In the United States District Court for the Western District of Texas
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Case 5:11-cv-00360-OLG-JES-XR Document 1340 Filed 03/10/17 Page 1 of 443 In the United States District Court for the Western District of Texas SHANNON PEREZ, ET AL. § § v. § SA-11-CV-360 § RICK PERRY, ET AL. § FACT FINDINGS - GENERAL AND PLAN C185 Before Circuit Judge SMITH, Chief District Judge GARCIA, and District Judge RODRIGUEZ Circuit Judge Smith dissenting XAVIER RODRIGUEZ, District Judge and ORLANDO L. GARCIA, District Judge: BACKGROUND and TIMELINE 1. These fact findings are based on evidence presented at all phases of this litigation. Citations to the record from the September 2011 trial are shown as “Tr”; citations to the record from the July 2014 trial are shown as “TrJ”; citations to the record from the August 2014 trial are shown as “TrA.” 2. Any finding of fact herein that also constitutes a conclusion of law is adopted as a conclusion of law. 3. The Court has considered the stipulated facts submitted in docket number 277 at 15-25 (joint 1 Case 5:11-cv-00360-OLG-JES-XR Document 1340 Filed 03/10/17 Page 2 of 443 pretrial order), docket no. 302 (stipulation of facts regarding plaintiffs between Quesada Plaintiffs and Defendants), and docket no. 304 (stipulation between Texas Latino Redistricting Task Force Plaintiffs and Defendants regarding the King Ranch). 4. The Court has determined the race and party of members of the Texas House of Representatives in part from a chart prepared by Defendants, exhibit D-157. 5. The Court has taken judicial notice of election returns available on the Texas Secretary of State’s website. 6. The Court has taken judicial notice of certain census and American Community Survey (“ACS”) data set forth in docket no. 1085. See 6/20/14 text order granting motion as to items 1-8. 7. The Court has taken judicial notice of election returns in Nueces County and Kleberg County as set forth in docket no. 1169. TrJ2160-61. 8. Every ten years, under 2 U.S.C. § 2a, the President of the United States must transmit to Congress a statement showing the number of persons in each state and the number of representatives in the United States House of Representatives to which the state is entitled. These figures are tabulated according to the federal decennial census. Historically, there has never been a completely accurate census in the United States. (Stipulated.) 2 Case 5:11-cv-00360-OLG-JES-XR Document 1340 Filed 03/10/17 Page 3 of 443 9. The Texas Legislature meets in regular session on the second Tuesday in January of each odd-numbered year. TEX. CONST. art. III, § 5; TEX. GOV’T CODE § 301.001; TrJ1650 (Hochberg). The Texas Constitution limits the regular session to 140 calendar days. TEX. CONST. art. III, § 24(b). It further provides, “When convened in regular Session, the first thirty days thereof shall be devoted to the introduction of bills and resolutions, acting upon emergency appropriations, passing upon the confirmation of the recess appointees of the Governor and such emergency matters as may be submitted by the Governor in special messages to the Legislature. During the succeeding thirty days of the regular session of the Legislature the various committees of each House shall hold hearings to consider all bills and resolutions and other matters then pending; and such emergency matters as may be submitted by the Governor. During the remainder of the session the Legislature shall act upon such bills and resolutions as may be then pending and upon such emergency matters as may be submitted by the Governor in special messages to the Legislature.” TEX. CONST. art. III, § 5(b). The Texas Constitution mandates that the Legislature, “at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts.” TEX. CONST. art. III, § 28. The Texas House rules require five days notice for a public hearing on legislation in a regular session. TrJ1650 (Hochberg); D-669. 10. If a Texas House or Senate map is not passed in the first regular session following the census, the Legislative Redistricting Board (“LRB”), which is “composed of five (5) members, as follows: The Lieutenant Governor, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office,” will draw the map. TEX. CONST. art. III, § 28. In 2011, the LRB was composed of five Republicans. TrJ39 3 Case 5:11-cv-00360-OLG-JES-XR Document 1340 Filed 03/10/17 Page 4 of 443 (Veasey). Although it may, the LRB does not have to hold public hearings, review the legislative record, or solicit input from members. TrJ39-40 (Veasey). 