Case 5:11-cv-00360-OLG-JES-XR Document 1364 Filed 04/20/17 Page 1 of 151 In the United States District Court for the Western District of Texas SHANNON PEREZ, ET AL. § § v. § SA-11-CV-360 § GREG ABBOTT, ET AL. § FACT FINDINGS – PLAN H283 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: General Fact Findings 1. The Texas House of Representatives has 150 members, each elected in a single-member district. Based on the 2010 U.S. Census, the ideal population size for each House district is 167,637. 2. Key players in charge of drawing and putting together the House map were Burt Solomons, Gerardo Interiano, and Ryan Downton, and to a lesser extent Bonnie Bruce, none of whom had any prior experience with redistricting. Tr995 (Downton). The House mapdrawers were drawing under the supervision of House Redistricting Committee (“HRC”) Chairman Solomons. Id. Speaker Joe Straus and Chairman Solomons were the ultimate decisionmakers on the number of districts in a county and on pairings. TrJ1575 (Interiano). 3. A regular session starts in January and lasts 140 days, and the only bills that can be passed the first 60 days are emergency items designated by the Governor. Tr1558 (Solomons); TrA1085-86 (Hunter). Committee assignments are often not made until February. Tr1558. Hunter testified that there were emergency items that needed attention. TrA1086. He also testified that the budget was hotly contested and there were fifteen sunset bills. Id. 4. Immediately after the census data came out, Interiano and others, including Texas Legislative 1 Case 5:11-cv-00360-OLG-JES-XR Document 1364 Filed 04/20/17 Page 2 of 151 Council (“TLC”) lawyers, Straus’s chief of staff Denise Davis, and his legislative director Lisa Kaufman, began looking at county populations to determine drop-in counties and how to abide by the Texas County Line Rule. TrA59-61 (Interiano). Looking at population growth, they determined where new districts would likely go and how many districts would be in drop-in counties. Id. Population growth in suburban counties, such as Fort Bend, Williamson, Collin, and Denton Counties, required adding districts in those areas. TrA62, TrJ1535 (Interiano). Dallas County lost two seats, and Tarrant County gained a seat. Bexar County and El Paso maintained the same number of seats. It was not initially decided whether Harris County would maintain 25 districts or would lose a district and have 24. Interiano met with the County delegation leaders to inform them of the likely number of districts they would have. TrA60-61 (Interiano). 5. Interiano started drawing House districts right after the census data came out in February 2011. Interiano 8-2-11 depo. (Joint Ex. J-61) at 157. 6. In drawing the House map, Interiano and Downton relied primarily on non-suspense SSVR with regard to Hispanic districts because (1) non-suspense SSVR data was shown in RedAppl; (2) CVAP data was not available when they started drawing the House map; and (3) they believed, based in part on advice from Hanna (who relied on the 2011 DOJ objection letter), that use of SSVR was appropriate. Tr925, TrJ2070, TrJ2146 (Downton); TrA35, TrJ1534 (Interiano) (SSVR “was the main statistic that we used throughout the entire process”). Downton believed SSVR was a good proxy for HCVAP because a registered voter is presumably a citizen, and he believed that they correlated fairly closely. However, Downton knew that HCVAP was always going to be slightly higher than SSVR. Tr925 (Downton). CVAP data was available no later than April 21, before the map went to the House floor. 7. At the beginning of redistricting, Solomons announced to the members that the House plan would be a member-driven process, by which Solomons allegedly meant that the members would have as much input as possible and the process would be “wide open for that purpose.” Tr1560-61, TrJ1069- 74 (Solomons). Solomons asked the members to send him three versions of their districts—their ideal/“Christmas list” map, the “realistic map,” and one “you can live with but wouldn’t necessarily want.” Tr922 (Downton); TrJ1934 (Bruce); Tr1563 (Solomons). 