vote dilution through intentional minority fragmentation. Docket no. 1263 at 5; docket no. 1303 at 3. The Perez Plaintiffs argue that Plan H283 does not recognize the substantial minority growth in Tarrant County, freezing the number of minority districts at three. Docket no. 401 at 14. They assert “that Districts 90, 93, 95 and 96 reflect racial gerrymander and consequent dilution.” Docket no. 1303 at 3. Citing Martin's report and Korbel's report, they contend that Plan H283 minimized minority seats by packing minorities into HD90 and HD95 through bizarre configurations to dilute HD96 (preserving the Republican incumbent) and by creating HD93 as an elongated spike that splintered the minority community. Docket no. 1303 at 3; docket no. 401 at 14.

         The configurations of HD93, HD90, and HD95 are indeed bizarre, and Plaintiffs contend their bizarre shape can only be explained by racial gerrymandering. The evidence indicates that the initial County configuration in Plan H113 was a delegation-proposed map, although the two minority-district representatives Veasey and Burnam asserted that they approved of only their own districts. Although Martin opined that HD90 and HD95 are packed, there is no indication that they were packed at this point. Their Blackḫ⥪碜 total population and Bᵐ numbers remained relatively close to and slightly below benchmark, despite the fact that substantial population had to be added to the districts.

         Because Hanna raised concerns about the SSVR in HD90 dropping from the benchmark (from 45% to 40% total SSVR) and MALDEF had asserted that its SSVR could be raised over 50%, and because they believed they could “offset” the loss of HD33, Downton and redistricting leadership decided to raise the SSVR of HD90 above benchmark levels to 50.1% (non-suspense), without consulting the representatives of those districts. There is no indication that HD90's SSVR needed to be increased to that level to remain a performing ability-to-elect district.

         There is undisputed evidence that mapdrawers manipulated the population based on race, removing some areas and swapping out population to increase the SSVR of HD90 from 40/41.9% in Plan H113 to 47.9/50.1%. There is little indication that they cared about traditional redistricting factors or maintaining communities of interest; they were only concerned with raising the SSVR to 50.1%. The district became the most underpopulated district in the plan. The African-American community of Como was removed from HD90 and placed into a Republican district represented by Anglo Rep. Geren. Other population was swapped between HD90 and HD95, and between HD90 and HD93. Overall, substantial Anglo population was removed (approximately 12, 000 total population and 11, 000 VAP), while Blackḫ⥪碜 total population and Bᵐ was increased.

         While at first blush, this appears to be an extreme instance of packing in HD90, the changes cannot be evaluated in isolation. As noted, the African-American community of Como was removed and placed into an Anglo district; this is not packing. Much population was swapped between HD90 and HD95, another minority district. In HD95, substantial Anglo population was added, while substantial minority population was removed, lowering the Blackḫ⥪碜 total population percentage as well as Bᵐ. Considering the population changes in HD90 and HD95 together, total population decreased by 4, 100 Anglo and 4, 200 Blackḫ⥪碜, and voting age population decreased by about 3, 600 Anglo and 3, 300 Bᵐ. Thus, claims that HD90 and HD95 were packed are not supported by the evidence.

         However, increasing the SSVR of HD90 was merely superficial compliance with the VRA, invoked in bad faith to actually undermine Latino voting strength. As discussed, Defendants ignored DOJ guidance that ability to elect was not measured simply by a demographic criterion and claimed that they could “offset” the loss of existing Latino opportunity and ability district HD33 by increasing the SSVR of an existing ability district above 50%, even though they knew this did not create a new ability district. Further, although they did not use the 50% SSVR pretext to pack HD90 and HD95, they did use it to shore up HD93 as an Anglo district. Between Plan H113 and Plan H283, approximately 1, 460 Blackḫ⥪碜 total population and 830 Bᵐ were removed from HD93 and approximately 435 Anglo total population and 413 Anglo VAP were moved into HD93, increasing the Anglo CVAP from 65.7% to 66.5%. The Court finds that mapdrawers acted with racially discriminatory intent to dilute Latino voting strength in Tarrant County.