11. The Legislature may draw a congressional map during a regular or special session. Special sessions last 30 days. TrA1087 (Hunter); TrA1557 (Hanna). Multiple special sessions may be called. 12. Since 1876, Article III, Section 26 of the Texas Constitution, which includes the County Line Rule, has provided as follows: The members of the House of Representatives shall be apportioned among the several counties, according to the number of population in each, as nearly as may be, on a ratio obtained by dividing the population of the State, as ascertained by the most recent United States census, by the number of members of which the House is composed; provided, that whenever a single county has sufficient population to be entitled to a Representative, such county shall be formed into a separate Representative District, and when two or more counties are required to make up the ratio of representation, such counties shall be contiguous to each other; and when any one county has more than sufficient population to be entitled to one or more Representatives, such Representative or Representatives shall be apportioned to such county, and for any surplus of population it may be joined in a Representative District with any other contiguous county or counties. 1990s 13. According to the 1990 Census, the State of Texas had a total population of 16,986,510 persons, consisting of 60.6% non-Hispanic white persons, 25.5% Hispanic persons, 11.6% non-Hispanic black persons, and 1.8% non-Hispanic Asian persons. Docket no. 1085, Ex. 2 at 2 (judicially noticed per text order 6/20/14). Texas had a voting-age population of 12,150,671 persons, including 64.4% non-Hispanic white persons, 22.4% Hispanic persons, 11% non-Hispanic black persons, and 1.8% non-Hispanic Asian persons. Docket no. 1085, Ex. 2 at 4 (judicially noticed per text order 6/20/14). 4 Case 5:11-cv-00360-OLG-JES-XR Document 1340 Filed 03/10/17 Page 5 of 443 14. In 1991, the Texas House Redistricting Committee (“HRC”) held two public hearings, and the Senate State Affairs Committee held one public hearing on the Texas House redistricting bill, H.B. 150. D-285 (no obj). The bill was read a first time (referred to House committee) on January 24, 1991, and the HRC held public hearings on April 15 and May 18 (the posting rule was suspended on May 17). The bill was read a second time on May 21 and amendments were considered. It was read the third time on May 22, and was referred to the Senate State Affairs Committee on May 22. The Senate State Affairs Committee held a public hearing on May 23, and the bill was read a second and third time in the Senate on May 24, and passed the Senate the same day. The bill was signed in the Senate and the House on May 26. D-285. Therefore, the 72nd Legislature passed a House map in regular session. The plan was challenged in court, and a new House plan was adopted in a January 1992 special session. Litigation over the House plan continued through 1997. 15. Texas’s population increase, largely in urban minority populations, entitled it to three additional congressional seats. Bush v. Vera, 517 U.S. 952, 956-57 (1996). The Texas Legislature promulgated a redistricting plan that created CD30, a new majority-African-American district in Dallas; created CD29, a new majority-Hispanic district in and around Houston; and reconfigured CD18 in Houston to make it a majority-African-American district. Id. at 957. The DOJ precleared the plan, and it was used in the 1992 and 1994 elections. Six Texas voters challenged the plan as including racially gerrymandered districts in violation of the Fourteenth Amendment, and the three-judge court held CD18, CD29, and CD30 unconstitutional. Vera v. Richards, 861 F. Supp. 1304 (1994). The Supreme Court affirmed in Bush v. Vera, 517 U.S. 952 (1996), finding that traditional redistricting principles were subordinated to race and that the three new minority-majority districts did not 5 Case 5:11-cv-00360-OLG-JES-XR Document 1340 Filed 03/10/17 Page 6 of 443 survive strict scrutiny because they were not compact and therefore not required by § 2 of the VRA. The three-judge court then imposed an interim plan in Vera v. Bush, 933 F. Supp. 1341 (1996), redrawing the boundaries for CD18, CD29, and CD30 and portions of other nearby districts. 2000-2001 16. Between 1990 and 2000, the state grew by about 3.9 million, and three million of that growth was minority. Tr862 (Murray). Hispanics made up about 60% of the growth and African-Americans almost 12%. Joint Expert Ex. E-4 (Murray report) at 8. The State began to see a pattern of slowing Anglo growth and faster minority growth.