8. A main goal for drawers of the House plan was to have a member-driven process that paired the fewest members. Tr1499 (Interiano); Interiano 8-2-11 depo. (Joint Ex. J-61) at 256. By its nature, a member-driven process will protect incumbents. TrJ1382 (Vo); Tr1631-33 (Solomons); TrJ780-81 (Pickett) (redistricting is an exercise in self-preservation). Incumbent protection and re-electing as many Republican members as possible were priorities. Tr1499-1500 (Interiano); Tr997 (Downton); TrJ1729 (Aycock). Solomons wanted to give every incumbent legislator an opportunity to be re- elected. Tr922, Tr939 (Downton); Tr1426-27 (Interiano); Tr1560-62, TrJ1069-70 (Solomons). To Solomons, this meant that only members of the same party would be paired when pairing was required. Tr1427 (Interiano). In Plan H283, twelve Republicans and two Democrats are paired. Id. Democrats Vo and Hochberg were paired in Harris County. Other pairings in the map paired Anglo Republicans. TrJ1331-32 (Coleman). The mapdrawers felt they were required to pair Republicans 2 Case 5:11-cv-00360-OLG-JES-XR Document 1364 Filed 04/20/17 Page 3 of 151 where they did so because the Democrat districts were protected districts under the VRA. Plan H283 achieved the goals of incumbent protection and maximizing Republican seats as much as possible. 9. The process used to draw Plan H283 was not conducive to creating new minority opportunity districts under § 2 of the VRA. Downton testified that they looked at where new districts could be drawn, but balanced that with the Texas Constitution’s County Line Rule and the political reality of getting a map passed. Downton 8-12-11 depo. (Joint Ex. J-62) at 20-21; TrJ2036-37 (Downton). It was clear to Solomons that it would take Republican votes to pass a map. Tr1556, Tr1613-14 (Solomons). However, Republicans were very resistant to creating any new minority opportunity districts because they felt they would be Democratic districts. Thus, Republican members would not vote for a map that created more minority districts or enhanced minority voting strength unless they felt it was legally required. Even Democrats and minority members could be reluctant to create new districts where it would disrupt their districts. TrJ1806 (Lozano). Further, members were often shown only their own districts and approved only their own districts until the first public plan was revealed. Although drop-in county delegation members worked together on the county map, member participation was constricted because all the member can do in that situation is protect his own district. TrJ152 (Arrington). A member cannot create additional minority districts because there is mutual accommodation. Id. 10. Solomons assumed that VRA compliance was being looked at by the drop-in county delegations because there were members in protected minority districts in the counties. Tr1603 (Solomons). Interiano testified that delegation maps were dropped into the map “and that was it.” TrJ1444. He agreed that, in most cases, they dropped in county delegation maps; if a new Latino opportunity district was created by the delegation, it was left in there, but if there was not a new district, it was not put in. TrJ1445; Interiano 8-2-11 depo. (Joint Ex. J-61) at 47-48 (“[B]eing that this was a – a member-driven process . we dropped in a county onto the map, and if it was a [minority opportunity] district that was included in there, it was left in there and if there wasn’t, that was it. I mean, I think you’d have to ask the members where – where those drop-in districts occurred, whether that was done [assessing whether additional Latino or minority opportunity districts were justified] or not.”). Interiano did not spend time looking to see what was possible (such as in Harris County and El Paso County) when he knew the delegation was working on a map. Interiano 8-2-11 depo. (Joint Ex. J-61) at 145, 169. Interiano testified that questions about whether the VRA might require something different in a county than what members had agreed upon or might require an additional minority opportunity district were raised to members, and “those were issues that they needed to look at within the delegation.” Id. at 147-49. Interiano was ultimately responsible for determining whether § 2 required additional districts, but he had to work with the members, and he testified that he “was not in a position to be providing instructions to members.” Id. at 149, 167-69. His job would include telling Speaker Straus if he thought the law required a particular district. Id. at 167. 11. Early in the process, Interiano made an effort to identify the number of Latino opportunity districts in the benchmark so they could meet or surpass that number in the final plan. Tr1443 (Interiano). He testified that whether a district is an opportunity district depends on the HCVAP, 3 Case 5:11-cv-00360-OLG-JES-XR Document 1364 Filed 04/20/17 Page 4 of 151 SSVR, HVAP, as well as any election analysis that might have been done. Interiano 8-2-11 depo. (Joint Ex. J-61) at 143. However he also testified that he did not know whether HD90 or HD148 were electing Latino candidates of choice. Tr1454. Interiano also testified that he tried to determine how many overall Latino opportunity districts could be drawn. Interiano 8-2-11 depo. (Joint Ex. J- 61) at 131, 138.