         K. McLennan County

         MALC, the NAACP Plaintiffs, and the Perez Plaintiffs assert that there was intentional vote dilution in McLennan County.[53] Docket no. 1263 at 4; docket no. 1280 at 34-35. They note that benchmark HD57 was created in the Graves v. Barnes litigation, 378 F.Supp. 640 (W.D. Tex. 1974), and the minority community remained intact in that district for almost 40 years, electing the minority candidate of choice, until 2010. Docket no. 1263 at 4 (citing TrJ1442-43 (Korbel)); docket no. 1280 at 34. Benchmark HD57 had become majority-minority in terms of total population, though it remained majority-Anglo CVAP. Perez Plaintiffs and the NAACP Plaintiffs argue that majority-minority HD57 was radically altered and converted to an Anglo-majority district. Docket no. 1303 at 5.

         County Commissioner Lester Leon Gibson testified that the minority community had elected their candidate of choice in HD57 from 1998 until the 2010 election, when Anglo Republican Marva Beck won the district. TrJ1828-29 (Gibson). Plaintiffs contend that, to protect that incumbent, mapdrawers removed largely minority areas of Waco from HD57 and replaced them with more Anglo areas (creating a district that was 55.2% Anglo in terms of total population), splitting minority communities of interest and diluting minority voting strength.[54] Korbel testified that, instead of preserving the majority-minority character of HD57, Plan H283 removed 23, 000 people, 70% of whom were minority, and imported 20, 000 persons, who were more than 80% Anglo, cracking minority voting strength. TrJ1444 (Korbel); see alsodocket no. 1263 at 4. The Legislature changed the district number to HD12 and took out minority precincts in McLennan and Brazos Counties and added Limestone County. TrJ1443-44 (Korbel); TrJ1841 (Gibson). The Perez Plaintiffs contend that the reconfiguration intentionally cracked and fragmented minority voters to dilute their voting strength. Docket no. 1263 at 4. Korbel testified that the majority-minority character of the district could have been maintained, thus preserving minority opportunity to elect. TrJ1445 (Korbel); see also docket no. 1280 (NAACP Brief) at 35.

         Defendants contend that Plaintiffs have failed to prove that the districts were drawn with the purpose of diluting any group's voting strength, and that Commissioner Gibson was not familiar with the 2011 House plan and had not looked at any figures showing whether there was vote dilution. Docket no. 1272 at 93.

         Although McLennan County fits the pattern of diluting minority voting strength in districts with significant minority population that had elected a Republican who was not the minority candidate of choice in 2010, Plaintiffs have failed to provide sufficient evidence of racial means or motive to establish an intentional vote dilution claim. It is insufficient to show effects, without evidence demonstrating intent. Coupled with the lack of statistical evidence of racially polarized voting in this County, the lack of evidence of intent leads the Court to conclude that Plaintiffs have failed to prove intentional vote dilution.

         L. Bell County

         MALC and the NAACP Plaintiffs contend that § 2 required the creation of a minority coalition district in Bell County. MALC, NAACP, and Perez Plaintiffs further contend that Bell County is evidence of intentional vote dilution. MALC's Third Amended Complaint alleges that in Bell County, African-American and Latino population growth exceeded 51.64% and the minority community is geographically compact and politically cohesive in the City of Killeen. Docket no. 897 ¶ 54. MALC contends that Plan H283 “unnecessarily fragments the minority community of Killeen to minimize its political impact on Texas House elections.” Id. The Perez Plaintiffs also allege intentional discrimination with regard to HD54. Docket no. 960 (Sixth Am. Compl.) ¶ 28.[55]

         The NAACP Plaintiffs say that the City of Killeen is exceptionally diverse in part because of its unique relationship with Ft. Hood and that, because of its unique interests, it benefits from being kept whole. Docket no. 1280 at 31-32 (citing TrJ1706-7 (Jones)). It was kept nearly entirely whole in the benchmark HD54, with only about 200 individuals from Killeen excluded. TrJ1403 (Korbel). The NAACP Plaintiffs note that the City of Killeen experienced tremendous population growth over the decade, and HD54 was overpopulated. Docket no. 1280 at 32 (citing TrJ1706 (Jones); Tr TrJ1401-2 (Korbel)). MALC, Perez, and the NAACP Plaintiffs further note that, once Burnet County was removed, HD54 was short 13, 000 voters, but instead of adding voters to the existing core of HD54, which already contained almost the entire City of Killeen, mapdrawers removed approximately 33, 000 voters from Killeen, 2/3 of whom were minority, and added in Anglo voters. Docket no. 1280 at 32 (citing Tr1402-5 (Korbel)); docket no. 1263 at 5. In Plan H283, both HD54 and HD55 are majority-Anglo CVAP and the City of Killeen is split between the two districts.

         NAACP Plaintiffs contend that Plan H202 “created a new African American [coalition] opportunity district in Bell County.” Docket no. 406 at 33. In 2011, HD54 was proposed as a multi- ethnic minority coalition of 28.7% Black Alone CVAP, 17.7% HCVAP, 3.2% Asian CVAP, and .8% Indian American (46.4% Anglo CVAP) using 2005-2009 ACS data. Joint Map Ex. J-25. Fairfax testified that it would be a majority Bᰥ district (30.99% BCVAP and 22.3% HCVAP for combined Bᰥ of 53.29%) in 2014. TrJ912. NAACP Plaintiffs note that Fairfax found it to be a majority-minority district and that it was compact, contiguous, respected political subdivisions, complied with traditional redistricting criteria, and could be adopted by the Legislature. Tr842-43.

         Although the NAACP Plaintiffs offered no expert evidence of racially polarized voting specific to Bell County in 2011, they contended that “the statewide analyses performed by Dr. Kousser, Dr. Ansolabahere, and Dr. Lichtman finding racially polarized voting in Texas are all applicable to Bell County, ” and they also relied on the lay testimony of Phyllis Jones, a long-time resident of Bell County. Docket no. 406 at 34; docket no. 408 at 8. They further noted that districts between 35-45% BVAP and total minority population around 70% are generally effective minority coalition districts, citing congressional districts 9, 18, and 30 as examples. Docket no. 406 at 35. In addition, Defendants stipulated during trial that racially polarized voting exists throughout Texas, other than in Nueces and Kleberg Counties.

         Plaintiffs fail to prove that HD54 as drawn in Plan H202 was required by § 2 in 2011. According to the ACS data available to the Legislature, it was not majority-minority-CVAP without combining three or four minority groups, and there is no indication that Plaintiffs had provided the necessary evidence concerning multi-ethnic cohesion. Thus, the Legislature's intentional failure to create the district was not, standing alone, intentional vote dilution.[56]

         However, the evidence does indicate that mapdrawers (specifically Aycock) intentionally racially gerrymandered the districts to dilute the minority vote by moving minority population out of HD54 and moving Anglo population in, thus cracking and diluting the minority vote to ensure Anglo control over both districts. Aycock was not the minority candidate of choice and often voted against NAACP positions. TrJ1703-5 (Jones); TrJ1751 (Aycock). The Perez Plaintiffs note that Killeen is heavily minority, “there has emerged an effective minority political coalition around municipal policies, ” and that a “minority candidate [Brown] recently ran a reasonably strong campaign against the incumbent, ” which Plan H283 addressed “by cynically splitting the Killeen minority community.” Docket no. 1263 at 4-5; TrJ1705 (Jones); see also TrJ1696-97 (Jones) (noting that minority voters had elected their candidate of choice to city council).

         Defendants assert that HD54 “was drawn for race-neutral reasons and without a racially discriminatory purpose.” Docket no. 1276 CL54. They contend that the Bell County configuration was created by the two members of the delegation (Jimmie Don Aycock (HD54) and Ralph Sheffield (HD55)), that it reflects the “give and take” between them, and that the demographic figures in H100 and H283 are largely the same. Docket no. 1249-1 at 32-34; docket no. 1272 at 49-51; docket no. 1276 FF145. Defendants note that most of Killeen is in HD54 and that Killeen had been divided in prior plans (and is divided in NAACP Plaintiffs' proposed Plan H202), that minority CVAP increased in HD54 and Anglo CVAP decreased from 59.4% to 56.1%, and that Aycock testified that he felt that Lampasas County had more in common with Killeen than Temple and Belton (TrJ173-34). Defendants argue that, as drawn in Plan H283, “the Bell County House districts reflect the goals identified by Representative Aycock and they do not diminish minority voting strength.” Docket no. 1272 at 51.

         After the loss of Burnet County due to the population increase, Reps. Aycock and Sheffield were limited in their district configurations. Rep. Aycock drew the lines and “knew where the voters were and where [he] wanted to draw those lines.” TrJ1755 (Aycock). Aycock wanted more “Republican” areas and he knew that a minority coalition district would not likely have enough Republicans to re-elect him. TrJ1741-44, TrJ1769 (Aycock). Aycock drew the district to split the City of Killeen and the minority community. Although plans were introduced during the session (such as Plan H202 and Plan H232) that would have kept the City of Killeen more whole in one district, these plans were rejected, and Aycock testified it was because Lampasas County was more aligned with western Bell County than with Temple/Belton, so it was beneficial for them to remain in a district with Killeen.

         As noted in the fact findings, the Court does not find this testimony credible. Aycock also objected to plan H201 because it had a “land bridge” joining Killeen with Temple and Belton, though he admitted that Plan H283 includes land bridges in other areas and he voted for it. This again indicates that Aycock's objections to minority-proposed plans were pretextual. Further, the fact that Anglo CVAP decreased in HD54 was due to the fact that minority population growth accounted for more than 70% of the growth in Bell and Lampasas Counties and the exclusion of more Anglo Burnet County. The Court finds that the decision to split Killeen and the minority community within it was to ensure that HD54 and HD55 remained Anglo-majority, and would re-elect Republican incumbents. Minority communities were removed and Anglo areas were moved in, which made it more difficult for minority voters in HD54 to elect their candidate of choice.

         Plaintiffs presented some lay testimony of minority cohesion through Phyllis Jones of Killeen.[57] Dr. Brischetto found racially polarized voting in the 2012 elections in Bell County. Thus, splitting the minority community was an effective way to dilute the minority vote and ensure that the bloc-voting Anglo majority would defeat minority-preferred candidates. The Court thus finds evidence of intentional vote dilution in Bell County in violation of § 2 of the VRA and the Fourteenth Amendment.

         M. Midland/Ector Counties

         MALC contends that a new Latino opportunity district was required in Midland and Ector Counties. Defendants assert that, under the 2010 census, both Midland and Ector Counties were entitled to the same number of districts (0.8) as in 2000, so the configuration in this area is largely unchanged. Docket no. 1249-1 at 37. Following the County Line Rule, the two districts in Plan H283 are composed of whole counties—HD81 contains Andrews, Winkler, Ector, and Ward Counties, while HD82 contains Dawson, Martin, Midland, Crane, and Upton Counties. No party has asserted that a Latino opportunity district could be drawn in this area utilizing whole counties and respecting the County Line Rule. MALC proposes a new Latino opportunity district (HD81) in this area in Plan H205, Plan H295, Plan H329, and Plan H360, all of which involve County Line Rule violations.

         In Plan H205, proposed HD81 splits Midland and Ector Counties (along with the cities of Midland and Odessa) and joins them with six whole counties to the west plus an odd-shaped extension into Winkler County that splits the cities of Kermit and Monahans. Excising the Hispanic populations from four cities and towns spread across three counties does not respect political subdivisions. These Hispanic populations are not ...

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